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Overview and Critique of Public Health Emergency Laws in Canada Elaine Gibson Associate Director, Health Law Institute Dalhousie University [email protected] CPHA Conference - June 2008 Funded by Canadian Institutes of Health Research “The danger of immediate death to ourselves took away all bowels of love, all concern for one another. I speak in general, for there were many instances of immovable affection, pity, and duty…” Daniel Defoe Journal of the Plague Year 1721 “Neither a man nor a crowd nor a nation can be trusted to act humanely or to think sanely under the influence of a great fear.” Bertrand Russell Role of Law Protect Constrain/restrict Liberate Equalize Inherently collective Constitution Act, 1867 – Division of Powers Federal Criminal law Peace, order and good government Quarantine Marine hospitals Provincial Hospitals Property and civil rights Matters of a local or private nature Challenges in Public Health Laws Split jurisdiction – mostly provincial Lack of co-operation/co-ordination Differences in laws “The lack of federal-provincial cooperation was a serious problem during SARS… It is clearly incumbent on both levels of government to ensure that the breakdown that occurred during SARS does not happen again.” Campbell Commission Interim Report “What exists now are separate systems within each of the provinces and territories, as well as a federal system that operates primarily at Canada’s international borders.” Naylor Report Differences in Laws Duty on self Quarantine Mandatory treatment Contact notification Public notices/posting Case Study: Reporting infectious disease cases to federal government “In the final analysis, the entire disease surveillance and control system is only as strong as its weakest link.” Kirby Report “The bottom line is that the lack of clarity around the flow of communication and the reporting structure…provided an environment in which the crucial elements of the fight against SARS were disconnected from each other.” Campbell Commission Interim Report “The inherent tensions between the federal and provincial governments must be overcome by a spirit of cooperation around infectious disease surveillance and coupled with the necessary machinery to ensure in advance that the vital information will flow without delay.” Campbell Commission Interim Report Auditor-General Report 2008 “Fundamental weaknesses…The federal government has not figured out how to effectively detect and monitor the spread of deadly diseases. Of primary concern is the fact that information about potential outbreaks is not routinely shared by the provinces.” Globe and Mail May 7, 2008 Variation - Resulting Problems Unevenness in highly interventionist laws Confusion Diseases don’t stop at borders Needs Clarity in laws Clarity in goals (ethics) Harmonization Intergovernmental agreements (in progress) “Neither a man nor a crowd nor a nation can be trusted to act humanely or to think sanely under the influence of a great fear.” Bertrand Russell