Jurisdiction over health law in Canada is a divided responsibility. The federal parliament has jurisdiction as does each province. As a shared power, the dividing line between jurisdictions is not always easy to decipher. This split jurisdiction also leads to many real conflicts. Where this occurs, the dividing line is determined and clarified by the courts through constitutional challenges, references and other court proceedings. Therefore, in each factual matrix, it must be determined which legislature is predominant.
The Canadian parliament’s jurisdiction over health care stems from their powers over funding, the criminal law, and the power to make laws for the peace, order and good government of the country.
The powers granted to the provinces in relation to health care are their right to make laws dealing with property and civil rights, hospitals, and all matters of a local nature. Provinces, therefore, regulate all health care delivery and health insurance.
The Canada Health Act (CHA) deals with funding. Given that federal funding of health care is both welcome and necessary, the conditions the CHA imposes on provincial health insurance plans are important to understand. The conditions imposed, if met, lead to a federal transfer of wealth payments. Those conditions ensure that the provincial programs:
Therefore, the federal power over spending and good government allow it to regulate health care indirectly. No province will likely risk the loss of such funding and therefore will comply with the funding conditions.
The federal government also uses the Income Tax Act (ITA) to promote health care, and health care initiatives. The ITA allows for deductions from income for both individuals and companies. In this way, the federal government can more directly influence health care in Canada.
Thirdly, the federal government can use its power to regulate criminal law to influence health care. This power includes the power to protect the health of all Canadians. In this way, the federal government can control the marketing, sale and distribution of drugs, medical devices, health products and food. This has led to the passage of the Food and Drugs Act which sets out the regime to be followed when an entity wishes to manufacture, test, package or label any regulated product. The regime is focused on the safety and quality of such products. The most notable regulated products are medications. Manufacturers must fully inform the consumer and prescriber of the potential benefits and risks of use.
Lastly, the Canadian parliament can use the peace, order and good government power to deal with a variety of health care issues including emergencies, epidemics, smoking, cannabis etc.
The power to regulate property and civil rights is a very broad and sweeping power. This has led to legislation regulating capacity and consent, guardianship of the incapacitated, investigations conducted by medical examiners/coroners and the creation of public health legislation concerning the prevention, treatment and control of communicable diseases.
This power also allows the provinces to regulate health care professionals. All twenty-seven types of health care professionals are regulated through this legislation and their colleges. This includes such matters as their licensing, credentialing, ethical obligations, education as well as disciplinary measures set out in the specific legislation that is applicable to their practice.
Finally, this power also permits control of some aspects of the manufacture and sale of drugs.
The second major provincial power is their right to regulate hospitals. There is a lot of legislation fostered by this power including the Public Hospitals Act, the Corporations Act, the Commitment to the Future of Medicare Act and the Local Health System Integration Act. In the future, when the Not-for-Profit Corporations Act is passed, it will apply to hospitals instead of the Corporations Act.
The final power of the provincial governments is the power over matters of private or local nature. We have discussed their health insurance regimes above. In addition, there is a myriad of Acts dealing with this power including the Health Protection and Promotion Act and the Municipal Act.
The creation and regulation of health law and its professionals is a divided responsibility in Canada. Health care is a massive and ever-changing field. Both levels of parliament have adapted and continue to do so as the circumstances change. It is important to carefully examine each issue and then determine the appropriate regulator and associated rules. This is but a short and abbreviated overview.
At Wise Health Law, we keep abreast of evolving developments in health care law and governance, and regularly blog about recent legal decisions affecting health care industries, health associations, and health professionals. If you have questions about changes to health care governance or about health law in general, contact our health law lawyers at 416-915-4234or contact us online.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).