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

A new bill tabled in the Alberta legislature on Thursday would place authority for decision-making during states 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 which Court 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.

According to Minister of Justice and Attorney General Mickey Amery, the new legislation will ensure that 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 Ingram decision was issued on July 31, 2023. It is named after one of the plaintiffs, Rebecca Ingram, a gym owner whose 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, Justice Romaine ruled that Albertans facing charges for breaking pandemic-related laws should have those charges dropped because the health orders breached 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.

“Although Dr. 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.

A woman addresses the media in front of the flags of Canada and Alberta.
In the Ingram decision, the court found Dr. Deena Hinshaw, the provincial chief medical officer of health at the time, had not made the decision to impose the public health orders, a violation of the Public Health Act. (Art Raham/CBC)

If passed, the proposed Bill 6 will amend Section 29 of the Public Health Act to 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, would retain 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 regarding public 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 the Public Health Act to include a clause that provides cabinet with the discretionary authority to reverse or vary any public health decision made outside of a declared state of public health emergency.

According to Opposition health critic David Shepherd, the new bill will do nothing to take the politics 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.”

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