Dear Minister: Please clean up your acts

Health Law Update

May 1, 2017

Contributed by: Jonathan P. Rossall, QC, LLM | Partner, McLennan Ross LLP

In this special edition of Alberta Doctors’ Digest, columnists have been invited to share their daring ideas for health care. Mine is a straightforward wish for Alberta: clean up your health care legislation.

Alberta has 30 pieces of health legislation and over 100 regulations on its books, many of which are archaic, out of touch and in some cases, just plain irrelevant. It would be nice if a new provincial government bent on reforming the health care system, bending the cost curve and bringing innovation to the delivery of health care services would take an introspective and critical glance at the rules that bind them.

Hospitals Act

Even though Alberta has enjoyed (and I use this word loosely) the evolution of health care management into the hands of initially a big bunch of regional health authorities (17), and then a smaller bunch (nine) and then ultimately a much smaller bunch (one), we still operate under the overarching umbrella of Alberta’s Hospitals Act. This act still speaks of hospitals as run by hospital boards and being responsible creating medical records when that responsibility was assumed by regional health authorities (now authority) in 1994. The Hospitals Act dates back to the days when hospitals were run as independent, separately funded fiefdoms. It desperately needs revision, if not outright repeal.

Alberta Health Care Insurance Act

Another example of outdated legislation is the Alberta Health Care Insurance Act. This legislation owes its origins to the initial Alberta Health Insurance Act passed by the United Farmers of Alberta in 1935. Fast forward to 1969, when Medical Services (Alberta) was superseded by Canada’s national Medicare program which, in turn, led to the passage of the Alberta Health Care Insurance Act. It has remained on the books relatively untouched since then. One of the more out-of-touch aspects of this legislation is the investigative process for questionable claims and reassessment. The process essentially dates back to the inception of the legislation. It is highlighted by draconian powers embedded in the administration of the act and, ultimately, the minister. These powers don’t come close to demonstrating the principles of fairness which the legal community has come to expect.

The act also falls woefully short in attempting to define one of the most critical features of the plan: exactly what an “insured service” is. I won’t keep you in suspense: it’s a service that is “medically required.” There’s clarity for you.

Health Information Act

And then, of course, there is the relatively new Health Information Act. Passed in 1999, the act created a regime for the gathering, use and disclosure of patient health information focused on the identity of the user of the patient’s health information, not the owner. Words like “custodian” and “affiliate” have tormented and confused Alberta physicians since the passage of the act.

Notwithstanding a section requiring a “comprehensive review of the act” within three years after its coming into force, and subsequent non-mandated reviews, nothing has been done to address this gap. In fact, in 2009, the act was amended to specifically reference the creation of the electronic health record, the successor to Alberta’s Wellnet. However, even that relatively recent amendment still speaks of “authorized custodians” contributing information.

Others in need of clean up

Don’t even get me started on the Mental Health Act (the current incarnation passed in 1988) or the Health Disciplines Act (what is its continued reason for existence in the face of the Health Professions Act?). Then there’s the Health Facilities Accountabilities Statutes Amendment Act (a grandiose name reflecting the promise of great change) which was passed in 2007, but never proclaimed. In fact, the link on the Alberta Health website takes you to the following ominous message: “We're sorry, we're not able to find the page you requested. It has either been moved or no it longer exists.”

So my daring idea for Alberta’s health care system? Clean up your acts.

The Alberta Medical Association stands as an advocate for its physician members, providing leadership & support for their role in the provision of quality health care.