LA HUELLA DE LA COVID- 19 EN LOS SISTEMAS DE SALUD DE CANADA

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L A H U E L L A D E L A

C O V I D - 1 9 E N L O S

S I S T E M A S D E

S A L U D D E C A N A D A

C A T H E R I N E R É G I S , F U L L P R O F E S S O R , C A N A D A R E S E A R C H C H A I R I N H E A L T H L A W A N D P O L I C Y , H E A L T H H U B – P O L I C Y , O R G A N I S A T I O N S A N D L A W ( H - P O D ) , M I L A 3 M A R C H 2 0 2 1

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T A B L E O F C O N T E N T

1. General remarks: Covid-19, Constitution and governments’ capacity to act during the pandemic

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G E N E R A L R E M A R K S

Covid -19

! Total count of cases: more than 855 000 (38 millions population) ! Two most affected provinces: Ontario and Québec (300 000 each)

! 1% of Canadian population are long-term care resident; yet, more than 80% of COVID deaths

! Measures to control the spread of the virus vary from province to province: lock down, closing of school, stores, public spaces, mandatory wearing of masks, financial incentives

! Travelling not totally banned, but strongly discouraged and disincentivizing measures (hotel quarantines, negative test in order to come back, restriction for visitors, restriction for non-essential travel (ex: between USA-Canada), between provinces and cities, etc.)

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Constitution

! Health is a shared legislative competency in Canada: ! Approval of vaccines: Federal

! Management of healthcare workforce: provincial/territorial ! Management of healthcare system: provincial/territorial ! Public health : shared (cross-border impact: federal; local:

provincial)

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! The pandemic clearly highlights the importance of universal access to health care

! Reminder: No constitutional right to health or health care

! Yet, every provincial/territorial government has implemented a public health insurance scheme

! Mostly cover hospital and medical services, with a universal access based on needs (and not the ability to pay)

! Weak spot: long-term care (among others) ! Supreme Court has said: No positive obligation for

government to offer public health care program; yet if they do, have to respect the Canadian Charter (Chaoulli, SCC, 2005)

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Mostly through section 7 (life, liberty and security) and 15 (equality right)

! 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

! 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in

particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

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Government’s capacity to act during the pandemic

Management capacities:

! Increase intervention of the executive power ! Loi sur la santé publique (Public Health Act)

! Public Health Emergency Declaration (10 days period without parliament approbation or 30 days with

approbation) (section 118 and following)

! Increased power to take immediate action with

respect to the closure of education institutions, public spaces, mandatory vaccination, restrict access on the Quebec territory… and all necessary measures to protect the health of the population (section 123 LSP)

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! Yet, pandemic occurred in a context where the reduction of the state has been occurring for

sometimes (ideological posture of less state) and which was central to the political program of the actual government

! Previous government made significant cuts in public health spending

! Public health has been neglected in health care investments: 1,5% to 4% of provincial health care budgets

! Pandemic has highlighted the fragilities of minimalist states and strict managerial vision of the conduct of public affairs

! Revalorisation of state workers and diversity of expertise within governments

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Constitutional capacities:

If a government infringed on a Charter right: has to be a «Reasonable limit» justified in a free and democratic society (R. c. Oakes, [1986] 1 R.C.S. 103)

4 questions of the “Oakes test:”

1) Respond to a real and urgent need in a free and democratic society? 2) Rational link between the objective and the governmental measure?

3) Constitute a minimal infringement on rights? 4) Proportionate to the objective?

Useful facts/evidence for constitutional challenge: options available to the governments at the time and international comparison

Proportionate use of restrictive means during the pandemic: revelatory of the relationship democratic governments have with the Rule of law

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2 . S P E C I F I C R E M A R K S :

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! Mondial trend: first 3 months, 140 digital solutions in 50 countries (mostly for virus detection and infection tracing/follow-ups)

! Solutions for different stakeholders and objectives: help with confinement measures, detection of virus infection, information to the population, self-evaluation of symptoms, management of resources, teleconsultations, etc.)

! Against all odds: 1) agility and adaptation are possible in health care systems; 2) highly technical and innovative digital options remain difficult to implement (more space for modest innovation)

! Covid-19: revelatory of the tension between innovation and regulation: law, friend or enemy?

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Some legal changes to accommodate the need for increased digital health options

Ex: Covid-19 services rendered by telecommunications are considered as insured services (paid to health care professionals and no-fees for patients) (Decree)

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T Y P E O F D I G I T A L I N N O V A T I O N S ( E

-H E A L T -H )

For patients/population:

! Self-assessment of symptoms to define what to do (ex: take a screening test or stay in isolation at home) ! In Quebec, we had to wait until August (specific to each province)

! Transmission of information (notification of test results or exposure to a case, general information on Covid and expected behavior depending on the level of risk)

! Specific challenges in Quebec: 30-day deadline to obtain the test results in October 2020. Now within 24 hours

! Technological tools: dedicated websites, mobile apps, targeted (individuals) or general (population groups) alerts

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For clinicians:

! Teleconsultation (from patient to professional), remote monitoring (e.g. vital signs) and teleexpertise (from professional to professional), electronic prescription,

algorithms to support the diagnosis of Covid-19 and target patients at risk of complications

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For managers:

Optimizing the planning and use of resources (especially human)

Ex: to avoid labor mobility, avoid overflow in hospitals or shortage of personnel protective equipment

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C H A L L E N G E S

! Variable access, variable content and variable recommendations

! Ex: Federal and Quebec tool did not give the same recommendation for the same clinical scenario (14 versus 10 days of isolation)

! Accountability and transparency:

! For teleconsultation in the country (private or public), lack of transparency as to the origin of the initiative, the business model and the participating professionals

! Ex: Mention that professionals are authorized to practice in Canada but it is impossible to verify this information

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T H E C A S E O F C O N T A C T

T R A C I N G A P P S

Countries having developed or wanting to develop such apps (red)

Ex: TraceTogether in Singapour, Stop Covid in France, Aarogya Setu in India Around a hundred applications worldwide (variable modalities)

Different options explored in Canada, including Covi Canada (contact notification, risk evaluation, self-evaluation) and Alerte Covid (contact notification)

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O B J E C T I V E S O F C O N T A C T T R A C I N G A P P S

! Facilitate the traditional contact tracing process by automating certain tasks, such as:

! Collect information directly from people on their state of health; ! Carry out an automatic follow-up of contacts between people;

! Automatically notify people of the risk of exposure to the virus and offer them personalized recommendations on the right behaviors to adopt;

! Generate aggregates of data that allow public health authorities to gain an overview of the epidemic and better understand its evolution.

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C H A L L E N G E S

! Privacy and personal data management ! Accessibility

! Adequate management of the pandemic ! Social acceptability

! Rejection or delay (ex: Covi in Canada)

! Importance of including users' point of view during development ! Mandatory or voluntary?

! 2% of participation in Canada ! Oakes test in Canada

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T H E C A S E O F I A

D U R I N G C O V I D - 1 9

OECD:

«AI can help policymakers and the medical community understand the COVID-19 virus and accelerate research on treatments by rapidly analysing large volumes of research data. It can also be employed to help detect, diagnose and prevent the spread of the virus.

Conversational and interactive AI systems help respond to the health crisis through personalised information, advice and treatment.

Finally, AI tools can help monitor the economic crisis and the recovery – for example, via satellite, social networking and other data (e.g. Google’s Community Mobility Reports) – and can help learn from the crisis and build early warning system for future outbreaks. »

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! Majority of initiatives from the USA and to a lesser extent China and from the private and academic sectors

! For different purposes: biological (e.g. drug development), clinical (diagnostic tool), societal (infodemiology, epidemiology, resource management)

! Ex:

! CT pneumonia Analysis, RadVid-19, BlueDot, LitCovid…

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C H A L L E N G E S

! Access to data of quality ! Rapid approval process

! Health Canada

! Suspension of certain regulatory sections in an emergency context

! Ex: XrAI, deep learning helping clinicians to identify and diagnose lung abnormalities (1 week)

! No information available on the data used (population represented, quantity of data) ! Restore the post-emergency approval process?

! AI with the most potential: transferability (other pandemics or potential to improve the healthcare system)

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C O N C L U S I O N

! The law is central yet tested on singular ways during the pandemic ! Unusual balance between executive, legislative and judiciary branches ! Unsettle tension between law and innovation

! Legal challenges for years to come…

! Opportunity for changes in the health care systems (keep the good and get ride of the bad and the ugly)

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Thank you! Merci!

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