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Bulletin | Covid-19

Canadian Health Sector: Weekly Covid-19 Update

Fasken
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Health Law Bulletin

New measures implemented over the past week by governments across Canada to respond to the COVID-19 outbreak continue to focus on increasing capacity of the health care sector, reducing the spread of the outbreak and supporting frontline workers. Several provinces and territories have announced and commenced their plans for the early stages of re-opening certain areas of business and everyday life. This bulletin summarizes key recent legislative changes, government orders and other significant developments affecting health care providers and organizations across Canada during the past week.[1]

For additional information and insights visit the Fasken Coronavirus (COVID-19) Knowledge Centre. In addition, see our previous bulletins summarizing key health sector updates across Canada in March 2020, up to April 5, 2020, up to April 12, 2020, up to April 19, 2020 and up to April 26, 2020.

Alberta

On April 28, 2020, the Chief Medical Officer of Health issued an order (pdf) outlining updated restrictions on visitors at auxiliary hospitals, nursing homes and licensed supportive living facilities in Alberta. The new order replaces the Chief Medical Officer of Health's April 7th order, described in our earlier bulletin.  The new order adds measures intended to support quality of life while maintaining restrictions, including providing for outdoor visits with a resident's designated essential visitor and one other person. The new order also includes new directions on the use of personal protective equipment for visitors.

Also on April 28, 2020, the Chief Medical Officer of Health issued an order (pdf) outlining updated operational and outbreak standards for auxiliary hospitals, nursing homes and licensed supportive living facilities. The April 10th order setting out operational and outbreak standards was described in our earlier bulletin. On April 29, 2020, the Chief Medical Officer of Health's daily update described (pdf) the April 28th orders and additional measures being taken in continuing care facilities.

Similarly, on April 28, 2020, the Chief Medical Officer of Health issued an order (pdf) outlining operational and outbreak standards for residential addiction treatment service providers. In the event of a confirmed outbreak at a residential addiction treatment services facility, an individual employed or contracted to provide services within more than one facility, and who is not authorized to be absent under Alberta's earlier order restricting movement among health care facilities (pdf), is authorized by the April 28th order to be absent from each facility except the one in which they continue to provide services for the duration of the outbreak.

Alberta has also announced a relaunch strategy for gradually re-opening businesses and lifting other restrictions, including:

   effective May 4, 2020, Alberta Health Services can resume some scheduled, non-urgent surgeries; dental and other regulated health workers like physiotherapists, speech language pathologists, audiologists, etc. can resume services as long as they follow approved guidelines set by their professional colleges; and

   as early as May 14, 2020, some businesses and facilities will be permitted to resume full operations with enhanced infection prevention and controls. Businesses include physiotherapy, chiropractic, optometry and similar services.

Progression to subsequent stages of the relaunch strategy will depend on the success of Stage 1, considering health care system capacity, hospitalization and ICU cases, and infection rates. Even in Stage 2 (date to be determined) it is expected that visits to patients in health care facilities will remain limited.

On April 30, 2020, Alberta issued a set of interim policies to make temporary changes to existing Persons with Developmental Disabilities policies and a set of interim policies to make temporary changes to existing Family Support for Children with Disabilities policies during the public health emergency. The Government of Alberta has also posted a weekly Q&A on COVID-19 for the disability sector.

Alberta Health Services has a number of new resources for health care providers.

On May 1, 2020, the Chief Medical Officer of Health announced that AB TraceTogether, a voluntary, mobile contact tracing application, is now available to Albertans.

British Columbia

On April 28, 2020, the Lieutenant Governor ordered (pdf) the declaration of a state of emergency made by the Minister of Public Safety and Solicitor General be extended to May 12, 2020.

On May 1, 2020, the Minister of Health issued an order (pdf) bringing amendments to the bylaws of the College of Pharmacists of British Columbia into force. The amendments to the Dispensing Drugs for the Purposes of Medical Assistance in Dying Standards, Limits and Conditions of the bylaws temporarily allow injectable drugs, previously dispensed for the purpose of providing medical assistance in dying, to be returned to inventory.

The BC Centre for Disease Control has new guidance and resources available for health professionals, including updated Interim Guidance on Return to Work for Health Care Workers with Symptoms of COVID-19 (pdf).

Manitoba

On April 29, 2020, the Chief Provincial Public Health Officer issued an order (pdf), effective May 1, 2020, allowing the Chief Provincial Public Health Officer to direct a personal care home operator to ensure that all staff (employees, contracted workers and volunteers) do not work in another personal care home. A personal care home operator who believes that it is not possible to maintain adequate staffing levels may request an authorization from the Chief Provincial Public Health Officer that would allow the operator to use staff who work at another personal care home. The order includes exceptions for dieticians, laboratory technicians, nurse practitioners, paramedics, pharmacists, physicians and other health professionals who visit personal care homes to provide health care services.

On April 30, 2020, the Chief Provincial Public Health Officer issued:

   an order (pdf) continuing the mandatory 14 day self-isolation order for anyone who has travelled, with exceptions for people who provide vital services such as health care providers;

   an order (pdf) restricting travel to northern and remote areas of Manitoba. The order includes exceptions for health care providers and a person travelling for emergency medical purposes; and

   a new order (pdf) prescribing businesses that may be open subject to restrictions and social distancing measures. This order is part of the phased re-opening of the province and takes effect May 4, 2020 (another order (pdf) was issued extending previous orders from May 1 to May 4). An operator of a business that is not listed must ensure the business is closed until June 1, 2020. The new order includes an exemption for health professionals, subject to compliance with any direction from their regulatory bodies.

Phase 1 of the re-opening plan, beginning May 4, 2020, includes restoring non-urgent surgery and diagnostic procedures. Elective surgeries and non-emergent health services began restarting on April 24, 2020.  Phase 1 also includes guidelines for re-opening health care businesses.

New Brunswick

On April 29, 2020, the Government of New Brunswick published updated guidance documents for homecare workers (pdf),  primary care providers in a community setting  (pdf) and community pharmacies (pdf).

On April 30, 2020, the government issued a Renewed and Revised Mandatory Order (pdf). Pursuant to the order, pharmacists are directed to supply patients with 90-day supplies of medication unless a particular medication is in inadequate stock. The New Brunswick College of Pharmacists remains free to identify specific medications of which there is a documented shortage and issue a new directive limiting supply of those specific medications as needed until the shortage is remedied.

On May 1, 2020, the government published an updated guidance document (pdf) for the extra-mural program, which is the provincial home health care program that provides health care services to residents in their homes (personal residence, special care home or nursing home).

The government has released its re-opening plan (pdf), pursuant to which elective surgeries and priority health services will be permitted to resume 2-4 weeks after April 24, 2020. Other health services, including dental care, massage and chiropractors, will be permitted to re-open when 2-4 weeks have passed without a new wave of cases.

Newfoundland and Labrador

On April 29, 2020, Newfoundland and Labrador's Chief Medical Officer issued an amendment (pdf) to the Special Measures Order previously issued relating to assisted living facilities. Pursuant to the order, all routine admissions and all short-term admissions for respite or convalescent care are prohibited, unless required in urgent circumstances. Further, for new clients and existing residents returning to an assisted living facility from a stay in an acute health care facility for a period of at least 24 hours, operators must ensure the following:

1.   all clients must be screened for risk of COVID-19 immediately prior to admission;

2.   all clients must be tested for COVID-19 and must receive a negative test result prior to admission;

3.   all clients must be isolated for 14 days in a suitable space, which must include at a minimum a private room and private bathroom; and

4.   staff providing care must wear personal protective equipment when interacting with an individual in isolation, and the operator must make every effort to minimize the number of different staff providing care to the individual in isolation.

Pursuant to the order, all staff must be screened for risk of COVID-19 at the beginning of each of their shifts. Further, operators of assisted living facilities must provide reasonable access to their facilities to representatives of a Regional Health Authority for the purpose of monitoring compliance with the order. All visits continue to be prohibited, unless for exceptional circumstances, including visiting a resident at end of life.

Northwest Territories

On April 27, 2020, the Government of Northwest Territories announced that the Department of Industry, Tourism and Investment is now accepting funding applications from Northwest Territories' businesses and artists interested in manufacturing personal protective equipment and other non-medical products.

On April 28, 2020, the government announced that the territory-wide Public Health Emergency and State of Emergency have been extended. Both extensions will expire on May 12, 2020. The government stated that the extensions were made to ensure the continued protection of public health in the Northwest Territories, and do not indicate a significant change in circumstances or an increased risk.

On April 29, 2020, the Chief Public Health Officer announced that the territory has begun planning to gradually emerge from its current levels of public health restrictions. Changes will be introduced in the form of Public Health Orders.

Nova Scotia

The Government of Nova Scotia issued a Renewal of Provincial State of Emergency (pdf), renewing the State of Emergency for the province until May 17, 2020.

On May 1, 2020, the government updated its order (pdf) under the Health Protection Act. Among other things, the order provides that all for profit or not-for-profit Department of Health and Wellness funded long-term care facilities licensed under the Homes for Special Care Act, and all Adult Residential Centres and Regional Rehabilitation Centres funded and licenced by the Department of Community Services under the Homes for Special Care Act, must comply with the "COVID-19 Management Long Term Care Facilities Directive Under the Authority of the Chief Medical Officer of Health", dated April 6, 2020, which is attached to the order as Schedule "A", as updated from time to time.

Nunavut

On April 29, 2020, Nunavut's Minister of Health announced three conditions that need to be met before Nunavut can begin relaxing existing restrictions.

On April 30, 2020, the government confirmed the first case of COVID-19 in Nunavut. The territory reports that it has initiated contact tracing and deployed a rapid response team to provide care and ensure the community has all necessary supports.

Ontario

On April 24, 2020, the Province of Ontario issued an order (O. Reg. 174/20) pursuant to the Emergency Management and Civil Protection Act ("EMCPA"), published on April 27, 2020, amending O. Reg. 74/20. The order provides that, despite any legislation stating otherwise, hospitals[2] are authorized to assist long-term care homes, including by providing assessments in relation to a long-term care home's infection prevention and control program and assisting with personal support work. For the purposes of this order:

   staff who assist the long-term care home remain staff of the hospital;

   providing assistance contemplated under the order does not impact whether the long-term care home and hospital are treated as one employer; and

   the hospital will not be considered to have sold part of its business to the long-term care home.

On April 27, 2020, Ontario unveiled its guiding principles to reopen the province. These guidelines include criteria that the Chief Medical Officer of Health and health experts will rely on to advise the government on the loosening of emergency measures. The plan is currently to follow three stages for reopening:

•   Stage 1 - Certain businesses previously ordered to close that can immediately modify operations to meet public health guidance may start reopening. This stage would also include an increase in the number of people permitted to attend certain events, and allow some outdoor spaces to open. Hospitals would be permitted to begin offering non-urgent and scheduled surgeries, and other health care services.

   Stage 2 - Following risk assessments, more workplaces would be allowed to open, which could include some service industriy, office and retail workplaces. This stage would also include reopening of public spaces and allowance of larger public gatherings.

   Stage 3 - The remainder of workplaces would be allowed to open and restrictions on public gatherings would be further relaxed.

The government has announced that certain businesses are allowed to re-open under strict safety guidelines thereby entering Stage 1 of the Ontario’s action plan in response to COVID-19.
An order (O. Reg. 196/20) was issued on May 1, 2020 under the EMCPA, amending the earlier order (O. Reg. 80/20) to revise the list of essential businesses.

The province issued an order (O. Reg. 177/20) pursuant to the EMCPA, effective April 30, 2020, which applies to service agencies and transfer payment recipients in the developmental services sector, violence against women/anti-human trafficking sector, and intervenor sector (collectively, "congregate care setting service agencies"). Among other things, the order prohibits staff members working in a residence operated by one congregate care setting service agency from working in a residence operated by a different agency in the same sector. An obligation is also imposed on the congregate care setting service agency to ensure that its staff members who work in the agency's residence facilities do not also work as a staff member in a residence operated by a different agency in the same sector. For the duration of an outbreak in a residence operated by a congregate care setting service agency, the agency must ensure that staff members exposed to the virus are only scheduled to work at the residence where the exposure occurred.

On April 30, 2020, the government announced that the Minister of Health has made an order under the authority of subsection 45(2.1) of the Health Insurance Act to temporarily list assessments of or counselling to insured persons by telephone or video, or advice and information to patient representatives by telephone or video, as well as two temporary sessional fee codes, as insured services.

Also on April 30, 2020, the government announced that four provincial health and safety associations in partnership with the Ministry of Labour, Training and Skills Development, have released more than 50 technical sector guidance documents to aid in supporting employers and employees in remaining safe in workplaces during the COVID-19 outbreak. Among them is the Public Service Health and Safety Association ("PSHSA") which serves, among others, hospitals, nursing and retirement homes, residential and community care, and paramedics. PSHSA guidance documents can be found here and include:

   Health and Safety Guidance During COVID-19 For Food Services in Health Care;

   Health and Safety Guidance During COVID-19 For Long Term Care;

   Health and Safety Guidance During COVID-19 For Community Laboratory And Specimen Collection Centres;

   Health and Safety Guidance During COVID-19 For Physician and Primary Care Provider Employers; and

   COVID-19: Precautions When Working As A Personal Support Worker, Home and Care Provider.

On May 1, 2020, the province issued an order (O. Reg. 190/20) under the EMCPA, pursuant to which the Chief Medical Officer of Health or a medical officer of health may use the electronic health record (as defined in the Personal Health Information Protection Act, 2004) to collect personal health information ("PHI") when the following conditions are met:

   the health information custodian who provided the PHI to Ontario Health would be authorized or required to disclose the PHI to the Chief Medical Officer of Health or the medical officer of health if the Chief Medical Officer of Health or the medical officer of health had directly requested it from the custodian;

   the Chief Medical Officer of Health or the medical officer of health would be authorized to collect the PHI if they had directly requested it from the health information custodian; and

•   the Chief Medical Officer of Health or the medical officer of health requires the PHI for any purpose related to exercising their powers or performing their duties under the Health Protection and Promotion Act.

Further, pursuant to O. Reg. 190/20, a coroner or a registered nurse who has been appointed under subsection 16.1 (1) of the Coroners Act to exercise the investigative powers and duties of a coroner may use the electronic health record to collect PHI when the following conditions are met:

   the health information custodian who provided the PHI to Ontario Health would be authorized or required to disclose the PHI to the coroner or registered nurse if the coroner or registered nurse had directly requested or demanded it from the health information custodian;

•   the coroner or registered nurse would be authorized to collect the PHI if they had directly requested or demanded it from the health information custodian;

   the coroner or registered nurse has been authorized by the Chief Coroner to use the electronic health record to collect PHI; and

   the coroner or registered nurse requires the PHI for any purpose related to exercising their powers or performing their duties under the Coroners Act.

Pursuant to O. Reg. 190/20, Ontario Health is authorized to make PHI available to the Chief Medical Officer of Health, medical officers of health, coroners and registered nurses by means of the electronic health record in accordance with the order even if Ontario Health does not have custody or control of the PHI. The province indicated that these measures are to help reduce demands on clinicians' time related to death investigations, reduce exposure to COVID-19 related death investigations, and improve the ability to monitor the spread of the virus.

In addition, on May 1, 2020, the government issued a number of other emergency orders under the EMCPA to support the immediate needs of the province’s hospitals and health care workers, including:

•   O. Reg. 192/20, which allows registered nurses appointed as coroner investigators to complete medical certificates of death instead of a physician or nurse practitioner, giving these medical professionals more time to focus on patient care; and

   O. Reg. 193/20, which authorizes the board of a hospital, or any of the hospital’s authorized officers, to take, with respect to any aspect of the hospital’s credentialing process[3], any reasonably necessary measure to respond to, prevent and alleviate the outbreak of COVID-19, allowing for the reduction of administrative processes to better enable hospitals to focus operational resources on providing frontline services, including:

1.   identifying medical, dental, midwifery and extended class nursing staff needs and priorities and doing any of the following, despite any credentialing process that may apply:

•   appointing a physician, dentist, midwife or extended class nurse to any department of the medical, dental, midwifery or extended class nursing staff of the hospital, as the case may be, and determining the nature and scope of privileges assigned to them;

•   reappointing, continuing or extending the appointment of, or extending the time for the application for reappointment of, any member of the medical, dental, midwifery or extended class nursing staff of the hospital; and

   determining the nature and scope of privileges assigned to a member of the medical, dental, midwifery or extended class nursing staff of the hospital;

2.   collecting information from medical, dental, midwifery and extended class nursing staff about their availability to provide services for the hospital; and

3.   collecting information from medical, dental, midwifery and extended class nursing staff about their likely or actual exposure to COVID-19, any positive test results, or about any other health conditions that may affect their ability to provide services.


Prince Edward Island

On April 30, 2020, the Government of Prince Edward Island renewed (pdf) the Provincial State of Emergency to remain in effect until May 31, 2020.

The government announced its four-phase reopening plan. Pursuant to Phase One of the plan, starting May 1, 2020, Prince Edward Island will commence reintroducing certain elective surgeries and other priority services (e.g. cardiac supports, cancer screening, immunizations) that have been identified and assessed to mitigate long-term significant health impacts while maintaining capacity to treat COVID-19 patients. It is recommended that health care delivery continue virtually where possible and feasible. Priority health service providers, including physiotherapists, optometrists and opticians, chiropractors, foot care providers, occupational therapists, and naturopaths will be permitted to provide non-urgent health care services and are encouraged to use personal protective equipment.

Under Phase Two, starting May 22, 2020, additional health service providers, including registered massage therapists, acupuncturists and acupressurists will be reintroduced. Emergency dental services to be provided in office will also be reintroduced under Phase Two.

Phase Three will see the continued transition to increased non-urgent health services.

Phase Four continues to be developed by the province.

Quebec

On April 29, 2020, Quebec's Minister of Health and Social Services issued an order (pdf):

   allowing the supervision of a specialized nurse practitioner candidate pursuant to paragraph 2 of section 25 of the Regulation respecting specialized nurse practitioners to be done remotely;

   allowing a nurse to perform a COVID-19 screening test without a prescription; and

   exempting care attendants of a private seniors' residence from the obligation to hold an official document issued by a school board attesting to the mastery of certain skills, referred to paragraph 2 of section 3.5 of the Regulation respecting the activities engaged in and described in sections 39.7 and 39.8 of the Professional Code, if a competent professional from the integrated health and social services centre of the territory has provided the care attendant with the training required to master the skills referred to therein and must attest that the care attendant masters those skills, provided that the other conditions set out in the Regulation are met.

On April 29, 2020, the Government of Quebec:

   issued an order (pdf) suspending the coming into force of provisions which provide for a reorganization of the chain of procurement of goods and services as it currently exists and the dissolution of the health and social services network joint procurement groups.  The suspension is to ensure the continuity of the health and social services network procurement and to prevent risks of disruption of health and social services. The suspension, with a few exceptions, will be applied until the end of the public health emergency; and

   issued an order (pdf) extending the public health emergency and other emergency orders previously issued until May 6, 2020.

On April 30, 2020, the government announced (French only) transitional places will be set up in already existing facilities or in non-traditional sites, for individuals who no longer need to be in hospital but who cannot return to their accommodation (for example, at long-term care or retirement homes). The premises will be in two separate sub-areas: (1) a hot buffer zone for individuals with COVID-19 and (2) a lukewarm buffer zone for individuals with a negative test but who could still develop symptoms. The health of individuals at these sites will be regularly monitored.

Quebec has started to lift restrictions on certain businesses, including through an order (pdf) issued on May 1, 2020. Quebec has also announced that its testing capacity is expected to increase to about 14,000 tests per day.  The Commission des normes, de l'équité, de la santé et de la sécurité du travail has announced a virtual toolkit to assist employers and workers in complying with recommended sanitary measures.

Saskatchewan

Effective April 28, 2020, special-care and personal care homes must ensure that each staff member works in only one facility pursuant to the Chief Medical Health Officer's April 17th order (pdf), described in our earlier bulletin.

On April 30, 2020, the Chief Medical Health Officer issued an order (pdf) implementing further restrictions on northern Saskatchewan, replacing his earlier order (pdf), described in our bulletin last week. The Saskatchewan Health Authority has announced increased testing and tracing in northern areas.

On April 30, 2020, the Government of Saskatchewan announced a temporary wage supplement for certain essential workers, including those at senior-care facilities. The supplement will be cost-shared with the federal government - the federal government's announcement is summarized in our earlier bulletin.

Phase 1 of Saskatchewan's re-opening plan began on May 4, 2020, including allowing certain health services that were previously restricted - dentistry, optometry, physical therapy, optician services, podiatry, occupational therapy and chiropractic treatment - to re-open.

The government has posted a number of new resources for health care workers and clinical practice resources.

Yukon

On April 27, 2020, the Government of Yukon announced that it has received six ventilators from the Public Health Agency of Canada's emergency response services. It now has a total of 15 ventilators, which significantly increases the territory's capacity to provide acute care.

On April 28, 2020, the government announced that planning for Yukon's opening up is underway.[4]



[1] This bulletin addresses updates published up to 5:00 pm (EST) on May 3, 2020.

[2] The order applies to health service providers within the meaning of paragraphs 1, 2 and 3 of subsection 1 (2) of the Connecting Care Act, 2019, being:

  1. A person or entity that operates a hospital within the meaning of the Public Hospitals Act or a private hospital within the meaning of the Private Hospitals Act.
  2. A person or entity that operates a psychiatric facility within the meaning of the Mental Health Act except if the facility is, (i) a correctional institution operated or maintained by a member of the Executive Council, other than the Minister, or (ii) a prison or penitentiary operated or maintained by the Government of Canada.
  3. The University of Ottawa Heart Institute/Institut de cardiologie de l'Université d'Ottawa.

For ease of reference we have said "hospital" in our description of the order.

[3] “Credentialing process” is defined as the activities, processes, procedures and proceedings for appointing and reappointing members of the medical, dental, midwifery or extended class nursing staff and determining the nature and scope of privileges assigned to them.

[4] Thank you to articling students Anna Lu, Jessica Nolan, Marissa Di Lorenzo, Rachel Kardal, Rob Legge and Sarah Chouinard for their research assistance.

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