Legal issues in disease outbreaks: judicial review of public health powers.

• Author: Ries, Nola M.
• Position: Canada

Introduction

The outbreak of serious, infectious disease like severe acute respiratory syndrome [SARS] or pandemic influenza demands public health action to contain the spread of contagion and limit the magnitude of individual and social harm. Public health actions during an acute outbreak situation will likely involve interferences with or restrictions on individual liberty, including isolation from contact with others and, if resources are available, mandatory testing and treatment. While public health officials typically will seek voluntary compliance before resorting to compulsory measures, the latter may be considered necessary to manage recalcitrant individuals whose behaviour creates or heightens risk for others.

Public health statutes generally confer wide authority on health officials to take action--including coercive measures--to protect and promote health. While much public health action is well-intentioned, exercise of restrictive powers raises concerns about excessive interference with personal liberties. Legal review serves an important function in testing the justifiability of public health measures. Concerns also arise when public health officials are perceived as doing too little to protect the public from infectious disease threats and individuals may seek to compel action on the part of health officials. This paper provides an overview of public and private law mechanisms--including constitutional challenges, administrative law review, and private law claims of negligence--to explicate their use in reviewing actions of public health actors. Illustrative court decisions are summarized to demonstrate how courts apply Canadian legal doctrines to the public health context.

Legal Mechanisms for Review of Public Health Powers

In Canada, both public and private law provide grounds for seeking review of public health action (or inaction). Public law includes constitutional and administrative doctrines, which are concerned, in part, with ensuring government powers are exercised in a manner that respects fundamental rights and freedoms and are within the bounds of legitimate authority. Private law concerns other duties that government authorities have in relation to citizens, including obligations to ensure effective implementation of public health initiatives.

Constitutional law

Canadian constitutional law provides two key means for reviewing exercise of public health powers: first, the Constitution governs the division of powers between federal and provincial levels of government, including power to legislate in areas of public health; and second, the Constitution includes the Canadian Charter of Rights and Freedoms, which guarantees fundamental rights and freedoms.

i. Division of Powers

Public health is an area of overlapping constitutional jurisdiction and federal and provincial governments may legislate within their respective areas of constitutional authority. (1) For example, emergency management and quarantine powers are vital during a serious, infectious disease outbreak and federal and provincial laws exist in both these areas, but their provisions demonstrate the boundaries of jurisdictional authority. Provincial public health statutes authorize officials to compel quarantine of individuals within that jurisdiction, (2) while the federal Quarantine Act deals with screening of travelers entering and leaving the country for certain communicable diseases. (3) The recently revised federal quarantine statute has been criticized because it:

neither applies to domestic travel nor compels provinces to share information about disease outbreaks within their borders. Nor does it give Ottawa the authority to declare or manage a public health emergency within a province. Given these limitations, critics fear the Act falls well short of oversight measures recommended in the aftermath of the SARS outbreak. (4) However, federal or provincial legislation that trenches on the constitutional jurisdiction of the other level of government is subject to challenge and courts may strike down legislation that has been enacted outside the proper scope of constitutional authority. Discussion of Canadian division of powers jurisprudence is outside the scope of this paper, but other commentary has analysed this issue. (5) A cautious interpretation of the division of powers suggests that federal authority to act to control an infectious disease outbreak is limited to a truly national outbreak where provincial action is inadequate to quell the spread of disease. (6) Some commentators have advocated for the enactment of federal public health emergency legislation "to provide the federal government with the freedom to act on an outbreak that is initially within the confines of only one province but is potentially of national concern." (7)

ii. The Canadian Charter of Rights and Freedoms

The Charter guarantees fundamental rights and freedoms vis-a-vis the exercise of governmental authority. When public health officials institute restrictive measures to control an infectious disease outbreak, their actions may violate Charter rights to liberty, personal security, association with others, and freedom from discrimination. Individuals may seek judicial review of such actions and the reviewing court will first consider if the governmental action infringes individual liberty and, if yes, whether that violation may nonetheless be justified in accordance with section 1 of the Charter, which stipulates that protected rights are subject to reasonable limits that can be justified in a free and democratic society. (8)

In considering whether a limitation on a Charter right is justifiable, courts...