Pan-canadian public health network council report and policy recommendations on the use of antivirals for prophylaxis during an influenza pandemic

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Key Considerations and Expert Reviews

3. Legal Considerations

The legal framework for policy decisions related to the use of antivirals for prophylaxis during pandemic influenza was jointly prepared for TGAP by legal counsel from eight provinces, one territory and the federal government (see Annex 3.3).

Key Findings

Governments that choose not to stockpile antivirals for prophylaxis for use during an influenza pandemic could face allegations of negligence. Claims could be brought against them that by choosing not to stockpile antivirals for prophylaxis they failed to protect the public from, and prevent the spread of, pandemic influenza. In order for an action in negligence against the Crown to succeed, plaintiffs must first establish that the Crown had a duty of care toward them. If a duty of care is found, considerations may still exist that negate the imposition of a duty. It is well established in Canada that the Crown can be exempt from a duty of care where it makes a pure policy decision. However, the implementation of pure policy decisions may well be subject to negligence claims. Consequently, even if governments choose to stockpile antivirals for prophylaxis, they could still face allegations that they were negligent in the manner in which the policy decision was implemented.

Governments as employers must be cognizant of their statutory duties toward their employees. Under occupational health and safety legislation employers are required to ensure a safe work environment for their employees. The relationship between governments as employers and their employees is very different from the governments’ relationship with the public.

If governments decide to stockpile antivirals for prophylaxis they may well determine that only certain individuals will receive them. If the decision is made that only certain individuals will receive prophylaxis and priority lists to enumerate these individuals are created, governments could face Charter challenges under section 15 (equality rights) and /or under section 7 (life, liberty and security of the person). Any decision to restrict access to antivirals by creating priority groups should be based on fair, reasonable, and rational considerations, in order to demonstrate that the deprivation of a section 7 right was in accordance with the principles of fundamental justice and that the restriction was not done in a discriminatory manner. The government should retain the convincing and compelling evidence it used, as evidence that this decision was based on a sound scientific, social, economic, ethical, and legal policy rationale.

Governments are not required to come to a consistent, uniform decision across jurisdictions. Although not necessary in law, a policy decision that is consistent across Canada may be more easily defended to the public as being reasonable and justifiable. However, if dissimilar policy decisions were to exist across Canada, governments could still establish that their particular decision had been carefully tailored to achieve their objectives. They should record their justification for doing this.

When implementing the chosen policy on the purchase and provision of antivirals for prophylaxis during pandemic influenza, governments should do everything possible to communicate the policy decision to all Canadians in a clear and consistent manner. Finally, there should be a common understanding as to how particular populations, such as First Nations on reserves and Inuit, will be served.

Conclusions

Therse are basic legal considerations that should guide any governmental policy decision on the stockpiling and provision of antivirals for prophylaxis. These considerations have permeated all aspects of TGAP’s deliberations and include:

1. governments’ basic guiding principles of transparency and management of affairs in the best interests of the Canadian public should guide this policy development process:
2. governments should retain the convincing and compelling evidence that they used to come to their decisions;
3. the decisions should be based on a comprehensive analysis of all relevant factors and should be based on sound scientific, social, economic, and ethical policy rationale;
4. any decision to restrict access to antivirals by creating priority groups should be based on fair, reasonable, and rational considerations;
5. the implementation of any policy should be communicated widely in a clear and consistent manner, and once the plan is established and communicated, it should be carried out precisely unless necessary modifications due to new evidence justify a change.

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