Proponents of a bill currently before the Legislative Assembly of Manitoba say it is designed to protect police, paramedics, firefighters and victims of crime. They say it offers real benefits to these groups and their families. But this oversimplification obscures troubling ethical and legal issues, while exaggerating benefits.
Bill 18, the Testing of Bodily Fluids and Disclosure Act, would authorize the forced testing of a person for HIV and other blood-borne diseases, if someone were exposed to his or her bodily fluids in the course of occupational duties or if they were a victim of crime or providing emergency first aid (e.g., a "Good Samaritan"). The legislation includes a procedure through which a person can apply for a testing order from a justice of the peace by phone and then receive copies of the test results.
It is true that emergency workers face many risks. The risk of infection from communicable diseases understandably causes extreme anxiety to both workers and their families. Fortunately, the risk of HIV infection in occupational settings is very low. There is an estimated 0.3 per cent chance of HIV infection as a result of a direct, under-the-skin exposure to HIV-positive blood. All other exposures -- such as bites or contact with a bodily fluid from a person whose HIV status is unknown -- carry an even lower risk. So low that since the beginning of the HIV epidemic 27 years ago, there has been only one documented case in Canada of an HIV infection acquired through a workplace exposure.
Nevertheless, we regularly hear about the anxiety of emergency workers over the risk of contracting HIV and how those who have been exposed are unable to hug their children or spouse while awaiting test results. HIV cannot be transmitted through hugging -- this kind of misinformation serves no one. Emergency workers need accurate information about HIV and other blood-borne infections. They need training and protective equipment, and when exposures do occur, they need access to support, information and appropriate medical care.
The bill currently before the Legislative Assembly does little to ensure that testing orders will not be issued based on misguided fears. As written, it provides a fast-track process to apply for a testing order, which omits the requirement for a justice of the peace to receive expert medical assessment of the risk of exposure in the given case, or evidence that the source person declined a voluntary test, or that he or she be allowed to explain why they may not consent to being tested.
Moreover, there is little practical benefit to having access to the other person's test results given the current state of testing technology and the nature of the virus. Rapid HIV screening tests have the possibility of false negative results owing to the "window period" during which a person may be infected but still test negative. Any decisions taken to begin, or discontinue, treatment to reduce the risk of infection therefore would be based on unreliable data.
This legislation is an extreme affront to those ordered to undergo forced testing. It is unethical to perform medical procedures on someone without their informed consent. In fact, we usually consider it malpractice, for which a health professional can be sued. Forced HIV testing -- and disclosure of the test results -- is also unconstitutional: it violates Canadians' constitutional rights to bodily integrity and privacy, guaranteed by the Charter of Rights and Freedoms.
Under this legislation, anyone in Manitoba could be ordered to undergo testing -- an accident victim, anyone needing emergency medical assistance, someone involved in an altercation with a police officer, a person rescued from a fire. Their test results could be disclosed without their consent. They could be convicted of a crime and fined $10,000 a day everyday until they reported for blood testing.
Instead of rapidly pushing through this legislation, emergency responders and Manitoba's legislators should think about ways of serving all Manitobans and amend this bill appropriately. Coercive laws that invade people's privacy and bodies provide only illusory peace of mind; education, protection and support bring real solutions as well as protect the health and rights of everyone, emergency workers and people living with HIV/AIDS alike.
Alison Symington is the senior policy analyst with the Canadian HIV/AIDS Legal Network.
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