“COVID is over” are welcome words to many in B.C. But “COVID” is not over for the large group of unvaccinated health care workers (HCWs) who continue to be off the job. Nor is it over for the ongoing scarcity of medical services in our province, nor for the fundamental medical freedoms of British Columbians.
The ongoing COVID measures have the potential for significant legal and financial liability to the government.
Unvaccinated HCWs have not been permitted to work since October 2021. About 2,500 have been fired, half of them in the Interior or North health regions. Hospitals outside the Lower Mainland, such as that in Merritt, are often forced to close their emergency departments due to staffing shortages. B.C.-trained HCWs have left B.C. to work in other provinces.
Now the government is sending patients to Bellingham in mandate-free Washington state for cancer treatment, at a cost of $12,000 per patient.
The recent update to the order forcing unvaccinated HCWs into unemployment was issued by B.C.’s Provincial Health Officer (PHO), Dr Bonnie Henry, on April 6. It has no end date.
Nurses who were fired by the Health Authorities now have no possibility of being rehired. Doctors will not get back their hospital privileges. The Minister of Health, Adrian Dix, has made it clear that he is unbending on the issue.
I am skeptical that this latest order would stand up to a legal challenge.
Such orders should only be made in the face of a genuine health emergency, which we no longer have in B.C. Every other province except Nova Scotia has dropped the vaccination requirement for HCWs. Even the World Health Organization has rescinded its declaration of a public health emergency. Does the emergency carry on in B.C. alone?
The April 6 order contains statements and opinions of the PHO, but no actual science. People intuitively know through their own experience that the vaccine does not prevent infection or transmission. Moreover, most British Columbians have immunity either through vaccination or natural immunity. People are genuinely puzzled as to why the HCWs have not been invited back to work.
A particularly flawed aspect of the order is that young people who have not taken the vaccine are ineligible to enter any health care profession in B.C., in spite of their low risk from covid and their widespread natural immunity. Talented future B.C. HCWs will be training and working outside their home province where they are badly needed.
The order dictates the medical treatment which HCWs must undertake. We have never been in this territory in B.C. before. Orders of this nature left unchallenged can lead to wider ongoing infringements of medical freedoms.
If the legality of the order is indeed questionable, the PHO, supported by the health minister, is putting taxpayers at considerable legal, financial, and medical risk.
A court ruling that the firings were improper and that back pay is required would come with enormous costs. Add to those costs the additional financial burden of sending people to the U.S. for treatment, and of the costs from delayed care to those who cannot get the care they need in their own communities.
It would be difficult to calculate the cost of the loss of HCWs to other provinces, or to their permanent exit from their profession, or to retraining their replacements. Some of these problems (scarcity of health care) are caused by more than the improper firing of HCWs. All of them would be alleviated by hiring those workers back.
U.S. courts have been quick to recognize when unelected officials overstep their authority and have cancelled various COVID-related mandates throughout the country.
I question whether the same principle should apply here. Is it right that the unelected PHO be permitted to make an order with this kind of permanence without specific legislative authority and with the medical emergency to which it initially responded clearly over?
Canadian courts have been more deferential to health officers than the U.S. courts have. Will a challenge to this order change that?
Suzanne Anton KC was BC’s Attorney General 2013-2017
