British Columbia Legislative Update in Health Law

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:

• Bill 35 - The Pharmaceutical Services Act
• Bill 39 - The Emergency Intervention Disclosure Act
• Bill 48 - The Emergency Health Services Amendment Act
• Bill 41 - The Miscellaneous Statutes Amendment Act
• Bill 34 - Limitation Act

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:

• entrenching the principles and processes applicable to the existing Pharmacare program,
• empowering the Province with new statutory authority to lower generic drug prices in an effort to secure savings and support the sustainability of Pharmacare, and
• providing new rules regarding use, collection and disclosure of personal information collected in connection to Pharmacare and other pharmaceutical record-keeping systems.

PSA Highlights

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:

• Creation of Provincial Drug Program, including the promulgation of public lists and formularies for each plan that is established.
• Beneficiary Enrolment and Eligibility, which requires beneficiary registration and empowers the government to establish specific terms and conditions of participation and eligibility.
• Provider and Practitioner Enrolment, which requires pharmacies and other providers and participating practitioners to enrol and empowers government to establish specific terms and conditions of participation and eligibility.
• Ensuring that Pharmacare is an Insurance of “Last Resort”, continuing a principle under the existing Pharmacare program that benefits are not available from a government funded drug program where the beneficiary is entitled to receive them through another funded source.

Controls on Drug Pricing and Marketing Practices

• Price Regulation - One of the most significant aspects of the Act is that it empowers the Province to set limits and conditions on the amount that will be paid by the government for a particular drug, device, substance or service that is a benefit under this legislation. The details of how this power would be applied and administered are anticipated to be provided subsequently by regulation.
• Prohibition or Limitation on Use of Incentives - The Act empowers the provincial government to limit or prohibit the use by manufacturers of generic drugs of discounts, rebates or other incentives to pharmacies and other drug providers in an effort to support competitive pricing for British Columbians. The Act imposes obligations on providers and others to report the receipt of any such incentives.

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.

• Authorized Uses of Prescription History and Usage - Notably, the Act provides the Province with some expansive powers to use personal information collected under this legislation for broader purposes than simply health care and treatment, including health insurance and billing, health system planning, research, public health and other purposes to be prescribed by regulation.
• Privacy Protections - The PSA also seeks to impose limits and privacy protections on the use of personal information collected under this legislation, including by prohibiting secondary disclosure of data by recipients, prohibiting its use for market research, requiring that researchers make formal application to a Data Stewardship Committee for access to such data and providing individuals with some limited controls over how their own information can be controlled and used.
• PharmaNet and Other “Prescribed Information Management Technology” - The PSA also recognizes and seeks to regulate existing and future pharmaceutical information banks, including those currently maintained through the PharmaNet system. PharmaNet is a province-wide system that links all B.C. pharmacies and, among other things, contains information about individual drug prescription histories. It allows the Province, health care providers and drug providers to identify duplicated prescriptions, provide health care, identify drug interactions, and prevent fraud and adjudicate claims under Pharmacare. The PSA seeks to establish legislated limits and conditions on who may access these systems, the ability of individuals to limit access to their own information (through the use of a keyword or protective word) and authorizes the government to enact further regulations regarding access, use and conditions applicable to these information management systems.

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:

• Where the former Limitation Act established an array of limitation periods ranging from two years to ten years for differing types of legal claims, the new Limitation Act provides for a single basic limitation period of two years for most civil claims falling within the scope of the Act.
• Unlike the former Act, the new legislation will postpone the running of time for the ultimate limitation as well as the basic limitation during a period of adult disability.
• Under the new legislation, civil claims will still be subject to a principle known as “discoverability,” which holds that a limitation period only begins to run from the time that the claimant knew or ought reasonably to have known of the existence of a claim. The new legislation, like the existing Act, also sets out other circumstances in which limitation periods may be postponed. However, whereas most such postponed claims were still previously subject to a 30-year ultimate limitation period regardless of the discoverability principle or any other statutory postponement of the period, the new legislation reduces the ultimate limitation period to 15 years, subject to certain exceptions (such as circumstances where the claimant was wilfully misled or relevant facts were wilfully concealed by the prospective defendant).
• The new legislation is important for Health Care because it will have the effect of repealing a provision in the existing Limitation Act which provides that claims against a hospital, a hospital employee or physician for professional negligence or medical malpractice are subject to an ultimate limitation period of six years, regardless of discoverability or any statutory postponement of the running of time.

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:

• The new basic limitation period of two years (reduced from six) will reduce exposure to certain types of claims, such as those based upon breaches of fiduciary duty, wrongful dismissal and breach of contract.
• The repeal of the ultimate limitation period of six years for hospitals, hospital employees and medical practitioners, and its replacement with an ultimate limitation period of 15 years will increase exposure for some health care bodies and professionals.
• Likewise, the introduction of provisions postponing not just the basic limitation but also the ultimate limitation for adults under a disability may increase overall legal exposure for those working in the health care field.

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.