British Columbia Legislative Update in Health Law
Davis LLP Health Law Bulletin
June 29, 2012
A look at five recently introduced pieces of health legislation in B.C. and their anticipated effects on health care providers and patients
Spring 2012 has seen the introduction of several new pieces of legislation in the Provincial Legislature specifically directed to the health care field. This new legislation includes:
The following material highlights the significant sections of each statute. If you have any questions about any of this new legislation, we invite you to contact one of the members of the Davis LLP Health Law Group.
The Pharmaceutical Services Act
On April 24, 2012, the Provincial Government introduced the Pharmaceutical Services Act (“PSA” or the “Act”), which came into force on May 31, 2012. The new PSA gives legislative recognition to the Pharmacare Program, which is a government funded drug program introduced in British Columbia in the 1970’s and which has, until now, only existed within government policy documents, manuals and through a patchwork of references in various health-related statutes. British Columbia’s historical treatment of the Pharmacare drug program has been unlike other jurisdictions in Canada where such drug programs have typically been entrenched through legislation.
The PSA is primarily directed to three purposes:
Legislated Recognition of Provincial Drug Programs (Pharmacare)
At the time of its creation, Pharmacare was established to provide financial assistance to B.C. residents for the purchase of prescription drugs and other medical supplies. The Program now offers financial assistance through several separate drug plans, including Fair Pharmacare, which offers funding assistance based on income to all residents of B.C. registered with MSP, and other directed programs which are available to prescribed categories of persons. The PSA has the effect of continuing Pharmacare, but, like other jurisdictions in Canada, it will now do so through a legislated structure which involves:
Controls on Drug Pricing and Marketing Practices
Personal Information Management and Administration
The PSA also addresses the collection, use and disclosure of personal information in connection with individual drug and prescription histories. The PSA seeks both to authorize the Province’s use of such information for health care and other purposes and to incorporate controls to address potential privacy violations and the misuse of such information.
Bill 39 - The Emergency Intervention Disclosure Act
The Emergency Intervention Disclosure Act which passed third reading and received Royal Assent on May 31, 2012, is directed to the protection of emergency and health care workers who are at risk of occupational exposure to communicable diseases, such as HIV, Hepatitis B and C. This Act allows any such workers who may have been exposed to a communicable disease through contact with the bodily substances of another person (referred to as the “source individual”) to seek a court order compelling the source individual to undergo testing for communicable disease.
Those that may apply for testing include any persons who may be exposed to contaminants while providing emergency medical services or while performing their duties as firefighters, as emergency medical assistants or as peace officers. The Act also leaves open the possibility for other circumstances or professions to be included in this legislation by regulation.
Before granting a testing order, the court must be satisfied of a number of factors, perhaps most prominently that there are reasonable grounds to believe the applicant may have been exposed to a prescribed pathogen, and that testing the applicant is not a viable option insofar as it would not yield results within a timely manner.
This new legislation has been the subject of some criticism on the basis that it is overly invasive of the privacy interests of the source individual. The Act does include some measures designed to protect the interests of the source individual, such as by requiring that court applications be supported by a physician’s report, and that prior notice of the application be given to the individual, if possible or practicable. Any order, if made, will also be subject to restrictions on testing, how the sample may be used and providing for the confidentiality of the results (subject to circumstances in which disclosure is required by law).
Any source individual who contravenes a testing order commits an offence and is liable to conviction on a fine of not more than $10,000. Contravention of the confidentiality provisions is also an offence and can lead to fines of up to $10,000 for an individual or $25,000 for a corporation.
Bill 48 - The Emergency Health Services Amendment Act
Bill 48, the Emergency Health Services Amendment Act (“Bill 48”) was introduced for first reading on May 7, 2012, and has not yet proceeded to second reading or been passed into law. If passed, this legislation seeks to repeal and replace the current Emergency and Health Services Act.
While Bill 48 seeks to continue the existing Emergency Health Services Commission which is currently responsible for, among other things, urgent care and ambulance services, it provides more detailed provisions concerning the composition and statutory mandate, authority, duties and responsibilities of the Commission. It also includes new provisions that would require the Commission to consult with the Provincial Health Services Authority and the other regional health authorities to coordinate the delivery of emergency and urgent health services, ambulance services and other ancillary services.
In introducing the Bill, Health Minister Mike de Jong described the purpose of this Bill as seeking to integrate and coordinate the delivery of ambulance and emergency services in British Columbia more closely with the broader health care system. He also explained that the Bill seeks to more closely align the services provided by the Commission with those provided by the Provincial Health Services Authority, which already has primary responsibility for a number of significant health services and programs that are operated and administered on a province-wide basis.
Miscellaneous Statues Amendment Act (#2)
Bill 41, the Miscellaneous Statutes Amendment Act (#2) was introduced in the legislature on May 1, 2012 and received Royal Assent on May 31, 2012. Among other things, this Bill introduces minor amendments to the Health Professions Act and the Labour Mobility Act which exclude the occupation of nurse practitioners from the application of the Labour Mobility Act. The Labour Mobility Act is legislation that is designed to facilitate the practice of certain occupations or professions within B.C. by qualified individuals from other Canadian jurisdictions without requiring such individuals to undergo additional testing or certification requirements. The exclusion of nurse practitioners from this legislation means that nurse practitioners from other Canadian jurisdictions who seek to practice in B.C. will be subject to the same testing and certification requirements as are applicable to other nurse practitioners in British Columbia.
Bill 34 - Limitation Act
While not yet in force, Bill 34, the Limitation Act was introduced in the legislature on April 17, 2012 (and received Royal Assent May 14, 2012) as a fundamental reform of the Province’s existing Limitation Act. The new legislation seeks to bring British Columbia’s rules regarding limitation periods for commencing legal action into harmony with the rules existing in a number of other Canadian jurisdictions.
Some of the changes introduced under the new Limitation Act include:
For most of the Province, the introduction of the new Limitation Act can be expected to have the effect of providing greater certainty and, by virtue of the shortened limitation periods, an overall reduction in exposure to legal claims. The effect of this legislation to professionals in the health care field will, however, necessarily be more varied in nature, and, in particular, the following impacts on the health care field are of note:
Bill 34 has passed third reading and has received Royal Assent. The government has yet to announce when it is expected to be brought into force.
Chief Operating Officer