Alberta - An issue that has attracted significant attention and controversy during the pandemic is whether the chief medical officer of health can independently order public health measures or whether she is merely an adviser to the government. This debate highlights a tension between the legal authority vested in public health officials and the political context in which they work. The legislative assembly debated Bill 66 this week, which would amend the Public Health Act. Although this legislation helps to clarify CMOH powers, it fails to address the inconsistency between the law and the political reality.
Critics argue that these powers were never intended to authorize a non-elected official to impose sweeping society-wide restrictions. Indeed, prior to COVID-19, typical public health orders addressed narrower matters such as closing a restaurant for failing to meet health standards or ordering an individual to isolate. Bill 66 would expand her authority from being able to prohibit “a person” from attending school or work or having contact with others to prohibiting “a person or class of persons” from doing those things. The CMOH can make these orders “for any period and subject to any conditions” that she “considers appropriate.” In other words, the amended law would permit the CMOH to do what she has already been doing throughout the pandemic.
The proposed amendments suggest that the government itself may be concerned with the legality of the CMOH’s existing orders as it would retroactively declare them “to have been validly made.” In other words, this bill would validate any orders that she did not have the legal authority to make at the time.
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