Question: when is a public inquiry not a public inquiry? Answer: when the controversial testimony must be given behind closed doors. Welcome to Bill 24—the Health Quality Council of Alberta Act.
We all remember Premier Redford’s breakout moment in the PC leadership race when she promised to call a public inquiry into the allegations of physician intimidation and queue jumping. Her promise inspired non-PC voters to come out in support of the one PC candidate we thought would shine a light on this horrific problem.
But as soon as Ms Redford moved into the Premier’s office she changed her tune. There would be no public inquiry under the Public Inquiries Act. Instead she tabled Bill 24. The question on everyone’s mind was why. Was it a bait and switch on Ms Redford’s part or had she been brought into the picture by the present and former Health Ministers and now realized that a true public inquiry was out of the question, especially in an election year?
In any event Bill 24 just doesn’t cut it. Here’s why.
At first blush Bill 24 and the Public Inquiries Act appear to be similar. Both provide the coercive 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, unlike the Public Inquiries Act, Bill 24 expands the power to shroud documents and testimony in secrecy and fails to set up a system of checks and balances to ensure that this power to remain hidden is not abused.
For example, both the Public Inquiries Act and Bill 24 allow an inquiry to go behind closed doors if making the information public “would be injurious to the public interest”. This is a nebulous concept at the best of times; but it is made worse in Bill 24 by the addition of a second exception. The HQC Panel may shield the information if it’s essential to do so “in the interests of justice”.
This raises the prickly question of what kind of information would be “injurious to the public interest” or against the “interests of justice”. The only way to determine whether the HQC Panel has interpreted either of these lofty concepts correctly is to take the question to a court of law.
Oops, sorry, that avenue is blocked. Bill 24 expressly prohibits any court from questioning or reviewing the HQC’s Panel’s decision to hear testimony in camera. The Public Inquiries Act on the other hand does not throw up barriers to judicial review.
Given that there’s no right of appeal at the back end, who decides what information should be disclosed in private at the front end? Under the Public Inquiries Act the only person who can make that decision is the Justice Minister—and he can’t do so at a whim. He’s required to certify 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 enough to get a lawyer disbarred so it’s not a step that is taken lightly and don’t forget—it is reviewable by a court.
Contrast this to Bill 24 which offhandedly refers to “an application” to hold the hearing in camera without ever identifying who the applicant is. Could it be Health Minister Horne who called the president of the Alberta Medical Association to express “concern” about Raj Sherman’s mental health which forced Mr Sherman to undergo a psychiatric evaluation? What about Mr Liepert who as Health Minister canceled a public awareness campaign about a syphilis outbreak—a number of public health officials and doctors were terminated and Alberta’s syphilis rates spiked to Third World levels. Or perhaps Dr Wright, the Head of the Dept of Pathology who told Dr Magliocco that he’d “regret” making waves over the closure of the Tom Baker cancer labs? The list is endless.
One last point of comparison, the Public Inquiry Commission is allowed to mention in its report that certain issues were discussed in camera. However the only way that the HQC Panel’s report can allude to the existence of private testimony is if it can convince itself that such a reference is essential to the completeness and integrity of the report and is in the public interest. Good luck.
That’s why an inquiry held under Bill 24 will be a mere shadow of an inquiry held under the Public Inquiries Act. The checks and balances which weigh the interest in disclosure against the interest in confidentiality are non-existent. As a result the HQC Panel is biased in favour of confidentiality. Significant parts of the inquiry will occur behind closed doors, unbeknownst to the public.
At the end of the day the HQC Panel will recommend a process for advocacy and perhaps more decentralized decision making—and our doctors will continue to struggle with the culture of intimidation.
Ms Redford promised a public inquiry. She delivered Bill 24. Like Harry Potter’s cloak of invisibility, Bill 24 appears to be transparent but once the HQC Panel puts it on they’ll be safely hidden from the prying eyes of the public.
So much for transparency and rebuilding public trust.
NOTE: Bill 24 also amends the Health Information Act to allow the HQC to use the health information in its custody or control to conduct investigations and disciplinary proceedings relating to members of the health profession. See Explanatory Note 26(4). The HQC did not have this power before it was empowered to conduct public inquiries…why does it need it now?