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The Public Health Emergencies Governance Review Panel (the “Panel”) was formed in early 2023 by Premier Danielle Smith to review the legislation authorizing the orders and regulations whereby the Province responded to the COVID-19 crisis. The Panel was tasked with making recommendations to “better equip Alberta to respond to future public emergencies.” The Panel’s Final Report was released on November 7, 2023 and is being referred to as the “Manning Report.” In the Manning Report, extensive changes are suggested to the Health Professions Act.
Throughout the Manning Report, the Panel expressed its concern that the right to freedom of expression for individual members of health Colleges needs to be strengthened – especially during public health emergencies. The Panel was particularly apprehensive about professional Colleges disciplining members who expressed their own beliefs about the COVID-19 pandemic, when those beliefs differed from their colleges or the government.
As such, the Panel outlined extensive recommendations to either: (1) amend the Health Professions Act, or (2) direct that Colleges undertake their own initiatives to strengthen the rights and freedoms of members. These recommendations are outlined in the headings below.
It is important to note that none of these recommendations are currently legally binding; we must await the government’s decision to determine which, if any, will be accepted and enacted into law.
Recommendation 1: Direct Colleges to make clear the meaning of the phrases: “unprofessional conduct,” “preservation of the integrity of the profession,” “harm to the profession” and “service to and protection of the public interest,” especially in how these phrases are be interpreted during a state of public emergency.
The Panel recommends that Colleges amend their standards of practice to define the following terms, particularly in light of how they are to be interpreted during a health crisis: “unprofessional conduct,” “preservation of the integrity of the profession,” “harm to the profession” and “service to and protection of the public interest.”
The Panel stated that if these clarifications are not forthcoming, then it recommends that Colleges be directed to make the changes via an order in council or by amendments to the Health Professions Act. This recommendation stemmed from the Panel’s concern that Colleges were not considering whether public statements on matters of public policy by their members (when those views are different than the College’s or the Government’s) should constitute unprofessional conduct. The Panel was especially troubled that Colleges were not considering the appropriate balance between relevant factors “particularly in cases where the expression relates to matters of public or social policy during a public health emergency where some of the supporting evidence is in flux.”
Recommendation 2: Amend the Health Professions Act to require the “Standard of Practice” of all Colleges empowered by the Act to include “recognition and protection of the rights of members to freedom of expression,” including on matters related to public health emergencies.
The Panel recommends that standards of practice of professional Colleges are amended to safeguard the right to the freedom of expression. The Panel based this recommendation on the existence of the section 2(b) of the Charter of Rights and Freedoms – Freedom of Expression. However, the Panel also suggested that justifiable limits are put on this freedom in the standard of practice, so as to avoid any abuses.
Recommendation 3: Amend the Health Professions Act and require Colleges to amend their Bylaws to require:
- All regulated members of a College to have professional liability insurance in an amount sufficient to provide a regulated member with adequate coverage.
- Colleges to ensure that members facing complaints with respect to the professionalism of their conduct are provided with sufficient resources to enable them to participate in the discipline process.
The Panel noted that many regulated health professionals do not have sufficient insurance coverage (or personal resources) to properly respond when faced with the disciplinary process. The Panel did not further explain how Colleges should ensure that members faced with complaints are provided with sufficient resources. As such, it is unclear how this proposal would practically be implemented.
Recommendation 4: Amend the Health Professions Act to prohibit Colleges from publishing, in a notice on a College website, the name or other identifying information of a member regarding alleged misconduct until all related appeals and reviews have been completed.
The Panel recommends that Colleges refrain from publishing a decision on its website until all appeals have been exhausted. The Panel was concerned that there is negative publicity for disciplined members when the adjudication of the conduct in question may not yet be final. The Panel Stated:
In worst case scenarios, it can result in a loss of competent health professionals from the workforce and demoralize those that continue to practice, often with significant related debt accumulated or other severe negative impacts which are not at all proportionate to any error they may (or may not) have committed.
The Panel clarified that this amendment is not intended to interfere with a College’s authority to take steps to protect the public during the period between a disciplinary decision being made and an appeal. As such, a College would still have the ability to impose conditions or suspend a member’s license.
Recommendation 5: Amend the Health Professions Act to prescribe “correctness” as the standard of review of College decisions that are alleged to unjustifiably infringe on rights and freedoms protected by the Charter and the Alberta Bill of Rights
The Panel recognizes that the standard of review of disciplinary tribunals is most often “reasonableness” rather than “correctness.” The Panel stated that under a “reasonableness standard” there is an inherent bias in favour of a College’s decisions because Courts show deference to the fact-finding decision of the hearing tribunal. The Panel believes that changing the standard of review to correctness for decisions relating to rights and freedoms protected by the Charter and the Alberta Bill of Rights, would provide a greater degree of fairness to the impugned member.
Recommendation 6: Use the Powers of the Lieutenant Governor in Council to make or amend subordinate legislation of Colleges to strengthen the rights and freedoms of their members, especially during a declared public emergency, only if the implementation of the above amendments and measures proves insufficient to provide adequate protection
The Panel notes that the government has the authority under the Health Professions Act (section 135.1(1)) to better secure the protection of the rights and freedoms of health professionals in Alberta during times of public health emergency. The Panel recommends that the Government exercise its authority under section 135.1 of the Health Professions Act to impose a standard of practice that (in the Government’s opinion) is in the public interest and ought to be a standard for certain health Colleges.
Recommendation 7: Amend the Alberta Bill of Rights to provide an effective remedy in cases where freedom of expression is restricted by a provincial law or other decision of Government or a public agency.
Last, the Panel recommended that the Alberta Bill of Rights be amended to provide a remedy where freedom of expression is restricted by Colleges. However, the Manning Report did not outline what that remedy would be.
Conclusion
It is not known at this time what the Government will do with the Manning Report or its recommendations. However, the recommendations, if enacted, would create sweeping changes in the Health Professions Act and could result in unintended consequences for the regulation of professionals that have not been fully explored. Professional Regulators should carefully consider the Report and what communications to Government may be required arising from the Report.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
