Federalism and public health law in Canada: opportunities and unanswered questions.

• Author: Wilson, Kumanan

Public health renewal has emerged as a central policy issue in this country and has, at least for a moment, overcome the shadow of its health care cousin. This attention has been largely precipitated by the re-emergence of new infectious threats such as Mad Cow disease, West Nile virus and, most notably, Severe Acute Respiratory Syndrome (SARS). SARS revealed important limitations to this country's emergency response capacity and the health and economic implications of these limitations. (1) Consequently, several national initiatives to revamp the public health system have been launched including the creation of a new public health agency, the appointment of a national public health officer and the acceleration of the health protection legislative renewal process.

SARS exposed the critical need for better intergovernmental cooperation if public health programs are to be truly effective. Unfortunately, however, intergovernmental relations during the response to SARS were less than optimal. (2) A number of factors help to explain the troubled response, but one issue has clearly stood out--the question of unclear jurisdictional responsibilities for public health. In attempting to resolve this problem, legislative options have been considered. However, by and large, governments have chosen political alternatives that centre on establishing effective collaborative federalism solutions.

In exploring the various options for restructuring Canada's public health system, policy makers must carefully consider both legislative and intergovernmental issues. Indeed, there is an important interplay between the law and federalism in public health, and several questions related to legal matters need to be clearly answered before effective public health policy can be formulated. This article will explore some of these issues and examine the variety of legislative options available to the federal government. The authors of this article have familiarity in public policy formulation and specifically the development of public health policy. The legal questions we put forth are those we believe remain unresolved and for which resolution would be important for the development of effective future policy. We encourage legal academics to address and expand upon some of the issues we raise.

Defining Public Health

To begin a discussion of the legal issues in public health it is first important to define what the term means. Perhaps the most important distinction between health care and public health is the population to which care is being delivered. Health care is viewed primarily as being directed at the level of the individual--specific health interventions are prescribed according to the specific physiological or mental needs of a particular person. Public health, conversely, is primarily designed to improve the health of the population in general. The Institute of Medicine has defined public health as:

 what we, as a society, do collectively to assure the conditions for people to be healthy. This requires that continuing and emerging threats to the health of the public be successfully countered. These threats include immediate crises, such as the AID epidemic; enduring problems, such as injuries and chronic illness; and growing challenges, such as the aging of our population and the toxic by-products of a modern economy, transmitted through air, water, soil, or food. These and many other problems raise in common the need to protect the nation's health through effective, organized, and sustained efforts led by the public sector. (3) 

According to the U.K. Acheson report, public health's primary responsibilities include (4) "the surveillance of the health of a population, the identification of its health needs, the fostering of policies which promote health, and the evaluation of health services." The Public Health Agency of Canada provides the following definition of public health: "the science and art of promoting health, preventing disease, prolonging life and improving quality of life through organized efforts of society." (5)

The Agency further defines the essential functions of public health to include health protection, health surveillance, disease and injury prevention, population health assessment and health promotion.

Based on the variety of definitions provided, public health activities can be divided into three major categories: 1) health protection, which includes activities by the government to protect the public from harm including harms from hazardous products and disease; 2) health promotion, which is directed at promoting healthy behaviour among members of the general population, including smoking cessation activities and improving physical fitness; and, 3) health surveillance, which monitors outbreaks, disease trends and risk factors for disease. Much of the discussion related to public health reform has focussed on the disease prevention component of health protection and health surveillance as it complements this function.

Summary of The Canadian Public Health Reform Process in Response to SARS

In considering its response to SARS and the general issue of public health reform, Canada was largely influenced by the experience in the United States. The U.S. is a few years ahead of Canada in evaluating the need for public health reform largely because of initiatives introduced after the terrorist attacks of September 11, 2001 and the subsequent anthrax attacks over the fall of that same year. (6) The American constitution provides state legislatures with primary responsibility for public health, and several recent court decisions have limited federal involvement in domestic matters, which could apply to public health. (7) The federal government in the United States has exercised a legislative role in public health through related areas of jurisdiction such as environmental protection; however, limits have been placed on this legislative authority particularly because it can create excessive costs at the level of state and local governments. (8) After the anthrax attacks, which exposed the lack of effective public health infrastructure and the consequences of this when responding to a public health outbreak, Washington identified mechanisms by which it could play a greater role in public health. Along with introducing legislation relating to issues of national security, the federal government also relied on its taxing and funding power. (9) In particular, the American federal government expanded funding to the U.S. Centers for Disease Control. The CDC in turn promoted desired public health programs by providing direct conditional grants to the states in exchange for them providing specific services. Interestingly, the U.S. CDC does not have the authority to involve itself in public health outbreaks without state approval. However, the CDC has used its reputation and position as an opinion leader to formulate a model emergency act for states to use. (10)

In many ways, SARS was Canada's equivalent to the 2001 anthrax attacks in the United States in that it has mobilized the movement towards more federal involvement in public health. In both the U.S. and Canada each of these events presented a policy opportunity that policy entrepreneurs exploited. (11) The David Naylor report into the SARS crisis was the first released in response to the management of the outbreak and outlined several recommendations for improving public health capacity in Canada. The report explicitly described the need for a stronger federal presence in public health through the creation of an arm's length national public health agency and the investment of increased federal money into public health. (12) As part of its work, the commission considered a centralized model in which the federal government, through legislative mechanisms or strong financial coercion, would direct provincial/territorial or local public health activities. This option was rejected, however, due to potential intergovernmental conflict this could create and the recognition of the importance for intergovernmental cooperation in public health. (13) Instead the report suggested that Canada adopt a U.S. CDC style model in which a new federal agency would work "collaboratively" with the provinces and regions. This federal agency would provide seed funding to provinces/territories and regions to encourage the development of desired public health programs.

The SARS report also considered the use of federal legislation to achieve desired public health policy goals. In particular, the report referred to the ongoing review of health protection legislation and the development of a new health protection act. The report recognized that the new Act had to be acceptable to all orders of government, in particular provincial and local governments who would have to carry out many of the activities specified in the Act. However, the report also recognized the ultimate importance of such legislation to ensure uniform minimum approaches to public health across the country and that the federal government prepare default legislation in the event that intergovernmental consensus could not be achieved. (14)

Since the release of the SARS report and several other reports, all of which called for a more coordinated approach to public health, Ottawa has taken several steps to act on some of the key elements Dr. Naylor outlined. These include the announcement of a Minister of State for public health, the creation of a new federal agency, the Public Health Agency of Canada (PHAC), and the announcement of a new Canadian public health officer. The new federal public health agency is headquartered in Winnipeg and Ottawa and reports ultimately to the Minister of Health. The new public health agency is intended to be the federal focal point on all issues related to public health--from promoting healthy living strategies for individual Canadians to establishing national emergency plans to address...