The end of public health in Ontario

“A recent report commissioned by the Canadian Medical Association showed that delayed or missed health care services may have contributed to more than 4,000 excess deaths not related to COVID-19 infections between August and December 2020,” writes Dr. Katherine Smart, president of the Canadian Medical Association. Toronto Star. Canadian Press photo/Ho/CMA

Jacob J. Shelley, Healthy Debate April 10, 2022

Make no mistake my friends, as Premier Doug Ford often says, public health is coming to an end in Ontario. As the sixth — and largely preventable — wave (perhaps more appropriate, tsunami) of COVID-19 washes over the province, there is a notable absence: public health.

Recently this has manifested in several ways: the absence of Ontario’s top doctor, Kieran Moore; the inaction by local medical officers of health (MOHs); the pre-emptive lifting of protective measures, such as mask mandates, without scientific justification; the failure to do basic surveillance, like testing, among many other examples.

But public health is more than just absent. It’s coming to an end.

This process began prior to the pandemic when Premier Ford announced the “modernization” of public health on April 11, 2019. Modernization is double-speak for dismantling public services. The decision to modernize entailed cutting public health spending by $200 million (a 27 per cent budget cut) and reducing public health units from 35 to 10. This latter point may be a primary reason why MOHs are so reluctant to stick their necks out to use their all-important statutory authority to protect the public — the executioner stands waiting, and MOHs know it.

Premier Ford was urged to pause his modernization plans by many, including Ontario’s Association of Local Public Health Agencies, until the COVID-19 emergency is declared over.

Low and behold, the COVID-19 pandemic is over! This pesky sixth wave, with wastewater signals already reaching new heights in some health units and certain to exceed the highest signals recorded provincially, is just a little spike!

If anything, the pandemic has provided great cover for the broader goal to undermine all public institutions, including health care, public education, and higher education. Allow these institutions to falter, if not fail, under the weight of the pandemic and the public may just welcome plans to dismantle democratic decision-making in Ontario.

But public health isn’t coming to an end simply because Ford is following through with his plans — his agenda may be rejected outright by voting out the government in June. Public health is coming to an end because of those charged with protecting public health — the Chief Medical Officer of Health (CMOH), boards of health and MOHs. They have a duty to protect the public’s health and, frankly, they have failed. The cruel irony is that if MOHs simply worked together, collectively they just might be able to protect the public’s health. Instead, despite calls from the public, scholars, media, elected officials, MOHs appear to be standing on the sidelines.

But public health is more than just absent. It’s coming to an end.

The most damning representation of this failure — and, sadly, there are many — is the recent passivity of Ontario’s MOHs as the Ford government dropped Ontario’s last line of defense against COVID-19 by removing the provinicial mask mandate. In response, not a single health unit acted to reinstate making policies to protect the public — although Middlesex London Health Unit made sure to protect itself, as you must mask in their facilities. While many units continue to strongly encourage people to wear masks, this is as compelling as telling someone who is intoxicated that they shouldn’t drive. Incidentally, drunk driving only resulted in 155 deaths nationally in 2019 while there were more than 480 COVID deaths in Ontario in March alone.

Section 22 of the Health Promotion and Protection Act (HPPA) clearly grants MOHs the authority to enact measures to prevent the spread of infectious diseases. So why haven’t they used this power to require masking in public settings?

Recently, Bruce Arthur of the Toronto Star proffered several explanations. Perhaps most damning is that not all MOHs agree masking is necessary. Most infamous would be the acting MOH in Haldimand-Norfolk, Matt Strauss, who very publicly vocalized his opposition to cloth masks. However, he noted, “I will wear a high-quality clinical face covering when I interact with high-risk individuals in high-risk settings.” Given the prevalence of COVID-19 transmission and the inability to identify who is a risk, that would mean wearing a mask, well, everywhere. Note that Strauss can’t even call it a mask — which should, at a minimum, signal the seriousness his assessment should be given.

It’s not entirely Strauss’s fault — after all, he does not have any relevant public health training to inform his assessment. In fact, he cannot be appointed as the full-time MOH in Haldimand-Norfolk as he does not meet the eligibility requirements. Strauss was a controversial appointment as acting MOH, undoubtedly intended to be the countermeasure to the former MOH, Shanker Nesathurai, who ruffled the feathers of local farmers by, rightfully, using his section 22 powers to protect migrant farm workers. More on this later.

While masking has come under some scrutiny, and some (including Strauss) wrongly suggest there is insufficient evidence about the benefits of masks, the reality is that they are a valuable and effective tool. The science continues to support this again and again and again. They may not be sufficient — a host of common sense initiatives are required, such as improving ventilation and they work best when commonly adopted and of high quality — but they can play an important role.

Another reason MOHs might be reluctant to use their section 22 powers is that they are following the lead of CMOH Moore, who inexplicably — and, frankly, inexcusably and unforgivably — abandoned the basic tenets of public health. In telling Ontarians to do individual assessments, Moore abandoned public health’s foundation of collective action, never mind that it’s impossible for individuals to do a meaningful risk assessment without adequate surveillance (the backbone of public health). Moore shockingly stated, in response to the lifting of mask mandates, “You have to recognize you can’t mandate masking forever, that it has to be eventually an individual choice based on an individual’s risk assessment.”

Putting aside for the moment that nobody is advocating for masking forever (which, incidentally, some people may be forced to do to ensure their own protection), public health protections, particularly for limiting the spread of contagious diseases, require collective action and collective responsibility.

MOHs may also have concerns about enforcing section 22 orders — but that is an issue difficult to discuss without first having an order to consider. It would seem there is a misconception that a section 22 order would need to be exhaustive. While that may be advisable, it is not necessary. Section 22 does not necessarily need to be applied across the board. Indeed, very targeted and deliberate orders may do much to reduce the spread of infection.

Public health protections require collective action and collective responsibility.

Consider the all-important need to protect children in schools. An MOH could use section 22(5)(5.02) to order a class of persons — say, children and staff in public schools — to require masking. Such an order would comport with the existing duties of school principals under the Education Act to give “assiduous attention to the health and comfort of pupils,” which includes “ventilation of the school” (s. 265(1)(j)). Moreover, principals can refuse to admit into a school “any person who the principal believes is infected with or exposed to communicable disease requiring an order under section 22” (s. 265(1)(l), emphasis added).

Given that everyone is presently being exposed to a communicable disease, and that without proper testing it is impossible to know who has been exposed or when, a creative section 22 order could be drafted to make admission to schools contingent on wearing a mask. Moreover, principals under section 265(1)(m) have the right to refuse to admit any person to the school who “would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils.” Enforcement here would lie with principals, not boards of health or MOHs.

Similar creative solutions are possible for other settings, particularly where people are likely to be exposed. A section 22 order could be made for retailers who wish to remain open to require masking on their premises. Retail spaces are not public — and conditions for entry are not new: no shoes, no shirt, no service.

For some reason, there seems to be widespread misconceptions about what section 22 can apply to. As Arthur notes, “section 22 needs to meet an immediate threat within your health unit, but it’s harder to defend if your PHU is highly vaccinated.” It is not clear where this mistake originates — but it’s a mistake. To invoke an order under section 22, an MOH is only required, on “reasonable and probable grounds,” to demonstrate that a communicable disease may exist in the health unit; that the disease presents a risk to the health of persons; and that the requirements imposed under the order decrease the risk. That’s it.

COVID-19 clearly presents a risk to health through infection and the potential for long COVID. That risk is shared by the unvaccinated and vaccinated alike, although vaccination greatly reduces the risk to health and risks of long COVID. That’s not much solace for the many unprotected or inadequately protected individuals — currently, only one health unit in Ontario has a vaccination rate of more than 70 per cent for those 18+ when taking into account the necessary third dose (Leeds, Grenville and Lanark District).

Perhaps a bigger concern of MOHs is the potential legal challenges they may face should they enact section 22 orders. Such challenges come with significant and unanticipated costs — and not just financially, but also to members of the units. This is not an insignificant concern, but the likelihood of these challenges succeeding is small given that the courts have thus far upheld most COVID-19 policies.

Moreover, if section 22 orders were directed against a class of persons, rather than against individuals, they would not require numerous trials. One decision will be sufficient. And while faith in many things has been shaken these past two years, the courts in Canada tend to be deferential to public health. This was the approach of Justice Pomerance in Ontario v Trinity Bible Chapel, noting, “greater deference is owed where public officials are dealing with a complex social problem, balancing the interests of competing groups, or seeking to protect a vulnerable segment of the population” (at para 125).

Nevertheless, weary and resource-strapped health units have suggested to me that there is concern in health units about losing influence and upsetting or ostracizing a weary public. But this is not a compelling reason. The public often needs to be persuaded to act proactively to protect its health. Should impaired driving laws be relaxed if the public grows tired of drinking responsibly? Moreover, the past two years demonstrated that most Ontarians are willing to abide by requirements.

Ontario’s Environmental Protection Act prohibits littering (s. 86), but I have not once heard about removing this provision due to lax enforcement or public buy-in. To be sure, some individuals will not comply (indeed, many did refuse to comply with the provincial mask mandate), but health policy should not cater to those who will always be unwilling. Besides, if someone believes TikTok or YouTube (or Strauss) about the harms of masking, it is doubtful the health units wield meaning influence anyhow.

Arthur also notes that MOHs may be reluctant to speak out against the province’s messaging. But this also is not a defensible position. MOHs are not charged with protecting the health of people residing in the entire province, but those within their health unit. Their assessments are localized, so a province-wide assessment isn’t relevant in determining how to address a threat within their unit. Indeed, consideration of the broader context would render local health units moot (something Ford aspires to achieve).

Given that COVID-19 currently is a threat to the health of residents in most, if not all, health units in Ontario, most MOHs would be justified in enacting section 22 orders to require masking. In so doing, they would undermine the clearly fallacious narrative the government is pushing about COVID-19. Just because the provincial government has abandoned efforts to protect the public — making any local efforts potentially less effective — doesn’t mean that MOHs should follow suit.

We need bold action from MOHs. If not now, when?

There may be some concern by MOHs that CMOH Moore may override their decisions. But it is not clear that the HPPA grants this authority. While section 77.1(2) does bestow upon the CMOH the powers of the board of health and those of the MOH, that power is circumscribed by section 77.1(1): “If the [CMOH] is of the opinion that a situation exists anywhere in Ontario that constitutes or may constitute a risk to the health of any persons, he or she may investigate the situation and take such actions as he or she considers appropriate to prevent, eliminate or decrease the risk.” In other words, the CMOH can exercise this power in a limited fashion — indeed, section 77.1 is titled “Chief Medical Officer of Health may act where risk to health.” It does not authorize the CMOH to override an MOH’s actions to prevent, eliminate or decrease risks.

To be sure, there is some ambiguity around the use of section 22 given that it is not a frequently used power and has been subject to little judicial consideration. However, Schuyler Farms Ltd. V Dr. Nesathurai, a recent decision by the Superior Court of Justice provides some useful insight. In Schuyler, the court was assessing a section 22 order by Nesathurai, then MOH of Haldimand-Norfolk, that required migrant farm workers to isolate for 14 days before being permitted to work. In upholding the order, Justices Sachs, Backhouse and Favreau noted that section 22 “set out a non-exhaustive list of specific orders,” including “requiring a person to conduct himself or herself in such a manner as not to expose another person to infection” (para 9). This seems particularly relevant for any section 22 orders requiring masking.

A critical part of this judgment was the judicial notice of the importance of the precautionary principle when determining the need for a section 22 order:

The precautionary approach embodies the principle that reasonable action to reduce risk should not await scientific certainty or proof. It is and should be at the core of public health practice when dealing with a new disease such as COVID-19. Underlying the HPPA and particularly the s. 22 thereof is a focus on preventing public health problems, rather than dealing with them after the fact. (para 108)

The precautionary principle should guide public health decisions — a point that many others have made. Importantly, the court recognized that perfect evidence is not necessary — sorry Strauss, no randomized control trials required — given the importance of prevention.

In short, I have yet to be convinced that there are compelling reasons why a section 22 order cannot be issued. The mandate of MOHs is not to curry favour from a government seeking re-election, but to protect the health of residents in their health unit.

Masks are one of the best examples of a simple and yet effective protective public health policy. They minimize exposure to infection, and thereby reduce transmission of what is clearly a virus that, despite hopeful thinking, continues to wreak havoc. Until we have more robust protections in place — which will require far more difficult changes in society, including addressing ventilation, ensuring global vaccine equity and increasing vaccination rates — masks are a simple but effective solution. Masks are to COVID what condoms are to sexually transmitted infections. Maybe nobody wants to wear one, but they are quite effective when used properly.

The public often needs to persuade the public to make healthier decisions — I have spent most of my career working on policies that aim to make the healthy choice the easy choice. Besides, public health has had much training in how to frame measures enacted to protect the public’s health. Consider smoking bylaws — arguments levied against COVID protections, from rights to freedom to economics, were once levied against restrictions on smoking indoors. Thankfully, smoking bylaws have been normalized. Can you imagine going to a restaurant or workplace where smoking was permitted?

The failure to use section 22 powers to require masking amid the most devastating public health crisis in the last 100 years for me, sadly, signals the end of public health in Ontario. This is not an inevitable consequence, but rather a result of the inaction of those vested with the power to protect public health.

Undoubtedly, the fear of Ford’s modernization agenda remains front of mind, and MOHs are thus wary of what the government may do if they “step out of line.” In this respect, they may be playing a long game, trying to curry future favour, perhaps less budgetary cuts or surviving the “hunger games” and emerging as one of the 10 lucky MOHs to survive amalgamations.

But that is precisely why public health is coming to an end in Ontario. Now is the time for concerted action; when we need bold action from MOHs. If not now, when? The next “mild” wave that brings about hundreds or thousands of deaths? Or the next pandemic that might be more deadly?

In attempting to receive scraps from the table of a Premier who does not prioritize the health of Ontarians, MOHs seem reluctant to act for fear of political consequences. But the gutting of public health is already happening — and will continue to happen. Indeed, I can imagine Ford pointing to the inaction of MOHs as a further justification for cutting budgets, restructuring public health and removing the pesky powers that he cannot control.

The purpose of the HPPA is clear: to protect and promote the health of Ontarians. MOHs need to be courageous and not cower before a government that has ignored the science and decided to put us all at risk. Masks are not going to end the pandemic, but they will protect people. That’s the job of public health.

If Ford’s government is re-elected in June, public health will undoubtedly be further decimated. This may be the last chance for MOHs to use their statutory powers; to fulfill their mandate to protect the health of the public.

Failure to act will be how public health will end: not with a bang, but with a whimper.

Jacob J. Shelley, Contributor
Dr. Jacob Shelley is an Associate Professor jointly appointed to the Faculty of Law and School of Health Studies, Faculty of Health Sciences, at Western University. He is also the Director of the Health Ethics, Law & Policy (HELP) Lab. He has a doctorate in law (SJD) from the University of Toronto and is an editor of Public Health Law & Policy in Canada.

Source Healthy Debate

Also see
Children’s hospitals under strain in Canada’s 6th COVID-19 wave CBC
Pandemic shows us what health care workers have known for decades Toronto Star
CMA president decries ‘gaslighting’ of health-care workers over COVID-19 toll Victoria News
Stuck in the middle with you: The inherent tension faced by medical officers of health Healthy Debate

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