TESTING AND REPORTING
The following article is an update on the Ontario case concerning the notification of blood donors of their HIV-positive status.
As reported in issues 2 and 3 of the Newsletter, many months into the Commission of Inquiry into the Blood Supply in Canada (the Krever Inquiry) it was discovered that the Canadian Red Cross Society (Red Cross) had 175,000 frozen blood samples. The samples were taken from donors at the Toronto Red Cross Centre between 1 December and 31 October 1985. In late 1994 and early 1995 they were tested for HIV; the purpose was to enable the Red Cross to trace the tainted samples to the recipients of the tainted blood. Steps have since been taken to advise the recipients. Testing revealed that there were 22 HIV-positive donors; of these, nine had been previously identified because they were repeat donors who had donated blood after testing and notification procedures were implemented in the fall of 1985. The remaining 13 HIV-positive donors were not previously known to the Red Cross. The question was: should these 13 donors be notified of their HIV status and reported to the Ontario Ministry of Health?
In its action, the Canadian AIDS Society (CAS) attempted to prevent such disclosure, arguing that only donors who specifically requested their results should be informed that the HIV test performed without their consent was positive.
Carruthers J of the Ontario Court (General Division), in a judgment released on 10 November 1994, dismissed CAS's application for an injunction prohibiting the Red Cross from releasing the names of HIV-positive donors.[1] CAS immediately appealed this decision. On 18 January 1995, the Court of Appeal ordered a rehearing of the application, and CAS obtained an interim injunction to preserve the status quo preventing reporting of the test results to Public Health pending the rehearing of the application. Only a week before the appeal hearing was scheduled, the Red Cross revealed that although the initial testing of the donor samples was done at various Red Cross blood centres, the confirmatory testing was done at the federal Laboratory Centre for Disease Control (LCDC) in Ottawa. In light of this new information, the Court of Appeal referred the matter back to the Ontario Court (General Division) for a rehearing of the original application.[2] The new hearing began on 5 June 1995.
Further Update on Blood Donor Notification Case
Canadian AIDS Society v Ontario
On 4 August, the Ontario Court (General Division) released its decision, dismissing CAS's application.[3]
The first issue before the Court was whether the provisions of the Health Protection and Promotion Act of Ontario, RSO 1990, c H.7 (the HPPA) or the Laboratory and Specimen Collection Centre Licensing Act, RSO 1990, c L.1 (the LSCCLA) apply to require donors and public health authorities to be notified of the donors' positive HIV status. CAS sought a declaration that they do not apply because the confirmatory testing was conducted by the Laboratory Centre for Disease Control (LCDC). The Society argued that the LCDC is not subject to the provincial reporting requirements because it is a federal laboratory. Alternatively, it argued that the application of the reporting provisions of the Acts in these circumstances contravenes the rights of the donors pursuant to ss 7 and 8 of the Canadian Charter of Rights and Freedoms.
The Issue of Standing
The Court first had to consider whether CAS had standing to bring this application on behalf of the donors (a court has discretion to grant "standing" to a party so that it may take a position on behalf of the public interest, although that party need not be actually prejudiced by the law in issue). Applying the three-part test used by the Supreme Court of Canada,[4] it concluded that CAS had standing:
• it had a "genuine interest" in the determination of the issue; and
• were it not for CAS's application, there would be no other way for the issue to be brought before the Court.
Reporting Issues
The Court agreed that there is no obligation on the LCDC to report positive test results because the provincial legislation cannot bind the federal Crown.[5] But it held that there is an obligation on the Red Cross to report pursuant to the HPPA, notwithstanding that the second-step confirmatory testing was done at the LCDC. The facts were as follows:
• the Red Cross requested the LCDC to perform confirmatory testing on repeatedly reactive ELISA samples;
• the LCDC performed further ELISA screen tests, and confirmatory Western Blot and RIPA tests;
• it then communicated the results of the testing to the Red Cross originating lab in coded form;
• the Red Cross matched the coded test results with donor names.
The Court had to address two questions: (1) Does the Red Cross have an obligation to report the test results of the LCDC under the above circumstances? (2) Alternatively, does the positive ELISA test result trigger a reporting obligation by the Red Cross, without the need for confirmatory testing?
(1) Section 29 of the HPPA requires "an operator of a laboratory to report ... a positive medical finding" to the officer of the local health unit. The Court held that the Red Cross screening facility qualifies as a laboratory, and that the Red Cross, by linking the positive test result with the donor's identity, made a "positive medical finding" that triggers the reporting obligation pursuant to the HPPA.
(2) The Court held that a finding of repeatedly reactive ELISA test results alone would not trigger the obligation to report: because the ELISA test results are too inaccurate, they do not constitute a "positive laboratory finding in respect of a reportable disease."
Informed Consent
CAS submitted that the donors did not, at the time of their donations, provide informed consent to have their blood tested for HIV antibodies. At that time, the Red Cross was not screening blood donations.
Was Informed Consent Necessary?
While CAS argued that informed consent was necessary, the Province of Ontario argued that by donating blood the donors gave a "gift of life" and relinquished all rights to their blood, in particular their right to object to future testing and public reporting.
The Court held that when the donors made the "gift of life," they "freely and generously gave their blood to be used by the Red Cross for transfusion and life sustaining purposes." However, "[t]he retaining of personal information and testing of the Samples [sic] ten years later could not have been contemplated as part of the gift. Donors were specifically told when the blood was given that there was no test available to test for AIDS." The Court acknowledged that a finding of positive HIV status can have "devastating personal consequences for an individual," and concluded that the "gift of life" did not include the right to conduct a test upon the sample of blood ten years later.
Was There Informed or Implied Consent to the Testing?
The question was: Could consent be inferred from the circumstances at the time? The Court held that donors had not given consent, express or implied, to the storage and testing of the samples donated.
Charter of Rights and Freedoms
CAS submitted that the reporting requirements of the Acts in the unique circumstances of this case infringe privacy rights protected by ss 7 and 8 of the Charter.
Section 7 of the Charter
Section 7 provides that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
The Court held that there had been a breach of the donors' s 7 right to security of the person. It found that the disclosure of the donors' names to the public health authorities would "cause psychological stress to some donors, and in particular gay donors. The donors may be unaware of their HIV positive status. They were told by the Red Cross over ten years ago that HIV tests could not be conducted on their blood. Since that date, awareness of AIDS and the HIV virus [sic] has increased dramatically. At that time, and continuing unfortunately to this day, there is considerable stigma attached to HIV seropositive status."
The Court then had to decide whether the "principles of fundamental justice" had been breached. The Court balanced the state's goal of promoting public health and the rights of the individual. Giving great weight to the state objective of "promoting public health for the safety of all," it concluded (1) that CAS had failed to show that the HPPA is not in accordance with principles of fundamental justice; and (2) that, consequently, CAS had failed to prove a breach of s 7.
Section 8 of the Charter
Section 8 provides that "[e]veryone has the right to be free from unreasonable search or seizure."
CAS alleged that the donors' right against unreasonable search and seizure has been violated by using the information contained in the donors' blood samples without the donors' consent. The Court agreed that there had been a seizure that violated donors' expectations of privacy. However, it concluded that the seizure was not unreasonable, finding that the importance of public health objectives outweighed the individual's right to privacy.
Section 1 of the Charter
Although the Court concluded that a breach of the donors' rights under ss 7 or 8 could not be proved, it went on to outline what its conclusions would have been under s 1 of the Charter (according to s 1, the Charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society"). It concluded that, even if the donors' rights had been infringed, this would have been justified under s 1. In particular, the Court held that the provisions of the HPPA are "reasonable, and infringe rights as little as possible. As well, the effects of enforcement are not harmful in relation to the benefits of compliance with the reporting requirements of the HPPA." The Court emphasized that it was possible "with the cooperation of the donors that are still alive today that lives may be spared," and added that the "health of partners, and the partners of partners is at stake." It concluded:
It is the submission of the applicant that the HIV positive donors have the right not to know their status. This somewhat narrow view ignores the right of the HIV positive donors to this vital health information. Through an odd chain of events the Red Cross is in possession of information that may change an HIV positive individual's life. It is acknowledged that there are a minority of the 13 HIV positive donors that are asymptomatic today. Many of the 13 may be dead. There may be here an individual, or individuals who are unknowingly infecting loved ones. The donors' right to know the truth about their health appears to have been ignored by the applicant. As important as the public reporting aspect of the case may be, in my view of equal importance is the donors' right to this devastating but vital information. Compliance under the reporting provisions of the HPPA will ensure that the donors receive this information, and obtain counselling.
Appeal
The decision is being appealed.
- Patricia A LeFebour and R Douglas Elliott
Top of this page
Return to Table of Contents
Return to Home Page
ENDNOTES
[1] [1994] OJ No 2789 (QL). See PA LeFebour, D Elliott. Ontario Court Rules on Notification of Blood Donors. Canadian HIV/AIDS Policy & Law Newsletter, vol 1, no 2 (January 1995) at 1, 13-14.
[2] See PA LeFebour. Update on Blood Donors Notification Case. Canadian HIV/AIDS Policy & Law Newsletter, vol 1, no 3 (April 1995) at 4-5.
[3] Canadian AIDS Society v Ontario, Ontario Court of Justice (General Division), 4 August 1995, court file no 4581/94, as yet unreported.
[4] Finlay v Minister of Finance of Canada, [1986] 2 SCR 407.
[5] Alberta Government Telephone v Attorney General of Canada (1989), 61 DLR (4th) 193 (SCC).