Health Firings: How Ombudsperson's Hands Could Be Tied

AG could block investigating cabinet, other top officials: NDP's James.

By Andrew MacLeod 6 Jul 2015 |

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria and the author of A Better Place on Earth: The Search for Fairness in Super Unequal British Columbia (Harbour Publishing, April 2015). Find him on Twitter or reach him here.

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'There's a great deal of uncertainty here.' NDP MLA Carole James says opposition still wants full public inquiry.

The British Columbia government is steering an examination of the botched 2012 health ministry firings to the Ombudsperson, an office that the attorney general can block from investigating top political officials.

Carole James, the MLA for Victoria-Beacon Hill and the vice-chair of a legislature committee being asked to refer the matter to the Ombudsperson, said the NDP opposition is concerned that office's reach may be too limited to get to the bottom of what happened.

"This is a very serious issue," James said, adding the government appears to be rushing the committee's decision. "It has been mishandled from the start. I want to make sure we as a committee do our due diligence to get this back on track."

James said that the government unilaterally set the July 8 date for the meeting of the select standing committee on finance and government services and gave opposition members just three business days' notice. Normally meeting dates are negotiated well in advance between the chair, in this case Liberal MLA Scott Hamilton, and the vice-chair, she said.

Last week Health Minister Terry Lake announced he was asking the committee "to have the Ombudsperson investigate the events leading up to the decision to terminate the employees, the decision to terminate itself, and the actions taken by government following the terminations, in addition to any other matters he may deem worthy of investigation."

Restrictive provisions

However, the Ombudsperson Act contains provisions that could limit the effectiveness of any review conducted by that office. For example, section 18 of the act says "the Ombudsperson must not enter any premises and must not require any information or answer to be given or any document or thing to be produced" if the attorney general "certifies" that doing so would reveal the deliberations of the cabinet.

Section 19 of the act says that "a person who is bound by an enactment to maintain confidentiality in relation to or not to disclose any matter must not be required to supply any information to or answer any question put by the Ombudsperson in relation to that matter, or to produce to the Ombudsperson any document or thing relating to it, if compliance with that requirement would be in breach of the obligation of confidentiality or nondisclosure." Unless that requirement comes under the Public Service Act, in which case the person is required to cooperate with the Ombudsperson.

A health ministry spokesperson referred questions about these clauses to the attorney general's ministry.

A spokesperson for the attorney general took questions and a request for an interview with Attorney General Suzanne Anton, but did not respond by publication time.

And a spokesperson for the Ombudsperson said that office is preparing a letter for the committee's consideration at the July 8 meeting.

Big pharma included: James

The NDP's James also noted that the Ombudsperson's reach doesn't extend to the private sector, including the pharmaceutical companies that make the products some of the people who were fired were studying.

"There's a great deal of uncertainty here," James said.

Any process needs to be transparent and the committee needs to be satisfied the office can tackle all the issues that need to be addressed, she said. Besides the questions about what the legislation allows, there are concerns the office may not have sufficient resources and that the new ombudsperson, Jay Chalke, has a perceived conflict of interest thanks to his recent work for the justice ministry which was involved in various ways in the firings and their aftermath.

James said the July 8 meeting, which some NDP committee members may not be able to attend, will be telling and that if the government tries to rush a decision it will be clear this is merely a further attempt at a cover up. James said she herself is camping with her grandchildren this week, but will participate in the meeting via telephone.

James said the NDP would still prefer a full public inquiry.

Full public inquiry desired

In a July 6 statement, eight people affected by the firings, including MacIsaac's sister Linda Kayfish, also restated their preference for a public inquiry.

"A review by the Office of the Ombudsperson is problematic because the Office suffers from an inadequate mandate, issues of perception of conflict and bias, and insufficient resources and experience for this type of investigation," they wrote. "Nothing short of a fully independent inquiry or investigation will satisfy the right of the public to understand how research done to increase the safety of prescription medicines and to protect the public purse could be terminated in such a manner."

The scope of any inquiry needs to include who benefited from the firings and whether the pharmaceutical industry had any influence, they said. "It will be important to the public to know that the inquiry has the power to require testimony under oath and documents ... from both political and administrative appointments at the highest level, as well as from elected officials."

Any inquiry must be free to follow the evidence wherever it leads and to make its findings public, they wrote.

In September 2012, the health ministry announced allegations related to data management, contracts and conflicts of interest that would lead to seven firings and the freezing of several drug research contracts.

Work that stopped as a result included an assessment of Premier Christy Clark's pet anti-smoking program.

The government has since reinstated two of the people who were fired, settled out of court in three wrongful dismissal and defamation lawsuits, and Clark has apologized for some of the firings and for misleading the public. Two lawsuits are ongoing.

In a report on an earlier investigation, independent labour lawyer Marcia McNeil wrote that she could not get answers to basic questions including who decided to fire the people and why.

*Update, July 7, 4:15 p.m.: A spokesperson for the Ombudsperson's office wrote in an email today: "Section 19(2) refers to confidentiality obligations under an enactment. Cabinet confidence is a Parliamentary privilege that exists independent of legislation. The Office of the Ombudsperson has a longstanding expectation of access to all Cabinet records, which has been formally agreed in a Protocol between the Ombudsperson and the Government.

"The Protocol sets out a mechanism should the Ombudsperson wish to publicly report any Cabinet record. If the Attorney General issues a certificate to restrict the Cabinet record the Ombudsperson wants to publicly report, the Ombudsperson will report the fact that the certificate was issued."  [Tyee]

Read more: Health, Politics, BC Politics

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