‘No” may no longer mean “No” for Yukoners when it comes to drawing blood, taking pills or undergoing medical exams.
A new Justice Department project, called the Mandatory Testing and Disclosure Act, allows people to apply for court orders to test individuals they fear may have infected them.
“It’s an egregious violation of human rights,” said BC Civil Liberties policy director Micheal Vonn on Thursday.
“When you do not wish to receive health care, and people are drawing blood from you and imposing treatment upon you, that’s called assault.”
The proposed act is “fueled by ignorance.”
The mandatory testing act is looking for two things: HIV AIDS and Hepatitis C, said Yukon chief medical officer Brendan Hanley.
The idea is to “provide a sense of security for emergency medical responders,” he said.
“Because they end up in some very stressful situations.”
But forced testing won’t change this, said Vonn.
“As of 2007, there were absolutely no documented cases in Canada of police, firefighters or ambulance attendants acquiring any blood-borne pathogens occupationally,” she said.
And, in occupational exposure situations, 99 per cent of people consent to testing anyway, added Vonn.
“So there is no evidence that the current situation is in any way defective.”
“I’ve never had people refuse testing,” said Hanley.
“Most people will say, you just saved me from a car wreck, here’s a bit of blood,” said Justice spokesperson Dan Cable.
“But the act fills in the little, tiny space where there is no capability of getting voluntary samples.”
However, even if blood samples are forcibly taken, the outcome doesn’t change, said Vonn.
If someone is occupationally exposed, and has no means of acquiring consent from the person that exposed them to their bodily fluids, they will not be able to wait for a court to order tests.
“If I am going to use the preventative medicine — initiate prophylaxis — to try to prevent any infection from actually taking hold in my body, I have to do it within 72 hours,” she said.
“So the whole point of getting a court order, and having this person tested and finding out what their status is, is needless to me — it would obviously take a lot longer than 72 hours.”
If the test comes back negative, some argue the prophylaxis treatment, which has nasty side effects, could be stopped.
“That seems to be a fairly flimsy justification for the violation of human rights,” said Vonn.
And negative test results don’t necessarily mean a clean bill of health, she added.
HIV is most contagious just before a person dies and when they’ve first contracted it.
And there is a window, just after they’ve contracted the disease and are very contagious, when their blood test still shows up negative.
So a person’s HIV status is actually unavailable, even if you could get them tested on the spot, said Vonn.
“The point here is you should use universal precautions at all times to make sure you’re taking the proper measures to protect yourself.
“And in the very, extremely unlikely, event you become occupationally exposed, you make the decision whether or not to initiate prophylaxis on the basis of the potential risk.”
With Hepatitis C there is no prophylaxis, so forced testing, again, “is meaningless,” said Vonn.
“This legislation appears to do nothing for the actual person potentially exposed.”
It’s not useless, said Hanley.
“But it’s not going to change your initial decisions (after possible contact with an infected person).
“It’s just nice to know — but you’re still going to follow a patient anyway — it’s reassuring if you get a negative answer.
“It alleviates anxiety and gives you a better direction on how to proceed.”
Forcing medical procedures on the unwilling — infringing on human rights and peoples’ rights to privacy — “is not worth the supposed peace of mind it is supposed to offer,” said Blood Ties/Four Directions executive director Patricia Bacon.
“It’s not good legislation.”
The act is based on an exaggerated sense of risk, she said.
The real risk of contracting HIV is “extremely low.”
If a person makes “under-the-skin” contact with someone infected with HIV, that person’s risk of contracting the disease is 0.3 per cent, said Bacon.
“That’s if the person is HIV positive — and we know only .02 per cent of the population is HIV positive.
“So the chances of you helping someone with HIV are extremely low.”
But because there’s this inflated sense of risk, the government is opting to pass legislation “to soothe those with this exaggerated sense of risk and make them feel better, instead of improving education to show what this risk really looks like,” she said.
The proposed mandatory testing act “evidences a profound ignorance of HIV transmission scenarios — evidently people are very, very concerned about scenarios that do not constitute transmission risk,” said Vonn.
“If they were educated, even marginally, in when HIV transmission is an actual risk and what you do in cases of potential exposure, they would know that this legislation is useless.”
The Canadian Medical Association, the Canadian Nurses Association, the Canadian Association of Nurses in AIDS Care, the Canadian Public Health Association and the Canadian Union of Public Employees, all oppose this legislation, said Bacon.
She is also worried about privacy issues under the proposed act.
If someone is forced into testing, the legislation allows those results to be shared with the person who requested the testing.
“And what’s to stop them from talking with their hairdresser, or their kids’ teachers, or their friends about my HIV status,” she said.
The new act is based on a Uniform Law Conference of Canada template, said Cable.
At least five other provinces have brought forward similar pieces of legislation, some under Health, or Community Services, and some under Justice, he said.
Past premier Pat Duncan initially put forward a motion to introduce this kind of legislation, said Cable.
“And cabinet just gave us our marching orders to bring it forward.
“The act is designed to give peace of mind.”
At some point this legislation will face a constitutional challenge, said Vonn.
“It’s inevitable.
“It is so evidently a violation of one’s security of person, to have a court mandate on the basis of someone else’s concern, you undergo medical testing.
“I can’t think of another scenario in which we say this is justifiable in a free and democratic society.
“None of the evidence speaks to the need for this, or in fact the effectiveness of it.”
It’s not just emergency personnel who can demand others undergo testing in the proposed act.
An individual may apply to the court for a testing order if they’ve come in contact with a bodily substance “as a victim of crime,” “while providing emergency health care services,” or “while performing any other prescribed function in relation to that individual.”
That last provision is “frightening in terms of its vagueness,” said Vonn.
The act can also force the person requesting another get tested to, themselves, undergo “an examination, testing, counselling or treatment.”
“I’m mystified by this,” she said.
“I can think of no justification for a provision for the court to order anyone in this scenario to undergo treatment — that also is an astronomical violation of human rights.”
It’s sensible risk assessment, said Hanley.
“If you’re going through all this we need to know your background, to get baseline medical data, and make sure it’s not frivolous.”
Hanley would not say if he supported the act.
“If it is to become law, I would like to see it go through the proper consultation process,” he said.
“And I would like to see it used as little as possible.
“It’s unlikely it would be misused,” he added.
Contact Genesee Keevil at
gkeevil@yukon-news.com