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Is Bill 24 Going to Limit our Ability to Find Answers to the Pathology Testing Controversy?

Posted on December 30, 2011 by Richard Einarson

I’m sure that we all remember Premier Redford’s promise to call a public inquiry into the allegations of physician intimidation and queue jumping. We waited two months for her to fulfill that promise. And on Nov 21, 2011 she did—sort of. She tabled Bill 24, the Health Quality Council of Alberta Act. Unfortunately Bill 24 just doesn’t cut it.

Yesterday the Minister of Health and Wellness “ordered a thorough examination of medical quality assurance processes as they relate to diagnostic imaging and pathology testing.” to be undertaken by the Health Quality Council of Alberta. Under the auspices, one would presume, of our new Bill 24.

Bill 24 and the Public Inquiries Act appear to be similar. Both provide the power to compel the attendance of witnesses and force them to produce documentation. Both carve out exceptions which allow documents to be kept confidential and testimony to be given “in camera”. However Bill 24 goes farther. It expands the power to compel testimony to be given “in camera” and fails to set up a system of checks and balances to ensure that this power is not abused.

Now, with two other reviews on pathology testing already underway by the Health Quality Council of Alberta the Minister is directing another crucial review to be conducted by this same group, under the same rules, and I would expect we will get the same results. “Nothing to see here, move along folks...”

Bill 24, like the Public Inquiries Act, allows an inquiry to go behind closed doors if making the information public “would be injurious to the public interest”. However, Bill 24 goes further. It allows the HQC to go “in camera” if the HQC feels it’s essential to do so “in the interests of justice”. The only way to determine whether the HQC has interpreted either of these concepts correctly is to take the question to a court of law.

Unfortunately, Bill 24 expressly prohibits any court from questioning or reviewing the HQC’s decision to hear testimony in camera. The Public Inquiries Act on the other hand does not throw up barriers to judicial review.

This leads to the question of who can make the decision that certain testimony must be given “in camera”. Under the Public Inquiries Act only the Justice Minister can make this decision, and only if he certifies that he believes the disclosure would reveal Cabinet deliberations, matters that would not be in the public interest or matters which can’t be disclosed without prejudice to the interest of others not involved in the inquiry. Making a false certificate is cause for disbarment and is not a step taken lightly.

Going “in camera” under Bill 24 simply requires an application to the HQC. Bill 24 fails to specify who can make such an application and does not require any certifications stating why such an application is necessary. As a result any politician or government official concerned about the testimony may bring an application to go “in camera”. Given the ambiguity of the phrases like in the public interest” and “in the interests of justice” such an application will likely be approved by the HQC.

Lastly, a report by the Public Inquiry Commission may refer to the fact that some issues were discussed “in camera”. The only way that the HQC may allude to the existence of private discussions is if the HQC can convince itself that such a reference is essential to the completeness and integrity of the report and is in the public interest. Given that standard, it is very unlikely that the public will ever know that certain matters were discussed in camera, let alone find out what they were.

Bill 24 created a “public” inquiry process, but it failed to include the checks and balances necessary to ensure that controversial testimony will not be shuffled behind closed doors. This is not what Albertans expect from a Premier who promised to be more transparent and to rebuild public trust.

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