Legal Foundations for a National Public Health Agency in Canada
Ries, Nola M., Caulfield, Timothy, Canadian Journal of Public Health
This commentary addresses some of the key legal challenges associated with establishing a national public health agency in Canada. These include issues related to privacy and confidentiality of personal health information in the public health context, constraints on the jurisdiction and powers of a national agency, the need to respect individual rights and freedoms in an outbreak situation, and international cooperation in infectious disease control.
The authors are part of a research initiative, comprised of experts in law, public health policy and medicine, that is currently analyzing legal considerations that may influence the mandate of a national public health agency in regard to infectious disease activities. This article discusses critical issues raised at a meeting in August 2004 that brought the research team together with key federal and provincial policy-makers and members of the public health community.
The commentary emphasizes that law sets the foundation for public health activities, and the promise of a national public health agency will only be realized if significant legal issues are examined early on to ensure the agency is built on a robust legal and policy framework.
MeSH terms: jurisprudence; communicable disease control; organization and administration
The 2003 outbreak of severe acute respiratory syndrome (SARS) served as an abrupt wake-up call for the urgent need to enhance public health preparedness in Canada, and the reports and recommendations issued in the wake of SARS serve as useful roadmaps for action.1 The attention SARS generated has spurred a call to modernize public health infrastructure, renew intergovernmental relationships and enhance national leadership. Post-SARS (and even before SARS2), many commentators advocated the development of a national public health agency in Canada and, in turn, the federal government has proceeded to create such an agency, to be tasked with functions related to infectious and chronic diseases and emergency preparedness.
However, the reform of the Canadian public health system will create a variety of legal challenges. Indeed, though the SARS outbreak has generated both public and political will for reform, the current Canadian legal framework, including enduring issues associated with the federal-provincial division of powers and newer issues such as the proliferation of privacy laws across the country, will clearly impact how that reform unfolds. As enabling legislation for the Public Health Agency of Canada is currently being drafted, it is critical to address these legal realities.
In response to the SARS outbreak, the Canadian Institutes of Health Research issued a call for research proposals to investigate issues related to public health and health care system preparedness. With funding through this initiative, we have brought together a multi-centre team with interdisciplinary expertise in law, public health policy and medicine to identify and examine legal considerations that may influence the mandate and impinge on the activities of a national public health agency, particularly in regard to infectious disease surveillance and control and emergency response. On August 17, 2004, the research team convened a First Collaborators' Meeting with key federal and provincial policy-makers and members of the public health community.* In this paper, we review some of the key issues addressed at the meeting.
Privacy and confidentiality
Public health initiatives, particularly in the context of infectious disease control, often generate a clash between individual rights and societal interests. Access to personal health information is a critical tool for effective surveillance activities, but this necessarily requires some intrusion on individual autonomy and privacy. Although our courts have had little opportunity yet to grapple with this conflict, there is no doubt Canadian laws will likely allow access to personal health information for the purpose of satisfying legitimate public health needs. …