The following is a statement by the B.C. Civil Liberties Association and other interested citizens of our concerns about proposed changes to the Health Act in Bill 34 and their impact on the control of the spread of AIDS. In it we offer both general and specific proposals for a fresh approach to the problems we believe the government is attempting to address through Bill 34.

Statement of principle

It is important to state at the outset that we support the principle that medical health officers should be given effective powers to deal with individuals who are wilfully or carelessly exposing others to communicable diseases or conditions such as AIDS. We oppose Bill 34 as it is presently worded, but we do not oppose the idea that government is entitled to take serious measures to prevent irresponsible behaviour that spreads a deadly disease.

In its present form, however, Bill 34 can be interpreted as the first step in a governmental plan to use severe coercive measures as a central part of its campaign to control the spread of AIDS. In all likelihood such measures would be ineffective in stopping the spread of AIDS, yet they would be certain to cause much hardship and unfairness. Most of the people who are capable of spreading the AIDS virus do not have any symptoms and some of them may never suffer from AIDS themselves. A general program of isolation of these people would be unfair because they need not represent a risk to others if they take appropriate precautions. Moreover, attempts to find and quarantine the more than 20,000 British Columbians believed to be infectious would entail massive expenditures of money—money that could be used much more effectively in efforts to educate the public about how to avoid infection and on research to provide improved treatment and an eventual cure for AIDS.

The medical profession, and medical health officers in particular, are not calling for widespread use of severe coercive measures in the fight against AIDS. Of equal importance, the Minister of Health has indicated in both his public statements and in private correspondence that he does not intend Bill 34 to be used as a vehicle for the introduction of such measures. Given these facts, one might ask, why are we concerned about Bill 34? The reason, quite simply, is fear.

Facing AIDS is a frightening enough task for anyone. Facing the additional prospect of isolation or quarantine, no matter how remote that prospect may appear to be, is bound to give rise to even greater fear, as the newspaper coverage surrounding the introduction of Bill 34 illustrates. This fear has a life of its own, and it may even make it more difficult to conduct research that will help us to combat AIDS. At this point there is not a great deal the government can do to relieve the fears of those who actually suffer from AIDS, although advances in treatment are being made and need to be pursued further. But there are steps the government can take to calm the fears of those who are concerned that the government has plans to isolate or quarantine them, and we are urging the government to take these steps through the amendment of Bill 34.

General measures

The main ways in which the provincial government can reduce these fears are by expressing clearly what its actual plans are with respect to the control of the spread of AIDS, and by reassuring those who may be infected that they will not be subjected to unfair discrimination. This could be done by taking the following steps:

1. by eliminating from Bill 34 excessively broad definitions and powers where there is no present intention to make use of them. If further powers are necessary to deal with specific problems that may arise in future they can be granted by specific legislation; and
2. by acting on the resolution of the Vancouver City Council and other municipal governments calling on the government to amend the B.C. Human Rights Act to prohibit unjustified discrimination against those who have AIDS or a related condition or are infected with the AIDS virus.

The proposal for anti-discrimination legislation deserves further comment. Some people, including the Minister of Health, have expressed the view that our existing human rights laws provide ample protection for those who suffer from AIDS, and that there is no need for what might be thought of as special interest legislation to deal with people suffering from a particular disease. We too would like to think that the present provincial Human Rights Act prohibits discrimination against AIDS sufferers on the grounds of their “disability”, though we must admit that it is not completely clear that people who are infectious but are otherwise healthy have a “disability”. But if British Columbians are to be protected from unjustified discrimination because they have AIDS or a related condition they should not have to face the uncertainty of litigation in order to establish this protection—the government should make it clear that this is the law in our province.

More importantly, we have to recognize that AIDS is not like most other diseases or disabilities. The fact that the government feels it needs to amend the Health Act in order to deal effectively with AIDS demonstrates that it understands this. Children who suffer from cancer, or muscular dystrophy, or impaired hearing but want to continue their education in the normal school system do not have to worry about frightened people sneaking up at night and burning down their home. Tragically, three children in Arcadia, Florida who suffer from AIDS have had to confront this nightmare.

We are, of course, thankful that the fears surrounding AIDS have not yet produced this sort of extreme reaction in Canada. And we are under no illusion that an amendment to the provincialHuman Rights Act will spell the end to all unjustified discrimination against AIDS sufferers. But it will provide some means of redress for victims of unjustified discrimination. And it will reassure all British Columbians that the government of this province has confronted the AIDS problem and has taken a clear stand on how people with AIDS ought to be treated.

Specific measures

Three specific amendments to Bill 34 are desirable in order to clarify for the public the goals of the legislation. These amendments would not impair the authority of medical health officers to take effective measures to control the behaviour of those who are wilfully or carelessly exposing others to AIDS or other serious communicable diseases. They are designed to reassure the public that these powers will be used fairly. We have no doubt that medical health officers intend that the powers will be used fairly, but it is crucial to maintain public confidence that this will always be the case.

1. Scope of medical health officers’ powers:
If the legislation is designed to deal with those who are wilfully or carelessly spreading AIDS (or any other communicable disease) it should say so. This could be done by amending Section 8 of Bill 34 so that Section 7(1)(b) of the Health Act would read:

Where a medical health officer has reasonable grounds to believe that the person is likely to wilfully or carelessly expose others to the disease or the agent, he may order the person to do one or more of the following…

2. Procedural safeguards for persons to whom orders are given:
People who are given orders by a medical health officer should be entitled to some sort of a hearing before the chief medical officer and a right to appeal the order to the chief medical officer for the province. They should not have to disobey the order and await a prosecution for violation of it in order to dispute the facts underlying the order or the appropriateness of the particular order that has been made.

We note, for example, that elaborate hearing rights are set out in statutes governing the professional discipline of people such as doctors, teachers, lawyers and police officers. We believe that the best course would be for the government to consider in detail what sort of procedures are needed to provide for both effective enforcement and fairness to the affected individual. At a minimum the government should make some provision for the review of an order before things reach the stage of court proceedings.

Provision for the review of an order could be made by amending Section 8 of Bill 34 to insert the following section before Section 7(1.1) of the Health Act:

1. Within five days of the issuance of an order under subsection (1), the medical officer shall provide the person to whom the order was made with an opportunity to dispute the order, and after hearing the person to whom the order was made the medical officer shall either confirm, modify or revoke the order.
2. Within seven days of the confirmation, modification or revocation of the order under subsection (a), the person to whom the order was made may appeal the order to the Provincial health officer 3. The gathering of research information: It is our understanding that Section 7 of Bill 34 is designed to provide statutory support for the maintenance of a Cancer Registry by the Cancer Control Agency of British Columbia, and that the success of this registry depends on its ability to identify the individuals whose medical problems are being studied as well as to collect medical information about them.

We do not wish to recommend a change to the legislation that would jeopardize this very worthwhile endeavour. We are, however, very concerned about the impact on AIDS research of a provision that might enable the government to demand that a researcher divulge the identities of participants in an AIDS research study, even though these people agreed to take part in the study because of a guarantee of anonymity made by the researcher. The solution to this problem, it seems to us, is for the government to enact specific legislation that would meet the needs of the Cancer Control Agency of British Columbia and to withdraw the general legislation on the gathering of research information proposed in Section 7 of Bill 34.

Conclusion

In the fight against AIDS, civil liberties and public health measures go hand in hand. Government must have the power to take forceful measures to prevent the spread of AIDS by the irresponsible or incorrigible, but the overall battle against AIDS will not be won unless responsible individuals who are infectious are prepared voluntarily to make a commitment to refrain from behaviour that will spread the virus.

As A.M. Rosenthal eloquently pointed out in a New York Times editorial commenting on the Arcadia tragedy, “to persuade the individual to carry out this ethical commitment society cannot ostracize, punish or hound the sufferers. That is the social compact of compassion and self interest between the sufferer and society that must be created to bridge the years perhaps decades, before a cure or vaccine is found.”(“Our House in Arcadia,” New York Times, September 1, 1987, p. 23.