Bill 46: Alberta’s second omnibus health bill in 2020

On November 5, 2020, the Minister of Health introduced to the Legislative Assembly of Alberta Bill 46: Health Statutes Amendment Act, 2020 (No. 2) (the “Bill”). The Bill is an omnibus bill which amends the Health Professions Act, the Health Information Act, the Health Facilities Act, and the ABC Benefits Corporations Act. In addition, the Bill repeals the Hospitals Act.

The Bill received Royal Assent on December 9, 2020. While most of the Bill comes into force on proclamation, certain provisions came into force on Royal Assent and are therefore law. Amendments that are now law include all of the Health Information Act amendments except those related to Alberta’s Electronic Health Record (discussed below), and the repeal of subsections (n) and (s) in section 132(1) of the Health Professions Act, which removes a council under that Act’s authority to make bylaws respecting benefits programs and educational incentives and respecting setting and negotiating professional fees and related guidelines. This latter change is part of the separation of regulatory colleges from professional associations discussed below.

In the first reading of the Bill, Tyler Shandro, Alberta’s Minister of Health (the “Minister”), stated that the proposed amendments are meant to: (i) ensure the health care system and its professionals are able to be more responsive to Albertans; (ii) provide stronger protections for patients; and (iii) increase process efficiencies.

The following is a summary of key changes made in the Bill.

Amendments

Health Professions Act

Alberta’s Health Professions Act, RSA 2000 c H-7 (“HPA”) was first introduced in 1999 and came into force in 2001. Over time, as health professions transitioned from stand-alone legislation or were otherwise added to the list of practitioners regulated under the HPA, it has provided a common regulatory framework for most regulated health providers in Alberta. The remaining exception is acupuncturists who are regulated under the Health Disciplines Act; however, an Order in Council issued December 2, 2020,[1] making the Acupuncturists Profession Regulation signals the coming repeal of the Health Disciplines Act.

The HPA requires all professional colleges to follow common rules in relation to a number of matters, including the governance of colleges, registration of members, handling of complaints, investigation and disciplinary proceedings, and the making of health profession regulations.

While the Bill makes numerous amendments to the HPA, some of the most significant changes are:

1. Mandating the separation of regulatory colleges and their functions and oversight from professional associations. Regulatory colleges have a duty to carry out their activities and govern their members in a way that protects and serves the public interest. Professional associations and unions, by contrast, work to advance the interests of a profession and its members. While some health professionals have previously maintained this separation, others have operated with combined resources. Alberta Health has indicated that separating colleges from professional association and union influence will ensure that colleges always put patients and the public interest first. Mixed college and association operations must separate themselves within 18 months of the coming into force of these amendments. The amendments include prohibiting officers or senior employees of professional associations and unions from holding certain positions within a college.
2. Introducing a framework to regulate health care aides. This will be done under the current College of Licensed Practical Nurses of Alberta, which will be renamed the College of Licensed Practical Nurses and Health Care Aides of Alberta. This, according to Alberta Health, will allow for health care aides to be held to the same high standards as other health professionals. Health care aides enrolled in the Health Care Aide Directory on the coming into force of this provision will be deemed to be registered as a regulated member of and deemed to be issued a practice permit by the College of Licensed Practical Nurses and Health Care Aides of Alberta.
3. Creating an online registry of all Alberta health providers regulated under the HPA.
4. Providing an explicit mechanism for amalgamation of regulatory colleges, and restricting the potential for the establishment of new professional colleges. The Bill allows for 2 or more colleges to amalgamate by way of an application to the Minister, which must satisfy certain conditions. In addition to providing a preliminary budget, proposed new regulated professions must provide a rationale for why an existing college would not be appropriate to govern the proposed regulated profession. These measures will limit the emergence of new colleges to govern health practitioners, and may result in fewer colleges than currently exist.
5. Moving most of the content of schedule 7.1 of the Government Organization Act, the schedule that in part regulates restricted health activities in the province, into the HPA.
6. Enabling colleges to address certain issues, including continuing competence programs, within their standards of practice, rather than through regulation.
7. Providing for the approval of professional regulations by the Minister rather than the Lieutenant Governor in Council. Professional regulations are made by the council of each professional college. The intent of shifting the approval process of such regulations from the Lieutenant Governor in Council to the Minister is to allow for amendments to professional regulations to be approved more quickly.

Amendments to the HPA will come into force on proclamation (with the exception of the provisions referenced in the introduction).

Health Information Act

The Health Information Act (“HIA”) came into effect in 2001. It has been amended from time to time, including an amendment in 2010 establishing key aspects of the framework for Alberta’s Electronic Health Record (commonly known as Alberta Netcare). The amendments will bring further changes to the HIA, including Part 5.1 respecting Alberta Netcare. The amendments are significant, and include:

• allowing Alberta Health, Alberta Health Services, and other custodians of health information to use Alberta Netcare for a broader set of authorized purposes;
• granting Alberta Health control and operation of Alberta Netcare pursuant to the new subsection 56.21(1); and
• granting Alberta Health the authority to exercise any power, duty or function that it considers necessary to manage and operate Alberta Netcare, including specifically the following (pursuant to the proposed subsections 56.21(2) and (3)):
  • determine eligibility for access to Alberta Netcare;
  • respond to access requests for health information accessible via Alberta Netcare;
  • audit and investigate specified matters relating to Alberta Netcare; and
  • provide medical examiners and health service providers who are providing services to an Albertan resident outside of Alberta with access to health information accessible via Alberta Netcare.

The Bill also requires Alberta Health to keep an electronic log of records for each time Alberta Netcare is accessed.

Additionally, the Bill amends the penalties for inappropriately accessing health information by increasing the maximum fines from:

• $10,000.00 to $200,000.00 for an individual; and
• $500,000.00 to $1,000,000.00 for an organization.

Alberta’s Information and Privacy Commissioner, Jill Clayton, has expressed concern about some of the amendments to this Act. While the above provides an introductory overview of some of the most important changes to this piece of legislation, we will be providing a more detailed analysis of these changes in a future communiqué.

ABC Benefits Corporations Act

The Bill renames the ABC Benefits Corporations Act the Alberta Blue Cross Act. The stated purpose of this change is for the name of the Act to better reflect the public-facing name of the organization, thereby providing clarity as to the purpose of the Act.

Hospitals Act and Health Facilities Act

The Bill repeals the Hospitals Act and moves most of the previous provisions into the Health Facilities Act. The purposes of the Hospitals Act include regulating hospitals operated by persons other than a regional health authority; regulating the operation of hospitals,  including, for example, provisions related to the roles and responsibilities of medical staff while delivering care in acute care facilities; providing for insured hospital benefits through the hospitalization benefits plan; and regulating hospital foundations. The Act has operated in conjunction, to some extent, with the Regional Health Authorities Act and the move of these provisions to the Health Facilities Act does not appear to change that. The Health Facilities Act contains some general provisions but largely governs the delivery of surgical services in hospitals and elsewhere, and in particular in chartered surgical facilities.

The repeal of the Hospitals Act may be a first step towards consolidating legislation that regulates health facilities in Alberta, as currently there are a number of pieces of legislation that do so. If this is the case, we can expect to see further amendments to the Health Facilities Act and other legislation in due course. We will continue to provide updates on any future changes to this Act.

[1]     O.C. 376/2020