Bill No. 10: What Impact on Our Health Services?

On February 15, 2023, the Minister of Health, Mr. Christian Dubé, tabled in the National Assembly Bill 10, An Act to limit the use of employment agencies and independent workers in the health and social services sector.

This bill provides that a health and social services agency may not use the services of an employment agency or independent workers except to the extent provided by government regulation.

Which Organizations are Covered by the Bill?

• Facilities;
• Intermediate resources;
• Family-type resources;
• Private residences for seniors;
• Hospices licensed by the Minister; and
• Religious institutions that operate an infirmary or maintain a residential and long-term care facility to accommodate its members or adherents.

To do so, the Minister has reserved significant regulatory discretion, making Bill 10 an evolving text.

Dates Announced for the Implementation of the Measures

In a press briefing, Minister Dubé specified that this ban on the use of private agencies and independent workers would be applied gradually:

• By the end of 2024, in urban areas (e.g., Montréal and Québec City);
• By the end of 2025, in the suburbs; and
• By the end of 2026, in remote areas.

The Minister mentioned that the objective of this multi-phase plan is to:

• Retain workers in the public system;
• Attract workers currently working in the private sector; and
• Convince people currently in training to join the public network.

To this end, the Minister intends to introduce other bills, including one in March 2023. The government also intends to improve the working conditions of public sector health care workers. No details have been provided for the moment.

What Issues Does this Bill Raise?

Bill 10's ban on using private workers in the public system does not guarantee a transition for those working in private agencies. In fact, a recent survey of private agency workers showed that 81% of them are unlikely to return to the public sector before retirement.

Today, private agencies provide essential support to ensure that Québecers can receive health care throughout the network. Without their presence, waiting lists for surgery would be longer and care in seniors' residences would suffer greatly.

In this context, the constitutionality of Bill 10 may be questioned with regard to section 1 of the Québec Charter of Human Rights and Freedoms (right to life and personal security) and section 7 of the Canadian Charter of Human Rights (right to life and personal security).

In this regard, in a 2005 decision in Chaoulli v. Québec (Attorney General), a majority of the Supreme Court ruled that legislative provisions preventing Québecers from purchasing private insurance and receiving health care in the private sector were unconstitutional. These infringements of the rights to life and personal security could not be justified under the charters.

Thus, preventing the use of private workers in the public health network, given the major problems already encountered in this network with regard to access to health care, could contravene the rights guaranteed by the charters.

While the COVID-19 pandemic exacerbated these issues, they are still very much present, despite the essential contribution of private agencies and their staff due to:

• Longer waiting lists;
• Lack of staff in the operating rooms; and
• Difficulties in accessing medical imaging tests.

These are just a few examples of the current fragility of the network.

Banning the use of private agencies and independent workers is likely to weaken Québecer’s access to health care. In this context, no one doubts that the courts could test Bill 10.

Our labour and employment law team is closely monitoring the upcoming developments related to the adoption of this bill and remains at your disposal for any questions you may have.