Category Archives: Health Law

The New Definition of a ‘Mental Disorder’ in the Mental Health Amendment Act: A Potential Gap in Care for ‘Persistent’ Mental Disorders?

By: Fraser Gordon

PDF Version: The New Definition of a ‘Mental Disorder’ in the Mental Health Amendment Act: A Potential Gap in Care for ‘Persistent’ Mental Disorders?

Bill Commented On: Bill 17, the Mental Health Amendment Act, 2020, 2nd Sess, 20th Leg, Alberta, 2020

Bill 17, the Mental Health Amendment Act (MHAA) was introduced to the legislature on June 4, 2020, with an anticipated proclamation date set for September, 2020. While presented by Tyler Shandro, the Minister of Health, as aimed at “strengthening the rights of these patients and assuring their rights are provided for and respected while they receive care” (Alberta Hansard, June 4, 2020 at 1125), this Bill also represents the province’s response to JH v Alberta Health Services, 2019 ABQB 540 (CanLII), which found several provisions of Alberta’s Mental Health Act, RSA 2000, c M-13 (MHA) an infringement on a person’s rights under sections 7, 8, 10(a) and (b) of the Canadian Charter of Rights of Freedoms.

In particular, the legislature recognized the Court’s concern in JH as to the suitability of the MHA’s provisions for involuntary detention and treatment for persons suffering from mental disorders that are untreatable, and has sought, in the MHAA, to refocus, and perhaps narrow, these provisions upon persons who are suffering from severe mental illness that are capable of being resolved by treatment. This change finds expression in the MHAA’s change to the definition of a “mental disorder”, which now excludes “a disorder in which the resulting impairment is persistent and caused solely by an acquired or congenital irreversible injury.” In this post, I want to consider the potential effects of this change in caring for persons now excluded under the MHAA’s definition. My concern is that this new definition may create a gap in the current legislative scheme for the care of persons suffering from “persistent” mental health disorders, and place such persons – and others – at risk. This would certainly be an ironic – and I am sure unintended – outcome of legislation which has as its aim the strengthening of the rights of persons suffering from mental disorders.

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A Balancing Act: Re-Opening Provincial Economies while Prioritizing Health Risks to Vulnerable Groups

By: Lorian Hardcastle and Naomi Lightman

PDF Version: A Balancing Act: Re-Opening Provincial Economies while Prioritizing Health Risks to Vulnerable Groups

Matter commented on: COVID-19 in Alberta and Canada

Despite calls that we are “in it together”, many of Canada’s most vulnerable communities are bearing the brunt of the COVID-19 pandemic. This includes individuals living and working in long-term care facilities, factory workers, homeless and incarcerated populations, and some on-reserve Indigenous communities. In implementing public health measures, policymakers largely failed to prioritize these groups. Rather, many of the strategies for social distancing presumed individual family homes, nuclear family arrangements, access to private cars, workplaces that could transition to online formats, and living conditions where outdoor space was available. As a result, many groups outside this presumed norm were either left behind or inadequately protected during the spread of the virus. In this post, we argue that as provincial governments begin the process of re-opening their economies, policymakers must balance the interests of the broader public with those who live and work in conditions that put them at risk.  Continue reading →

COVID-19 and the Exercise of Legislative Power by the Executive

By: Shaun Fluker

PDF Version: COVID-19 and the Exercise of Legislative Power by the Executive

Legislation Commented On: Regulations Act, RSA 2000, c R-14 and Public Health Orders issued in relation to COVID-19

The COVID-19 pandemic has become a rare opportunity to study the widespread exercise of emergency lawmaking powers in Canada. Governments have enacted legal rules on matters such as social distancing, quarantine, economic controls, regulatory relief, employment standards, landlord-tenant, access to justice, and health care protocols. Commentators have warned that we must remain vigilant in ensuring these emergency measures do not offend the rule of law, and this message is likely to intensify as more emergency measures are used to either further the current shutdown or control our emergence from it; for example, in relation to surveillance and privacy rights as Joel Reardon, Emily Laidlaw, and Greg Hagen recently noted here. These substantive concerns are amplified by the fact that most COVID-19 emergency powers are being exercised by the executive branch of government and its delegates, using legislative power delegated to them in public health or emergency statutes. Because it is unlikely that legislatures envisioned such an extensive use of these powers for a prolonged time period, shortcomings and gaps in the lawmaking process are becoming apparent. Hallmarks such as organization, clarity, predictability, consistency, transparency, and justification – which, in normal times, provide the executive with much of its legitimacy to govern – have been impaired or are missing altogether in the exercise of legal power to contain COVID-19. This post examines how Alberta ministers and the Chief Medical Officer of Health have been exercising emergency powers so far during the pandemic, and makes some pointed observations on the hallmarks of legitimate governance and the role of the Regulations Act, RSA 2000, c R-14, in this regard. Continue reading →

The Tragic Effects of COVID-19 in the Long-Term Care Sector

By: Lorian Hardcastle

PDF Version: The Tragic Effects of COVID-19 in the Long-Term Care Sector

Matters Commented On: Chief Medical Officer of Health (CMOH) Orders 09-2020 and 10-2020

Close to half of Canada’s 1300 COVID-19 deaths have occurred in long-term care facilities, with the number of fatalities expected to grow in the coming weeks. News reports reveal shocking conditions in Canadian long-term care homes, including residents in critical condition abandoned by staff, workers without protective equipment, residents begging to die, and conditions so bad that criminal charges may be laid. The situation in Quebec is so dire that the government has implored doctors and other health professionals to help and has requested that the federal government provide military assistance. This blog post addresses the vulnerabilities that COVID-19 has exposed in the long-term care sector, the steps governments have taken to slow the pandemic, and improvements that must be made to better protect residents in the future. Continue reading →

COVID-19 and Cellphone Surveillance

By: Joel Reardon, Emily Laidlaw, and Greg Hagen

PDF Version: COVID-19 and Cellphone Surveillance

Matter Commented On: Premier Jason Kenney’s Address on the COVID-19 Pandemic (April 7, 2020)

Last week in Premier Kenney’s address to the province, he announced (at approximately 10:29 of the video) that a central component of Alberta’s strategy in relation to COVID-19 (and its related SARS-CoV-2 virus) could require the use of technology to enforce quarantine orders: “We will strictly enforce quarantine orders to ensure compliance, including using technology like smartphone apps.” When a spokesperson for the Alberta Privacy Commissioner’s Office raised privacy concerns about the use of a smartphone app to enforce quarantine, the Calgary Herald reported that Premier Kenney dismissed such concerns as “overblown”, seemingly because only a small group of people would be tracked and only for the purposed of enforcing a valid quarantine order. Continue reading →