A challenge to Covid restrictions in Alberta (Ingram v Alberta) is shining a light on the question as to who is responsible for decision-making in public health matters – is it the government, the Provincial Health Officer (PHO), or both?
During the pandemic, Dr. Deena Hinshaw, the Chief Medical Officer of Health for Alberta, had taken her recommendations to cabinet and then made her orders based on their advice. The court found that the orders had become cabinet orders, not public health orders, and were therefore invalid.
While I think the judge was technically correct, it is an extraordinary result. Should the Covid-related orders with their significant financial and social impacts have been the purview of a single public official? It is government, with its knowledge of citizens and the economy, which is in a far better position to measure their impact.
In B.C., Dr. Bonnie Henry, the PHO, clearly had a close working relationship with the health minister, Adrian Dix. In her book, she describes the challenge for public health leaders: “we want to make change for the sake of health but we must also be sensitive to the many fiscal and political realities that exist in a democracy.”
However at the end of the day, the orders were of the PHO and the PHO alone.
Many believe that governments should stay out of health decision-making. I don’t share that perspective in the case of a province-wide pandemic. In fact, I believe that the entire system should be restructured so that the power is placed in the hands of the legislature.
Several glaring examples during the pandemic showed how deeply governments were involved.
The order for masking of children in schools was made following loud and continuing public demand, and was announced by the Minister of Education. Was the order politics or health?
The federal travel ban for unvaccinated people was an egregious example of pure politics created by the prime minister as a wedge issue prior to the 2021 election. As later civil discovery established, there was no health basis whatsoever for the ban.
Examples of political interference notwithstanding, the real issue is the power under the Public Health Act given to a single unelected bureaucrat.
That authority of health officials is uncontroversial for minor, or even province-wide matters. If a restaurant has mice, local health officials are your independent restaurant-closing authority, as they should be. If there is a provincial measles outbreak, again the PHO is the one to do the thinking, in conjunction with schools and other impacted organizations.
The Covid pandemic was just too big, too all-encompassing, to fit well within this structure. Health orders made during the pandemic had significant economic and social consequences. No one official should have the kind of authority that PHOs across the country took unto themselves.
Take, for example, the April 6 order of Dr. Henry, decreeing that unvaccinated health care workers should never again work in a public facility, and that capable but unvaccinated youth should be forever prohibited from entering the health care professions.
This is an order made by an unelected public health officer with no debate and no parliamentary oversight. No single official should ever have this kind of power. (I note, however, that it is transparently obvious that government gave its approval to the order.)
Many in B.C. believe we should put the whole unfortunate Covid response behind us. But they forget the anxiety still suffered by children, the business losses, and the seniors who died alone in nursing homes with no children around to kiss them goodbye.
They forget the fired civil servants, nurses, and other health care workers. They forget that experienced doctors around B.C. can’t work in their local hospitals. They forget that orders made by a single unelected bureaucrat, working closely with government, continue with their life-changing impacts here in B.C.
So yes, the Alberta judge was technically right, but the decision-making process was wrong. It needs to be rebuilt in Alberta, and in B.C. as well, so that life changing orders made in the name of “health” are properly examined and debated in the legislature before they are imposed upon the world.
Suzanne Anton KC was Attorney General of BC 2013 - 2017
