Bill 23 — Public Health Act
Bill 23 introduces a number of reforms in the area of public health that may have far-reaching implications for local government and the role that local government is to play in connection with the management of health and social issues.

Local Governments No Longer Local Boards Of Health
The Health Act of British Columbia has, until now, given most municipalities the powers of a local board of health within their jurisdictions. As local boards of health, local governments were given specific statutory authority to make orders to deal with certain specific health and sanitation issues. The role of local government as the local board of health has now been eliminated. Under the Public Health Act, orders may be made by the Minister and by Health Officers appointed by the Province and the Health Regions.

Health Officers
Health Officers are given powers to issue orders to deal with:

• health hazards (section 30);
• circumstances that may constitute a risk of a health hazard;
• contraventions of the Public Health Act and Regulations;
• bringing someone into compliance with a term or condition of a licence or permit held by that person (section 31(1)(d)).

The specific types of things that can be included in orders are outlined in section 32 of the Public Health Act.

There are also supplementary powers under section 33 for the Health Officer to make follow-up orders where an owner or occupier has failed to act on the order.

Public Health Plans
A key component of Bill 23 is the establishment of a scheme for the creation and implementation of public health plans.

Public health plans can address one or more of the following matters:

• identify and address the health needs of particular groups from the population, including Aboriginal peoples;
• monitoring and assessing the status of the health of the population, including through public health surveillance and monitoring indicators of, or factors influencing, the health of the population;
• prevention and mitigation of the adverse effects of diseases, disabilities, syndromes, psycho-social disorders, injuries and health hazards;
• identification, prevention and mitigation of the adverse health effects of health impairments;
• solicitation and planning for the delivery of core public health functions;
• to achieve a prescribed purpose.

Section 3(1) gives the Minister of Health the power, by order, to “require a public body to make, in respect of a specific issue or geographic area, a public health plan.”

Under section 3(6), a public body that is subject to an order under this section must comply with the order.

The section, then, obviously allows the Minister to order public bodies, such as municipalities, regional districts, as well as including health authorities, to make plans dealing with a wide variety of health related issues. Some of these issues have not hitherto been under the direct jurisdiction of local government and some, such as the health needs of Aboriginal peoples, are very clearly the responsibility of the Federal Government and not of local government.

The Minister is given the power to approve a health plan under section 4.

Once a health plan has been made and approved by Cabinet under section 4, then, for the purposes of implementing a public health plan, Cabinet may make a regulation

• requiring a specific part of the government or a local government, to consider the public health plan during strategic or operational planning processes;
• require that the results of specific government or local government strategic or operational planning processes be consistent with the public health plan;
• provide that specified government or local government strategic or operational plans, bylaws or other planning documents have no legal effect to the extent of any inconsistency with the public health plan.

In other words, the public health plan can be made to override other local government planning processes such as regional growth strategies, official community plans and servicing plans. In some circumstances, this could require local governments to provide municipal water service to areas to overcome a health concern, regardless of the local government’s policies and bylaws regarding service extension that may have been put in place in order to avoid suburban sprawl or inappropriate development.

Note that it may not be the local government that is required to bring in the health plan. The Minister could order the Health Region to prepare a health plan to address a certain issue, and then, by regulation under section 6 of the Public Health Act, require the local government to consider that public health plan as part of its strategic or operational planning processes.

Other Powers of Cabinet
Under section 120 of the Public Health Act, Cabinet may make the following regulations in respect of local governments:

• to promote or protect the health of the people within its jurisdiction;
• to address a condition, thing or activity that could adversely affect a health promotion or a health protection initiative;
• require the local government to take action to monitor for a health hazard or a health impediment and respond to a health hazard or a health impediment;
• requiring a local government to deliver a pubic health function;
• authorizing the Ministry to order a local government to modify or “rescind” a bylaw, operational or strategic plan or planning process.

If a duty is to be imposed on one or more local governments or an order to rescind a bylaw made by one or more local governments, then consultation with each local government is required under section 120(4). However, if an order of this type is to affect local governments generally, then the Province may, in place of consultation with local governments individually, consult with the Union of British Columbia Municipalities.

Duties in Relation to Health Hazards and Prescribed Health Impediments
If a local government becomes aware of a health hazard or “health impediment”, section 83(1) requires the local government to take the action required by a regulation under section 120.

The effects of a “health impediment” are defined in section 1 but the term itself is to be “prescribed” i.e. listed specifically by regulation. The concept, in terms of the effect of a health impediment, is defined very broadly in section 1. Any condition, thing or activity that causes chronic disease or disability or interferes with or is inconsistent with the goals of public health initiatives, or that is associated with poor health could be prescribed as a “health impediment”. In theory this could apply to a wide range of activities and matters such as smoking, fast food, chemical additives in foods, pesticides, supplements or use of mood altering drugs or alcohol.

Local governments are also required under section 83(1) to consider advice or information provided to the local government by a health officer. How this duty can be fulfilled is partly stated in section 83(2) which requires a local government to designate one of its members, or an officer or employee of the local government, as the local government liaison for the purposes of section 83 and to send notice of the designation to the regional health authority in its area. That would cover information coming from the medical health officer or environmental health officer. Perhaps the provincial health officer would disseminate information through the regional health authority.

Presumably, a local council or regional board could delegate the power to consider advice from a local Health Officer or Provincial Health Officer to a specific member of staff. In certain circumstances, however, the health concern may obviously be of such a serious and immediate nature that it would be wise to bring the matter before council/board to determine whether there is any action which council/board can or wishes to take with respect to the matter.

Conclusion
Bill 23 is drafted in a way that permits a more comprehensive and top down management of health issues and health crises, with local governments being tasked with the responsibility (and expense) of taking a front line and active role with respect to emerging and chronic public health issues.

Colin Stewart

This article was published in Summer 2008 and may be superseded by changes in the law at a later date. It is for general information only. Specific legal advice should be obtained from a qualified lawyer.