Roger writing the LAWmag

H1N1 Law - Swine Law for a Swine Flu

Pigs are, well, pigs.

They like their homes in disarray; aka, a pig sty.

It should then come as no surprise to Canadians to discover that the law in regards to the swine flu, more commonly known as H1N1, is a statutory pig sty, a disaster itself.

In modern times, the first brush Canada had with infectious or communicable disease was HIV and AIDS, of which tens of thousands of Canadians are now infected. SARS killed 44 Canadians in 2003.

pig styIntermittently, there have been small outbreaks of  communicable  diseases and in the result, there is a quilt of disparate and knee-jerk law from coast to coast dealing with this critical, essential and national public-health issue.

They can't even agree on basic terminology.

The federal government, in its Quarantine Act, prefers communicable disease.

Jocelyn Downie, in Canadian Health Law and Policy, and the World Health Organization (WHO), prefers infectious disease.

Canadians find to their horror that there is no cohesive national statutory response to communicable disease.

Why professional hockey players can receive a vaccine while infants and pregnant women must wait, is simply opportunism in the face of a vacuum of the effective law.

Can't blame hockey players.

They average six feet, two inches and they are all wealthy.

In anarchy, whole or partial, the tough, the rich and the elite always do well.

Duty to Report

The first inklings of law which arises with a communicable disease such as H1N1, is usually the duty to report.

The good news is that every Canadian jurisdiction requires reporting of cases of specified communicable diseases.

But only some jurisdictions require school teachers or hotel keepers to report. Consider the novelty of §22(1) of the 2008 Alberta Public Health Act:

"Where a health practitioner, a teacher or a person in charge of an institution knows or has reason to believe that a person under the care, custody, supervision or control of the health practitioner, teacher or person in charge of an institution is infected with a communicable disease prescribed in the regulations for the purposes of this subsection, the health practitioner, teacher or person in charge of an institution shall notify the medical officer of health of the regional health authority...."

In some provinces, it is only the name of the infected individual that has to be reported - not his or her address, as if a name without an address is going to do a health officer any good.

There is little guidance given to medical doctors as to when they disclose the who and where in the event of discovery of a highly communicable and dangerous disease.

In the background looms the ethical codes of all Canadian doctors that unless specifically required by law, they must not divulge patient information without consent.

In 2009, in the BC Venereal Disease Act, doctors are warned at §12, that they "must preserve secrecy about all matters that come to the person's knowledge in the course of the person's employment". If they do otherwise, "a person who defaults in (this) duty ... must forfeit the person's office or be dismissed from the person's employment"!

The doctor is put to the unenviable choice: "shall I save lives or keep my daughter in private school?"

Contacts

Reasonably (duh!), some public health statutes require that a communicable disease be followed up by notifying persons who came into contact with the infected person.

However, this is only mandatory in some provinces. Others, like Newfoundland and Alberta, merely say that contacts may be notified, at the discretion of the public health officer.

Detaining & Quarantine

Generally, most jurisdictions authorize the medical health officer to arrange for the detention of a person with a infectious disease, but that is where the statute homogeneity ends.The Plague

Some require a court order signed by a judge such as Québec and Prince Edward Island.

Other jurisdictions, such as under the Ontario Health Protection and Promotion Act, set up a small initial circus where the senior politician orders the person to conduct himself in such a manner so was not to expose another person to infection.

If he or she does not do so, the patient may then be detained.

Sure; like time is not of the essence and we can rely on self-policing.

There is no solid, uniform statute on quarantine in Canada. However, the Federal government has enacted a Quarantine Act for incoming travelers. Finally, something sensible and national:

"A quarantine officer may detain any traveler who ... the quarantine officer has reasonable grounds to believe has or might have a communicable disease ... or has recently been in close proximity to a person who has or might have a communicable disease or is infested with vectors, and is capable of infecting other people."

The quarantine powers include, in select jurisdictions only (Quebec and Prince Edward Island, for example), the power to close down any place which has become a beehive of the infectious disease, such as a school.

Newfoundland - God bless them - has opted to take the bull by the horn; §31 of their Communicable Disease Act:

"Where the minister is of the opinion that a communicable disease is epidemic or threatens to become epidemic in a community, he or she shall have authority to issue an order, declaring the disease epidemic, and to order and enforce those measures in the way of quarantine, isolation of the sick, vaccination, disinfectant, closing of schools, public or private or prohibition of public gatherings that in his or her judgment may be necessary to stamp out the infection or contagion."

That's why we pay taxes, for that kind of political leadership.

There is a sprinkling of cases that deal with quarantine. In City of Toronto v Deakin, Justice Cavion had before him a person "recalcitrant" with his tuberculosis. The Province wanted to quarantine Wayne Deakin and Deakin wanted to be left alone, citing the Charter of Rights and Freedoms.

Calvion blessed the use of force against Deakin:

"... shackling was never vindictively or arbitrarily applied... (D)octors and staff ... are handling a most difficult and challenging situation with wisdom and sensitivity.... I find the occasional use of restraints was necessary and limited."

The Criminal Code

Canada's Criminal Code is not the knight in shining armour one might expect in this void of a national statute on communicable diseases generally, and the swine flu in particular.

In Chambers v BC, the British Columbia Court of Appeal ruled that the Criminal Code could not be used for civil enforcement purposes including communicable diseases, short of criminal conduct. Justice Proudfoot at ¶22:

"It was not the intent of Parliament that the Criminal Code be used to confine persons who may develop ... communicable disease."

But, §180 and §221 sound great on paper:

"Every one who commits a common nuisance and thereby endangers the lives, safety or health of the public ... is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

"Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years."

In R v Thornton, the accused knew he had AIDS and that he was infectious. But this turkey still gave blood to the Red Cross but it was screened and discarded. Thornton was charged under §180 of the Criminal Code. Justice Galligan stated the obvious:

"Throughout this century and indeed since much earlier times, the common law has recognized a very fundamental duty, which while it has many qualifications, can be summed up as being a duty to refrain from conduct which could cause injury to another person."

Conclusions

National swine flu law is, in effect, non-existent.

There are no effective weapons in the national law-maker's armory to withstand these lethal forces of nature.

The pressing need for a strong and effective national statute or uniform legislation on contagious disease is not rocket science and yet here we are, in the midst of the most dangerous public health influenza in decades, languishing in a crumbling patchwork of provincial laws.

It's public health anarchy which results in avoidable death and from which, if we do not learn, death returns in the next wave.

References:

  • Chambers v BC 94 BCAC 28; 116 CCC 3d 406, 72 ACWS 3d 283, 35 WCB 2d 248 and 1997 BCJ 1497
  • Communicable Diseases Act, R.S.N.L. 1990, c. C-26
  • Criminal Code, R.S.C. 1985, c. C-46
  • Downie, J. and others, Canadian Health Law and Policy, 3rd Ed. (Toronto: LexisNexis, 2007)
  • Health Act, R.S.B.C. 1996, c. 179
  • Public Health Act, R.S.A. 2000, c. P-37
  • Quarantine Act, S.C. 2005, c. 20
  • R. v Thornton 1 OR 3d 480; 42 OAC 206, 82 CCC 3d 530, 3 CR 4th 381, 12 WCB 2d 156 and 1991 OJ 25
  • Sneiderman, B. and others, Canadian Medical Law, 3rd Edition (Toronto: Carswell, 2003).
  • Toronto v Deakin 2002 OJ 2777
  • Venereal Disease Act, R.S.B.C. 1996, c. 47

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