Krever can name names, Supreme Court rules
Karen Capen
CMAJ 1997;157:1265
Ottawa lawyer Karen Capen is a regular contributor to CMAJ. She will report on the Krever inquiry's final report, which is due for release on or before Nov. 21, in a future issue. Capen says physicians should pay special attention to it because there is no doubt they will be called upon to help develop Canada's new blood-distribution system.
© Canadian Medical Association
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The Supreme Court of Canada says the public interest is more important than protecting public reputations and the Krever Commission of Inquiry on the Blood System can make findings of misconduct against individuals. The federal inquiry was created 4 years ago to study why more than 1000 Canadians were infected with HIV from blood and blood products in the early 1980s, and why another 12 000 people were infected with hepatitis C.
In a unanimous ruling, Mr. Justice Peter Cory wrote that commissioners must have the power to find misconduct. "In order to do so, [they] must also have the necessary authority to set out the facts upon which the findings are based. . . . If this were not so, the inquiry process would be essentially useless." Cory said reputations will be affected "but damaged reputations may be the price which must be paid to ensure that if a tragedy such as that presented to the commission in this case can be prevented, it will be."
The case went to court after the inquiry's commissioner, Mr. Justice Horace Krever, sent out confidential notices informing 95 individuals and institutions that the commission might reach conclusions amounting to misconduct under section 13 of the Inquiries Act. If these conclusions are included in the inquiry's final report they will be based on evidence from witnesses, parties with standing and interested groups, including the CMA. More than 300 acts of misconduct involving Red Cross officials, civil servants, elected representatives and consumer groups were identified in Krever's notices.
Several physicians received section 13 notices or notice of a general allegation that they "failed adequately to oversee, direct and provide resources for the operation of the Blood Transfusion Service and Blood Donor Recruitment at both the national and local level." Although those named could respond by questioning whether the commission ought to comment on individual conduct, some went to court to quash the notices. The court's late-September ruling was the final step in this process, which was launched by the Canadian Red Cross Society, Bayer Inc., Baxter Corporation and 11 senior Red Cross employees named in the section 13 notices.
Early in the inquiry Krever made clear that he would not be making findings of civil or criminal responsibility, although he also stated that "it is essential to determine what caused or contributed to contamination of the blood system in Canada in the early 1980s."
The court ruled that even though many of the notices come close to alleging all the necessary elements of civil liability, none appeared to go beyond the inquiry's jurisdiction. It stated that the use of words like "failure" in the notices does not mean the person breached a standard of conduct. The ruling may make it difficult to use the inquiry's findings in civil proceedings but does not necessarily rule out civil actions or government compensation.
The judgement holds important implications for physicians, especially those who may be involved in creating and managing the new blood system. Most physicians know that their responsibilities as professionals often extend beyond direct patient care to involvement in decision-making involving policies and institutions. Doctors shouldn't assume such responsibilities unless they clearly understand the attention to detail and time required to do the work. It is important that physicians who have taken on or been assigned an activity involving public trust advocate vigorously for adequate funding. Physicians should approach such tasks as if the responsibility is fiduciary -- as if the intended users of services or treatments are individual patients, not a group.
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