Saskatchewan MDs oppose new mandatory testing law

The Saskatchewan Medical Association is opposing a new provincial law that could force non-consensual blood tests for HIV/AIDS and other infectious diseases.

The Mandatory Testing and Exposure (Bodily Substances) Act, which took effect Oct. 17, allows a judge to order a test at the request of a police officer, paramedic, Good Samaritan, victim, or anyone else who believes they've been exposed to body fluids while providing emergency medical care or during a crime. The Act would only cover cases where someone refuses to get tested voluntarily.

The law, modelled on legislation drafted by the Uniform Law Conference of Canada, is the first in Canada to give a judge the authority to order a test, says Justice Minister Frank Quennell.

As part of the legislation, physicians are required to provide the court with an assessment of the level of risk the exposure created.

“This legislation is seriously flawed in a couple of respects,” says Dr. Anne Doig, chair of the SMA's legislative committee. “We're concerned that our names, our reputations and our professional judgment are being used to lend credibility to a process that in itself isn't credible.”

It is almost impossible to assess the risk exposure poses without key information about the person who may pose the risk, says Doig.

Firefighters, police officers and paramedics requested the law, says Quennell, who described the Saskatchewan medical community as “split.”

“Give the split within the medical community, we prefer to [give the benefit of the] doubt to the victims of crime and emergency service providers that request this protection,” Quennell told CMAJ.

Dr. Keith Ogle, who teaches medical ethics at the University of Saskatchewan College of Medicine, says he would refuse to complete the assessment form.

“I'm not sure a lot of doctors would want to sign that form recognizing that, as a result of that act, somebody will be tested against their will. It tends to place a physician in a position in which they are almost an accomplice to a coercive act.”

Ogle is also concerned the tests will give the applicant a false sense of security, since diseases such as HIV have a period of incubation before showing positive.

Arthur Schafer, a medical ethicist and the director of the University of Manitoba's Centre for Professional and Applied Ethics, says the law invades people's civil liberties.

“Canadian courts have ruled that no one can ‘intermeddle’ with the body of an adult against their wishes. You need a very good reason to violate that principle,” he says.

If a physician refuses to complete the form for the court, an applicant could simply go to another physician, says Quennell.

“I think the circumstances in which a doctor's medical report would result in the court making this order would be relatively rare,” the minister says. “I also think the existence of this Act will make voluntary testing more likely.”