Ethics, the law and a public health emergency
Health law and policy expert Colleen Flood spoke with The Sunday Edition host Michael Enright about the ethical, legal and civil liberties aspects of some of the drastic measures to slow the spread of COVID-19.
Flood is currently a law professor at the University of Ottawa and a University Research Chair in Health Law & Policy. She is also inaugural Director of the University of Ottawa Centre for Health Law, Policy and Ethics.
Here are some highlights from her interview. Her comments have been edited for clarity and condensed.
On how far Canada has come since the handling of SARS
Post-SARS, there were a number of commissions and inquiries, including at the federal level … with the general consensus being that we had done a less than fantastic job in responding. And part of the problem with public health in general is that we all have fairly short attention spans. In the midst of a crisis or a problem, everyone's jumping up and down that we should focus on public health. But then as that particular moment in time wanes in our mind, we move on to other more immediate problems in our healthcare system rather than investing in public health.
So I think what we saw in the wake of SARS was a great deal of focus on trying to improve both the governance of public health at federal and provincial levels, and a storm of investment that I think most would agree has waned over time. But I do think that in the wake of SARS, we did learn a lot of lessons and we did make a number of changes. Fortunately, I think we are at a much better place to deal with COVID-19 than we were with SARS.
Now, this doesn't negate the fact that we need to learn our lesson and really think hard about how we're going to be prepared for the next pandemic, the next epidemic. And we should be under no illusion that there will certainly be another, because of the rise of many new diseases. Since 1980, there's apparently 80 new diseases caused by viruses and bacteria, and some two-thirds of those have come from animals. And then I was reading that some 4.4 billion folks jumped on a plane last year. So the ability for contagion to spread from animal to human and for human-to-human transmission after that has exponentially increased.
The problem with public health in general is that we all have fairly short attention spans.- Colleen Flood
Back at the time of the plague, it took years for the plague to travel around. With typhoid, it took months. With SARS, someone jumped on a plane in Hong Kong and arrived in Toronto just in a matter of hours. And so we have a great deal more challenges now in public health because of the speed with which things can move and the globalized world we move in. So we've got to get a lot smarter in our governance, in our legal structures, in our management and policy. And we need to really ensure that, whatever else is going on, we secure a level of funding for public health that endures through the ups and downs of politics.
On balancing public health with other national interests
It is really a fine tightrope that governments and public health officials walk here, because if they don't take enough measures, then we will see deaths, suffering and illness, and we'll all want their heads on a platter. And if they take too many measures, or get it right, many folks will say "Well, you've just overreacted. You've shut down economies. You've caused recessions. Look at all these problems that you've caused." The lives that you've saved and the suffering you've avoided is hard to demonstrate, because you've cut all of that (infection) curve rising and so no one really knows what a hero you are. So that's a really fine line that governments walk here.
But nonetheless — if they are set up with the best kinds of responses, surveillance, the ability to know what to do — planning ahead is our best defence in these situations.
On federal and provincial powers around quarantine
Sometimes quarantine can be forcibly required. But at the moment, we're asking people to do that on a voluntary basis. The federal and provincial governments each respectively have powers with respect to quarantine. The federal government's powers mostly pertain to quarantine at borders, so screening travellers coming in and out of Canada. And then the provincial powers are mainly about what to do within a province. But then in addition to that, both federal and provincial governments have emergency powers. So if a province wasn't able to contain the contagion, then it would be feasible for the federal government to declare an emergency and to take some extreme measures — even as extreme as we've seen in Italy and Wuhan. But all of this would be subject to the Charter, and under the Emergency Powers Act they would have to take it to Parliament for approval.
The legal checks and balances on government intervention
Can the federal government or provincial governments shut down particular regions or what we might call a "cordon sanitaire"? Yes, if it's warranted. It would have to be evidence-based, because we do live within the framework of the Charter of Rights and Freedoms. Anything that's done would have to be reasonable and proportionate. So I would imagine that we would need to see more escalation and community-wide spread before it would be justified.
That's the sort of Section 1 (of the Charter) balancing thing that the courts will do. Obviously I think they'll be very deferential to a government balancing the many things that it has to with the risk of a pandemic, but it couldn't be just on a whim or without some evidence to strongly suggest that this kind of significant intrusion into liberty would be required.
A lot of it is about the balancing of people's civil liberties and what we perceive to be in the public good at any particular point. The problem is that sometimes we get what's in the public good wrong. So we might think we understand the vector of a disease and take certain steps and measures on the basis of that, and then find out subsequently we were wrong and have trampled on folks' liberty and autonomy along the way. So it's kind of a balancing act, because the trouble is that in the middle of a pandemic, it's often quite difficult to know exactly how the contagion is being spread.
A lot of it is about the balancing of people's civil liberties and what we perceive to be in the public good at any particular point.- Colleen Flood
On the idea of treating patients with the best chance of survival
I think this is a significant issue for Canada, if we aren't able to flatten that curve. We do run things fairly tightly, and we do not have — relative to other countries — very high numbers of physicians and nurses per capita, and we do not have very high numbers of hospital beds per capita. We feel that pinch in the normal course of events with concerns about wait times. But when we have something like COVID-19, then the rubber really hits the road — not to mention if, God forbid, we should be hit with something else at the same time. So this is about whether or not we have sufficient surge capacity. And, again, forward-planning can help with this.
But then when it comes to the question of who we should allocate resources to on the ground, mostly we leave this in the hands of clinicians, to make that kind of judgment at the bedside. They will determine who will get the resources in real time.
The trouble is where someone who is in acute need may well be in dire straits and likely to pass away anyway, whereas if you devoted the resource to someone less well you may potentially save their life. And I think this is just a very difficult question that most of us don't want to have to make. And the Canadian way so far has been largely to leave that to physicians to determine.
On building public trust in the healthcare system
What's quite interesting when we're talking about infectious diseases is that it has been earlier grounded — and still is — in criminal law powers and police powers. That's very much how the law was originally conceived. So if you are a risk to the population, we'll put you away somewhere and potentially throw away the key, like Typhoid Mary. And I think what's happened over the years is that human rights perspectives have emerged. But even more pragmatically, public health policy and law has realized that these strong approaches often backfire. They can cause people to avoid public health officials. They can cause them to go underground. They can cause whole countries to try to pretend that nothing is happening and to not report to the world that a particular contagion has happened.
And so I think more and more there is a realization that softer measures are better, that incentives and carrots are better than sticks. And so encouraging people to do the right thing and communicating with them and being extremely transparent about what is happening is by far the better approach than simply "Obey my law or else." So I think that that is the way to encourage trust is transparency. And I think we've seen a great deal of that across the country, with stellar examples of public health officials just being open and honest and very communicative with the public about what is happening, what to expect, what they know and what they don't know.
In the past I think there's also been the sense that we shouldn't panic the population — like, let's not tell them too much because they might panic. And of course panic is not a good thing from a psychological perspective, from an economic perspective. But then to not tell people what's going on can also cause panic. So I think those are things that can really help engender trust in public healthcare systems, public healthcare officials and the governments that direct them.
On how crises have the power to change societies
Certainly in the past, post-Depression and post-war, that is where we have seen the emergence of universal healthcare systems, for example. And that was because even the well-heeled realized that, through no fault of your own, you could lose all your money and lose your home.
And then around the world, post-communism, post-apartheid, post-dictatorships, that's where you've seen the emergence of, for example, constitutional rights to health. It's in those countries that you see an explicit right to health and healthcare written in the constitution, because after those terrible events, folks want to change how things are done — they want more equality in the division of their resources in the country.
We learn those ethics, and more people buy into them, when they experience something like this.
Click 'listen' above to hear the full interview.