I have lots to say about the UCP’s Bill 18, which is clearly another piece of red meat legislation for the slavering Social Conservative base, but I’m not going to spend a whole lot of time critiquing the legislation for its declared purpose.  Beyond stating the obvious that this is the UCP stepping in between a patient and their care team, and removing personal autonomy from the patient – others will no doubt point out those issues (and probably already have).  

What I want to address is the much darker, more insidious aspect of this legislation.  

Ethics and Standards of Practice

You will see two terms used heavily in this discussion, and I want to give you a working definition of them so you understand what is being talked about. 

The first term is “Code of Ethics“.  These usually describe at a very high level the principles which members of a particular profession use to guide decision making in a manner which respects the clients that they work with as well as the principles of the domain in which they are working.  For psychologists, the Canadian Psychological Association (CPA) publishes the Canadian Code of Ethics for Psychologists, which the majority of regulators for psychology use as their code of ethics reference.  Other domains produce their own codes of ethics.  A code of ethics is a broad decision making framework.  They seldom get into specifics, and generally do not dictate precisely how treatment should be addressed or should progress.

The second term is “Standards of Practice“.  This breaks into two primary areas:  guidelines for clinical practice that cover matters such as record keeping, billing practices, and informed consent; and guidelines that more broadly are called “Standards of Care” which guide the practitioner with respect to treatment in specific areas, and guide the practitioner in terms of managing the progress of a patient in particular situations.  As an example of a Standard of Care document, I will direct you to the Canadian Cardiovascular Society’s (CCS) guideline for Atrial Fibrillation.  Take a glance through it, you will find it’s probably well outside your personal knowledge and expertise, and that’s kind of the point.  These aren’t matters that non-experts can effectively write about. 

Regulators and The Legislation That Governs Them

The issue here is the government’s direct intervention into the regulating bodies that are involved.  Usually the legislation around regulating professions is fairly broad, and specifies the scope of authority for the regulating body and so on.  Generally speaking, the legislation leaves specific matters to the regulating body and national associations which develop codes of ethics and standards of practice relevant to the profession.  

There are good reasons for doing this.  Regulating bodies are, in theory, made up of fellow practitioners in the domain, and they should all subscribe to a common basis of ethics and standards of practice in their profession.  These are domain specific, and out of the scope of knowledge for legislators.  The CCS guideline on Atrial Fibrillation linked above is an excellent example of why standards of practice are left to the domain experts to craft – few (if any) legislators in a given legislature would have the appropriate level of knowledge and expertise to write such guidelines.

With Bill 18, the UCP is doing exactly that.  Where MAID is concerned, they are dictating to regulators that they MUST sanction members who take specific actions regarding MAID.  This is highly unusual, and very dangerous for a number of reasons.  First, it effectively turns the regulator into a policing agency that is enforcing a law created by the province, not evaluating whether a particular action falls within the ethical and standards of practice.  

This is hugely problematic going forward because it creates hidden policing situations that become a professional hazard for practitioners who already work in complex domains.  Suddenly they have to not only understand their profession’s codes of ethics and practice, but now they have to be aware of what landmines have been written into the legislation around their particular regulating college.  

The changes Alberta is proposing also stand to have perverse consequences in terms of liability insurance.  Insurers may choose to increase premiums for practitioners in Alberta because of the added pitfalls, or they may choose to put coverage exemptions in such that they will not provide coverage in situations where the complaint involves these specific issues.  In any case, it will create significant disincentives for practitioners to move to Alberta.  

Not only does Bill 18 pervert the intent of a regulatory college, but it also represents a sideways incursion into federal legal jurisdiction.  The UCP doesn’t like the idea that MAID is available at all, and they’re looking for an indirect way to subvert the federal legislation.  In this case what they are doing is making it a “regulatory matter”, and imposing limitations through that path.  

Hierarchy of Law Issues

The province is going to argue that the regulatory colleges are “creatures of the province”, and therefore the province is perfectly within its powers to dictate their scope and actions as it sees fit.  However, it puts a regulator in a difficult position where the law that establishes their scope says one thing, the federal legislation says something very different, and the legislation may well overrule the code of ethics for that profession.  Put kindly, this creates a huge and thorny legal problem for the regulator, and the members of the college. 

This turns into a hierarchy of law issue very quickly, with professional ethics being at the bottom of the hierarchy, but the province having created legislation which operates at odds with federal laws on the same matter has created a situation where a provincial law appears to supersede a federal law on the same subject.  

By definition, Bill 18 creates a de facto ban on certain aspects of MAID.  However, because MAID itself falls within federal jurisdiction (causing the death of another human being is very much a criminal code matter).  

On its surface, the province’s argument makes sense.  The power to create professional regulatory bodies rests within the province’s powers, and certainly the province can create legislation that establishes the scope and responsibilities of the regulated profession.  There is no real legal dispute here.

However, affected professions may well take exception to the province writing into the guiding legislation for their colleges specific rules about particular topics.  Those rules may well be at considerable odds with the principles that underpin the ethics of those professions, and the profession as a whole might justifiably object and say “wait a second, you’re attempting to define limits on scope of practice within a domain that is arguably covered by the profession’s code of ethics and standards of practice”.  

This raises an interesting question legally.  Does the province have the intrinsic power to define what amount to standards of practice matters that are normally delegated to the regulator and the profession?  In some respects, the province is breaking the long standing compact between professions and legislators that both would act in good faith.  

The second dimension of this that is worthy of further discussion is that this amounts to a de facto ban on MAID, and it leverages the regulatory college to punish practitioners who dare bring it up as a discussion.  This operates at odds with federal legislation enabling access to MAID, and in contradiction with numerous court rulings on MAID.  This is neither particularly original nor is it a valid exercise of provincial powers.  I’m fairly certain there are past court rulings which have basically declared other legislation that was a de facto ban on something ultra vires.  

Closing Thoughts

Of course, what is really going on is a twisting of purposes.  Law that is intended to enable professions to govern their practitioners is being twisted to create an effective ban on a particular practice element because the Alberta government is having (another) hissy fit over some aspect of law in Canada and the UCP is flailing about looking for legal mechanisms that they can use to achieve goals that they already know are outside of their powers.  

Like the province’s so-called “Peterson Law”, Bill 18 is a coercive law that is intended to enforce certain beliefs with the force of law to ensure compliance with the province’s whims.  While it is not explicitly illegal, it may not be as watertight as the province thinks it is.  The encroachment into federal powers can be argued, as can the underlying intent of the law resulting in multiple perverse outcomes which are corrosive to the concept of The Rule of Law in Canada.  

Unfortunately, this will be tangled up in the courts for years to come – probably long after the UCP destroys itself from within.