Legal Precedent: Court Enforced HIV Testing and Treatment

By Andy Sorfleet

New B.C. Centre for Disease Control policy names “sex workers” for risk of HIV transmission

At the same time that federal Justice Minister, David Lametti—at a national symposium on HIV criminalization in Toronto organized by the Canadian HIV/AIDS Legal Network—was announcing his Liberal Party platform for a new HIV law should they get re-elected this fall, David Bennett Hynd was being arrested and held in custody by police in Vancouver.

Hynd’s crime? Failing to comply with orders to take his HIV medications, conditions imposed by B.C. public health authorities to prevent the possibility of HIV transmission to others.

On June 14, a parliamentary report on the issue of HIV non-disclosure was released. The Standing Committee on Justice and Human Rights recommended creating a new law to prosecute for “intent to transmit,” and “actual transmission of infectious diseases,” including but not limited to HIV. “Failure to disclose HIV status” where there is no risk of HIV transmission would no longer be prosecuted as aggravated sexual assault as it had been in the past.

On June 14, following a tip from the public, David Bennett Hynd was arrested and spent the weekend in police custody awaiting his court appearance on June 17.

Policy procedure: “People with HIV/AIDS who may pose a risk of harm to others”

In June 2017, the B.C. Centre for Disease Control (BCCDC) released guidelines for Medical Health Officers that outline procedures to follow, within the legal powers vested in them by the B.C. Public Health Act. It was as if those procedures were tailored to address the specific challenges presented by someone like David Bennett Hynd: what to do if someone deemed to pose a risk of HIV transmission to the public refuses to take HIV treatment medications?

This step-by-step policy became the basis of Hynd’s 24 court-imposed probation conditions. The Probation Order creates an escalating scale of HIV treatment surveillance and viral load testing, with the penultimate result of the patient being compelled to attend the designated clinic at a designated time on a daily basis to be observed by clinic staff taking his daily medication.

Perhaps most significant to the HIV community, we also have no idea why Hynd is refusing medical treatment for HIV. First and foremost, HIV treatment should be about maintaining good health and well-being.

“Many HIV-positive folks are not undetectable, and some of our discourse runs the risk of demonizing them for the same virus we all have. There’s nothing sinister or predatory about going off meds,” Alex Cheves writes in The Body.

Under the B.C. Public Health Act and similar acts in other provinces and territories, medical health officers possess the power to detain, test, treat and quarantine any person who is deemed to threaten the public health, within carefully defined rules. Nevertheless, some have said that this case is an “anomaly” that is “unprecedented.”

The ultimate public health penalty: arrest and forced treatment

According to the House of Commons’ Standing Committee on Justice and Human Rights report: “The committee strongly believes that the use of criminal law to deal with HIV non-disclosure must be circumscribed immediately and that HIV must be treated as a public health issue.”

“To end the epidemic, the committee is of the view that barriers undermining the public health objectives of HIV prevention, testing and treatment need to be removed.”

The question is, could a punitive approach, such as using the courts to enforce Medical Health Officer orders to maintain HIV treatment, be a barrier that undermines public health HIV prevention, testing and treatment objectives?

When Hynd pleaded guilty to charges under the B.C. Public Health Act for failing to comply with Medical Health Officer orders, he was given a suspended sentence, with probation orders to maintain HIV treatment and get viral load tests. When Hynd continually failed to show up for his clinical appointments, his name and his photo, along with his HIV-positive status, were released to the media. A week later, Hynd was arrested, charged with probation violation under the B.C. Offences Act, and held in custody. As a result, Hynd has two charges on a criminal record. If he is found guilty under the B.C. Offences Act, Hynd could face a $2,000 fine or six months in prison, or both.

David Hynd was the first person B.C. health officials had to take to court to compel to seek HIV treatment. “In general, people with HIV do not pose a risk to the public,” Dr. Harding told the CBC. So why did the B.C. Centre for Disease Control create whole new policy guidelines to deal with them?

Intentionally causing physical harm, including negligence, are already crimes under the federal Criminal Code whether it be in an infectious disease context or not. Do HIV-positive people who stop taking medications belong in prison? If it rarely happens, does that make it fine to use provincial criminal charges to compel HIV treatment? Is this not an excessive use of force?

According to Medical Health Officer Dr. Gustafson, charges were sworn under provincial health legislation designed to protect public health as opposed to the Criminal Code. “Criminal prosecution is not appropriate for HIV,” she said. “It’s not appropriate for communicable diseases—period. It’s not appropriate; it’s not effective,” Dr. Gustafson told the CBC.

“One of the worst outcomes of taking this step is that the public mistakenly gets the impression that something like this can happen to them either easily or that there isn’t due process or fairness or ethics.”

When I asked Cheryl Overs, senior research fellow at the Michael Kirby Centre for Public Health and Human Rights in Melbourne, for a comment, she had this to say:

I find it interesting the doctor says criminal law isn’t appropriate. We agree with that. However, health regulations—like all administrative laws—are complex and can have just as many teeth.

Typically, administrative law [like B.C.’s health legislation] has lower standards of evidence, proof and judgment, and offers little opportunity for a defence. Crucially, administrative law is not open to the same level of scrutiny as criminal law, unless appealed to judicial review.

In other words, offices can be more dangerous than courtrooms.

Implications for sex workers

The 2017 B.C. Centre for Disease Control (BCCDC) guidelines for Medical Health Officers explicitly states that “exchanging goods or money for sex” (along with anonymous sex in bathhouses and group sharing of needles) is considered a setting and context for high risk of HIV transmission. According to the guidelines, physicians who learn or suspect that a patient may be engaging in behaviour considered high risk, have reason to report that this person may pose a risk of HIV transmission to others. Based on these reports, the Medical Health Officer can compel individuals to be tested for HIV. Testing positive for STIs is also used as evidence of having posed a risk of HIV transmission to others.

In addition, “sex workers” appear as the only example of persons who may have HIV who may pose a risk to the larger community, and thus non-compliant sex workers are vulnerable to having their name, a description and HIV status published in the media by public health authorities, police and courts as has happened in the past. (Read, “HIV Hooker A Dilemma for Court,” The Province, June 23, 1996.)

These are harmful assumptions rooted in ignorance and steeped in prejudice. In fact, a sex worker study conducted in Victoria (n=201 adult sex workers aged ≥ 18 years, including 160 female, 36 male and 5 transgender individuals) has shown that condom use with clients among sex workers exceeds 90%, indicating that professional sexual services are performed safely in an occupational setting. (BCCDC’s Estimation of Key Population Size: Final Report, 2016 p. 13)

Could public health statements that centre sexual services as a vector for HIV transmission contribute to the fact that 29% of sex workers fear being judged by doctors? A 2014 Working Paper by Celia Benoit et al from the Canadian Institutes for Health Research also reported that 40% of sex workers said their health-care needs were not met in the prior year compared with about 12% of the general population. Could prejudicial assumptions about providing sexual services be barriers to public health goals for STI and HIV prevention and discourage sex workers from accessing sexual health services?

The 2017 BCCDC Guidelines for Medical Health Officers outlines the steps Medical Health Officers can use to legally compel sex workers to test and be treated for HIV. Sex workers need to be made fully aware of Medical Health Officer’s powers under the Public Health Act, before ever disclosing any personal information about providing sexual services. (For highlights from the BCCDC policy, see page 10: “Powers Under Public Health Act to Contain Risk of HIV Transmission.”)

David Hynd’s case, where court actions were used to compel HIV treatment, has been called a legal precedent by Medical Health Officers. It demonstrates how courts are to be used to prevent risk of HIV transmission by compelling HIV treatment under B.C.’s Public Health Act. Anytime anyone gets arrested in a non-criminal context there should be some form of inquiry and review of the case, resulting in a report that the accused can access and publish if they so desire. And, an appeal process to an independent jury.

For more on this topic, you can read my full brief: Getting to Zero? HIV Criminalization and Treatment Adherence Surveillance: Compelled HIV treatment to prevent risk of HIV transmission in the Vancouver Coastal Health vs. David Hynd case. Prepared for the Triple-X Workers’ Solidarity Association of B.C.

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