Public health information, federalism, and politics.

• Author: Gibson, Elaine
• Position: Canada

Introduction

Although an element of healthy tension is inevitable in Ontario's relations with the federal government, there is no room during a health crisis to indulge in this ritualistic intergovernmental bickering. (1) Canada's efforts at battling SARS have been viewed as nothing short of heroic on the international front. One of the areas in which we performed less than optimally, however, was that of information handling. Intergovernmental tensions were displayed to problematic effect, and may have led to the World Health Organization advisory warning against travel to the Toronto region. In this paper, I briefly examine the legal and political landscape for information sharing for public health purposes, and offer some suggestions for moving forward in this area.

Public Health Infrastructure

David Naylor, the Chair of the National Advisory Committee on SARS and Public Health, has described the public health infrastructure in Canada as follows: "What exist now are separate systems within each of the provinces and territories, as well as a federal system that operates primarily at Canada's international borders." (2) One of the major factors contributing to these separate systems is the constitutional division of powers, to be discussed in the next section. It is also the case that public health inevitably commences at the municipal level. Local/regional public health units are the point of contact for primary care givers and their patients.

Municipalities in turn report to the provincial and not the federal government. This was all the more so historically, as is reflected in comments of the Royal Commission on Dominion-Provincial Relations (the Rowell-Sirois Commission) in 1938:

In 1867 the administration of public health was still in a very primitive stage, the assumption being that health was a private matter and state assistance to improve or protect the health of the citizen was highly exceptional and tolerable only in emergencies such as epidemics, or for purposes of ensuring elementary sanitation in urban communities. Such public health activities as the state did undertake were almost wholly a function of local and municipal governments. (3) While we have seen much change since 1867, it remains the case that hospitals, regional health units, and local care facilities are the on-the-ground loci for public health, and where the lion's share of public health information is generated.

Legislation and Constitutional Division of Powers

Canada is a federal state in which jurisdiction over the areas of information and of public health is shared between the federal and provincial/territorial governments. Neither public health nor information is addressed in the Constitution Act, 1867, so we must look to a number of areas of allocation of power to arrive at an overview of the constitutional landscape. Health has been identified by Estey J. of the Supreme Court of Canada as an "amorphous topic, which can be addressed by valid federal or provincial legislation, depending in the circumstances of each case on the nature or scope of the health problem in question." (4) The federal government has been granted jurisdiction over quarantine and marine hospitals (5); census and statistics (6); trade and commerce (7); peace, order, and good government (8); criminal law (9); "Indians, and lands reserved for the Indians" (10); and matters not exclusively assigned to the provinces. (11) Also, although not explicitly stated in the Constitution Act, 1867, the federal government is widely assumed by constitutional experts to have a great deal of latitude to spend funds as they wish (12); indeed, the Canada Health Act was enacted under the "power of the purse". Provincial governments have jurisdiction over hospitals other than marine hospitals (13); property and civil rights (14); municipal affairs (15); and matters of a local or private nature. (16) Despite the broad sweep of federal constitutional powers, both the topics of public health and of information have been found to fall primarily within provincial jurisdiction. (17)

There are numerous federal and provincial/territorial statutes that impact directly on public health information sharing. (18) As well, some aspects of information privacy are protected under the Canadian Charter of Rights and Freedoms, (19) and the Quebec Charter of Human Rights and Freedoms includes a specific right to non-disclosure of confidential information. (20) Changes have occurred apace in recent years; in the last three years, the federal government has passed new quarantine legislation (21) and the statute enabling the Public Health Agency of Canada. (22) The federal Personal Information Protection and Electronic Documents Act has come into force intra-provincially (23), but not in jurisdictions that have legislation deemed substantially similar, and not without controversy; the province of Quebec has challenged the jurisdiction of the federal government to legislate in the area of personal information. (24) Also, in the last three years within the provinces, Nova Scotia has passed new health protection legislation (25), Ontario has enacted health information legislation (26), and Saskatchewan's health information legislation has come into force after a delay of several years. (27) The volume of change both federally and provincially has been impressive.

Information-sharing

The public health system in Canada requires information for purposes of health protection, health promotion, disease and injury prevention, and to meet international commitments.

The information is used for...