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.