COVID-19 Pandemic Update – Can my organization be shut down and other questions about public health events and emergency management powers

17 mars 2020 | Kathryn M. Frelick, Alissa Raphael

( Disponible en anglais seulement )

Since the outbreak of the Novel Coronavirus, referred to as COVID-19, was originally identified on December 31, 2019 by Chinese health authorities, it has been closely followed internationally by all levels of government, as well as by global, national and local public health agencies.  The speed with which COVID-19 continues to spread and the scale of transmission contributed to the World Health Organization’s decision to identify the COVID-19 outbreak as a pandemic on March 11, 2020.

Large-scale public health events require significant coordination at all levels of government.  In Canada, this was brought into sharp focus with the 2003 global threat of severe acute respiratory syndrome (SARS) and the 2009 H1N1 influenza pandemic; both of which prompted significant legislative and policy changes to address federal and provincial emergency management and public health responses.  In 2018, the Pan Canadian Public Health Network released its Federal/Provincial/Territorial Public Health Response Plan for Biological Events to provide a governance framework and guidance for public health emergencies like COVID-19.  This is intended to supplement the work of existing federal and provincial agencies and committees and improve effective engagement and communication amongst public health, health care delivery and health emergency management authorities.

Even with daily updates and guidance from the Government of Canada, the Ontario Ministry of Health, public health and other agencies – those working in the health industry and employers generally are left to try to decipher the possible impact on their operations. As the situation continues to evolve, organizations are left with many questions about their obligations with respect to COVID-19 and pandemic readiness.

Pandemic Planning – Who is responsible for what?

All jurisdictions in Canada have legislation that addresses emergency management planning and public health.  At the federal level, for example, the Public Health Agency of Canada Act establishes the Public Health Agency of Canada and the role of the Chief Public Health Officer.  The Quarantine Act provides authority for measures to be taken at the federal level to protect public health, including measures to prevent the introduction and spread of communicable diseases.  This includes the ability to issue emergency orders such as travel restrictions and to impose screening measures for persons entering Canada.  Finally, the federal government has established a comprehensive Federal Emergency Response Plan that provides an operational framework for informational sharing, mutual aid and the management of communicable diseases and public health events.

All levels of government, including municipal governments, are required to have plans in place to address emergency situations, including public health events.  Organizations are also required to have emergency management plans in place to address occupational health and safety issues and to meet other statutory requirements.

As an example, Ontario Regulation 965 under the Public Hospitals Act requires the board of every public hospital to ensure that the “administrator, medical staff, chief nursing executive, staff nurses and nurses who are managers develop plans to deal with,

(i) emergency situations that could place a greater than normal demand on the services provided by the hospital or disrupt the normal hospital routine, and

(ii) the failure to provide services by persons who ordinarily provide services in the hospital.”

What is Public Health and Emergency Management?

Public health authorities undertake a broad number of activities to manage responses to public health events such as outbreaks.  This may include: disease monitoring, reporting and surveillance; case and contact management, risk assessment, public education, laboratory testing, providing specific health care services, developing evidence-informed recommendations and engagement with key stakeholders, and risk communications.

In contrast, emergency management authorities facilitate and support the coordination of responses to public health events as they change over time.  This may include: addressing issues regarding mutual assistance and supply management, providing logistical guidance and support, and facilitating the sharing of information and other resources across the health sector and with other relevant sectors.

Some of the specific powers and authorities relating to public health and emergency management in Ontario are set out below.

How is the Ontario Ministry of Health addressing COVID-19?

Ontario has put into operation an “enhanced response structure” in an attempt to strengthen and implement provincial and regional plans to respond to COVID-19. The response structure is composed of five “tables”; each with a specific mandate. The Command Table is chaired by the Deputy Minister of Health and includes among its members: Ontario’s Chief Medical Officer of Health, Ontario Health’s President and CEO and representation from Public Health Ontario. This table reports directly to the Minister of Health and is considered the “single point of oversight providing executive leadership and strategic direction to guide Ontario’s response to COVID-19.”

What is the authority of public health?

The Health Protection and Promotion Act (“HPPA”) provides for the organization and delivery of public health programs and services, the prevention of the spread of disease and the promotion and protection of health.  The HPPA sets out the roles and authority of public health units, local medical officers of health (« MOH ») and the Chief Medical Officer of Health for the province.

Each local Board of Health is responsible for delivering local public health programs and services, including “control of infectious diseases and diseases of public health significance” within the geographic area it serves. This includes investigating and responding to all reports of suspected and confirmed cases of COVID-19.

Coronavirus, including COVID-19 is designated by regulation as a reportable “disease of public health significance” and “communicable disease” under the HPPA.  Hospitals, institutions, physicians and practitioners and laboratories have mandatory obligations to report COVID-19 to the MOH.

Do I have an obligation to report a suspected case of COVID-19?

Most organizations do not have an obligation to report actual or suspected cases of COVID-19.  Rather, this is addressed through mandatory reporting obligations that rest with health practitioners, hospitals, school boards and other institutions, which have a mandatory  obligation to make certain reports to the MOH as soon as possible and to provide information about suspected diseases of public health significance.  The following focus on the obligations of health industry providers:

Mandatory Reporting Situation

Who has the Duty to Report?

Confirmed or suspected case of COVID-19Physicians and practitioners (i.e. chiropractors, dentists, nurses, pharmacists, optometrists, naturopaths) who while providing professional services to a person forms the opinion that the person has or may have a disease of public health significance
Entry in the records of a hospital or institution stating that the person has or may have COVID-19 or is or may be infected with an agent of COVID-19Hospital administrator (in respect of hospital inpatients and outpatients) or Superintendent of an Institution (including long-term care homes, psychiatric facilities, private hospitals, correctional facilities)
Carrier of COVID-19Physician or Nurse Practitioner who, while providing professional services to a person, forms the opinion that the person is or may be infected with an agent of a communicable disease
Positive laboratory finding of COVID-19Operator of a laboratory
COVID-19 is considered to be the cause of/or a contributing factor of deathPhysician and registered nurses in the extended class after signing the medical certificate of death
A patient with COVID-19 refuses treatment, or neglects to continue treatment to a satisfactory degreePhysician and registered nurses in the extended class

What can the Medical Officer of Health do to address COVID-19?

Order-Making Authority

The MOH leads the local public health unit.  The MOH has the authority to make orders and directions in respect of communicable diseases within the municipalities served by the local public health unit where certain criteria are met:

  • there is an immediate risk of a communicable disease outbreak in the local health unit served;
  • the communicable disease presents a risk to the health of people in the local health unit served; and
  • the requirements specified in the order are necessary to decrease or eliminate the risk to health from the communicable disease.

The MOH has broad authority to issue orders to residents, owners or occupiers of premises and employers requiring, for example:

  • the closure of all or part of premises
  • the cleaning and/or disinfecting of premises
  • destruction of articles
  • that persons with COVID-19 refrain from taking specified actions and go into quarantine, or to isolate themselves from others and remain in isolation
  • a person to be tested and/or examined by a physician

Notice of orders directed to a class of persons may be delivered by general notice through an appropriate communications media where a delay in providing the notice may increase the risk to health.

The MOH also has the authority to issue directions where the MOH is of the opinion, upon reasonable and probable grounds, that a communicable disease exists in the health unit and the person to whom an order is or would be directed has refused or is not complying with the order or certain other circumstances exist.

What is the role of the Chief Medical Officer of Health?

The Chief Medical Officer of Health leads the public health system in the province.  The Chief Medical Officer of Health has broad authority to investigate and take steps to prevent, eliminate or decrease any situation that constitutes a health risk in the province, including, subject to certain requirements:

  • exercising any powers of a board of health, medical officer of health or direct a person whose services are engaged by a board of health to do anything in Ontario or directing such individuals to take action under the HPPA
  • ordering the occupier of any premises to provide all or part of the premises to the Minister to be used for public health purposes
  • ordering the emergency procurement of medications and supplies
  • directing any health information custodian to provide any information that is necessary to investigate, eliminate or reduce an immediate and serious risk to health
  • issuing directives to any health care provider or entity regarding precautions and procedures to be followed to protect the health of people in Ontario

Is there a penalty for not making a report or obeying an order?

Failing to make a mandatory report or to obey an order of the MOH is considered a punishable offence under the HPPA. Upon conviction:

  • An individual may be subject to a fine of not more than $5,000 for every day or part of a day on which the offence occurs or continues to occur.
  • A corporation may be subject to a $25,000 maximum penalty for every day or part of a day on which the offence occurs or continues.
  • Directors, officers and agents of a corporation convicted of an offence may also be found guilty of the offence.

What measures are in place for Emergency Management?

The Emergency Management and Civil Protection Act (EMCPA) requires municipalities and provincial government bodies to develop emergency management programs.  It provides for emergency orders and powers when certain criteria are met.

An “emergency” is defined as “a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise”.

Declaration of Emergency

The EMCPA provides that the Lieutenant Governor in Council (« LGiC ») or in circumstances of urgency, the Premier, may issue an order declaring an emergency in part or all of the province.  It may only be made if:

  • There is an emergency that requires immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons; and
  • One of the following circumstances exists: i) the resources normally available to government, cannot be relied upon without the risk of serious delay; ii) the resources are insufficient to effectively address the emergency; or iii) it is not possible, without the risk of serious delay, to ascertain whether the resources can be relied upon.

Emergency Powers and Orders

The EMCPA enables the LGiC to make orders to promote the public good by protecting the health, safety and welfare of Ontario residents in times of declared emergencies.  During a declared emergency, the LGiC may make such orders as are “necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons if it is reasonable to believe that, the harm or damage will be alleviated by an order; and making an order is a reasonable alternative to other measures that might be taken to address the emergency.”

The types of emergency orders that can be made by the LGiC are extremely broad and include:

  • Implementing emergency plans
  • Regulating or prohibiting travel within any specified area
  • Evacuating individuals and making arrangements for their care and protection
  • Establishing facilities such as emergency shelters and hospitals
  • Closing any place, whether public or private, including any business, office, school, hospital or other establishment or institution
  • Using any necessary goods, services and resources within any part of Ontario and/or making them available as necessary
  • Procuring necessary goods, services and resources
  • Fixing prices for necessary goods, services and resources
  • Authorizing, but not requiring, a person to render services of a type that that person is reasonably qualified to provide.

Miller Thomson’s Health Industry Group is continuing to monitor developments involving COVID-19 and to provide timely updates. We invite you to join us on March 26, 2020 at 8 a.m. for our Coffee Talk Health Industry Series webinar on the latest developments of  COVID-19 from a health industry perspective.

 

For additional information, please see our COVID-19 resources page.

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