UPDATE — Premier Redford promised changes to the HQC which would allow it to conduct a public inquiry. She delivered Bill 24 which allows the HQC to take the “public inquiry” behind closed doors under a number of circumstances. So much for transparency. I will post an analysis of Bill 24 this weekend. Stay tuned.
Have you ever watched a child playing with a wooden hammer and peg set? It’s all sweetness and light until he gets bored hammering the pegs and tries to hammer in a lego block instead. That’s because the lego block is a square peg being forced into a round hole…and good luck trying to get it back out again.
Premier Redford is using this “square peg/round hole” approach to augment the powers of the Health Quality Council* (HQC) and buttress her claim that the HQC can properly review (for a second time) allegations that physicians who dared to advocate on behalf of their patients were subjected to intimidation.
Physicians and the public have been calling for a public inquiry into these allegations since 2010. But the PCs under Stelmach refused to budge, arguing that the HQC review was as good as a public inquiry. However during the PC leadership race Ms Redford broke from the pack. She promised a public inquiry into the culture of intimidation if she were elected—and now she’s trying to wiggle out of her campaign promise by arguing that a beefed up HQC review will be sufficient.
For the record, there’s been some discussion about whether Ms Redford promised a “public” inquiry or a “judicial” inquiry. This is simply semantics. The terms are used interchangeably in the media and mean the same thing to the public—a transparent inquiry that is open to the public.
So what are these “beefed up” powers and how will they magically transform the HQC review to something akin to a public inquiry? Stephen Carter, the Premier’s chief of staff, says 3 key elements are mandatory: “…the inquiry must be truly independent, it must be able to compel evidence and it must be led by a judge”.**
Let’s break down each element to understand why it falls short of the mark.
True Independence: Mr Carter says the HQC should report to the Legislature instead of the Health Minister. This would be a good move. But as Don Braid astutely points out, this also means the HQC cannot file its report unless the House is sitting. Given the fact that in 2011 the Legislature was in session for less than 2 months and 2012 is an election year this will cause an inordinate (or opportunistic) delay in completing the HQC review.
Furthermore, in order to be truly independent, Reg 130/2006, the regulation that created the HQC, must be completely gutted. Today the Health Minister holds the HQC in the palm of his hand. He appoints the Health Quality Council and has the power to “prohibit, restrict or place conditions” on the HQC’s already limited rights and powers. In other words, the HQC will never be independent of the Health Minister unless Reg 130/2006 is repealed.
The power to “compel evidence”: Mr Carter’s second key element sounds promising until you realize that the power to compel evidence is not the same as the power to compel witnesses to attend the inquiry. A tribunal must be expressly given this power by legislation.***
Ms Redford, her health minister, Mr Horne and her chief of staff, Mr Carter have carefully avoided saying anything about the power to compel witnesses. And we all know why. It’s one thing to be able to see the emails written by Mr Liepert, Mr Zwozdesky, Mr Horne, and officials at AHS and the College of Physicians and Surgeons. It’s quite another to force these individuals to attend the hearing and submit to cross-examination on their emails and anything else the tribunal deems relevant.
Judge led: Mr Carter makes much of the fact that the HQC review must be led by a judge. But this is simply a feeble attempt to plant the idea in the public’s mind that a judge-led inquiry is the same thing as a judicial inquiry and consequently Premier Redford has not back-tracked on her promise. But it’s not.
The critical distinction is not who’s leading the panel; he can be a judge, a doctor or a businessmen, but rather, the nature of the inquiry process. Will the tribunal have the power to summon witnesses and compel their attendance? Will the tribunal have the power to compel witnesses to produce documentation? Will the tribunal be able to protect the witnesses, particularly doctors who’ve suffered from intimidation, by giving them immunity from AHS lawsuits alleging breach of confidentiality. By the way the need for immunity applies to all doctors and employees of AHS, not just the doctors who’ve settled lawsuits with the AHS and its predecessors, because all doctors and AHS employees are under an obligation of confidentiality as part of their employment relationship with the AHS.
If a judge led HQC review cannot wield these powers or deliver blanket immunity then it is not a judicial inquiry but simply a repeat of the watered down HQC review presently underway.
The vacuous “key elements” proposed by Mr Carter do serve one important purpose. They confuse the public and deflect attention from the fact that not once has Ms Redford assured Albertans that the HQC review would be open to the public.
A public inquiry by definition is an open process. Testimony is given in public and documents are made available to the public (often by posting them on the public inquiry’s official web site). This openness is something Ms Redford is working very hard to avoid.
The HQC review, even with the addition of Carter’s 3 key elements, will not be open to the public. It will not serve the public or even the doctors who’ve been caught in the web of intimidation. Not only is this a disservice to the physicians and the public, it’s a disservice to the HQC which simply was not designed to carry out an inquiry of such magnitude.
Which brings us back to the square peg and the round hole. The only way to get a square peg into a round hole is to hammer the life out of it. The end result is a square peg firmly wedged in a round hole—surely a frustrating and useless exercise. But take heart, the Public Inquiries Act is sitting right there on Ms Redford’s desk. All she needs to do is remember her promise and use it.
*The HQC was created by Regulation 130/2006 under the Regional Health Authorities Act, RSA 2000, c R-10. Its focus is patient safety and health service quality. It has no mandate to address the culture of intimidation. It was given permission to conduct this review by former Health Minister Zwozdesky.
** Calgary Herald, Nov 18, 2011
***See the Public Inquiries Act which sets out the power to produce documentation in Section 4 and the power to force the attendance of witnesses in Section 5