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.
In recent weeks, the CPSO has placed restrictions on the certificates of practice of certain physicians, banning them from providing medical exemptions in relation to COVID-19 vaccinations, mandatory mask requirements and testing for COVID-19.
On October 27, 2021, the CPSO suspended one physician from practice entirely related to such activity.
How is the CPSO able to take such action?
As of July 1, 2021, all Ontario long-term care homes must implement COVID-19 immunization policies for their staff, students, and volunteers — regardless of the frequency or duration of these individuals’ attendance in a home. Current staff, students, and volunteers will have until July 31, 2021 to meet the policy requirements, subject to reasonable extension for unforeseen circumstances. Newly hired individuals will have 30 days from the first day they begin attending at the home.
It is no surprise that the COVID-19 pandemic continues to affect the delivery of health services and the regulation of various health professions.
In a welcomed move, the College of Physicians and Surgeons of Ontario (CPSO) Council recently approved a new registration policy allowing the Registration Committee to issue a Certificate of Registration authorizing Independent Practice to applicants who have not completed Part II of the Medical Council of Canada Qualifying Examination (MCCQE).