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Evidence of the Canadian Medical Association

(Note: These are the unrevised transcripts of the hearings in floor language (language spoken) ONLY. The final text will be available on the Parliamentary Internet site once editing and translation are completed.)     

    THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

    EVIDENCE

Ottawa, Wednesday, March 27, 1996

     The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-8, respecting the control of certain drugs, their precursors and other substances and to amend certain other Acts and repeal the Narcotic Control Act in consequence thereof, met this day at 3:15 p.m. to give consideration to the bill.

     Senator Sharon Carstairs (Chairman) in the Chair.

     The Chairman: Honourable senators, this afternoon we begin consideration of Bill C-8, an act respecting the control of certain drugs. Our witnesses this afternoon are from the Canadian Medical Association. Please come forward and take a seat at the table.

     With us today are: Dr. Jack Armstrong, president; Dr. Anne Carter, the associate director of health care and promotion; and Carol Lucock, senior legal counsel, manager, legal services, for the Canadian Medical Association.

     Senator Jessiman: When this bill was considered by the earlier committee on December 12, 1995, at page 70:13, Mr. Rowsell, in answer to a question from me, said that the subcommittee in the other place also had the same question. He said:

         We have a document that shows you a cannabis plant and separates out the distinction between cannabis, marijuana and hash.

     He then went on to explain the various things, and he was to give us that document.

     The Chairman: He did that.

     Senator Jessiman: I did not see it.

     The Chairman: I have a copy of it.

     Senator Jessiman: Perhaps I could get that later.

     The Chairman: Certainly. I will make sure that you receive that.

     Dr. Armstrong, would you begin now, please?

     Dr. Jack Armstrong, President, Canadian Medical Association: Honourable senators, on behalf of my fellow physicians, I should like to say that the Canadian Medical Association is pleased to have the opportunity to make this presentation. I am a paediatrician from Winnipeg. The other members of our delegation have been introduced.

     We have been following this issue since the bill was first introduced in the House of Commons. I will make some brief opening remarks and then we would be glad to answer any questions you might have.

     The Canadian Medical Association's mission has two components: to provide leadership for physicians, and to promote the highest standards of health and health care for Canadians. Our concerns about Bill C-8 arise from both aspects of this mission. We believe that physicians are unfairly targeted by many elements of the proposed legislation, and we feel that, as a result of this, the bill could have an adverse effect on the health of Canadians.

     I realize that Bill C-8 has received some public attention because it addresses the issue of controlling marihuana and other drugs. Our area of concern has received relatively little attention despite the fact that it could eventually have a much greater impact on society. I say that because it is clear from this bill that the federal government intends to take an intrusive approach to the practice of medicine and is determined to control and regulate the medical use of drugs. This is unprecedented and should be a major certain to Canadians.

     Let me give you a few examples of what I mean. Under Part IV of the bill, the Minister of Health may designate inspectors for the purposes of the act and its regulations. These inspectors will have the power to enter a physician's place of practice without a warrant and begin an extensive search of the premises.

     Try to imagine what effect that might have on a physician's practice. An individual shows up, identifies himself to the doctor's assistant and begins going through the cabinets, looking in any containers he might find in the office, leafing through books, going into the physician's computer system, all this in front of any people waiting in the doctor's waiting room.

     If any of you were sitting in that waiting room, I wonder how you would react to such an odd scene. If you were told by your doctor, or his or her assistant, that it was an inspector from Health Canada, would this reassure you or worry you? If you learned that the inspector was simply looking to make sure that your doctor was not dealing in a controlled substance or precursor, would this reinforce your confidence in your physician or would it raise questions about his behaviour?

     I dare say that many Canadians would probably be alarmed by this and might question whether or not they should change physicians.

     Fear of this type of action -- and I emphasize this -- may lead to a prescribing chill. That is to say, physicians might want to, or be tempted to, avoid making available certain prescriptions, to the detriment of patient care.

Evidence of the Canadian Medical Association

(Note: These are the unrevised transcripts of the hearings in floor language (language spoken) ONLY. The final text will be available on the Parliamentary Internet site once editing and translation are completed.)     

    THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

    EVIDENCE

Ottawa, Wednesday, March 27, 1996

     The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-8, respecting the control of certain drugs, their precursors and other substances and to amend certain other Acts and repeal the Narcotic Control Act in consequence thereof, met this day at 3:15 p.m. to give consideration to the bill.

     Senator Sharon Carstairs (Chairman) in the Chair.

     The Chairman: Honourable senators, this afternoon we begin consideration of Bill C-8, an act respecting the control of certain drugs. Our witnesses this afternoon are from the Canadian Medical Association. Please come forward and take a seat at the table.

     With us today are: Dr. Jack Armstrong, president; Dr. Anne Carter, the associate director of health care and promotion; and Carol Lucock, senior legal counsel, manager, legal services, for the Canadian Medical Association.

     Senator Jessiman: When this bill was considered by the earlier committee on December 12, 1995, at page 70:13, Mr. Rowsell, in answer to a question from me, said that the subcommittee in the other place also had the same question. He said:

         We have a document that shows you a cannabis plant and separates out the distinction between cannabis, marijuana and hash.

     He then went on to explain the various things, and he was to give us that document.

     The Chairman: He did that.

     Senator Jessiman: I did not see it.

     The Chairman: I have a copy of it.

     Senator Jessiman: Perhaps I could get that later.

     The Chairman: Certainly. I will make sure that you receive that.

     Dr. Armstrong, would you begin now, please?

     Dr. Jack Armstrong, President, Canadian Medical Association: Honourable senators, on behalf of my fellow physicians, I should like to say that the Canadian Medical Association is pleased to have the opportunity to make this presentation. I am a paediatrician from Winnipeg. The other members of our delegation have been introduced.

     We have been following this issue since the bill was first introduced in the House of Commons. I will make some brief opening remarks and then we would be glad to answer any questions you might have.

     The Canadian Medical Association's mission has two components: to provide leadership for physicians, and to promote the highest standards of health and health care for Canadians. Our concerns about Bill C-8 arise from both aspects of this mission. We believe that physicians are unfairly targeted by many elements of the proposed legislation, and we feel that, as a result of this, the bill could have an adverse effect on the health of Canadians.

     I realize that Bill C-8 has received some public attention because it addresses the issue of controlling marihuana and other drugs. Our area of concern has received relatively little attention despite the fact that it could eventually have a much greater impact on society. I say that because it is clear from this bill that the federal government intends to take an intrusive approach to the practice of medicine and is determined to control and regulate the medical use of drugs. This is unprecedented and should be a major certain to Canadians.

     Let me give you a few examples of what I mean. Under Part IV of the bill, the Minister of Health may designate inspectors for the purposes of the act and its regulations. These inspectors will have the power to enter a physician's place of practice without a warrant and begin an extensive search of the premises.

     Try to imagine what effect that might have on a physician's practice. An individual shows up, identifies himself to the doctor's assistant and begins going through the cabinets, looking in any containers he might find in the office, leafing through books, going into the physician's computer system, all this in front of any people waiting in the doctor's waiting room.

     If any of you were sitting in that waiting room, I wonder how you would react to such an odd scene. If you were told by your doctor, or his or her assistant, that it was an inspector from Health Canada, would this reassure you or worry you? If you learned that the inspector was simply looking to make sure that your doctor was not dealing in a controlled substance or precursor, would this reinforce your confidence in your physician or would it raise questions about his behaviour?

     I dare say that many Canadians would probably be alarmed by this and might question whether or not they should change physicians.

     Fear of this type of action -- and I emphasize this -- may lead to a prescribing chill. That is to say, physicians might want to, or be tempted to, avoid making available certain prescriptions, to the detriment of patient care.

     Bill C-8 goes even further. Clause 33 gives the Governor in Council unrestricted power to refer to any regulation as a so-called "designated regulation". Contravening such a designated regulation would carry a stiff penalty, including the loss of a licence, permit or authorization issued or granted under the regulations. In the instance of such a contravention, the minister can order a hearing before an adjudicator. This adjudicator will deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

     As an aside, I am not familiar with the details of legal terminology but when I hear the phrase "informally and expeditiously" in a legal setting, I find that it sounds a lot like "fast and loose", and that gives me cause for alarm.

     These are just two of the flaws we see in the bill in its current incarnation. They reinforce our belief that this government intends to intrude in the practice of medicine in a heavy-handed way.

     Traditionally, the power to regulate medical practice has been exercised by professional disciplinary bodies that monitor the practice of medicine in the public interest. This proposed piece of legislation represents a major departure from this tradition.

     Canadian physicians feel that if it is passed, Bill C-8 will have a major impact on how we practise medicine. This is because the legitimate prescribing and use of drugs is a major part of practice. Physicians should not feel that the act of prescribing drugs for their patients is subject to scrutiny under a criminal law statute or subject to criminal sanctions. If, as a result of Bill C-8, every doctor in Canada must think twice about whether or not to prescribe medication, patient care will inevitably suffer to some degree.

     (1530 starts here - Dr. Armstrong continuing)

     In conclusion, I should like to begin by saying that CMA understands the reason why the government has introduced this legislation:

     27March96-Legal-32019-DM

     (Dr. Armstrong continuing - patient care will inevitably suffer to some degree.)

     (1530 starts here - Dr. Armstrong continuing)

     In conclusion, CMA understands the reason why the government has introduced this legislation: The constant battle against the use of drugs. Physicians respect this motivation. We see the terrible effect of drug abuse every day. However, we must oppose Bill C-8 because of the impact it will have on our profession. The CMA succeeded in having some amendments made when this bill was before the House of Commons, and we are pleased about that. Unfortunately, there are important changes that remain to be made.

     Honourable senators, we have come before your committee today because we recognize and respect the important role that the Senate plays in our legislative system. You have the opportunity to take legislation, review it, and improve it. We urge you to do so with Bill C-8. It is well-intentioned and has some positive aspects, but it goes much too far in its intrusion into the practice of medicine.

     In the end, the government should hope to achieve the control of the misuse of drugs while at the same time recognizing the legitimate use of drugs by physicians and ensuring that the medical use of drugs is accommodated. Other jurisdictions, such as the United States and Britain, have achieved this balance. We encourage you and your colleagues to make this piece of legislation a better bill. We encourage you to make it a balanced bill.

     The Chairman: Before we begin with questioning, perhaps your legal counsel could elaborate to some degree. My understanding is that the powers of the inspectors and the powers under designated regulations are exactly the same as exist in the present act.

     Ms Carole Lucock, Senior Legal Counsel, Manager, Legal Service, Canadian Medical Association: The powers of the inspectors and the powers to designate regulations are highly dependent on what regulations are passed. At the beginning of clause 55 of the proposed legislation, the power to make regulation is broadly defined and includes the power to regulate the medical use of drugs. The power to make regulations in the future has been significantly extended. Consequently, any powers that flow from that, for example, the powers of the inspectors and the powers to designate regulations, have also been extended. In current legislation there is no power similar to the power to designate regulations.

     Senator Lewis: I wish to ask you about the question of inspection and the right to enter offices and search. What is the situation now under the provincial health care plans? Are there not also rights of entry?

     Mr. Armstrong: My understanding is that if at the present time there are any outlaws in the profession, the inspectors and government authorities are well aware of those circumstances through other means of criminal investigation, and they are able to accomplish the control of such adverse activity by other means. In other words, the law officers and inspectors are well aware of who the culprits are, and they do not need to establish a system whereby inspectors can go into any office and at random start to check whether things are in proper order. I am told that criminal activities are pretty well known to the law officials, and other means of bringing that physicians under control are well in hand at the present time.

     Senator Lewis: I can only speak for my own province, but I have seen some reports in the press of doctors complaining about inspectors from the medical plan administration going into doctor's offices to search their records to check the claims that are being submitted by doctors for medical services to the plan. I know there are complaints that doctors' records are being searched and information being obtained. There is a worry about that information getting out. Is there something similar to that type of provision here?

     Mr. Armstrong: There are variations from province to province and certain changes that have occurred under certain jurisdictions in the last couple of months.

     Ms Lucock: I am not familiar with all legislation across Canada, but certainly under provincial statutes there are some powers of entry into a physician's practice. The profession is always concerned, particularly when patient records and their records are open for scrutiny for some of the reasons that Dr. Armstrong has alluded to and in a general sense.

     Currently, under the federal inspection powers, the job of the inspectors under the Food and Drugs Act is to ensure that drugs are made in sanitary conditions and that they are as they say they are. There is not the same threat under the current system as there would be under the new system. Who has access and to what they have access is of great importance to physicians.

     Senator Jessiman: You made representations before the House of Commons committee, and they agreed to some of your suggestions or amended the act to satisfy some of your requests; is that correct?

     Mr. Armstrong: That is correct.

     Senator Jessiman: I assume that you made a complaint similar to the one you are making here before the House of Commons. What did they say is the problem?

     Ms Lucock: The concerns that we raised were in relation to the criminalization of certain activities of physicians. They have certainly been addressed, and we have been pleased to see that. Since there has not been a dialogue, the honest answer is that we are not sure why this particular aspect of our concerns has not been addressed.

     Senator Jessiman: Did you mention this particular concern?

     Ms Lucock: Yes. This legislation has gone through a series of stages. It was initially Bill C-85, then Bill C-7, and now this bill. We have been before committees in the house on two occasions and presented two briefs.

     Senator Jessiman: I do not know if you are familiar with the national review which came out on February 12, 1996. It is fairly new. There are seven outstanding concerns of North America. They say that the war on drugs is lost. They say that we are in the same position with drugs in North America today as we were with alcohol when we had prohibition. I would be the last one to suggest that we make drugs legal, but, at the same time, having read this, I should like to know your views.

     Mr. Armstrong: I am sure we are all aware that there is a difficult problem with drugs, and I could not dispute that. To emphasize the point I want to make this afternoon, I must say that by introducing this type of legislation and regulations, whatever they may be --

     Senator Jessiman: I sympathize with your point, but I have gone on to another aspect of it.

     Mr. Armstrong: I agree and sympathize that drug control is a severe problem.

     (1540 follows - Senator Jessiman - Would you agree with legalizing marihuana?)

df\96\03\27 Legal #32019     

     Senator Jessiman: Would you agree with legalizing marijuana?

     Mr. Armstrong: I do not think I am here to try to answer that question. I am wise enough to duck that question.

     Senator Nolin: You referred in your opening statement to intrusion. I should like to ask Ms Lucock to comment on that. By "intrusion", I assume you are referring to federal and provincial powers, and that should be sustained by something. I heard you, but I should like to hear you further on that point. What kind of intrusion, and what legal argument do you have to support the word used by your president?

     Ms Lucock: We have tried to deal with it from both a practical and legal perspective. I assume that the federal government is relying on its criminal law power to bring this legislation forward.

     Generally speaking, with some exceptions, the medical practice is generally considered to be a provincial power and dealt with provincially. For the federal government to bring in legislation which clearly contemplates the regulation of the medical use of drugs is suspect to us in terms of the federal law power under the criminal law statute. They will have to rely on criminal law and criminal methods to enforce this piece of legislation, which is not the normal way to deal with what we consider to be a quality issue in medical practice.

     Senator Nolin: Do you argue that a doctor is entitled to a specific right under the Charter and that that right is breached by the inspector or the usage by the federal government of this type of search?

     Ms Lucock: Our principal argument is that there are appropriate ways of handling and regulating the medical practice and ensuring that we have a quality medical practice. That is not achieved through the use of the criminal law power; it is not achieved through the use of regulation in a criminal context. It is more appropriately done provincially through professional governing bodies and with the consent and help of the profession itself. They are the ones who understand what prescribing practices are all about, and they are the ones best able to make alterations or adaptations as cases arise.

     Senator Nolin: There are searches and seizures. Even if doctors are professional and they have information related to the personal health history of their client, if the police want to get into their offices, all they need is a warrant to gain entry. If I understand you correctly, you are telling us that what is contained in Bill C-8 differs from what is already in place, that law enforcement is much different now, that they have too much power, and that what is already in place is enough. Is that what you are saying?

     Mr. Armstrong: As I read our background brief and discussed it, the new legislation would allow someone to enter the office without a warrant. I gather that under the current circumstances, if a physician, because of other investigations, is felt to be suspect, then there could be an entry with a warrant. However, other mechanisms of investigation at the present time have been quite ample in detecting who is likely to be suspect. That is a different situation entirely than, as a regular matter of investigation, entering a physician's office unannounced without a warrant. That is a difficult situation for the physician and places the physician, in most instances, in an unwarranted and poor light. More important is the impact on prescribing practices. If it is to become a criminal matter or a matter or investigation, what influence will that have on what have been good prescribing habits by a majority of physicians? These prescribing habits have been well studied and assessed by professional bodies. There are lay people on those bodies, such as the provincial licensing authorities. They are in the best position to determine what is good practice in prescribing procedures for physicians, who may have different types of practices and have different prescribing situations.

     Senator Doyle: Was there any consultation in advance between the people who were writing this law and your association?

     Mr. Armstrong: I would have to defer to historical knowledge. My understanding is that we have been permitted to respond to legislation more than being involved.

     Ms Lucock: To our knowledge, there was no prior consultation as the bill was being drafted. Since the introduction of Bill C-85, we have had opportunities to meet both formally and informally to express our concerns. When the bill was drafted, as far as I am aware, there was no prior consultation or a seeking of input from the Canadian Medical Association.

     Senator Doyle: Considering the nature of the problem with which you are dealing -- namely drugs -- over a period of time, has there not been a development of some area where you are constantly in touch with the policing authorities? Doctors' offices are frequently the targets of people addicted to drugs. Doctors themselves have been involved in the abuse of drugs. I would have thought you would have developed a line of information where, Dr. Armstrong, you could pick up the phone and talk to inspector so and so whenever you had a problem that might affect their work.

     Mr. Armstrong: In dealing mostly with children, my practice is not quite as much in that territory. It varies from province to province or territory.

     Again, mechanisms are in place in certain jurisdictions, such as in my home province, where, with respect to controlled medication, you write the prescription out on a triplicate form. The college has access to it. The pharmacy gets a copy. A copy goes to the licensing body, and they can follow your patterns of practise on that basis. I suppose they could monitor it. If they thought you were out of line in your prescribing habits, they could bring you before an assessment body.

     In terms of picking up the phone, I am not quite sure I know what that would involve. However, there are mechanisms in some jurisdictions across the country of the form I just mentioned.

     Dr. Anne Carter, Associate Director, Health Care and Promotion, Canadian Medical Association: In all provinces, physicians aware of other physicians who are in difficulty with substance abuse or criminal activities report these activities to their colleges. Is that what you had in mind?

     (Take 1550 Follows -- Senator Doyle: No, I was thinking of a line of communication...)

     MA Take 1550 Legal 32019

     (Take 1550--Dr. Carter...their colleges. Is that what you had in mind?)

     Senator Doyle: No, I was thinking of a line of communication which would be good enough that some one of you, at some point, knowing that the legislation was being written, would have called your contact and asked, "What is going on? We have not been plugged into this and we are concerned."

     Dr. Carter: At the time that Bill C-85 was written, that was not happening. In the last two years, the Canadian Medical Association has met regularly with the drugs directorate. We have exchanged information about various upcoming issues that are of interest to both of us. I am sure, today, if Bill C-85 were being drafted, we would be aware at least that it was being drafted. There is a better communication occurring now than at that time.

     Senator Doyle: But have you discussed what you are discussing with us today with that contact?

     Dr. Carter: Yes. They have been aware since our first presentation on Bill C-85 that we are concerned about various aspects of the act. They have responded by changing the act in all the areas except this one.

     Senator Doyle: Have they given you any reason why they have not moved on the one that you are addressing today?

     Dr. Armstrong: We do not have any knowledge, no.

     Dr. Carter: I am not aware of it.

     Senator Doyle: As a paediatrician, how old would your oldest patients be?

     Dr. Armstrong: There is an exception to every rule. I had one young man of 21 who came into the office and told me that his mother had advised him it may be time to find another doctor, but he said, "I like your style."

     Senator Doyle: Then you do have potential drug users.

     Senator Bryden: I take it your principal concern is the intrusion into the professional practice of medicine and the potential adverse affect on your ability to serve the health care needs of Canadians.

     What provisions or procedures are in place with the medical association or the College of Physicians and Surgeons in the provinces to address the concern which is apparently being addressed in this bill, namely, the potential misuse of prohibited substances by professionals?

     All of us have non-angels in our midst. Are there well-established practices to address this concern reliably in the eyes of the public so that this bill is not necessary?

     Dr. Armstrong: If someone is abusing the mechanism by selling drugs which are being resold on the black market, illegally, the current law does allow for action. Most often, the law enforcement officers are aware of this kind of activity from other processes of investigation and are soon able to zero in on the problem. The law is there; if the physician is breaking the law, he is culpable.

     To a less severe degree, if some physician, for whatever reason, is slipping into less-than-good practices of prescribing, again the college can deal with that when it is brought to light. The college can deal with a physician if suspicions arise, using educational or disciplinary responses.

     As has already been mentioned, our associations, over the past several years, have become much more adept at looking after our own colleagues who are having trouble. When it comes to someone's attention, it can be passed on to the college. In my own province, we have a committee, supported by our own provincial medical association, to deal with people who are getting into trouble with drug abuse, alcohol abuse, and many other forms of difficulties. We are there to try to help our own colleagues as well.

     Several years ago, this was not such an important factor but it is becoming much more prevalent. The Canadian Medical Association works in conjunction with the American Medical Association and has regular annual meetings to deal with the physician who is in difficulty. That is another mechanism.

     Some provinces now have triplicate drug forms. If a doctor writes prescriptions for a certain drug with a frequency that is a little outside the norm, then the college is able to monitor that and other prescribing practices. If someone was way outside the norm, presumably the college would want to discuss the matter with them.

     Senator Bryden: In the professional regulatory bodies, the Canadian Medical Association and then the individual colleges of physicians, are lay people involved in the boards of most of those bodies?

     Dr. Armstrong: Very much so. In fact, I was approached by one of the physicians in our own college back home regarding my awareness of a person from the aboriginal community who they thought should now be present on the college. There are certainly other lay people there to ensure that colleges are doing more than acting in self-protection of the profession. We are getting well past that stage if it did exist in the past.

     Senator Bryden: From what you have said, you are aware of no practice within the profession to initiate an audit to determine whether there is abuse?

     I will use an example from a profession with which I am more familiar and one which is more apt to abuse things, namely the legal profession. Sufficient concern has developed over the years in the legal profession about lawyers abusing trust funds or that sort of thing. As a result, many of the bar associations have initiated their own audits. The audits do not occur because of a complaint or because a judge has issued a warrant. These audits are done on a spot-check type of basis. An auditor from the bar association will just show up and ask to see the trust funds.

     Do you have anything like that in the medical profession?

     Dr. Armstrong: Controlled drugs are already monitored and audited through hospital audits. There has been talk of office audits in the future by the profession. Certainly, the legislation as it exists right now permits auditing of the prescription of controlled drugs.

     Senator Bryden: But is there an initiative in the control and self-regulation of the medical profession to address just who will go out and find abuse if any does exist?

     Dr. Carter: In the past, we relied on paper-based systems. Certainly, the triplicate prescription program and also the Narcotics and Controlled Drugs Act involved an auditing of the prescriptions as they occurred.

     We are now getting into electronic databases of prescription drugs in almost all provinces of Canada. Some of them involve all citizens of those provinces; others are more selective. As we improve those electronic databases, the paper-based auditing systems are giving way to electronic auditing and prescribing practices in general, which is broader than in the past when only narcotics and controlled drugs were audited.

     (Take 1600 starts here Dr. Carter continuing--Yes, practices are audited to some degree)

     RC\Legal\32019\March 27, 1996

     (Dr. Carter continuing)

     **Yes, practices are audited to some degree and with some limits. As time goes on, this auditing is actually broadening.

     Senator Bryden: Are those audits being done at the initiative of government?

     Dr. Carter: The database monitoring depends on the province. For example, in British Columbia it is actually run by the College of Pharmacists. However, it is government initiated and falls under government legislation. There is another one in Manitoba, for example, where the College of Physicians is more active.

     These are fairly new databases, but they are enhancing much of the monitoring function. It is going beyond narcotics and controlled drugs into general quality prescribing.

     Senator Bryden: The provision that sets this out in Bill C-8 is clause 31 which was referred to before. The terms of clause 31 are identical to section 23(1) of the Food and Drugs Act except with respect to one particular. Section 23(1) of the Food and Drugs Act states that "an inspector may, at any reasonable time, enter any place the inspector believes, on reasonable grounds, any article to which this act or the regulations apply is manufactured, prepared, preserved, packaged or stored."

     The only difference with clause 31 of the proposed act is that it states that an inspector may, at any reasonable time, enter any place he believes, on reasonable grounds, is used for the purpose of conducting the business or professional practice of any person licensed or otherwise authorized under the regulations to deal in a controlled substance.

     Senator Lewis: What does that mean?

     Senator Jessiman: I do not know. Do doctors deal? I think they probably do.

     Senator Bryden: I do not know this -- and forgive me if I am absolutely wrong -- but the section of the Food and Drugs Act would apply to pharmacists, presumably. The old section would have applied to pharmacists. It states, in part, "manufactured, prepares, preserved, packaged or stored". In that regard there is no change.

     I suppose a doctor could very well not store any narcotics whatsoever but simply write prescriptions for them. However, this clause states, in part, "...at any reasonable time enter any place the inspector believes on reasonable grounds is used for the purpose of conducting the business or professional practice of any person licensed or otherwise authorized under the regulations to deal in a controlled substance or a precursor and may for that purpose" do a whole bunch of things.

     You are licensed to deal with controlled substances.

     Senator Lewis: Are they licensed for that?

     Senator Jessiman: Do they deal with them? I do not know. I think they probably do deal.

     Senator Bryden: My point is that if you have as a group of people access to controlled substances -- perhaps not in the quantities or in the bulk that a pharmacist would have, and the association of pharmacists would represent their interests -- and if the law is to apply to the pharmacist and others, why should you who are licensed to deal in these substances be exempted?

     Ms Lucock: I understand that you have clause 31(1) in front of you. The key for us is to ensure compliance with the regulations. That is the purpose for which inspectors are entitled to enter. We do not know what the content of the regulations will be. Obviously, none of us have them before us. We can just tell by the broad powers granted in clause 55 what they are likely to be.

     While it is useful to compare this clause with the Food and Drugs Act, the purpose of the Food and Drugs Act is considerably more narrow than the intended purpose of this bill. We are trying to compare apples with oranges. Under the Food and Drugs Act, the reasons the inspectors are entitled to enter have to do with whether the drugs are stored in sanitary conditions and not containing various things. It is different from the purpose envisaged by the regulations in this bill. It is important to focus on that aspect of it.

     Senator Bryden: It is not that this is extended to include licensed medical practitioners, but that you do not know what the regulations will be that the inspector will be entitled to work under.

     Ms Lucock: There are two objections. The first is that the federal government is intending, through a criminal law statute in an administrative fashion, to control the medical use of drugs. The second objection is that, clearly, we have no idea, because we cannot see the regulations, what is contemplated. Given that regulations can change at any point in time without going back to the house, even if we did know what is contemplated by this government and what are its intentions, the powers are still there to do all sorts of things to control the medical use of drugs and medical practice. We are concerned both for now and in the future that these powers are granted to any government.

     Senator Nolin: You know that you are protected under the Charter. You can always raise an argument against abusive search and seizure under the Charter.

     Ms Lucock: That is a lengthy process. It is also a costly one.

     Senator Nolin: We want to avoid that, if we can. However, the possibility of search and inspection was already there.

     Ms Lucock: I understand that there are legal avenues for challenging any legislation. However, I do not think that it is the desirable course.

     Senator Nolin: I believe that, too. It was already in the previous act.

     Senator Bryden: If the government and the agencies which are concerned with this rely on what is a heavy instrument of a search warrant in order to try to assure themselves that there is no mispractice, and if that is what ends up being required, then I am wondering if that will not be more invasive of a physician's professional practice than an inspector coming at reasonable times. I assume a reasonable time is one which has been cleared with the doctor. The people who will know about this are those people who are sitting in the waiting room, as you say. I have been in the practice of law long enough to know that a charge of malpractice is as damaging, in many instances, to a physician's practice as is a conviction, at least almost as bad. It takes years and years to rebuild a reputation.

     I am concerned, as I think you should be concerned, about pressing not to allow on reasonable grounds and at reasonable times an inspection for people to satisfy themselves that there are no abuses. The result may not be that you have won the day and this has gone away, but that more blunt instruments will be used on a more frequent basis in order to attempt to accomplish the same thing.

     Ms Lucock: When you said "mispractice" you basically hit on the root of our concern, senator. Certainly, the criminal aspect of this legislation will allow physicians who are clearly breaking the law to be apprehended and punished, if necessary. All along the CMA has said that they feel that is quite appropriate. What we think is inappropriate is the federal government looking at how physicians practise medicine. It is not that they are not physicians who are engaged in criminal activity, but physicians whose practice patterns and habits are coming under surveillance.

     Certainly, within the criminal context, as you know, anyone who wants to go in and search will require a warrant. We are concerned at looking at the practice of physicians as opposed to making a clear distinction between criminal conduct and practice that, perhaps, could be improved. That is the route of our concern.

     (1610 starts here Senator Milne: I am confused on two issues....)

     27March96-Legal-32019-DM

     (That is the root of our concern.)

     (1610 starts here)

     Senator Milne: I am confused on two issues. I understood, Ms Lucock, from your answer to Senator Nolin that presently the only way physicians' offices are intruded upon is by police with a search warrant. I understood from your answer to Senator Bryden that, no, presently inspectors can go in. Are practitioners currently subject to inspection under the Canada Health Act by Health Canada?

     Ms Lucock: Not under the Canada Health Act, no.

     Senator Milne: By Health Canada?

     Senator Bryden: It is under the Food and Drugs Act.

     Senator Milne: Does it come under the Food and Drugs Act?

     Ms Lucock: I think they can, yes.

     Senator Milne: They are presently subject to this. It is not a change.

     Dr. Carter: I am not a lawyer, so I get nervous here. Especially if they are dispensing, but even when prescribing, they are required to keep written records when they have written prescriptions for certain controlled drugs. It is a criminal investigation that would be looking at that.

     The difference in this act is that they are trying to get into the quality of the medical practice, to search and look for quality issues around the actual medical practice as opposed to whether they are actually criminally selling or prescribing for personal gain, which is a different aspect of the practice.

     Right now it is strictly the record keeping around their narcotics prescribing. They must produce these records if requested.

     Senator Milne: Your answer brings me into my second point of confusion. It was my understanding that this bill had to do with controlled drugs and not medical practice. Inspectors would not be coming into your offices looking at medical practices, but possible misuses or how you have stored your drugs.

     Dr. Carter: The use of narcotic drugs is a legitimate part of medical practice. You are right on both counts, but the difference is whether you are using these drugs for a legitimate medical use. It may be questionable on the quality of how you are doing it, but it is a legitimate medical use. That contrasts with selling these drugs on the street or selling these prescriptions to criminals who would then be selling the drugs on the street.

     Senator Milne: That is not what inspectors would be looking for, is it? Am I wrong?

     Senator Nolin: The bill is very clear on what inspectors are allowed to do. I am trying to find in clause 55 the specific reference which you say will allowed them to get into how you practise your professional business. Which one is it?

     Ms Lucock: If you look at the first part of clause 55, the overriding purpose is the medical and scientific and industrial use and distribution. So it is "medical uses." If you then go on to look at the various other heads, that is the main area of power. If you look, for example, at the definition of "provide", it clearly confines physicians beyond the criminal aspect into how controlled drugs are subject and what the medical uses are.

     This could be subject to a variety of interpretations, but we are concerned that the federal government is intent on going beyond their current jurisdiction.

     Senator Corbin: I have been on Parliament Hill for 28 years, and I have had a opportunity to spend a lot of time in my former incarnation in the House of Commons with the health committee. I have listened to the presentations of your organization over the years. I find the tone of your presentation concerned. It is strident in some respects. You may suspect the government of its intentions beyond the reasonable bounds of an open dialogue. It may be helpful, on the other hand. It may force the light out of this issue.

     My question is really to you, Madam Chairman. We are turning around one post this afternoon, namely, why, in the request for amendments to the legislation, their one concern was not addressed. I do not know if you have had a opportunity to examine the records of the House of Commons in that respect, but we do have a researcher attached to this committee. Would it be possible, soon, to determine from an examination of that record if reasons were given for not moving with the recommendation? Can we at this stage have someone contact the department directly and ask why? In case this matter comes up again, I think we should be informed in order to address the concerns expressed by groups such as this.

     The Chairman: There is nothing on the record as to why they did not provide this amendment. However, if the committee would like, I certainly can write a letter to the minister and ask him for an explanation, or we can invite the departmental officials back, which we were intending to do in any case, and put the question to them as to exactly why it was not addressed in the amendments brought forth in the House of Commons.

     If it is the will of the committee, I will write to the minister tomorrow and request that information. Is that agreeable?

     Hon. Senators: Agreed.

     The Chairman: I will do that.

     Dr. Armstrong: Is it permissible that we would be able to access that response so that we could have an understanding of the matter too? Could I make a request for that consideration?

     The Chairman: We certainly will consider that, Dr. Armstrong, and the committee will decide.

     Senator Lewis: I take it that you people are concerned with the medical profession generally when you make this presentation.

     Dr. Armstrong: Yes.

     Senator Lewis: I take it that medical practitioners write prescriptions for patients and that they do not generally -- I am using the words as used here in the bill -- deal in the way most of us would think of dealing in controlled substances.

     Dr. Armstrong: That is correct.

     Senator Lewis: I take it that medical professionals at this time are not licensed or authorized to deal with controlled substances. You individually do not hold licences from anyone in respect of controlled substances.

     (1620 starts here - Mr. Armstrong - If you are licensed to practice medicine fully you are licensed to prescribe pain control medication)

     VA/03/27/96 -- LEGAL -- #32019

     ( Senator Lewis: continuing...individually do not hold lies licences from anyone in respect of controlled substances. Take 1620 begins here)

     Dr. Armstrong: If you are licensed to practise medicine fully, you are licensed to prescribe pain control medication if it is in the best interest of patients. For example, if someone requires palliative care and requires pain control to make the palliative efforts better, then you are licensed, as a physician, to do that.

     There may be cases where someone has not been using those licensing provisions properly. They may be able to practice, but without the right to write prescriptions. There are, unfortunately, not uncommon instances where that type of edict is handed down from licensing bodies. I do not usually do it in my practice, but I could write a prescription for morphine or something of that nature.

     Senator Lewis: The licence that you are speaking about is a licence issued by whom?

     Dr. Armstrong: It is issued by the licensing authorities and by my passing exams required in this country to practice medicine here as well as in my province.

     Senator Lewis: But you are not licensed under this bill or any of the other federal statutes.

     Dr. Armstrong: I must write general exams to allow me to practice in this country.

     Senator Lewis: This section puzzles me a bit. I am trying to see what it means and then relate it to your concern. Clause 31.(1) states:

         ...for the purpose of conducting the business or professional practice of any person licensed or otherwise authorized under the regulations to deal in a controlled substance....

     In one sense, it seems to suggest that regulations will provide for licensing when they are passed. That is what it seems to imply. At the moment, there is no such thing. What is meant by "to deal in a controlled substance" if you are just writing prescriptions? I am not asking you to define what that word means here in this bill.

     Ms Carter: Perhaps it is defined at the beginning of the bill.

     Senator Bryden: No, it is not defined.

     Senator Lewis: It is not defined. When you look at clause 55, which sets out what they can make regulations for, it does not seem to be aimed at that. It seems to be more aimed at the importation, export and manufacture of certain substances. I wonder if you are perhaps overly concerned. This is not really aimed at medical professionals.

     Ms Lucock: There is quite a long list in clause 55. If you go down to the word "provision", it talks about a lot of things. For example, in 55(1)(a) there is a whole bunch of things, including the "sale" and "provision". The word "provide" is defined in the act. If you look at the definition of the word "provide", I would suggest that it contemplates the writing of a prescription.

     Senator Lewis: This is what you are concerned about?

     Ms Lucock: That is right. If you look at a lot of these clauses, the word "sale" and, in particular, the words "provision" or "provide" crops up. That is the concern.

     Senator Lewis: But medical professionals do not usually sell these substances, do they?

     Ms Lucock: No.

     Ms Carter: Legally, however, there are dispensing physicians. Some physicians do dispense.

     Senator Lewis: Yes. I realize that.

     Ms Carter: There are some, but it is not common.

     I would ask you to check with your officials. Currently under the Narcotic Control Act, a licence to practice medicine in any jurisdiction in Canada then allows you this federal role of prescribing narcotics and controlled drugs. That federal role can be withdrawn by the minister without losing your provincial licence. That is my understanding. There are people who have lost their federal right without losing their provincial right to practice. You should check that with your officials. I am not a lawyer and I am not an official in the department, but that is my understanding of approximately how it works.

     Senator Lewis: That is interesting. We need to know what will be contained in the regulations because clause 31 seems to presume that there will be regulations under which people will be authorized to deal in controlled substances. You may be too concerned that this applies to medical professionals generally. I do not think we can say that now.

     Senator Pearson: I wish to follow up on what Senator Lewis has said. Your presentation has been useful because it has raised a number of questions in our mind. We have been out of touch with this bill for several months and this is a good way of bringing us back.

     Senator Corbin expressed our own slight discomfort with your presentation in the sense that we are not sure that there is a real problem and that perhaps you have over exaggerated. But there may be a problem in that this clause is not clear. That gives us a useful basis to go back and say, "What do you mean?" I merely wanted to reinforce that point.

     Senator Milne: My question also follows on what Senator Lewis said. It is my understanding -- and, perhaps I need clarification here, too -- that in this bill, rather than the minister having the authority to take this power away from a physician, this matter will come before a hearing and the physicians will have more power than they have now in order to stand up and argue their own case. Am I right?

     Ms Lucock: In terms of the designated regulations, that contemplates a process. If something is removed from you under the designated regulations, then, yes, you are correct. But that does not hold true for all regulations. It is quite a complex bill and the administrative scheme, particularly without seeing the regulations, is difficult to understand.

     There are two types of regulations: Designated regulations and ordinary regulations. It is not clear which ones will be designated and which ones will be ordinary.

     Senator Bryden: In the regulations under the Food and Drugs Act, there are three or four pages dealing with practitioners which state that administer includes "prescribe, give, sell, furnish, distribute or deliver". They then describe a designated drug and talk about the fact that a practitioner may administer a controlled drug.

     It is not as though all of a sudden government is getting into the business of trying to regulate these substances; they have been in it for a long time. This may be an advance on it, but perhaps it is not appropriate.

     Under clause 31, the regulatory powers -- that is, the regulations that are made to empower the inspector -- seem to be quite carefully proscribed under these paragraphs. For example, an inspector may "open and examine any receptacle...examine any labels...use or cause to be used any computer system." There are close guidelines as to what these regulations will include. They may end up being more onerous than what is already contained in the Food and Drugs Act, but there is no indication from this that they would be.

     (Take 1630 follows, Sen. Lewis: Under clause 31(1)(c)...)

     VA/03/27/96 -- LEGAL -- #32019

     ( Senator Bryden: continuing.....act but there is no indication from this that they would be. Take 1630 begins here)

     Senator Lewis: Clause 31(1)(c) states:

         (c) examine any labels or advertising material or records, books...found in that place with respect to any controlled substance or precursor, other than the records of the medical condition of persons...

     Senator Bryden: Yes.

     Senator Lewis: So that is accepted.

     The Chairman: Perhaps the witnesses would like to comment on what Senators Bryden and Lewis are saying.

     Senator Lewis: In other words, they can examine the records other than records containing the medical condition of persons.

     Ms Lucock: We will make available to you our previous presentations. One of our initial concerns, which was not addressed in the bill, was that patient records were not protected. You are seeing an amendment there that was included in the bill.

     Senator Lewis: Very good.

     The Chairman: If there are no other questions, thank you very much for your presentation.

     Senator Jessiman and I are particularly delighted to have a witness from Winnipeg. We do not get that many that often, Dr. Armstrong. Have a good trip home.

     Dr. Armstrong: Physicians are often chastised for the clarity of their prescriptions; the law seems to be equally vague. Thank you very much.

     The Chairman: Thank you.

     We have one other item on the agenda today, namely the study of the draft budget for 1996-97, which Ms Lank has distributed to you.

     The only significant change has been for a communications consultant. This may come as a surprise to all of you, so I will explain it.

     The Internal Economy Committee made the decision that they would like to see more communications coming from the committees for the general distribution of information to the Canadian public about what committees do. We have put in this amount in our budget. We do not have a strategy at this point; we will work on one in the steering committee. It very much depends on the kinds of pieces of legislation that come before us. If we think that there are pieces of legislation that may be of broad public interest, then we may want to use the Internet, a communications specialist, or a variety of ways to alert the public in general about what is happening in the Senate with respect to the study of a particular bill. The amount has been put in, but it has not been fleshed out particularly at this moment.

     Senator Lewis: I received a draft yesterday, but I also found two copies of another draft in my file. I am not sure which is which. The one that I may have received previously has the communications consultant included with an amount of $5,000, and that is the same amount.

     The Chairman: Because you are on the steering committee, Senator Lewis, we sent you an advance copy of the budget. That is why you have the "Communications Consultant" line.

     Senator Lewis: The one that I received today has a lesser amount.

     The Chairman: I do not think it is the lesser amount. You should have received the second one first and the first one second.

     Senator Lewis: That is fine. I will ignore the lesser one.

     The Chairman: The other major change in the budget is the witnesses expenses. That used to come from a global budget but it will now come from each individual committee's budget. We have had to put in an amount for witnesses expenses in the budget. We have put in an amount of $20,000 based on Ms Lank's historical review of what the global budget was paying for witnesses for the Legal and Constitutional Affairs Committee. Like much of these budgets, it is a guesstimate.

     Senator Beaudoin: Is it the same for each committee?

     The Chairman: Yes. It is a change from Internal Economy. Each committee must put in a figure for witnesses expenses. So that we have done our best to find out what past review of our budgets would result in.

     Senator Corbin: In any case, none of this is poured in concrete. We can go back at any time to change it; we do not have to spend everything.

     The Chairman: Yes, you are certainly right, Senator Corbin. We do not have to spend everything.

     Senator Beaudoin: We never do!

     The Chairman: I have some concerns about the communications consultant. I am very leery about spending money in this field unless it is necessary.

     Senator Doyle: How did you arrive at the guess of $5,000 for 10 days at $500 a day? Are all those people, for example, those involved with the Internet, public relations, and so on, earning $500 a day now?

     The Chairman: I would suspect not, but Ms Lank can tell you.

     Dr. Heather Lank, Clerk of the Committee: Because this communications initiative has taken quite a bit of time within the committees directorate, recently we did some investigations into what it is that a communications consultant charges. The quotes from the major communications firms, as well as individual consultants who operate independently, range between $500 and $800 per day. We have budgeted on the low end of that because there may be certain tasks that we could pay for that do not include a per diem rate. We have used the low end figure that we were quoted. That is not a guess in terms of a normal per diem for a professional communications consultant at this time.

     Senator Doyle: Do any of them guarantee results?

     Senator Beaudoin: My question concerns the amount for legal counsel. I have seen that before. Will this happen, or is it something that may happen?

     The Chairman: It may happen. We will receive an omnibus bill with respect to the Criminal Code. We certainly wanted to be prepared for that omnibus bill. We may well need a legal counsel

if we get a major omnibus bill.

     Senator Beaudoin: That is exactly what I had in mind. The omnibus bills on the Criminal Code are so technical that from time to time we have hired the services of a legal counsel to deal with it.

     The Chairman: Bill C-17 is an omnibus bill. It is not as heavy as some that we have received in the past, but it is substantive. We may well need help with that. Also, apparently in the past we have needed legal counsel for regulations under the Elections Act.

     Senator Beaudoin: Yes; I remember that.

     Senator Lewis: May I move the adoption of the budget?

     Senator Beaudoin: I second that motion.

     The Chairman: Is it agreed?

     Hon. Senators: Agreed.

     The Chairman: Carried. Is there approval for the report?

     Hon. Senators: Agreed.

     The Chairman: Carried. That ends our agenda for this afternoon. We will meet again tomorrow morning at 9:30 in room 256-S. We will have representatives at that time from the Canadian Bar Association and the Criminal Lawyers Association.

     Senator Nolin: Concerning Bill S-2, will we discuss that at the steering committee?

     The Chairman: Yes. We have a steering committee meeting following tomorrow morning and we will be discussing it at that time.

     Senator Nolin: Good.

     The Chairman: Are there any other questions or comments?

     Senator Beaudoin: You did a survey of the expenses for the witnesses for 1994-95. There is a big difference from last year.

     The Chairman: Yes. But that was for Bill C-68, the gun bill.

     Senator Beaudoin: Yes.

     The Chairman: If there is nothing further, we will adjourn.

     The committee adjourned.

Converted by Andrew Scriven

Updated: 24 Jul 2001 | Accessed: 21206 times