Criminal Justice System's Response to Non-Disclosure of HIV

Part F: Public Health Responses to HIV Cases

This Part provides an overview of public health responses to HIV cases, as described by FPT public health partners in various Canadian jurisdictions,Footnote 121 given that HIV is primarily a public health issue. This overview was informed by a review of the relevant PT public health legislation, as well as applicable guidance documents, manuals or protocols, collectively referred to as “guidelines,” that assist public health authorities in the exercise of their discretion when handling HIV cases. Information on how HIV cases are reported and managed in Canada, as well as the nature of the relationship between public health authorities and law enforcement when handling HIV non-disclosure cases, is summarized below.

1. Reporting HIV Cases in Canada

PT public health legislation requires reporting of persons with HIV positive test results to public health authorities

The administration and delivery of healthcare services, including those related to communicable diseases, are primarily the responsibility of the PTs.Footnote 122 PT public health legislation and corresponding guidelines, where applicable, establish the processes that physicians and other primary care providers must follow when reporting communicable diseases, including HIV, to public health authorities. These processes vary among jurisdictions.

PT public health legislation requires HIV positive test results to be reported to public health authorities.Footnote 123 Generally, the testing laboratory and/or responsible healthcare professional, such as the most responsible physician or nurse, must report prescribed information on persons diagnosed with HIV to local public health authorities.Footnote 124

All PTs voluntarily notify PHAC of newly diagnosed HIV positive individuals

All PTs voluntarily notify PHAC by providing non-identifying information on newly diagnosed HIV positive individuals in order to support the production of national level reports on the epidemiology of HIV/AIDS in Canada.Footnote 125

2. Managing HIV Cases

Guidelines in many jurisdictions provide direction on managing HIV cases

Various public health authorities have issued guidelines to support healthcare professionals in managing HIV cases. A common emphasis in these guidelines is the importance of HIV testing and counselling as methods to reduce the risk of transmission to others and facilitate follow-up care. Many guidelines expressly recommend counselling HIV positive persons to take steps to prevent the transmission of HIV, such as by receiving treatment and disclosing their HIV status to sexual and any drug equipment sharing partners, including advising that there may be a legal requirement to do so.Footnote 126

Healthcare professionals disclose HIV positive test results and provide counselling

The healthcare professional that is primarily responsible for a particular person’s health care typically discloses HIV positive test results in person, which provides an opportunity for counselling. Some PT public health legislation specifies that healthcare professionals must provide counselling and identify any “contacts” (i.e., the HIV positive person’s sexual or drug equipment sharing partners) through a contact tracing process (see below), within a specific period of time following an HIV diagnosis.Footnote 127

Public health authorities assist in contacting and locating HIV positive persons who cannot be reached

Some public health partners noted that healthcare professionals may engage the assistance of public health authorities in contacting and locating an HIV positive person who is difficult to reach so that they can be informed of their status and take steps to avoid transmitting HIV to others. Some also indicated that public health authorities employ a variety of strategies to contact the person, such as home visits, visiting public sites the individual may frequent, sending a registered letter, leaving phone messages, sending emails and texts, and placing an alert on the person’s electronic medical record for the next healthcare provider who sees them.

Limited information was available on what happens when an HIV positive person simply cannot be located. Two public health partners noted that if a person cannot be reached after repeated attempts, their file is closed but could be re-opened if they come to the attention of public health authorities at a later date. A number of public health partners noted that, if the person moves to another jurisdiction, their case will be referred to public health authorities in that jurisdiction.

“Contact tracing” is common practice

Following an HIV diagnosis, notification of sexual and any drug equipment sharing partners (i.e., “contact tracing”) is typically carried out by either healthcare professionals, public health authorities or a combination of both. Protecting the privacy and confidentiality of HIV positive persons and their contacts is a critical aspect of public health practices and is governed by PT legislation.Footnote 128

In most PTs, public health authorities are responsible to ensure that an HIV positive person’s contacts are notified.Footnote 129 Contact tracing generally involves informing an HIV positive person’s sexual partners, as well as any drug equipment sharing partners, of their potential exposure to HIV and counselling the person’s contacts to seek testing and healthcare services.Footnote 130 While practices differ across PTs, the majority of public health partners indicated that their guidelines outline the processes for identifying and notifying an HIV positive person’s contacts. Many guidelines reference PHAC’s Canadian Guidelines on Sexually Transmitted Infections, which include guidance on contact tracing.Footnote 131

Some PT public health legislation imposes an obligation on healthcare professionals or public health authorities to undertake contact tracingFootnote 132 and some authorizes public health authorities to compel an HIV positive person to provide information about their contacts.Footnote 133

Guidelines addressing high risk cases are available in some PTs

Several public health partners have issued specific guidelines on how to address HIV positive persons who public health authorities have reason to believe have engaged, or will engage, in conduct that poses a high risk of transmitting HIV.Footnote 134 How to manage such persons is generally assessed on a case-by-case basis; preventative and voluntary measures are the preferred means.

Public health orders are available in the majority of PTs but not necessarily used

The majority of public health partners have the authority to issue and enforce public health orders requiring compliance with certain measures that reduce the risk of HIV transmission, such as requiring the HIV positive person to: submit to a medical examination; isolate themselves; conduct themselves in a manner that will not expose others to infection; receive treatment; provide information on contacts; and, comply with measures to prevent the spread of HIV (e.g., use a condom, inform contacts of their HIV positive status).Footnote 135

Enforcement measures may involve apprehending and detaining a person who fails to comply with the provisions of an order.Footnote 136 Some PT public health legislation allows public health authorities to apply to the court to enforce the order and/or to seek additional measures against the individual, such as compelling a medical examination or treatment.Footnote 137 Some PT public health legislation also includes an offence scheme, which allows for the imposition of a fine or term of imprisonment for failure to comply with an order.Footnote 138

Although issuing and enforcing public health orders is possible in the majority of PTs, many public health partners indicated that they prefer to engage with HIV positive persons using supportive and voluntary measures. Orders and judicial measures are used when and if needed, for example, when other measures have been exhausted.

The public can be notified where there is risk of HIV transmission

Most PT public health legislation authorizes notification of members of the public in circumstances where individuals are known to engage in conduct that poses a high risk of HIV transmission.Footnote 139 However, a few public health partners noted that information on HIV positive persons is only made public when required in the context of court proceedings, i.e., criminal or public health proceedings,Footnote 140 or through actions taken by law enforcement.

3. Relationship between Public Health and Law Enforcement

Engagement of law enforcement is limited, including in cases involving risky behaviour

A few public health partners indicated that they do not generally contact, or engage with, law enforcement on potential HIV non-disclosure cases, including those involving conduct that poses a high risk of HIV transmission. Some indicated that legal advice and internal direction would be sought prior to involving law enforcement. However, one public health partner noted having a close relationship with law enforcement and indicated that charges against an individual had been withdrawn as a result of public health involvement. Engagement with law enforcement may also be limited by privacy-related provisions in PT legislation.

A few public health partners have issued guidelines that address the appropriate procedure to follow when involving law enforcement in cases involving a high risk of transmission.Footnote 141

Public health authorities are rarely contacted by police or prosecutors

A number of public health partners indicated that public health authorities are rarely, if ever, contacted by police or prosecutors in HIV non-disclosure cases. In circumstances where public health authorities had contact with police or prosecutors, some public health partners indicated that the HIV positive persons who had come to the attention of law enforcement had received counselling prior to their involvement with law enforcement.

Information about potential HIV non-disclosure cases is typically provided to law enforcement by way of courts orders

Some public health authorities have worked with, and provided information to, law enforcement on potential HIV non-disclosure cases, although some public health partners noted that this collaboration occurs only when a warrant or subpoena for information has been served or in circumstances involving a high risk of transmission to others.

The limited exchange of information between public health authorities and law enforcement was, in some PTs, the result of concerns over patient privacy and the preference for public health responses over criminal law ones. Information may, however, be provided to peace officers when issuing and enforcing public health orders under some PT public health legislation.Footnote 142

Public health authorities have expressed concern about law enforcement involvement

A few public health partners expressed concern about law enforcement involvement in HIV cases and some of these concerns also appear in guidelines.Footnote 143 Some indicated a preference for engaging a broad range of public health measures and working directly with HIV positive persons on a case-by-case basis to reduce risky behaviour. One noted that public health authorities do not want to compromise the relationship with HIV positive persons, who do not want law enforcement involvement. Another indicated that engaging law enforcement is viewed as an absolute last resort as public health authorities are responsible for managing HIV transmission risk, not the criminal justice system.

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