Alberta government tables bill to clarify decision-making during public health emergencies

A newbill tabled in the Alberta legislature on Thursday would place authority for decision-making duringstates of public health emergencies in the hands of cabinet, rather than the chief medical officer of health.

This legislation is the provincial government's response to the Ingram decision, in whichCourt of King's Bench Justice Barbara Romaine ruled that Alberta's top elected officials made decisions about pandemic-related health measures, while the law required those decisions be made by the province's then-chief medical officer of health Dr. Deena Hinshaw.

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According to Minister of Justice and Attorney General Mickey Amery, the new legislation will ensurethat elected officials make decisions and are held accountable for them.

"Elected officials have a responsibility to act in the best interests of Albertans and swear an oath to duly and faithfully execute the powers and trust imparted. This legislation ensures that final decision-making authority and the accountability that must come with it rest with those entrusted by Albertans," Amery said in a news release announcing the new bill.

The Ingramdecision was issued on July 31, 2023. It is named after one of the plaintiffs, Rebecca Ingram, a gym ownerwhose business was affected by ordered closures and social distancing rules in 2020 and 2021.

The plaintiffs in the case argued that pandemic-related public health measures were contrary to Alberta's Bill of Rights and unlawfully breached Albertans' Charter-protected rights.

In her decision, Romaine ruled that any infringements on Albertans' rights that did occur were "amply and demonstrably justified" under the Charter because of the nature of the unprecedented public health emergency. But she said thatAlbertansfacing charges for breaking pandemic-related laws should have those charges dropped because the health ordersbreached the Public Health Act.

Romaine found that when it came to public health measures, "the informed and well-qualified" Hinshaw made recommendations and ultimately implemented the restrictions, but it was cabinet and committees that had final decision-making power.

"AlthoughDr. Hinshaw was maligned during the pandemic and afterwards as the symbol of the restrictions, she was not, in fact, the final decision-maker," wrote Romaine.

Romaine wrote that the orders made were outside the powers of Alberta's Public Health Act because they were made by politicians and not Hinshaw.

If passed, the proposed Bill 6 will amend Section 29 of thePublic Health Actto clarify the roles and accountability of cabinet and medical officers of health in future declared states of public health emergency.

During a public health emergency, medical officers of health, including the chief medical officer of health, wouldretain final decision-making authority for orders affecting a specific person or persons or a specific public place. But cabinet would have discretionary authority to make final decisions regardingpublic health orders in respect of all persons or groups of persons, including groups of individuals, businesses, non-profits and educational settings.

The chief medical officer of health would provide advice for cabinet and cabinet committees' consideration.

The bill will also amend thePublic Health Actto include a clause that provides cabinet with the discretionary authority to reverse or vary any public health decisionmade outside of a declared state of public health emergency.

According to Opposition health criticDavid Shepherd, the new bill will do nothing to take thepolitics out of decision-making during health emergencies.

"We have seen the government make very political decisions over scientific ones," Shepherd told reporters at the legislature on Thursday.

"It is concerning to us that this could lead then simply to further politicization in the place of medical science and expertise."