Policy Guide for the Management of Advisory Committees in Health Canada

Date: 2005-08-08

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Table of Contents

Foreword

Introduction

1. Advisory Committees: Their Role and Management

2. Responsibility, Authority and Accountability

3. Health Canada Protection Policy for Committee Members

3.1 Impact of Compensation
3.2 Conflict of Interest
3.3 Volunteers
3.4 Indemnification
3.5 Legal Assistance
3.6 Personal Insurance Coverage
3.7 Information on Advisory Committees

Prepared by:
Financial Information and Accounting Services
Corporate Services Branch

Foreword

A review of the practices of Health Canada in the operation of its advisory committees has established the need for a policy guide to continue to ensure their effective management. The importance of these committees is invaluable to the quality of departmental programs.

It is therefore essential to clearly state the division of roles, the responsibility, authority and accountability between Health Canada and its advisory committees, and the ultimate decision making authority and accountability of the Minister and the Deputy Head. It is necessary to protect the interests of all parties in the management of these committees, including the avoidance of conflict of interest, the protection against liability and the provision of legal assistance within the framework of existing government policies.

This policy guide has been prepared with these objectives in mind. I believe that, when applied by all, following these guidelines will enable us to more effectively meet departmental goals through the management of committees and at the same time, ensure that committee members are adequately protected when providing advice. I trust you will find it a useful tool for the periodic management review of the activities of committees.

Deputy Minister of Health Canada

Introduction

There are more than 150 advisory committees that provide a wide variety of services to Health Canada in the development and management of its programs. Essentially there are three types of committees:

• those conducting review and assessment;
• those submitting advice; and
• those which constitute a platform for consultation and information exchange.

There is a need for a unified and consistent approach in their management, including the creation of new committees and the elimination or avoidance of possible duplication. To fulfill this need, this guide was developed under three major headings:

1. Advisory Committees: Their Role and Management;
2. Responsibility, Authority and Accountability; and
3. Health Canada Protection Policy for Committee Members

In this guide, the word "committee" is used throughout the text to refer to all types of committees, groups, boards, commissions, councils or forums. Conversely, the word "appointment" is avoided because of its connotation of an employer-employee relation. Except where specifically authorized by a statute, appointments to the federal public service are only legally possible under the Public Service Employment Act. The word "compensation" refers to any kind of remuneration or anything of value in lieu of compensation including an honorarium, other than reimbursement for expenses actually incurred.

1. Advisory Committees: Their Role and Management.

It is the policy of Health Canada that the existence of its committees be closely linked to the department's ultimate goal: to improve and maintain the health and well-being of Canadians.

The use of committees and external members is desirable because:

• they can provide independent sources of information;
• they often comprise the only expertise that can bring leading-edge knowledge to bear on issues; and
• the use of external advisors:
  • fosters partnerships between Health Canada and its clientele;
  • facilitates understanding and appreciation of Health Canada policies;
  • provides a mechanism to communicate Health Canada policies externally; and
  • increases the transparency of the decision making process.

In this context, the periodic management review of committees must clearly state why they exist, what their activities are, when and where they should meet, who their members are and should be, and how they should function. In order to facilitate such a review, a checklist for ease of management review is used. This will ensure an optimum service at minimum costs to the Department. Some of the comments and suggestions in the following paragraphs may appear to state the obvious. Nevertheless, a guide cannot claim to be comprehensive without their inclusion.

The mandate (why) of each committee must clearly and concisely express its raison d'être, preferably stated in terms of intended results, linked to one or more program objectives of Health Canada. The mandate of each committee must explicitly recognize that Health Canada always has the ultimate decision making authority and accountability. Such a statement will create an arms length relationship, which will greatly contribute to protecting committee members in terms of potential liability, given the sensitive nature and degree of controversy related to the work of some committees.

The activities (what) must in turn be linked to the intended results. In the conduct of the committee's business:

• the agenda should not be overloaded: each item specifically stated so as to identify the expected decision or advice;
• the supporting documentation should be conducive to a clear understanding of the subject and of its different aspects;
  • the minutes should normally:
  • summarize the discussions;
  • reflect, where necessary, significantly divergent opinions; and
  • state the committee's decisions in terms of the action required by one or more members, within a reasonable time frame.

The location of meetings (where) is primarily a function of the objective to facilitate the effective participation of all concerned. The use of technology should be encouraged where teleconference meetings are judged as effective and more economical than the required travel costs of members.

The frequency (when) and duration of meetings is dictated by the number of items on the agenda. Usually, meetings tend to lose their effectiveness if they last too long. Hence, the need for a well-organized agenda and directed flexibility by the Chair in the conduct of the committee's business.

More than any of the above features, the membership (who) of the committee is the key to its success. Members must be carefully selected to represent all relevant disciplines and expertise and different interests, where applicable. Equally, if not more important to their effective participation, is the kind of protection that Health Canada can offer against conflict of interest, indemnification and legal assistance in cases of liability claims by or against the Crown or by third parties. In this regard, and except for those few members appointed pursuant to a statutory authority, committee members fall into two groups: volunteers, i.e., members without compensation and members with compensation. Because of the impact of compensation on indemnification and legal assistance, special attention must be given to that topic (see section 3).

2. Responsibility, Authority and Accountability.

The Minister and the Deputy Minister have and share the ultimate authority and accountability for any decision arising out of the activities of committees. It is important to remember that only the minister may express an opinion on any topic of political interest. However, the Minister in concert with the Deputy Minister, may designate a person or expert to express an opinion on a specific topic or subject of public interest.

The Minister, or the Deputy Minister, as the case may be, delegates their authority to Assistant Deputy Ministers and Branch Heads of equivalent rank, for the overall effective and efficient management of committees, including acquainting all committees with this guide and related policies on conflict of interest, volunteers, indemnification and legal assistance.

Branch Heads may designate Directors General or persons of equivalent rank to exercise their responsibility and authority in the day-to-day management of committees. Branch Heads should also designate a person as a Committee Coordinator to coordinate the overall management of committees within their jurisdiction, including the review of their operations.

The Chair of each committee should direct the work of the committee and, unless otherwise designated by law or past practice, name a person as Secretary of the committee to facilitate its operations. Once a year, the Chair should remind all members of Health Canada policies contained in this guide. The Secretary should provide all new members with the necessary documentation in this regard.

Committee members are responsible for familiarizing themselves with Health Canada's policy on conflict of interest and are to complete a statement of disclosure on conflict of interest, unless they have been exempted from this requirement. They should also acquaint themselves with the other policies contained in this guide.

3. Health Canada Protection Policy for Committee Members.

It is the general policy of Health Canada to provide its committee members the necessary protection for indemnification and legal assistance, within the framework and limitations of government policies, as explained in the following sections.

This policy does not apply to any person appointed or employed by a province or under the authority of an ordinance of the Yukon Territory or the Northwest Territories or another organization when serving on a committee as a representative of the province or Territories to express the views or concerns of the respective government or organization. This policy applies to such persons when called upon to serve on Committees to contribute their own professional expertise to Health Canada and not as representatives of their government or organization.

3.1 Impact of Compensation

In relation to existing government policies on indemnification and legal assistance, the membership of committees can be divided into two broad categories:

• statutory appointments; and
• non-statutory members:
  • without compensation; and
  • with compensation.

In Health Canada, 90% of committee members are volunteers receiving no compensation. The remaining 10%, some being statutory appointments, receive compensation.

Members appointed to a committee established pursuant to a statutory authority, with or without compensation, are provided the same legal protection and under the same conditions as those applicable to public servants.

However, members who serve on non-statutory committees are subject to different conditions, depending on whether they serve as volunteers (i.e., without any form of compensation) or whether they receive some compensation.

Generally, the protection provided to volunteers is also virtually the same as that provided to servants of the Crown for purposes of indemnification and legal assistance. As noted in the Treasury Board's Volunteers Policy, "departments should ensure that volunteers are given risk protection similar to that received by departmental employees when faced with comparable risks."

Non-statutory members in receipt of an honorarium fall in the category of non-volunteers and thus do not automatically have the same protection available under the Government's Volunteers Policy.

For these reasons and, without prejudice to the quality, effectiveness and representation of the membership on these committees, it continues to be the main policy of Health Canada to favour retaining the services of members willing to serve on a voluntary basis, that is without compensation, except of course for expenses actually incurred which continue to be reimbursed to all members.

Secondly, should the first avenue be impossible, it is the policy of Health Canada to pay an honorarium when circumstances provide for it, and only with the specific authorization, as the case may be, of the Minister or the Deputy Minister. Such authorization (departmental appointee), as per the government policy on Indemnification of and Legal Assistance for Crown Servants, requires the individuals (committee members) to be formally and personally appointed by the Minister or the Deputy Minister.

Thirdly, in cases whereby a clear statement of work can be drawn up with measurable deliverables, it is the policy of Health Canada that the appointed expert's services be obtained through a government professional fee for a service contract. Given the special attention to be paid to the statement of work even in a short form contract, and the certification for services rendered, a contractual framework is more legally binding and precise in terms of the responsibility and accountability of the Crown and the contractor. In these cases, the Crown may, in exceptional circumstances, certify that it will not take legal action against the contractee, providing all other contractual obligations are met. The contractor, however, should obtain proper legal coverage against possible third party claims. Costs associated with such coverage are deemed to be the responsibility of the contractors. The contractor fees charged to Health Canada would normally reflect all costs to the contractor inclusive of liability insurance, if applicable.

The specific Health Canada policies on conflict of interest, volunteers, indemnification and legal assistance are summarily described in the following sections of this guide.

3.2 Conflict of Interest

It is the policy of Health Canada that all committee members, comply with Health Canada's policy on conflict of interest, unless so exempted under the Health Canada policy on Conflict of Interest. This is as much for the protection of the Crown as for that of committee members. It ensures the integrity, objectivity and impartiality of Health Canada's decision making process and contributes to public confidence.

The policy requires members to make a thorough disclosure of real, potential or perceived situations of conflict of interest prior to and during their term of service. Such a conflict may limit the member's role in a specific discussion or terminate the membership.

The Committee Coordinator is the first decision making level on conflict of interest and is responsible for identifying the need for a higher level of decision.

The necessary mechanism for informing committee members of their obligation with regard to conflict of interest, their responsibility to complete the standard disclosure statement and related check list are contained in the Conflict of Interest Policy.

3.3 Volunteers

Given the invaluable contribution volunteers bring to the quality of its programs, it is the policy of Health Canada to apply the government's Volunteers Policy to all such members of its committees.

A volunteer is a person serving as a committee member or who provides a service directly to or on behalf of Health Canada, including service as a Director, Trustee or Advisor, without compensation or any other thing of value in lieu of compensation, other than reimbursement for expenses actually incurred.

Health Canada accepts the potential to be vicariously liable for the actions of its volunteers in the performance of their activity, provided they:

• act honestly and without malice;
• exercise due caution and take care of any Crown property that may be entrusted to them in the performance of their activity; and
• are prepared to be held responsible for any act or omission that would be a cause for disciplinary action if the volunteers were employees.

In return for volunteer services, and within the framework of the government policies on risk management, Health Canada undertakes to guarantee its volunteer members the protection available to its employees in similar circumstances under the policies on:

• Indemnification of and Legal Assistance to Servants of the Crown;
• the authorized use of privately owned vehicles or other type of transportation or personal property for the purposes of performing a volunteer activity; and
• travelling in relation to the activities of committees.

In the application of this policy, Health Canada will consider the kind of personal or professional risk insurance that each committee member already has in order to ensure the most effective and economical means of ensuring this protection, through underwriting volunteers' risks if necessary and, where so decided, provide for related costs in its appropriation.

3.4 Indemnification

It is the policy of Health Canada to completely indemnify a volunteer member or a statutory or departmental appointee (appointed by the Minister or Deputy Minister) against personal civil liability, incurred by reason of any act or omission within the scope of the member's activity and to make no claim against that committee member based upon such personal liability, if the member acted honestly and without malice.

In any other situation outside the scope of the volunteer's activity, where there are extenuating circumstances, the Deputy Minister may determine the extent to which a committee member may be indemnified, provided the full amount of the indemnification does not exceed twenty-five thousand dollars. Where the full amount would exceed twenty-five thousand dollars, the Treasury Board may determine the extent to which a committee member may be indemnified.

This specific policy does not apply to a person engaged on a committee under a contract for services nor to a non-volunteer member, unless specifically authorized as per Treasury Board policy on Indemnification of and Legal Assistance for Crown Servants, i.e., departmental appointee status.

However, any member who becomes aware of a possible claim or proceeding as a result of any alleged act or omission within the scope of the member's activities, shall inform the Coordinator who will take the necessary steps to assist the member, including legal assistance referred to in the next section.

3.5 Legal Assistance

It is the policy of Health Canada to offer legal assistance, on the advice of the Department of Justice, to a volunteer or to a statutory or departmental appointee, who has

• acted within the scope of the activity of the Committee; and
• met reasonable departmental expectations based on applicable professional standards, when:
  • required to appear before or be interviewed in connection with a judicial investigative or other inquest or inquiry;
  • sued or threatened with a suit;
  • charged or likely to be charged with an offence; or
  • faced with other circumstances that are sufficiently serious as to require legal assistance.

Any member who becomes aware of the above-noted circumstances shall inform the Coordinator who will take the necessary steps to obtain legal assistance from, through or on the advice of the Department of Justice, in accordance with departmental policies and procedures for each stage of a judicial process.

This policy does not apply to any person engaged on a Committee, under a contract for services nor to a non-volunteer member unless specifically authorized as per Treasury Board Policy on Indemnification of and Legal Assistance for Crown Servants.

The Health Canada policy does not cover charges or actions initiated by members themselves.

3.6 Personal Insurance Coverage

On some occasions, the activities to be conducted by the committee members may constitute a risk for them (i.e., bodily injury and/or property damage). In such cases a personal accident/property insurance can be purchased for the protection of committee members.

3.7 Information on Advisory Committees

The Minister, Deputy Minister and other senior executives of the Department should be able to quickly refer to an inventory of advisory committees.

The information to be captured in the inventory should include the following elements:

• name of committee
• list of members
• brief description of role and mandate
• frequency of meeting
• members' participation status (e.g., volunteers, service contract, statutory appointment, etc.)
• program co-ordinators and/or committee contact person

Such inventory (database) will be incorporated with the HC Hints (Lotus Notes application) and it will be the responsibility of the Corporate Services Branch to maintain and update the inventory, as required.