After weeks of questions over Bill 96 and health, official answers still lack detail

Some of Quebec's top legal minds and doctors seem to agree: very little is clear about how language law Bill 96 will affect health care.

Yet the province is still not giving the kind of detailed answers they say are needed, despite multiple requests to clear up the confusion.

"Bill 96 is very clear on the issue of health care," wrote Elisabeth Gosselin-Bienvenue, a spokesperson for the justice ministry, in a statement to CTV News on Wednesday.

"As the Minister has reiterated several times publicly, it is important to reassure the population and to rectify an important element: in no way will Bill 96 prevent a citizen from receiving adequate treatment."

Those trying to dig into the bill's specifics, however, say the legal language is not there to back up this claim and show how it will work in practice.

On Friday, the head of Quebec's College of Physicians said in a strongly worded letter that the bill has "legal grey areas" and that it "can be improved."

The dean of McGill's law school says even the most detailed written explanations from the province over the last week haven't added much to his understanding, either.

"The concerns I and others have raised this week persist," said Dean Robert Leckey, after reading the province's most recent explanations, sent on Friday.

In two lengthy responses to CTV News, Gosselin-Bienvenue listed several points in the bill that address health care, but big-picture questions still aren't answered.

Media and experts have tried to zero in on these bigger mysteries. For example, where the bill talks about "English speakers" in relation to health care, how does it define them?

Is it only people who qualify as 'historic anglophones,' or does that mean anyone who's more comfortable in English and decides on a given day they'd prefer to use English at a doctor's appointment?

In separate legislation, the act governing health and social services, the term "English speaker" is used without being further defined.

On Friday, the justice ministry provided no new information about how Bill 96 defines "English speaker," pointing instead to the health act and its lack of specificity.

"Section 15 of the Act respecting health services and social services refers to 'English-speaking persons,' without further consideration," wrote Gosselin-Bienvenue.

Another question that's frequently been raised is whether people who speak third languages -- Greek, maybe, or Arabic -- will be legally allowed to speak in their mother tongue if they find a doctor or nurse who also happens to speak their language.

"Currently, there are people in Quebec who speak neither English nor French, and who are being treated adequately in health establishments," wrote the justice ministry in its response to this question.

"Nothing in Bill 96 will prevent a citizen from being adequately cared for," it said, but without explaining in more detail how that right is protected.

Earlier in the week, Leckey zeroed in on one of the health exemptions written into the bill, which says that a provincial worker "may depart from [the French requirement]... in its written documents… where health, public safety or the principles of natural justice so require."

When asked what the bar was for the change to be considered "required" -- would all health-related interactions count, for example, or life-and-death moments? -- the justice ministry again had few specifics to provide.

"Exceptions are also provided for in Bill 96 with respect to health, safety or when the principles of natural justice so require," wrote Gosselin-Bienvenue.

"Their application will be framed according to the realities of the various departments and agencies."

The department didn’t appear to respond at all to a question asking if it can guarantee that all Quebecers will be able to use English in health care if they so choose.

JUSTICE MINISTER FIRES BACK AT LEGAL CRITICS

After reviewing these responses sent Friday, Leckey said he didn’t believe the responses added "anything new" to what was known earlier in the week, after last week’s final amendments passed.

But the way the bill will work in practice could be quite different from previous language law Bill 101, he said.

Quebec has never distinguished before, in such a broad way, between paper-carrying English speakers and other kinds of English speakers, such as newer immigrants.

"This whole idea that the ‘historic anglo’ distinction matters outside the school system, that's a Bill 96 thing," he said.

"The whole idea of Bill 96 is clamping down on services in English to people other than historic anglophones."

It would be easy to fix the problem, however, he said -- lawmakers are fully aware of how to exempt certain sectors, as they did in secularism-related Bill 21, for example.

"If they wanted, fair and square, to eliminate [or] to exempt health and services from Bill 96… this is not how they would be doing it," he said.

"These are not crystal clear signals that all health and social services will be left intact."

In an interview with the Gazette published Friday, Justice Minister Simon Jolin-Barrette -- who is also the minister for the French language -- said that the critical legal analysis by Leckey and others is wrong, and he insisted that existing rights are well enshrined in the bill.

When it comes to new immigrants, however, he said the government is determined to stick with encouraging them to migrate to French, and that "if necessary we will supply translators" after the six-month grace period.

"What is over, however, is the state systematically providing bilingual services to immigrants," he said.

Understanding the final components of the bill is complicated, too, since its full current text isn't easily available.

The original bill, first tabled last May, is published online. But since then, there have been many amendments passed in the legislature. But there's no updated version of the bill available to read, even though it will likely pass into law within the next three weeks.

COLLEGE OF PHYSICIANS UNHAPPY

Lawyers aren't the only ones still confused by the bill.

In a letter sent to the province's doctors on Friday, the president of the Quebec College of Physicians wrote that Bill 96 is "causing confusion and concern, both among the public and among doctors and health professionals."

Although Legault and Jolin-Barrette's statements "are intended to be reassuring," wrote Dr. Mauril Gaudreault, "the text of the law, as formulated, leaves grey areas and creates reason for concern about future patients' options to converse in the language of their choice with the person providing them with care."

The College of Physicians is very clear on its own position, Gaudreault wrote.

"We believe that nothing should interfere in the relationship between a patient and his doctor. Nothing," he wrote.

"It is important that the patient can understand his doctor and be understood by him. This is the fundamental equation that enables informed consent to agreed-upon care."

He also suggested that health workers don't appreciate the timing of this debate or the anxiety it's causing, as it comes while the pandemic is still ongoing.

"The bill can be improved and we are convinced that the government will want to clarify certain aspects of it, while the health network does not need this additional concern," he wrote.

"While two years of the pandemic have failed to undermine the commitment of health-care professionals to the Quebec population, it is unfortunate that they are now worried about losing the quality of their relationship with patients," Gaudreault wrote.

"However, on a daily basis, they are confronted with far more glaring issues, which compromise their very ability to care for patients: shortage of personnel; closure of operating theatres; waiting lists, particularly in surgery, oncology and endoscopy; chronic emergency room overflows and stretcher delays; service interruptions for certain treatments, etc.," he continued.

"Let's be pragmatic: we must tackle the evils of the network and not the words exchanged between patients and their doctor."

He also asked all Quebec doctors not to be "distracted" by the debate and to "devote themselves serenely" to caring for their patients, saying the College promises "to fiercely ensure" patients' rights and their relationships of trust with their doctors.