Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 2 - Evidence
Ottawa, Wednesday, March 27, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was
referred Bill C-8, respecting the control of certain drugs, their precursors and
other substances and to amend certain other Acts and repeal the Narcotic Control
Act in consequence thereof, met this day, at 3:15 p.m., to give consideration to
the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Honourable senators, this afternoon we begin consideration of Bill
C-8, an Act respecting the control of certain drugs.
With us today from the Canadian Medical Association are: Dr. Jack
Armstrong, President; Dr. Anne Carter, Associate Director of Health Care and
Promotion; and Carole Lucock, Senior Legal Counsel, Manager, Legal Services.
Senator Jessiman: When this bill was considered by the earlier committee on
December 12, 1995, at page 70:13, Mr. Rowsell, in answer to a question from me,
said that the subcommittee in the other place also had the same question. He
said:
We have a document that shows you a cannabis plant and separates out the
distinction between cannabis, marijuana, and hash.
He then went on to explain various things. He was to give us that document.
The Chair: He did that.
Senator Jessiman: I did not see it.
The Chair: I have a copy of it.
Senator Jessiman: Perhaps I could get that later.
The Chair: Certainly. I will make sure that you receive that document.
Dr. Armstrong, would you begin now, please?
Dr. Jack Armstrong, President, Canadian Medical Association: Honourable
senators, on behalf of my fellow physicians, I should like to say that the
Canadian Medical Association is pleased to have the opportunity to make this
presentation. I am a pediatrician from Winnipeg. The other members of our
delegation, who have been introduced, have been following this issue since the
bill was first introduced in the House of Commons. I will make some brief
opening remarks and then we would be glad to answer any questions you might
have.
The Canadian Medical Association's mission has two components: to provide
leadership for physicians and to promote the highest standards of health and
health care for Canadians. Our concerns about Bill C-8 arise from both aspects
of this mission. We believe that physicians are unfairly targeted by many
elements of the proposed legislation, and we feel that, as a result of this, the
bill could have an adverse effect on the health of Canadians.
The Canadian Medical
Association's mission has two components: to provide leadership for physicians
and to promote the highest standards of health and health care for Canadians.
Our concerns about Bill C-8 arise from both aspects of this mission. We believe
that physicians are unfairly targeted by many elements of the proposed
legislation, and we feel that, as a result of this, the bill could have an
adverse effect on the health of Canadians.
I realize that Bill C-8 has received some public attention because it addresses
the issue of controlling marijuana and other drugs. Our area of concern has
received relatively little attention, despite the fact that it could eventually
have a much greater impact on society. I say that because it is clear from this
bill that the federal government intends to take an intrusive approach to the
practice of medicine and is determined to control and regulate the medical use
of drugs. This is unprecedented and should be of major concern to Canadians.
Let me give you a few examples of what I mean. Under Part IV of the bill, the
Minister of Health may designate inspectors for the purposes of the act and its
regulations. These inspectors will have the power to enter a physician's place
of practice without a warrant and begin an extensive search of the premises.
Try to imagine what effect that might have on a physician's practice. An
individual shows up, identifies himself to the doctor's assistant and begins
going through the cabinets, looking in any containers he might find in the
office, leafing through books, going into the physician's computer system, all
this in front of any people waiting in the doctor's waiting room.
If any of you were sitting in that waiting room, I wonder how you would react to
such an odd scene. If you were told by your doctor, or his or her assistant,
that it was an inspector from Health Canada, would this reassure you or worry
you? If you learned that the inspector was simply looking to make sure that your
doctor was not dealing in a controlled substance or precursor, would this
reinforce your confidence in your physician or would it raise questions about
his behaviour?
I dare say that many Canadians would probably be alarmed by this and might
question whether or not they should change physicians. Fear of this type of
action - and I emphasize this - may lead to "prescribing chill". That is to say,
physicians might want, or be tempted, to avoid making available certain
prescriptions to the detriment of patient care.
Bill C-8 goes even further. Clause 33 gives the Governor in Council unrestricted power to refer to any regulation as a so-called "designated regulation". Contravening such a "designated regulation" would carry a stiff penalty, including the loss of a licence, permit or authorization issued or granted under the regulations. In the instance of such a contravention, the minister can order a hearing before an adjudicator. This adjudicator will deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.
As an aside, I am not familiar with the details of legal terminology, but when I hear the phrase "informally and expeditiously" in a legal setting, I find that it sounds a lot like "fast and loose", and that gives me cause for alarm.
I realize that Bill C-8 has received some public
attention because it addresses the issue of controlling marijuana and other
drugs. Our area of concern has received relatively little attention, despite the
fact that it could eventually have a much greater impact on society. I say that
because it is clear from this bill that the federal government intends to take
an intrusive approach to the practice of medicine and is determined to control
and regulate the medical use of drugs. This is unprecedented and should be of
major concern to Canadians.
Let me give you a few examples of what I mean. Under Part IV of the bill, the
Minister of Health may designate inspectors for the purposes of the act and its
regulations. These inspectors will have the power to enter a physician's place
of practice without a warrant and begin an extensive search of the premises.
Try to imagine what effect that might have on a physician's practice. An
individual shows up, identifies himself to the doctor's assistant and begins
going through the cabinets, looking in any containers he might find in the
office, leafing through books, going into the physician's computer system, all
this in front of any people waiting in the doctor's waiting room.
If any of you were sitting in that waiting room, I wonder how you would react to
such an odd scene. If you were told by your doctor, or his or her assistant,
that it was an inspector from Health Canada, would this reassure you or worry
you? If you learned that the inspector was simply looking to make sure that your
doctor was not dealing in a controlled substance or precursor, would this
reinforce your confidence in your physician or would it raise questions about
his behaviour?
I dare say that many Canadians would probably be alarmed by this and might
question whether or not they should change physicians. Fear of this type of
action - and I emphasize this - may lead to "prescribing chill". That is to say,
physicians might want, or be tempted, to avoid making available certain
prescriptions to the detriment of patient care.
Bill C-8 goes even further. Clause 33 gives the Governor in Council unrestricted
power to refer to any regulation as a so-called "designated regulation".
Contravening such a "designated regulation" would carry a stiff penalty,
including the loss of a licence, permit or authorization issued or granted under
the regulations. In the instance of such a contravention, the minister can order
a hearing before an adjudicator. This adjudicator will deal with all matters as
informally and expeditiously as the circumstances and considerations of fairness
and natural justice permit.
As an aside, I am not familiar with the details of legal terminology, but when I hear the phrase "informally and expeditiously" in a legal setting, I find that it sounds a lot like "fast and loose", and that gives me cause for alarm.
These are just two of the flaws we see in the
bill in its current incarnation. They reinforce our belief that this government
intends to intrude in the practice of medicine in a heavy-handed way.
Traditionally, the power to regulate medical practice has been exercised by
professional disciplinary bodies that monitor the practice of medicine in the
public interest. This proposed piece of legislation represents a major departure
from this tradition.
Canadian physicians feel that if it is passed, Bill C-8 will have a major impact
on how we practise medicine. This is because the legitimate prescribing and use
of drugs is a major part of practice. Physicians should not feel that the act of
prescribing drugs for their patients is subject to scrutiny under a criminal law
statute or subject to criminal sanctions. If, as a result of Bill C-8, every
doctor in Canada must think twice about whether or not to prescribe medication,
patient care will inevitably suffer to some degree.
In conclusion, CMA understands the reason why the government has introduced this
legislation: The constant battle against the use of drugs. Physicians respect
this motivation. We see the terrible effect of drug abuse every day. However, we
must oppose Bill C-8 because of the impact it will have on our profession.
The CMA succeeded in having some amendments made when this bill was before the
House of Commons, and we are pleased about that. Unfortunately, there are
important changes that remain to be made.
Honourable senators, we have come before your committee today because we
recognize and respect the important role that the Senate plays in our
legislative system. You have the opportunity to take legislation, review it and
improve it. We urge you to do so with Bill C-8. It is well-intentioned and has
some positive aspects, but it goes much too far in its intrusion into the
practice of medicine.
In the end, the government should hope to achieve the control of the misuse of
drugs while at the same time recognizing the legitimate use of drugs by
physicians and ensuring that the medical use of drugs is accommodated. Other
jurisdictions, such as the United States and Britain, have achieved this
balance. We encourage you and your colleagues to make this piece of legislation
a better bill. We encourage you to make it a balanced bill.
The Chair: Before we begin with questioning, perhaps your legal counsel could
elaborate to some degree. My understanding is that the powers of the inspectors
and the powers under designated regulations are exactly the same as exist in the
present act.
Ms Carole Lucock, Senior Legal Counsel, Manager, Legal Services, Canadian Medical Association: The powers of the inspectors and the powers to designate regulations are highly dependent on what regulations are passed. At the beginning of clause 55 of the proposed legislation, the power to make regulation is broadly defined and includes the power to regulate the medical use of drugs. The power to make regulations in the future has been significantly extended. Consequently, any powers that flow from that, for example the powers of the inspectors and the powers to designate regulations, have also been extended. In current legislation there is no power similar to the power to designate regulations.
Senator Lewis: I wish to ask you about the
question of inspection and the right to enter offices and search. What is the
situation now under the provincial health care plans? Are there not also rights
of entry?
Dr. Armstrong: My understanding is that if at the present time there are any
outlaws in the profession, the inspectors and government authorities are well
aware of those circumstances through other means of criminal investigation, and
they are able to accomplish the control of such adverse activity by other means.
In other words, the law officers and inspectors are well aware of who the
culprits are, and they do not need to establish a system whereby inspectors can
go into any office and at random start to check whether things are in proper
order. I am told that criminal activities are pretty well known to the law
officials, and other means of bringing those physicians under control are well
in hand at the present time.
Senator Lewis: I can only speak for my own province, but I have seen some
reports in the press of doctors complaining about inspectors from the medical
plan administration going into doctor's offices to search their records to check
the claims that are being submitted by doctors for medical services to the plan.
There are complaints that doctors' records are being searched and information is
being obtained. There is a worry about that information getting out. Is there
something similar to that type of provision here?
Dr. Armstrong: There are variations from province to province and certain
changes have occurred under certain jurisdictions in the last couple of months.
Ms Lucock: I am not familiar with all legislation across Canada, but certainly
under provincial statutes there are some powers of entry into a physician's
practice. The profession is always concerned, particularly when patient records
and their records are open for scrutiny for some of the reasons that
Dr. Armstrong has alluded to and in a general sense.
Currently, under the federal inspection powers, the job of the inspectors under
the Food and Drugs Act is to ensure that drugs are made in sanitary conditions
and that they are as they say they are. There is not the same threat under the
current system as there would be under the new system. Who has access and to
what they have access is of great importance to physicians.
Senator Jessiman: You made representations before the House of Commons committee
and they amended the act to satisfy some of your requests. Is that correct?
Dr. Armstrong: That is correct.
Senator Jessiman: I assume that you made a
complaint similar to the one you are making here before the House of Commons.
What did they say is the problem?
Ms Lucock: The concerns that we raised were in relation to the criminalization
of certain activities of physicians. They have certainly been addressed, and we
have been pleased to see that. Since there has not been a dialogue, the honest
answer is that we are not sure why this particular aspect of our concerns has
not been addressed.
Senator Jessiman: Did you mention this particular concern?
Ms Lucock: Yes. This legislation has gone through a series of stages. It was
initially Bill C-85, then Bill C-7, and now this bill. We have been before
committees in the house on two occasions and presented two briefs.
Senator Jessiman: I do not know if you are familiar with the national review
which came out on February 12, 1996. It is fairly new. There are seven
outstanding concerns of North America. They say that the war on drugs is lost.
They say that we are in the same position with drugs in North America today as
we were with alcohol when we had prohibition. I would be the last one to suggest
that we make drugs legal, but, at the same time, having read this, I should like
to know your views.
Dr. Armstrong: I am sure we are all aware that there is a difficult problem with
drugs, and I could not dispute that. To emphasize the point I want to make this
afternoon, I must say that by introducing this type of legislation and
regulations, whatever they may be -
Senator Jessiman: I sympathize with your point, but I have gone on to another
aspect of it.
Dr. Armstrong: I agree and sympathize that drug control is a severe problem.
Senator Jessiman: Would you agree with legalizing
marijuana?
Dr. Armstrong: I do not think I am here to try to answer that question. I am
wise enough to duck that question.
Senator Nolin: You referred in your opening statement to intrusion. I should
like to ask Ms Lucock to comment on that. By "intrusion", I assume you are
referring to federal and provincial powers, and that should be sustained by
something. I heard you, but I should like to hear you further on that point.
What kind of intrusion, and what legal argument do you have to support the word
used by your president?
Ms Lucock: We have tried to deal with it from both a practical and a legal
perspective. I assume that the federal government is relying on its criminal law
power to bring this legislation forward.
Generally speaking, with some exceptions, the medical practice is considered to be a provincial power and dealt with provincially. For the federal government to bring in legislation which clearly contemplates the regulation of the medical use of drugs is suspect to us in terms of the federal law power under the criminal law statute. They will have to rely on criminal law and criminal methods to enforce this piece of legislation, which is not the normal way to deal with what we consider to be a quality issue in medical practice.
Senator Nolin: Do you argue that a doctor is
entitled to a specific right under the Charter and that that right is breached
by the inspector or the usage by the federal government of this type of search?
Ms Lucock: Our principal argument is that there are appropriate ways of handling
and regulating the medical practice and ensuring that we have a quality medical
practice. That is not achieved through the use of the criminal law power; it is
not achieved through the use of regulation in a criminal context. It is more
appropriately done provincially through professional governing bodies and with
the consent and help of the profession itself. They are the ones who understand
what prescribing practices are all about, and they are the ones best able to
make alterations or adaptations as cases arise.
Senator Nolin: There are searches and seizures. Even if doctors are professional
and they have information related to the personal health history of their
client, if the police want to get into their offices, all they need is a warrant
to gain entry. If I understand you correctly, you are telling us that what is
contained in Bill C-8 differs from what is already in place, that law
enforcement is much different now, that they have too much power, and that what
is already in place is enough. Is that what you are saying?
Dr. Armstrong: As I read our background brief and discussed it, the new
legislation would allow someone to enter the office without a warrant. I gather
that under the current circumstances, if a physician is felt to be suspect
because of other investigations, then there could be an entry with a warrant.
However, other mechanisms of investigation at the present time have been quite
ample in detecting who is likely to be suspect. As a regular matter of
investigation, that is a different situation entirely from entering a
physician's office unannounced without a warrant. That is a difficult situation
for the physician and in most instances places the physician in an unwarranted
and poor light. More important is the impact on prescribing practices. If it is
to become a criminal matter or a matter or investigation, what influence will
that have on what have been good prescribing habits by a majority of physicians?
These prescribing habits have been well studied and assessed by professional
bodies. There are lay people on those bodies such as the provincial licensing
authorities. They are in the best position to determine what is good practice in
prescribing procedures for physicians, who may have different types of practices
and have different prescribing situations.
Senator Doyle: Was there any consultation in advance between the people who were
writing this law and your association?
Dr. Armstrong: I would have to defer to
historical knowledge. My understanding is that we have been permitted to respond
to legislation more than being involved.
Ms Lucock: To our knowledge, there was no prior consultation as the bill was
being drafted. Since the introduction of
Bill C-85, we have had opportunities to meet both formally and informally to
express our concerns. When the bill was drafted, as far as I am aware, there was
no prior consultation or a seeking of input from the Canadian Medical
Association.
Senator Doyle: Considering the nature of the problem with which you are dealing,
namely, drugs, over a period of time has there not been a development of some
area where you are constantly in touch with the policing authorities? Doctors'
offices are frequently the targets of people addicted to drugs. Doctors
themselves have been involved in the abuse of drugs. I would have thought you
would have developed a line of information where, Dr. Armstrong, you could pick
up the phone and talk to inspector so and so whenever you had a problem that
might affect their work.
Dr. Armstrong: In dealing mostly with children, my practice is not quite as much
in that territory. It varies from province to province or territory.
Again, mechanisms are in place in certain jurisdictions such as those in my home
province, where, with respect to controlled medication, you write the
prescription out on a triplicate form. The college has access to it. The
pharmacy gets a copy and a copy goes to the licensing body. They can follow your
patterns of practise on that basis. I suppose they could monitor it. If they
thought you were out of line in your prescribing habits, they could bring you
before an assessment body.
In terms of picking up the phone, I am not quite sure I know what that would
involve. However, there are mechanisms in some jurisdictions across the country
of the form I just mentioned.
Dr. Anne Carter, Associate Director, Health Care and Promotion, Canadian Medical
Association: In all provinces, physicians aware of other physicians who are in
difficulty with substance abuse or criminal activities report these activities
to their colleges. Is that what you had in mind?
Senator Doyle: No, I was thinking of a line of communication which would be good
enough that some one of you, at some point, knowing that the legislation was
being written, would have called your contact and asked, "What is going on? We
have not been plugged into this and we are concerned."
Dr. Carter: At the time that Bill C-85 was written, that was not happening. In the last two years, the Canadian Medical Association has met regularly with the drugs directorate. We have exchanged information about various upcoming issues that are of interest to both of us. I am sure, today, if Bill C-85 were being drafted, we would be aware at least that it was being drafted. There is a better communication occurring now than at that time.
Senator Doyle: But have you discussed what you
are discussing with us today with that contact?
Dr. Carter: Yes. They have been aware since our first presentation on Bill C-85
that we are concerned about various aspects of the act. They have responded by
changing the act in all the areas except this one.
Senator Doyle: Have they given you any reason why they have not moved on the one
that you are addressing today?
Dr. Armstrong: We do not have any knowledge, no.
Dr. Carter: I am not aware of it.
Senator Doyle: As a paediatrician, how old would your oldest patients be?
Dr. Armstrong: There is an exception to every rule. I had one young man of 21
who came into the office and told me that his mother had advised him it may be
time to find another doctor, but he said, "I like your style."
Senator Doyle: Then you do have potential drug users.
Senator Bryden: I take it your principal concern is the intrusion into the
professional practice of medicine and the potential adverse affect on your
ability to serve the health care needs of Canadians.
What provisions or procedures are in place with the medical association or the
College of Physicians and Surgeons in the provinces to address the concern which
is apparently being addressed in this bill, namely, the potential misuse of
prohibited substances by professionals?
All of us have non-angels in our midst. Are there well-established practices to address this concern reliably in the eyes of the public
so that this bill is not necessary?
Dr. Armstrong: If someone is abusing the mechanism by selling drugs which are
being resold illegally on the black market, the current law does allow for
action. Most often, law enforcement officers are aware of this kind of activity
from other processes of investigation and are soon able to zero in on the
problem. The law is there; if the physician is breaking the law, he is culpable.
To a less severe degree, if some physician, for whatever reason, is slipping
into less-than-good practices of prescribing, again the college can deal with
that when it is brought to light. The college can deal with a physician if
suspicions arise, using educational or disciplinary responses.
As has already been mentioned, over the past several years our associations have become much more adept at looking after our own colleagues who are having trouble. When it comes to someone's attention, it can be passed on to the college. In my own province, we have a committee, supported by our own provincial medical association, to deal with people who are getting into trouble with drug abuse, alcohol abuse, and many other forms of difficulties. We are there to try to help our own colleagues as well.
Several years ago, this was not such an
important factor but it is becoming much more prevalent. The Canadian Medical
Association works in conjunction with the American Medical Association and has
regular annual meetings to deal with the physician who is in difficulty. That is
another mechanism.
Some provinces now have triplicate drug forms. If a doctor writes prescriptions
for a certain drug with a frequency that is a little outside the norm, then the
college is able to monitor that and other prescribing practices. If someone was
way outside the norm, presumably the college would want to discuss the matter
with them.
Senator Bryden: In the professional regulatory bodies, the Canadian Medical
Association and then the individual colleges of physicians, are lay people
involved in the boards of most of those bodies?
Dr. Armstrong: Very much so. In fact, I was approached by one of the physicians
in our own college back home regarding my awareness of a person from the
aboriginal community who they thought should now be present on the college.
There are certainly other lay people there to ensure that colleges are doing
more than acting in self-protection of the profession. We are getting well past
that stage if it did exist in the past.
Senator Bryden: From what you have said, you are aware of no practice within the
profession to initiate an audit to determine whether there is abuse.
I will use an example from a profession with which I am more familiar and one
which is more apt to abuse things, namely, the legal profession. Sufficient
concern has developed over the years in the legal profession about lawyers
abusing trust funds or that sort of thing. As a result, many of the bar
associations have initiated their own audits. The audits do not occur as a
result of a complaint or because a judge has issued a warrant. These audits are
done on a spot-check type of basis. An auditor from the bar association will
show up and ask to see the trust funds.
Do you have anything like that in the medical profession?
Dr. Armstrong: Controlled drugs are already
monitored and audited through hospital audits. There has been talk of office
audits in the future by the profession. Certainly, the legislation as it exists
right now permits auditing of the prescription of controlled drugs.
Senator Bryden: But is there an initiative in the control and self-regulation of
the medical profession to address just who will go out and find abuse if any
does exist?
Dr. Carter: In the past, we relied on paper-based systems. Certainly, the
triplicate prescription program and also the Narcotics and Controlled Drugs Act
involved an auditing of the prescriptions as they occurred.
We are now getting into electronic databases of prescription drugs in almost all
provinces of Canada. Some of them involve all citizens of those provinces;
others are more selective. As we improve those electronic databases, the
paper-based auditing systems are giving way to electronic auditing and
prescribing practices in general, which is broader than in the past when only
narcotics and controlled drugs were audited. Yes, practices are audited to some
degree and with some limits. As time goes on, this auditing is actually
broadening.
Senator Bryden: Are those audits being done at the initiative of government?
Dr. Carter: The database monitoring depends on the province. For example, in
British Columbia it is actually run by the College of Pharmacists. However, it
is government initiated and falls under government legislation. There is another
one in Manitoba, for example, where the College of Physicians is more active.
These are fairly new databases, but they are enhancing much of the monitoring
function. It is going beyond narcotics and controlled drugs into general quality
prescribing.
Senator Bryden: The provision that sets this out in Bill C-8 is clause 31, which
was referred to before. The terms of clause 31 are identical to section 23(1) of
the Food and Drugs Act except with respect to one particular. Section 23(1) of
the Food and Drugs Act states that "an inspector may, at any reasonable time,
enter any place the inspector believes, on reasonable grounds, any article to
which this act or the regulations apply is manufactured, prepared, preserved,
packaged or stored."
The only difference with clause 31 of the proposed act is that it states that an
inspector may, at any reasonable time, enter any place he believes, on
reasonable grounds, is used for the purpose of conducting the business or
professional practice of any person licensed or otherwise authorized under the
regulations to deal in a controlled substance.
Senator Lewis: What does that mean?
Senator Jessiman: I do not know. Do doctors deal? I think they probably do.
Senator Bryden: I do not know this - and, forgive me if I am absolutely wrong -
but that section of the Food and Drugs Act would apply to pharmacists,
presumably. The old section would have applied to pharmacists. It states, in
part, "manufactured, prepares, preserved, packaged or stored". In that regard,
there is no change.
I suppose a doctor could very well not store any narcotics whatsoever but simply
write prescriptions for them. However, this clause states, in part, "...at any
reasonable time enter any place the inspector believes on reasonable grounds is
used for the purpose of conducting the business or professional practice of any
person licensed or otherwise authorized under the regulations to deal in a
controlled substance or a precursor and may for that purpose" do a whole bunch
of things.
You are licensed to deal with controlled substances.
Senator Lewis: Are they licensed for that?
Senator Jessiman: Do they deal with them? I do not know. I think they probably
do deal.
Senator Bryden: But if you, as a group of people, have access to controlled
substances - perhaps not in the quantities or in the bulk that a pharmacist
would have, and the association of pharmacists would represent their interests -
and if the law is to apply to the pharmacist and others, then why should you,
who are licensed to deal in these substances, be exempted?
Ms Lucock: I understand that you have clause 31(1) in front of you. The key for
us is to ensure compliance with the regulations. That is the purpose for which
inspectors are entitled to enter. We do not know what the content of the
regulations will be. Obviously, none of us have them before us. But, by the
broad powers granted in clause 55, we can tell what they are likely to be.
While it is useful to compare this clause with the Food and Drugs Act, the
purpose of the Food and Drugs Act is considerably more narrow than the intended
purpose of this bill. We are trying to compare apples with oranges. Under the
Food and Drugs Act, the reasons the inspectors are entitled to enter have to do
with whether the drugs are stored in sanitary conditions and not containing
various things. It is different from the purpose envisaged by the regulations in
this bill. It is important to focus on that aspect of it.
Senator Bryden: It is not that this is extended to include licensed medical
practitioners, but that you do not know what the regulations will be that the
inspector will be entitled to work under.
Ms Lucock: There are two objections. First, the
federal government is intending, through a criminal law statute in an
administrative fashion, to control the medical use of drugs. Second, because we
cannot see the regulations, we have no idea what is contemplated. Given that
regulations can change at any point in time without going back to the house,
even if we did know what is contemplated by this government and what are its
intentions, the powers are still there to do all sorts of things to control the
medical use of drugs and medical practice. We are concerned both for now and in
the future that these powers are granted to any government.
Senator Nolin: You know that you are protected under the Charter. You can always
raise an argument against abusive search and seizure under the Charter.
Ms Lucock: That is a lengthy process. It is also a costly one.
Senator Nolin: We want to avoid that, if we can. However, the possibility of
search and inspection was already there.
Ms Lucock: I understand that there are legal avenues for challenging any
legislation. However, I do not think that it is the desirable course.
Senator Nolin: I believe that, too. It was already in the previous act.
Senator Bryden: If the government and the agencies which are concerned with this
rely on what is a heavy instrument of a search warrant in order to try to assure
themselves that there is no mispractice, and if that is what ends up being
required, then I wonder whether or not that will be more invasive of a
physician's professional practice than an inspector coming at reasonable times.
I assume a reasonable time is one which has been cleared with the doctor. The
people who will know about this are those people who are sitting in the waiting
room, as you say. I have been in the practice of law long enough to know that a
charge of malpractice is as damaging, in many instances, to a physician's
practice as is a conviction - at least, almost as bad. It takes years and years
to rebuild a reputation.
I am concerned, as I think you should be concerned, about pressing not to allow
on reasonable grounds and at reasonable times an inspection for people to
satisfy themselves that there are no abuses. The result may not be that you have
won the day and this has gone away, but that more blunt instruments will be used
on a more frequent basis in order to attempt to accomplish the same thing.
Ms Lucock: When you said "mispractice" you basically hit on the root of our concern, senator. Certainly, the criminal aspect of this legislation will allow physicians who are clearly breaking the law to be apprehended and punished, if necessary. All along the CMA has said that they feel that is quite appropriate. What we think is inappropriate is the federal government looking at how physicians practise medicine. It is not that they are not physicians who are engaged in criminal activity, but physicians whose practice patterns and habits are coming under surveillance.
Certainly, within the criminal context, anyone
who wants to go in and search will require a warrant. We are concerned at
looking at the practice of physicians as opposed to making a clear distinction
between criminal conduct and practice that, perhaps, could be improved. That is
the root of our concern.
Senator Milne: I am confused on two issues. Ms Lucock, I understood from your
answer to Senator Nolin that presently the only way physicians' offices are
intruded upon is by police with a search warrant. I understood from your answer
to Senator Bryden that, no, presently inspectors can go in. Are practitioners
currently subject to inspection under the Canada Health Act by Health Canada?
Ms Lucock: Not under the Canada Health Act, no.
Senator Milne: By Health Canada?
Senator Bryden: It is under the Food and Drugs Act.
Senator Milne: Does it come under the Food and Drugs Act?
Ms Lucock: I think they can, yes.
Senator Milne: They are presently subject to this. In other words, it is not a
change.
Dr. Carter: I am not a lawyer, so I get nervous here. Especially if they are
dispensing, but even when prescribing, they are required to keep written records
when they have written prescriptions for certain controlled drugs. It is a
criminal investigation that would be looking at that.
The difference in this act is that they are trying to get into the quality of
the medical practice, to search and look for quality issues around the actual
medical practice as opposed to whether they are actually criminally selling or
prescribing for personal gain, which is a different aspect of the practice.
Right now it involves strictly the record keeping around their narcotics
prescribing. They must produce these records, if requested.
Senator Milne: Your answer brings me into my second point of confusion. It was
my understanding that this bill concerned controlled drugs and not medical
practice. Inspectors would not be coming into your offices looking at medical
practices, but possible misuses or how you have stored your drugs.
Dr. Carter: The use of narcotic drugs is a legitimate part of medical practice. You are right on both counts. But the difference is whether you are using these drugs for a legitimate medical use. It may be questionable on the quality of how you are doing it, but it is a legitimate medical use. That contrasts with selling these drugs on the street or selling these prescriptions to criminals who would then be selling the drugs on the street.
Senator Milne: That is not what inspectors would
be looking for, is it? Am I wrong?
Senator Nolin: The bill is very clear on what inspectors are allowed to do. I am
trying to find in clause 55 the specific reference which you say will allow them
to get into how you practise your professional business. Which one is it?
Ms Lucock: If you look at the first part of clause 55, the overriding purpose is
the medical and scientific and industrial use and distribution. So it is
"medical uses." If you then go on to look at the various other heads, that is
the main area of power. If you look, for example, at the definition of
"provide", it clearly confines physicians beyond the criminal aspect into how
controlled drugs are subject and what the medical uses are.
This could be subject to a variety of interpretations, but we are concerned that
the federal government is intent on going beyond their current jurisdiction.
Senator Corbin: I have been on Parliament Hill for 28 years, and I have had a
opportunity to spend a lot of time in my former incarnation in the House of
Commons with the health committee. I have listened to the presentations of your
organization over the years. I find the tone of your presentation concerned. It
is strident in some respects. You may suspect the government of its intentions
beyond the reasonable bounds of an open dialogue. It may be helpful, on the
other hand. It may force the light out of this issue.
My question is really to you, Madam Chairman. We are turning around one post
this afternoon, namely, why, in the request for amendments to the legislation,
their one concern was not addressed. I do not know if you have had a opportunity
to examine the records of the House of Commons in that respect, but we do have a
researcher attached to this committee. Would it be possible, as soon as is
possible, to determine from an examination of that record if reasons were given
for not moving with the recommendation? Can we at this stage have someone
contact the department directly and ask why? In case this matter comes up again,
I think we should be informed in order to address the concerns expressed by
groups such as this.
The Chair: There is nothing on the record as to why they did not provide this
amendment. However, if the committee would like, I certainly can write a letter
to the minister and ask him for an explanation, or we can invite the
departmental officials back - which we were intending to do in any case - and
put the question to them as to exactly why it was not addressed in the
amendments brought forth in the House of Commons.
If it is the will of the committee, I will write to the minister tomorrow and
request that information. Is that agreeable?
Hon. Senators: Agreed.
The Chair: I will do that, then.
Dr. Armstrong: Is it permissible that we would
be able to access that response so that we could have an understanding of the
matter too? Could I make a request for that consideration?
The Chair: We certainly will consider that, Dr. Armstrong, and the committee
will decide.
Senator Lewis: I take it that you people are concerned with the medical
profession generally when you make this presentation.
Dr. Armstrong: Yes.
Senator Lewis: I take it that medical practitioners write prescriptions for
patients and that they do not generally - I am using the words as used here in
the bill - deal in the way most of us would think of dealing in controlled
substances.
Dr. Armstrong: That is correct.
Senator Lewis: I take it that medical professionals at this time are not
licensed or authorized to deal with controlled substances. You individually do
not hold licences from anyone in respect of controlled substances.
Dr. Armstrong: If you are licensed to practise medicine fully, you are licensed
to prescribe pain control medication if it is in the best interest of patients.
For example, if someone requires palliative care and requires pain control to
make the palliative efforts better, then you are licensed, as a physician, to do
that.
There may be cases where someone has not been using those licensing provisions
properly. They may be able to practice, but without the right to write
prescriptions. There are, unfortunately, not uncommon instances where that type
of edict is handed down from licensing bodies. I do not usually do it in my
practice, but I could write a prescription for morphine, or something of that
nature.
Senator Lewis: The licence that you are speaking about is a licence issued by
whom?
Dr. Armstrong: It is issued by the licensing authorities and by my passing exams
required in this country to practice medicine here, as well as in my province.
Senator Lewis: But you are not licensed under this bill or any of the other
federal statutes.
Dr. Armstrong: I must write general exams to allow me to practice in this
country.
Senator Lewis: This section puzzles me a bit. I am trying to see what it means
and then relate it to your concern.
Clause 31.(1) states:
...for the purpose of conducting the business or professional practice of any person licensed or otherwise authorized under the regulations to deal in a controlled substance....
In one sense, it seems to suggest that regulations will provide for licensing when they are passed. That is what it seems to imply. At the moment, there is no such thing. What is meant by to deal in a controlled substance" if you are just writing prescriptions? I am not asking you to define what that word means here in this bill, but what does that phrase mean?
Ms Carter: Perhaps it is defined at the
beginning of the bill.
Senator Bryden: No, it is not defined.
Senator Lewis: It is not defined. When you look at clause 55, which sets out
what they can make regulations for, it does not seem to be aimed at that. It
seems to be more aimed at the importation, export and manufacture of certain
substances. I wonder if you are perhaps overly concerned. This is not really
aimed at medical professionals.
Ms Lucock: There is quite a long list in clause 55. If you go down to the word
"provision", it talks about a lot of things. For example, in 55(1)(a) there is a
whole bunch of things, including the "sale" and "provision". The word "provide"
is defined in the act. If you look at the definition of the word "provide", I
would suggest that it contemplates the writing of a prescription.
Senator Lewis: This is what you are concerned about?
Ms Lucock: That is right. If you look at a lot of these clauses, the word "sale"
and, in particular, the words "provision" or "provide" crop up. That is the
concern.
Senator Lewis: But medical professionals do not usually sell these substances,
do they?
Ms Lucock: No.
Ms Carter: Legally, however, there are dispensing physicians. Some physicians do
dispense.
Senator Lewis: Yes. I realize that.
Ms Carter: There are some, but it is not common.
I would ask you to check with your officials. Currently under the Narcotic
Control Act, a licence to practice medicine in any jurisdiction in Canada then
allows you this federal role of prescribing narcotics and controlled drugs. That
federal role can be withdrawn by the minister without losing your provincial
licence. That is my understanding. There are people who have lost their federal
right without losing their provincial right to practice. You should check that
with your officials. I am not a lawyer and I am not an official in the
department, but that is my understanding of approximately how it works.
Senator Lewis: That is interesting. We need to know what will be contained in
the regulations because clause 31 seems to presume that there will be
regulations under which people will be authorized to deal in controlled
substances. You may be too concerned that this applies to medical professionals
generally. I do not think we can say that now.
Senator Pearson: I wish to follow up on what Senator Lewis has said. Your
presentation has been useful because it has raised a number of questions in our
minds. We have been out of touch with this bill for several months and this is a
good way of bringing us back.
Senator Corbin expressed our own slight
discomfort with your presentation in the sense that we are not sure that there
is a real problem and that perhaps you have over exaggerated. But there may be a
problem in that this clause is not clear. That gives us a useful basis to go
back and say, "What do you mean?" I merely wanted to reinforce that point.
Senator Milne: My question also follows on what Senator Lewis said. It is my
understanding that in this bill - and, perhaps I need clarification here, too -
rather than the minister having the authority to take this power away from a
physician, this matter will come before a hearing and the physicians will have
more power than they have now in order to stand up and argue their own case. Am
I right?
Ms Lucock: In terms of the designated regulations, that contemplates a process.
If something is removed from you under the designated regulations, then, yes,
you are correct. But that does not hold true for all regulations. It is quite a
complex bill and the administrative scheme, particularly without seeing the
regulations, is difficult to understand.
There are two types of regulations: Designated regulations and ordinary
regulations. It is not clear which ones will be designated and which ones will
be ordinary.
Senator Bryden: In the regulations under the Food and Drugs Act, there are three
or four pages dealing with practitioners which state that administer includes
"prescribe, give, sell, furnish, distribute or deliver". They then describe a
designated drug and talk about the fact that a practitioner may administer a
controlled drug.
It is not as though all of a sudden government is getting into the business of
trying to regulate these substances; they have been in it for a long time. This
may be an advance on it, but perhaps it is not appropriate.
Under clause 31, the regulatory powers - that is, the regulations that are made
to empower the inspector - seem to be quite carefully proscribed under these
paragraphs. For example, an inspector may "open and examine any
receptacle...examine any labels...use or cause to be used any computer system."
There are close guidelines as to what these regulations will include. They may
end up being more onerous than what is already contained in the Food and Drugs
Act, but there is no indication from this that they would be.
Senator Lewis: Clause 31(1)(c) states:
(c) examine any labels or advertising material or records, books...found in that place with respect to any controlled substance or precursor, other than the records of the medical condition of persons...
Senator Bryden: Yes.
Senator Lewis: So that is accepted.
The Chair: Perhaps the witnesses would like to comment on what Senators Bryden and Lewis are saying.
Senator Lewis: In other words, they can examine records other than records the containing the medical condition of persons.
Ms Lucock: We will make available to you our
previous presentations. One of our initial concerns, which was not addressed in
the bill, was that patient records were not protected. You are seeing an
amendment there that was included in the bill.
Senator Lewis: Very good.
The Chair: If there are no other questions, thank you very much for your
presentation.
Senator Jessiman and I are particularly delighted to have a witness from
Winnipeg. We do not get that many that often,
Dr. Armstrong. Have a good trip home.
Dr. Armstrong: Physicians are often chastised for the clarity of their
prescriptions; the law seems to be equally vague. Thank you very much.
The Chair: We have one other item on the agenda today, namely the study of the
draft budget for 1996-97, which Ms Lank has distributed to you.
The only significant change has been for a communications consultant. This may
come as a surprise to all of you, so I will explain it.
The Internal Economy Committee made the decision that they would like to see
more communications coming from the committees for the general distribution of
information to the Canadian public about what committees do. We have put in this
amount in our budget. We do not have a strategy at this point; we will work on
one in the steering committee. It very much depends on the kinds of pieces of
legislation that come before us. If we think that there are pieces of
legislation that may be of broad public interest, then we may want to use the
Internet, a communications specialist, or a variety of ways to alert the public
in general about what is happening in the Senate with respect to the study of a
particular bill. The amount has been put in, but it has not been fleshed out
particularly at this moment.
Senator Lewis: I received a draft yesterday, but I also found two copies of
another draft in my file. I am not sure which is which. The one that I may have
received previously has the communications consultant included with an amount of
$5,000, and that is the same amount.
The Chair: Because you are on the steering committee, Senator Lewis, we sent you
an advance copy of the budget. That is why you have the "Communications
Consultant" line.
Senator Lewis: The one that I received today has a lesser amount.
The Chair: I do not think it is the lesser amount. You should have received the
second one first and the first one second.
Senator Lewis: That is fine. I will ignore the lesser one.
The Chair: The other major change in the budget
is the witnesses expenses. That used to come from a global budget but it will
now come from each individual committee's budget. We have had to put in an
amount for witnesses expenses in the budget. We have put in an amount of $20,000
based on
Ms Lank's historical review of what the global budget was paying for witnesses
for the Legal and Constitutional Affairs Committee. Like much of these budgets,
it is a guesstimate.
Senator Beaudoin: Is it the same for each
committee?
The Chair: Yes. It is a change from Internal Economy. Each committee must put in
a figure for witnesses expenses. So that we have done our best to find out what
past review of our budgets would result in.
Senator Corbin: In any case, none of this is poured in concrete. We can go back
at any time to change it; we do not have to spend everything.
The Chair: Yes, you are certainly right, Senator Corbin. We do not have to spend
everything.
Senator Beaudoin: We never do!
The Chair: I have some concerns about the communications consultant. I am very
leery about spending money in this field, unless it is necessary.
Senator Doyle: How did you arrive at the guess of $5,000 for 10 days at $500 a
day? Are all those people, for example, those involved with the Internet, public
relations, and so on, earning $500 a day now?
The Chair: I would suspect not, but Ms Lank can tell you.
Dr. Heather Lank, Clerk of the Committee: Because this communications initiative
has taken quite a bit of time within the committees directorate, recently we did
some investigations into what it is that a communications consultant charges.
The quotes from the major communications firms, as well as individual
consultants who operate independently, range between $500 and $800 per day. We
have budgeted on the low end of that because there may be certain tasks that we
could pay for that do not include a per diem rate. We have used the low end
figure that we were quoted. That is not a guess in terms of a normal per diem
for a professional communications consultant at this time.
Senator Doyle: Do any of them guarantee results?
Senator Beaudoin: My question concerns the amount for legal counsel. I have seen
that before. Will this happen, or is it something that may happen?
The Chair: It may happen. We will receive an omnibus bill with respect to the
Criminal Code. We certainly wanted to be prepared for that omnibus bill. We may
well need a legal counsel if we get a major omnibus bill.
Senator Beaudoin: That is exactly what I had in
mind. The omnibus bills on the Criminal Code are so technical that from time to
time we have hired the services of a legal counsel to deal with it.
The Chair: Bill C-17 is an omnibus bill. It is not as heavy as some that we have
received in the past, but it is substantive. We may well need help with that.
Also, apparently in the past we have needed legal counsel for regulations under
the Elections Act.
Senator Beaudoin: Yes, I remember that.
Senator Lewis: May I move the adoption of the budget?
Senator Beaudoin: I second that motion.
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: Carried. Is there approval for the report?
Hon. Senators: Agreed.
The Chair: Carried.
That ends our agenda for this afternoon. We will meet again tomorrow morning at
9:30 in room 256-S. At that time we will hear from representatives from the
Canadian Bar Association and from the Criminal Lawyers Association.
Senator Nolin: Concerning Bill S-2, will we discuss that at the steering
committee?
The Chair: Yes. We have a steering committee meeting following tomorrow morning
and we will be discussing it at that time.
Senator Nolin: Good.
The Chair: Are there any other questions or comments?
Senator Beaudoin: You did a survey of the expenses for the witnesses for
1994-95. There is a big difference from last year.
The Chair: Yes. However, that was for Bill C-68, the gun bill.
Senator Beaudoin: Yes.
The Chair: If there is nothing further, we will adjourn.
The committee adjourned.