Never mind non-disclosure claims or Bill 24: Albertans still deserve an independent judge-run health inquiry

Zipp it! You have a non-disclosure agreement. Below: Premier Alison Redford; Dr. John Cowell of the Alberta Health Quality Council.

Albertans who want to see a judicial inquiry into allegations of intimidation and bullying against physicians, line jumping and political meddling in the Alberta health care system are being subjected to a full-court press by the government of Premier Alison Redford, which appears desperate to prevent such an inquiry from taking place.

The latest chapter in this saga is the effort to persuade us there’s no point to an independent and impartial judicial inquiry because non-disclosure clauses in severance agreements signed by physicians who say they were driven out of Alberta would prevent them from testifying.

The sub-text to this message is that we’ll just have to trust the Alberta Health Quality Council, which is neither independent nor impartial, to get to the bottom of things.

The next chapter will be the introduction today of Bill 24, which would allow the HQCA to conduct inquiries “when cabinet determines it is in the public interest to do so.”

The theory that non-disclosure clauses make a truly independent and impartial inquiry impossible was stated as incontrovertible fact in an Edmonton Journal story last Friday.

“The only way those people can talk to the review committee is to have both parties – the individual and Alberta Health Services – agree to set aside the confidentiality obligations of the severance agreements,” the Journal story stated, quoting Dr. John Cowell, who is the CEO of the Health Quality Council.

The story also said a former Alberta chief justice who was described as an advisor to the review committee “affirmed that position,” and quoted him as saying having a judge run the inquiry does not change the fact a non-disclosure agreement is binding “unless the parties agree to allow portions or all of it to be disclosed.”

So, we are encouraged to conclude by the story, there’s really no point having a judicial inquiry and an effort by the upgraded HQCA is the best we can hope for.

Well, this is not necessarily so. A real judicial inquiry – properly constituted under the Alberta Public Inquiries Act and led by a judge who is both independent and impartial – is quite possible and exactly what is needed. First, however, a little backstory is required:

Premier Redford’s political problem is of her own making. She promised back on June 7 when she was still running for the job she now holds to strike a judicial inquiry to get to the bottom of what’s been going on in the province’s health system.

The problems appear to have been so pervasive and so prolonged that Albertans are beginning to distrust not just the health care system, but to grow cynical about our entire form of democratic government. So her seemingly courageous commitment was welcomed by many citizens, some of whom went out and bought $5 Tory party memberships and helped push her campaign over the top.

But that was then and this is now. On Oct. 12, she put former health minister Ron Liepert back in her cabinet, this time as finance minister. This was the same Mr. Liepert who just one week before had vowed to fight the then-Premier-designate’s promise to call a judicial inquiry.

Oct. 12 was the day, it can be argued, that her Progressive Conservative government got back to doing things the same old way with the same old people as under premiers Ed Stelmach, Ralph Klein and Don Getty.

Instead of the promised judicial inquiry, the government asked the HQCA to poke around and see what it could discover. When Albertans pointed out that the HQCA was a creature of the government, neither independent nor impartial, Ms. Redford’s new health minister, Fred Horne, floated the idea on Nov. 1 that the Legislature could pass a law giving the body the power to conduct inquiries, including issuing subpoenas.

As was said in this space on Nov. 2, the problem with that scheme was that the HQCA would still be “a provincial body under an all-powerful dynastic government that his been running things its way and only its way for more than 40 years. There’s no way on God’s green earth that such a body can be called independent, no matter how many press releases the government’s Public Affairs Bureau spins out.”

Which brings us back to last week’s claim in the Journal that confidentiality agreements signed by departing doctors as part of their severance from the Capital Health Region or Alberta Health Services would render a judicial inquiry impotent.

Well, I’m no lawyer, but I can read, and what I read in the Public Inquiries Act under the heading “Evidence” is this:

“The commissioner or commissioners have the power of summoning any persons as witnesses and of requiring them to give evidence on oath, orally or in writing, and to produce any documents, papers and things that the commissioner or commissioners consider to be required for the full investigation of the matters into which the commissioner or commissioners are appointed to inquire.”

This seems pretty definitive. Surely this gives a properly constituted inquiry the power to compel witnesses to set aside the confidentiality obligations of their severance agreements.

It is very hard to believe that any Alberta judge would countenance a situation analogous to Vincent “Vinne the Fist” Cannelloni telling a court he couldn’t testify in a criminal trial because he’d signed a confidentiality agreement with the Mob!

If you wonder how real-life Alberta judges deal with circumstances similar to this, consider the 1998 ruling of Madam Justice Adele Fruman, later a judge of the Alberta Court of Appeal, in a civil case in which, she wrote in her decision, “a plaintiff in a lawsuit entered into a confidentiality agreement which prevents potential witnesses in the litigation from providing information to the defendant.” Her conclusion: “One litigant’s entitlement to freedom of contract bumps up against the other litigant’s ability to get at the truth. Truth wins.”

Now, the Journal’s interlocutors are quite right to say that if an inquiry is not set up under the Public Inquiries Act, it wouldn’t make much difference whether a judge or someone else led it. But that is an answer to a question that is not being asked by most Albertans.

Albertans want an independent and impartial inquiry, with the power to subpoena witnesses and compel them to testify fully and under oath. The HQCA cannot deliver that – even after Bill 24 has been passed.

So nothing has changed: Albertans are still right to distrust an investigation conducted by a body that is a creature of the government. And failure by the government to hold an inquiry led by a judge under the Public Inquires Act is still a promise broken.

This post also appears on Rabble.ca.

2 Comments on "Never mind non-disclosure claims or Bill 24: Albertans still deserve an independent judge-run health inquiry"

  1. Holly Stick says:

    A former Calgary doctor is warning that when the Tom Baker pathology lab closes at the end of November I think, the replacement lab is not prepared to handle things.

    He has been intimidated:

    http://www.calgaryherald.com/news/alberta/Doctor+warns+planned+closure+Baker+cancer+life+death+matter/5744808/story.html

    http://calgary.ctv.ca/servlet/an/local/CTVNews/20111121/CGY_tbcc_lab_testing_111121/20111121/?hub=CalgaryHome

  2. carlos beca says:

    All I can say about this is that this whole process is a disgrace and only shows what we still have to evolve to even consider calling ourselves a democracy. Heil Alison!!

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