Immunizations and Immunity Provisions: The Scope of Protection Under the Public Health Act
The Alberta Court of Appeal has issued a decision involving the interpretation of the Alberta Public Health Act, which may have broad implications on limiting liability of public bodies. Frank v. Alberta Health Services, 2019 ABCA 332 involves a medical malpractice claim. The Plaintiff, Frank, was a patient at the South Calgary Health Centre operated by Alberta Health Services (the “Authority”) and underwent an influenza vaccination by a public health nurse. Frank alleged that the immunization was provided negligently causing her personal injury. The matter was brought to summary trial, and the central issue was the interpretation of the Public Health Act, RSA 2000 c P-37 (PHA).
Section 66.1(1) of the PHA provides that “[n]o action for damages may be commenced against… (b) a regional health authority or a member, employee or agent of a regional health authority… (e) a health practitioner… for anything done or not done by that person in good faith while carrying out duties or exercising powers under this or any other enactment” [emphasis added]. Health practitioner is defined as “any person who provides health care or treatment to any person”. The Communicable Diseases Regulation, Alta Reg 238/1985 (the “CDR”) made pursuant to the PHA allows the Minister to provide health, promotional and preventive services for the treatment of communicable diseases. In effect, once the Minister has exercised discretion to provide certain immunization programs (including for influenza), regional health authorities must provide the services as directed.
The Authority argued that s. 66.1(1) provided immunity from the claim, while Frank argued that the specific act of administering a vaccination is not an exercise of a duty or power under the enactment. In a concise decision, the trial judge reviewed the statutory language of the PHA, and found that the immunity provisions protected the Authority and the nurse in this instance as the nurse was administering the vaccination, which was a duty delegated to her by the Authority to carry out the directive of the Minister under the CDR. Providing liability immunity was consistent with purpose of the Act and the need for the Minister and regional health authorities to effectively administer vaccinations.
On appeal, Frank argued that the nurse who was administering the vaccination was carrying out a delegated duty and immunity provisions do not cover the act of administering a vaccination. The Court of Appeal rejected this argument, as it would be “difficult to conceive of a situation” where an employee of a regional health authority would be carrying out duties that are not in some sense “delegated”. The Court briefly discussed the broader issues of policy indicating that there is a public benefit to having significant levels of vaccination against communicable diseases, and the Legislature “has identified a public benefit in protecting professionals practicing in the public field from liability for public health treatment administered in good faith”.
The immunity provisions found in the PHA are not unique and similar provisions are found in other statutes like the Alberta Emergency Health Services Act, SA 2008, c E-6.6. As a result of the decision, it can be argued that the immunity provisions, like the one found in the PHA, extend not only to acts like the policy decisions that are made with respect to planning health services and programs covered by the enactment, but also the actual administration of those services and programs which more than likely, are carried out by front line health care professionals. Those bodies and organizations looking at relying on the immunity provisions should carefully review the history of how the subject services or programs were created, and ensure that they are linked to a duty or power under the enactment containing the immunity provision. In the case of Frank, the link between the immunization program and the Minster’s directive of establishing the program was a critical piece in establishing immunity.