Here we are, two and a half years into the COVID-19 pandemic, and we find out that Dr Hinshaw didn’t have to “slavishly follow” the decisions of Cabinet.
In a decision that dropped this afternoon, Justice Dunlop of the Court of King’s Bench of Alberta ruled that the public health order dropping the mask mandate in Alberta schools last February was “unreasonable” because:
Dr. Hinshaw’s interpretation of the Public Health Act as leaving final decision-making authority for public health orders with elected officials is contrary to the Public Health Act and consequently is unreasonable. The Order was based on that unreasonable interpretation. Because the Order slavishly implemented PICC’s decision, I conclude the Order was unreasonable.
According to Justice Dunlop “the clear intention of the Public Health Act is that the orders of the Chief Medical Officer of Health be based on that officer’s judgment” (his emphasis). (This doesn’t come as news to the law profs who have been telling us this for a while).
Now I’m not a lawyer, but I think that this ruling means that last September, when the government was missing in action and the Delta variant was roaring, Dr Hinshaw could have issued some public health orders to deal with the situation.
In response to my snark on Twitter, Julie asked: “the CMOH knew this. Could she not have *insisted*?” Good question, Julie!
I think it’s fair to say that Dr Hinshaw chose to interpret the Act this way. Because the Act puts her squarely between a rock and a hard place.
A group of health policy researchers have recently published an article that explores this. In most Canadian provinces, CMOHs are senior public servants, which means that they are expected to give elected officials their best, most honest advice, and then implement the politicians’ decisions. But they are also “independent source of authority and accountability due to their health professional training, membership in a regulated profession, technical expertise, and statutory powers to take independent action to address public health threats.” Tricky.
During the worst days of the pandemic, I think many of us wished that Dr. Hinshaw would exercise her authority to do what was clearly needed. But if she had done so, she would likely have lost her ability to influence government. Worse yet, imagine a situation in which the CMOH issued a public health order, and the Premier or Minister of Health publicly disagreed with it. It would be chaos.
Don’t get me wrong: I believe that there were a couple of moments where the government’s refusal to act was so negligent that the CMOH should have resigned in protest. But that’s a very different thing from acting without the government’s agreement.
Justice Dunlop’s decision hints at a way of resolving this. He notes that legislation in other provinces “involve[s] a minister in the exercise of the powers along with a medical officer.” This should ensure that the government and CMOH are on the same page.
One of the central tensions in contemporary public policy is between science/expertise and politics. Scientists present us with compelling evidence that an infection is spreading through our community or that the planet is warming but politicians choose not to act. It’s tempting to dream of a technocratic response where we empower a scientist to act to address the threat. But we live in a democracy. If the people we elect won’t listen to science, then we need to elect someone else.
After the first months of the pandemic, the public policy response had to weigh competing factors. Tradeoffs, the policy people call them. COVID’s toll on the healthcare system had to be weighed against the economic impact of restrictions. The positive effect vaccine mandates had on transmission had to be weighed against the social divisions that vaccination mandates would create. And so on.
We can disagree with the choices politicians made when they were faced with these tradeoffs, and we can provide our feedback at the ballot box. But we would not have had the same opportunity if we had been subject to the independent authority of the Chief Medical Officer of Health. And the Public Health Act should be revised to avoid that.
Interesting (very) perspective Lisa. I'd agree with most of it but offer a slightly different take. I dislike what I believe is a false dichotomy between the economy and public health.
Public health, in its intended form, should look at the broad issue of population health that includes economic factors. In fact they are often paramount in health. So there should be no real tension here. In our case it is a manufactured tension that I believe arises out of a willingness to discount that there actually is a pandemic that has killed more than 5,000 of our friends and family in Alberta. In true Public Health all measures contemplated to be taken, should be evaluated against their potential consequences on population health - and these include economic consequences.
Early in the pandemic there was a study from an Italian economic think tank. It looked at a variety of responses to the pandemic around the world and concluded that the ones with the best economic outcomes, were also the ones most proactive on the health side. These are not opposing forces in my view.
Keep up the good work Lisa!
"It’s tempting to dream of a technocratic response where we empower a scientist to act to address the threat. But we live in a democracy. If the people we elect won’t listen to science, then we need to elect someone else." This is an idealisation. First, in the middle of an exponential increase in infections there simply isn't time to wait for an election. Second, the premier at the time was ousted by an internal rebellion and we still don't know when there will be an election. By then, Kenney's actions will not be a major election issue. And finally, with the onslaught of propaganda, elections are not really that great at holding politicians accountable. There is still a considerable risk that antivaxxer may become premier after the next election, whenever that happens.
I would prefer to see an effective technocratic response in the middle of the pandemic. We can go back afterwards and evaluate the results, but I would much rather have a panel of experts issuing public health orders than a group of amoral politicians only interested in attracting a specific demographic that will keep them in power.