Health Committee on May 2nd, 2023

[Luc Thériault, Bloc, Montcalm, QC]

What you're saying is that she wanted to make sure that the views of all stakeholders were heard.

There was enough time in the process to hear everyone's views, but all members were against it.

Did you have a meeting on that, Mr. Clark?

[Douglas Clark]

We had many meetings.

She wanted to suspend the consultation, not extend it.

[Luc Thériault, Bloc, Montcalm, QC]

Right.

Professor Herder, in your letter of resignation, you describe the pharmaceutical industry as hostile. Your media release came at the same time as your resignation, we understand that, but it shows that you were far from being a neutral and impartial member regarding certain stakeholders.

Yet in the chair’s guidelines for member conduct, which you probably signed, board members are held to a high standard of impartiality because of the quasi-judicial nature of the hearings and their responsibility as Governor-in-Council appointees.

Why did you remain in your position after the Court of Appeal verdict and the government’s decision not to challenge it? Your letter shows that you were no longer neutral or qualified to be commissioner during the hearings. Why did you resign only in February?

[Prof. Matthew Herder]

The first point to make is that administrative tribunals are composed, in this case, of folks who have expertise relevant to the work of that tribunal. They are not held to the same standard as a matter of law as in the case of a court or a judge. The level of impartiality is not supposed to be the same. They are invited or appointed in those roles because of their expertise, and we bring that to our work.

I did not have decided views in any way about whether a particular price of a particular medication was too high. That is the work in which I need to maintain a high level of impartiality in the context of the hearing.

In making policy decisions, the other role that board members play, about what the guidelines should look like, how we should consult and so forth, I'm allowed to have particular views about what that process entails and how many communications and meetings with stakeholders we ought to have. When taking into account all of our stakeholders, not just industry, we're losing patients in the equation here. What should be the best decision about how to move forward?

Respectfully, I disagree that I lacked the level of impartiality required for that work.

[Luc Thériault, Bloc, Montcalm, QC]

According to the guidelines, you must be impartial, or even appear to be impartial. In other words, you should not make political statements.

You criticize the minister for respectfully asking the board to consider suspending the consultation process and suggest that this is interference. However, at Mr. Clark's last appearance in 2020, he was asked if he thought it was wise for the federal government to delay implementation, given that the dispute was before the courts. Mr. Clark responded as follows:

Well, it's really not for me to pronounce myself on the wisdom of the timing of those regulatory amendments. As I explained, they are the responsibility of the Minister of Health.

Do you disagree with Mr. Clark's analysis?

[Prof. Matthew Herder]

The power to finalize regulations is vested with the Governor in Council, the federal cabinet, on the recommendation of the Minister of Health. Mr. Clark was simply explaining that the board itself cannot pass regulations.

In contrast, under the legislation we have the power to finalize guidelines. Regulations and guidelines are two different things.

[Luc Thériault, Bloc, Montcalm, QC]

You referred to the fact that it's been five years.

In 2017, 2018 and 2019, before the court ruled, if the reform had been initiated, you understand that, in some ways, stakeholders were allowed to see that there was a problem. Consulting with all stakeholders ensured that their rights were not infringed upon by putting in place a reform that did not hold water.

Isn't that right?

[Prof. Matthew Herder]

I'm sorry; my translation stopped. I don't know why.

[The Chair, Liberal, Sean Casey]

That was the last question. We're going to give you a chance to answer it, but you also need to have the chance to understand it.

Is the interpretation working now?

[Prof. Matthew Herder]

No, not for me.

[Douglas Clark]

I can take a stab at answering it.

[The Chair, Liberal, Sean Casey]

Mr. Thériault, do you have any objections to having Mr. Clark answer?

[Luc Thériault, Bloc, Montcalm, QC]

If Professor Herder didn't understand the question, I'm okay with it.

[The Chair, Liberal, Sean Casey]

The interpretation is working now.

Please ask your question again, and he can answer it. Then, we'll give the floor to Mr. Davies.

[Luc Thériault, Bloc, Montcalm, QC]

I'm going to ask another question.

Last week, in a question to the minister, Mr. Davies said that you, Professor Herder—

[Don Davies, NDP, Vancouver Kingsway, BC]

On a point of order, Mr. Chair, you said that Mr. Thériault was out of time and he put his last question. You said you were going to give the witness time to answer the question that was put. Now Mr. Thériault is putting a different question after his time. That's not appropriate.

[The Chair, Liberal, Sean Casey]

Mr. Thériault, could you repeat the question that Professor Herder didn't understand because of the technical problem?

[Luc Thériault, Bloc, Montcalm, QC]

I'll rephrase the question.

Professor Herder, do you really feel that the minister tried to interfere with the consultation process, even though section 102 of the Patent Act gives him the opportunity to intervene?

[Prof. Matthew Herder]

Thank you for the opportunity to respond.

The letter was a request as it was worded, but it happened in a context where no such request had ever been made, to my knowledge, by a former minister of health or the present one. In addition, it was happening in a context when—as you've heard from my colleague—there were multiple attempts to reach his office, and the answer back was silence.

That's why it came across as more of a demand than a request. It was incredibly divisive inside the board, so it absolutely interfered with our work, in my view.

[Luc Thériault, Bloc, Montcalm, QC]

But that was his prerogative.

[The Chair, Liberal, Sean Casey]

Mr. Davies, you have six minutes, please.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you.

Let me get some context with some short questions.

This government identified reforms to PMPRB starting in 2017. Is that correct?

[Douglas Clark]

Yes, it was in 2017. The PMPRB started consulting on reforms to its guidelines in 2016, and then the government picked up that process and elevated it to changes to the regulations.

[Don Davies, NDP, Vancouver Kingsway, BC]

My understanding is that there have been three major policy reforms identified since that time. Is that correct?

[Douglas Clark]

Three major policy reforms....