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Abstract

During 2000, a controversy arose because some pharmacists objected, for reasons of conscience, to involvement in dispensing potentially abortifacient drugs. Pharmacy regulatory authorities made statements and proposed policies that exerted a significant influence on the attitudes of pharmacists, employers, media, the public and government. As a result, the Protection of Conscience Project wrote to pharmacy regulatory authorities in Canada, seeking information about the basis for their policies and statements.

The Alberta Pharmaceutical Association (now the Alberta College of Pharmacists) did not acknowledge the first letter from the Project, and ignored subsequent letters seeking the courtesy of a reply. The APhA/College also ignored letters on the subject from some of its own members and from a member of the public. In the face of stonewalling by the APhA/College, an access to information request was filed by the Project. It was rejected by the Registrar, who noted that the College was not bound by the Alberta Freedom of Information and Protection of Privacy Act, was not staffed to comply with such requests, and was unwilling to commit resources necessary to respond to the request from the Project.

The issue: Should the regulatory authorities of self-governing professions in Alberta be made subject to the Alberta Freedom of Information and Protection of Privacy Act?

Relevant principles: Access to information legislation should apply to all institutions that participate in governance and that may significantly influence public affairs or impact fundamental freedoms. Such institutions should be continually subjected to "relevant and searching criticism" so that citizens have the information they require to participate fully in modern democratic government. This will enable citizens to protect themselves against maladministration or abuse. Institutions should not be permitted to determine what information in their possession is relevant or necessary for that purpose.

Argument: Self-governing professions, particularly in health care, exercise considerable influence on government policy, employers, the media and public opinion. In some cases, they assume degrees of responsibility for enforcing government policies developed as a result of their advice. Their disciplinary and licensing powers can be used directly to the prejudice of fundamental freedoms. It is in the public interest to safeguard these freedoms and hold these professions accountable by compelling them to disclose information about their administration and decision-making processes.

It appears that the Alberta College of Pharmacists understands the principle of public accountability to apply only to its public complaints process and disciplinary proceedings, but it is submitted that this is too narrow a view. Access legislation can assist in identifying problems in administration and major decision-making processes of self-governing professions that may significantly impact fundamental freedoms.

Access legislation was used for this purpose to produce Project Report 2001-01, which identified structural bias against conscientious objectors, particularly religious believers, in the administration of the College of Pharmacists of BC. Forcing the disclosure of this kind of information can prevent abuse of authority that adversely impacts fundamental freedoms, and can assist in identifying institutional shortcomings that need to be remedied.

The British Columbia Freedom of Information and Protection of Privacy Act applies to self-governing professions. There is no evidence that it has imposed an unmanageable burden on them or has been otherwise unworkable. The Act contains its own provisions to ensure that sensitive material is not improperly disclosed to third parties. Thus, there is no reason to believe that the application of Alberta's Freedom of Information and Protection of Privacy Act its self-governing professions would prove to be impractical.

Conclusion: The conduct of the Alberta College of Pharmacists indicates that it is in the public interest to ensure that self-governing professions operate in a completely transparent manner by making them subject to Alberta's Freedom of Information and Protection of Privacy Act.

TABLE OF CONTENTS

Abstract

I. Background

II. The Issue

III. Relevant Principles

IIV. Argument from Principle

V. Argument from Practice

VI. Conclusion

Notes

Appendix "A"

• Protecton of Conscience Project

Appendix "B"

• Report 2001-01 Re: College of Pharmacists of British Columbia - Conduct of the Ethics Advisory Committee

Appendix "C"

• Correspondence & Access to Information Request
  Alberta Pharmaceutical Association/Alberta College of Pharmacists

I. Background

During 2000, increasing introduction of the 'morning-after-pill' (brand names include Preven and Plan B) caused some pharmacists to object, for reasons of conscience, to dispensing such drugs. They noted that the drugs could act by preventing implantation of an early embryo in the uterus rather than by preventing fertilization (conception), and refused to participate in what they considered to be the moral equivalent of abortion. Their position was made more difficult to explain to the general public because the 'morning-after-pill' was (and is) aggressively marketed as an 'emergency contraceptive', and the marketing terminology was adopted by the media and many professional associations.¹

Studies cited by proponents of the 'morning-after-pill' have indicated that only about 6% of women who have been given these drugs may actually have been pregnant.² Despite this, pharmacy regulatory authorities and their national body (National Association of Pharmacy Regulatory Authorities- NAPRA), and professional organs of opinion have been generally unsupportive of or even openly hostile towards pharmacists who objected to dispensing the 'morning-after-pill' for reasons of conscience.³

Two objectors who spoke at the Canadian Pharmacy Association conference Saskatoon in June, 2000, found the atmosphere hostile, and were told by some colleagues that they ought to leave the profession.⁴ In articles and letters published in professional journals, a prominent member of the Ethics Advisory Committee of the College of Pharmacists of B.C. repeatedly attacked the principle of freedom of conscience for pharmacists;⁵ the editor of Pharmacy Practice equated conscientious objection among pharmacists to racism.⁶

There is evidence that employers were influenced by the policies and statements of regulatory authorities, or of those perceived to represent these authorities. For example, Canada Safeway entered the millennium by asserting that it had the right to ensure that employees with religious scruples "promptly serve its customers" and not direct them to competitors for such things as "euthanasia drugs" or "RU 486" (mifepristone, an abortifacient mistakenly identified in the company bulletin as the 'morning after pill'). The company directed objecting pharmacists to provide service if another pharmacist was not available to do so.⁷

Safeway later withdrew the policy and, instead, took an approach it believed to be consistent with "the Code of Ethics published by various colleges and registrars across the country and . . . with that adopted by the Medical profession."⁸ Even though NAPRA is an association of convenience with no regulatory authority, and its policy on conscientious objection has no legal force, Shoppers Drug Mart adopted the NAPRA policy, including its requirement that an objecting pharmacist actively assist a patient to obtain a morally controversial drug.⁹

A representative of Concerned Pharmacists for Conscience, an Alberta organization, wrote to the APhA/College to express concerns and objections to the model 'conscience clause' proposed by NAPRA in February, 2000;¹⁰no acknowledgement of the letter was ever received.

The Protection of Conscience Project (Appendix "A") became involved in the pharmacist controversy in the spring of 2000. Among the steps taken, letters were sent to NAPRA and all regulatory authorities in Canada, seeking information about the basis for the policy adopted by NAPRA. The APhA/College did not acknowledge the first letter, and ignored subsequent letters from the Project seeking the courtesy of a reply (Appendix "C"). In May, 2000, an Albertan wrote to the APhA/College with three questions concerning the 'morning-after-pill' and conscientious objection in the profession; this letter, too, was not acknowledged (Appendix "C").

In August, 2001, another representative of Concerned Pharmacists for Conscience wrote to the APhA/College. The letter was intended " to clarify the position of the College of Pharmacists of Alberta, in regards to the NAPRA Model Statement Regarding Pharmacists' Refusal to Provide Products or Services for Moral or Religious Reasons" (Appendix "C"). The letter was not acknowledged. The pharmacist sent a second letter on 7 September seeking a response from the APhA/College; this letter, too, was ignored (Appendix "C").

Meanwhile, the Registrar of the College of Pharmacists of BC, abruptly terminated correspondence with the Project Administrator and ignored subsequent letters. An access request filed under British Columbia's Freedom of Information and Protection of Privacy Act resulted in the disclosure of records that made it possible to compile a report on the conduct of the Ethics Advisory Committee and on related College policies (Project Report 2001-01)

Given the stonewalling by the Alberta College of Pharmacists, an access to information request was filed by the Project in June, 2001. The access request was drafted to capture information that would indicate if the policies and administration of the College were governed by anti-religious bias, concerns addressed in the report on the College of Pharmacists of BC. It was rejected by the Registrar, who noted that the College was not subject to the Alberta Freedom of Information and Protection of Privacy Act. (Appendix "C")

II. The Issue

Should the regulatory authorities of all self-governing professions in Alberta be made subject to the Alberta Freedom of Information and Protection of Privacy Act?

III. Relevant Principles

A 1987 Parliamentary Standing Committee reported that federal access legislation strengthened Canadian democracy "by making government, its bureaucracy and its agencies accountable to the electorate and by protecting the rights of individuals against possible abuse."¹¹

This theme was taken up ten years later, when nine justices of the Supreme Court of Canada held that access to information legislation facilitates democracy by ensuring that citizens have the information they need to participate in the democratic process, and by ensuring the accountability of politicians and bureaucrats.¹² Asserting that "politically relevant information should be distributed as widely as reasonably possible," the justices quoted political philosopher John Plamenatz:

There are not two stores of politically relevant information, a larger one shared by the professionals, the whole-time leaders and persuaders, and a much smaller one shared by ordinary citizens. No leader or persuader possesses more than a small part of the information that must be available in the community if government is to be effective and responsible; and the same is true of the ordinary citizen. What matters, if there is to be responsible government, is that this mass of information should be so distributed among professionals and ordinary citizens that competitors for power, influence and popular support are exposed to relevant and searching criticism. [Emphasis in original.] (Plamenatz, Democracy and Illusion [1973], at pp. 178-79)

Quoting Professor Donald C. Rowat, the court also emphasized that parliament and the public must have "an adequate knowledge of what is going on" and cannot "participate in the decision-making process and contribute their talents to the formation of policy and legislation if that process is hidden from view." Rowat, "How Much Administrative Secrecy?"(1965), 31 Can. J. of Econ. and Pol. Sci. 479, at p. 480.

Particularly relevant to this submission is the court's observation about the nature of contemporary democratic government:

As society has become more complex, governments have developed increasingly elaborate bureaucratic structures to deal with social problems. The more governmental power becomes diffused through administrative agencies, however, the less traditional forms of political accountability, such as elections and the principle of ministerial responsibility, are able to ensure that citizens retain effective control over those that govern them; see David J. Mullan, "Access to Information and Rule-Making", in John D. McCamus, ed., Freedom of Information: Canadian Perspectives (1981), at p. 54.

This idea appears to have been accepted by Alberta's previous Select Special Freedom of Information and Protection of Privacy Act Review Committee (March, 1999). The Committee reported that it is in the public interest to make available information about the decision-making processes of professions that "exert significant influence in public affairs."¹³

Speaking in Edmonton last year, David Loukidelis, Information and Privacy Commissioner for British Columbia, argued that modern Canadian political conditions and the health of modern democracy require that citizen access to information held by governing institutions should be "as broad and effective as is practicable," and quoted British author James Michael:

[T]he governed should know as much as possible about how they are governed. Informed consent is essential in a democracy, and not just because of the British constitutional doctrine that political, if not legal, sovereignty is based on popular support. [A liberal-democratic government] rests on the proposition that competition in the market-place of information, as well as that of ideas, is at least very useful in determining how a society should be run, [and on the proposition] that publicity is an important safeguard against maladministration. (Michael [1982]The Politics of Secrecy.¹⁴

Finally, the Office of the Information and Privacy Commissioner (Alberta) states that the Alberta Freedom of Information and Protection of Privacy Act "legislates open and accountable government by guaranteeing applicants the right to access records held by the government."¹⁵

These comments can be summarized in a statement of principle. Access to information legislation should apply to all institutions that participate in governance, whether formally or by the practical diffusion of legal authority, as a result of which they may significantly influence public affairs or impact fundamental freedoms. Such institutions should operate openly, and be continually subjected to "relevant and searching criticism" so that citizens have the information they require to participate fully in modern democratic government, and can protect themselves against maladministration or abuse.

Note that the Alberta Pharmaceutical Association (as it then was), in its submission to the Committee, acknowledged the validity of the principle of accountability:

. . . we are accountable to our members and are answerable to the public. We take these responsibilities most seriously. Under our current legislation, we maintain constant communication with complainants about professional issues which they bring to our attention both during and at the conclusion of our investigations. All of our disciplinary proceedings are open to the public, subject to the decision of the Investigating Committee who may rule otherwise if the privacy and confidentiality of a third party or a minor may be jeopardized. The results of all disciplinary proceedings are published in our newsletter and are forwarded to the local media in the community in which they occur. This is an initiative we have taken upon ourselves to demonstrate the accountability we believe is expected of us.¹⁶

IV. Argument from principle

The previous Select Committee took note of two arguments against applying the Act to self-governing professions.

The first was to the effect that self-governing professions should not be accountable in the same way as bodies funded by tax dollars. This argument is relevant when the primary interest is to hold an institution accountable for the expenditure of public funds, but the principle articulated above addresses a much broader range of concerns. The degree to which an entity is reliant upon public funds, though not irrelevant, is not determinative of the issue.

The second argument was that provisions for accountability were in place or could be included in legislation authorizing self-governance. This is not objectionable in principle but is unworkable in practice. In the first place, crafting individual freedom of information provisions in each statute for every self-governing profession would be extremely time-consuming, and the provisions repetitious. Moreover, the addition of an extensive body of access provisions with attendant regulations would complicate the governing statutes, which differ in focus from freedom of information laws. Finally, the resulting mosaic of access rules and procedures would not only be more costly to administer, but would probably be much more difficult for citizens to navigate. It is preferable, for these reasons, to manage access to information through the single, existing statute.

A principled approach requires the identification of key characteristics of entities that should be subject to freedom of information legislation. Drawing on the principle suggested above, freedom of information legislation should apply if an entity participates in governance, whether formally or by the practical diffusion of legal authority, as a result of which it may significantly influence public affairs or impact fundamental freedoms. These criteria clearly apply to self-governing professions in law, health care and education, and arguably to other self-governing professions as well.

V. Argument from practice

The actual conduct of the APhA/College of Pharmacists, as illustrated by Appendix "C", does not support its claim that it takes seriously its responsibility to be answerable to the public. It appears that it understands the principle of public accountability to apply only to its public complaints process and disciplinary proceedings. The authorities and commentators cited in Part IV indicate that this is far too narrow a view.

Administration and major decision-making processes involved in self-governance by professions that impact public policy may significantly impact fundamental freedoms. It may be consistent with bureaucratic self-interest to keep these "hidden from view", but the public interest would be better served if the management of the APhA/College and other professions were open to "relevant and searching criticism" through the Freedom of Information and Protection of Privacy Act.

This is illustrated by Project Report 2001-01(Appendix "B"), prepared with materials secured through British Columbia's Freedom of Information and Protection of Privacy Act. The report identifies a significant policy vacuum in the College of Pharmacists of BC that encourages "ethical nepotism" - the exclusion from decision-making of people whose views differ from those of the College, particularly religious believers. Five practical recommendations are made to remedy the problems identified and to protect conscientious objectors from abuse of authority. Among these is the recommendation that the Registrar and the Ethics Advisory Committee members responsible for publication of unsubstantiated imputations of dishonesty be recused from disciplinary hearings concerning conscientious objectors.

Members of the Select Special Freedom of Information and Protection of Privacy Act Review Committee need not accept the findings or recommendations of the report to recognize the value of inquiries of this kind. They provide an important safeguard against maladministration by "professionals, the whole-time leaders and persuaders" who, operating through bureaucracies and agencies through which governmental power is diffused, "exert significant influence in public affairs."

A schedule provided by the Information and Privacy Commissioner for British Columbia lists 52 professions and occupations governed by the BC statute, including the following professional regulatory authorities:

• College of Acupuncturists of British Columbia
• College of Dental Hygienists of British Columbia
• College of Dental Surgeons of British Columbia
• College of Dental Technicians of British Columbia
• College of Denturists of British Columbia
• College of Licensed Practical Nurses of British Columbia
• College of Massage Therapists of British Columbia
• College of Midwives of British Columbia
• College of Naturopathic Physicians of British Columbia
• College of Occupational Therapists of British Columbia
• College of Pharmacists of British Columbia
• College of Physical Therapists of British Columbia
• College of Physicians and Surgeons of British Columbia
• College of Psychologists of British Columbia
• College of Registered Psychiatric Nurses of British Columbia
• College of Teachers of British Columbia
• Health Professions Council
• Law Society of British Columbia

The Commissioner offers the following comment on the operation of the B.C. statute:

. . . most of the self-governing professions and occupations in British Columbia are subject to the access and privacy provisions of [the Freedom of Information and Protection of Privacy] Act . . . Coverage of these occupations and professions has not caused my Office any difficulty.¹⁷

Finally, public interest researcher Ken Rubin, a consultant to the Canadian Medical Association Journal on health, safety and environmental concerns, recently suggested that physicians should make more use of freedom of information legislation. "What access laws do (and could do much better if they were radically improved)," he wrote, "is create more transparency for everyone."¹⁸

VI. Conclusion

The previous Committee cautioned the professions against 'complacency', and recognized that it might ultimately be necessary to legislate compliance. It is submitted that the conduct of the Alberta College of Pharmacists reflects the 'complacent' attitude that was the concern of the Committee. The failure of the APhA/College even to acknowledge correspondence on important issues and the response of the Registrar to the access request made by the Project indicates that compliance with the spirit of the Freedom of Information and Protection of Privacy Act will only be secured by legislation.

Recalling the comments of Professor Donald C. Rowat, approved by the Supreme Court of Canada, supra, and the suggestion of CMAJ consultant Ken Rubin, it is submitted that self-governing professions should not be allowed to keep their internal administration and formation of policy hidden from view. The Committee should "create more transparency for everyone" by making all self-governing professions in Alberta subject to the province's Freedom of Information and Protection of Privacy Act.