Hinshaw has legal authority to make decisions on COVID-19 measures: health law experts

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Alberta chief medical officer of health Dr. Deena Hinshaw has the legal authority to introduce public health measures related to COVID-19, according to legislation and health law experts.

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The top doctor responded brusquely when asked at a Monday press conference why new public health measures weren’t being implemented to combat the Omicron wave of COVID-19, saying, “Decisions about restrictions are not mine to make.”

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But three legal academics interviewed by Postmedia Tuesday agreed Hinshaw has the statutory authority under section 29 of Alberta’s Public Health Act to “take whatever steps the medical officer of health considers necessary” in combating a communicable disease or a public health emergency.

“It is incorrect, in my view, for her to say she’s not the decision-maker in relation to these matters. … Strictly legally speaking, she is the decision-maker,” said University of Calgary law professor Shaun Fluker.

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“And if any of these decisions are challenged, by assertions they are unfair or unjust or there is something arbitrary about them or what have you, she is the decision-maker, and the courts — if they are asked, and they are being asked — to weigh into these things, they aren’t looking to somebody else’s office as the decision-maker. It’s her office.”

Taking questions from media Monday, Hinshaw repeatedly said she was not able to speak to public health restrictions, saying this is the role of elected officials.

It’s a tension that has bubbled throughout previous waves of the pandemic, as Hinshaw has stressed her job is as an adviser to government, offering recommendations for consideration by the United Conservative government’s cabinet committee on COVID-19.

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The issue stems from a discrepancy between messaging from Hinshaw and elected officials, including Premier Jason Kenney, about how policy is being decided and the powers outlined in legislation, said University of Calgary law professor Lorian Hardcastle.

“I think the problem we have in Alberta is a misalignment between the law and what we’re being told is actually happening,” said Hardcastle, who specializes in health policy. “We have a situation where we have someone with legal authority who is putting their signature on legal orders but is apparently not making those decisions.

“What you would ideally have is the law matching up with what is actually happening so you know who to hold accountable.”

Other models for public health decision-making exist in other provinces, with pandemic response done through ministerial orders, Hardcastle said. She said there’s merit to the model where elected officials make these decisions as well as the one in which appointed public health experts call the shots, but that Alberta’s muddled approach falls short.

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“I think it creates confusion for the public, and distrust too. And I think that distrust is important, because if the public doesn’t trust these decisions, they’re not going to comply with them,” she said.

University of Alberta health law professor Ubaka Ogbogu said the government has the ability to amend the Public Health Act if it wants Hinshaw to work in a strictly advisory role. He argued their failure to do so through nearly two years of the pandemic is an attempt to skirt accountability.

“I do think the chief public health officer should try to work with the government in carrying out section 29,” Ogbogu said. “But section 29 demands that government listen to her. As a matter of fact, the government should not overrule her.”

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Ogbogu cited case law from 2020 which concluded the chief medical officer of health is “clearly granted” the authority to take any necessary steps to lessen the impact of a public health emergency.

“It makes no sense to me why this keeps coming up,” he said. “There are no alternative interpretations.”

Fluker added the Public Health Act doesn’t require the province to be under a government-declared public health emergency for Hinshaw to implement orders, again distancing her decisions from those of the government.

“There’s a total disconnect between those cabinet declarations and the chief medical officer of health’s orders,” Fluker said. “I think it’d be easier for Dr. Hinshaw to suggest she’s not the decision-maker if, for example, she could correlate her orders with cabinet declarations of a public health emergency.”

jherring@postmedia.com

Twitter: @jasonfherring