An HIV-positive Canadian man has been charged with neglecting treatment for the disease.
The unnamed 34-year-old, who lives in Vancouver, is not facing criminal prosecution but was charged under a rarely enforced section of the Public Health Act.
“Criminal prosecution is not appropriate for HIV,” Dr. Reka Gustafson, medical director of communicable disease control in Vancouver, told the CBC. “It’s not appropriate for communicable diseases — period. It’s not appropriate and it’s not effective.”
According to guidelines established by the British Columbia Centre for Disease Control, doctors can issue public health orders like this if they reasonably suspect someone poses a risk to the community. The man was supposed to go for daily appointments once his viral count exceeded a certain level. He failed to show, and also failed to pick up his medications, meaning he was infectious.
Penalties for those convicted include fines of up to $25,000 and up to six months in prison. At a hearing in July, the man was released on $500 bail (about $385 U.S.), provided he complied with Gustafson’s orders and met other unspecified conditions. It is not know if the HIV-positive Canadian will still face fines or jail time.
This is the first time Gustafson’s office has turned to the courts to get someone to comply with medical orders.
“I cannot impress upon you to what extent this is an unusual step for us to take. This is not the norm” said Gustafson. “You don’t take a step like this lightly or without consultation with colleagues, with individuals who would have concerns about taking this step,” she said. “The order wouldn’t be very meaningful if you weren’t able to enforce that order with potential support of the courts.”
The risk in filing such an order, she added, “is that the public mistakenly gets the impression that something like this can happen to them either easily or [without] due process or fairness or ethics.”
Gustafson consulted other medical experts, legal counsel and ethicists before filing the order.
“The last thing we want is for people to get the impression that this happens often or that it can happen easily and that it makes them feel unsafe to be diagnosed and treated,” she said. “What’s at stake is the potential undermining of the measures that we know are very, very effective at a population level based on a very, very uncommon occurrence.”
There’s no record of anyone in the U.S. being charged with failure to treat their HIV. But 24 states have laws making it a crime to not tell a sexual partner you are HIV-positive. In some instances, people who are undetectable and did not infect their partners have still been charged.
Critics say these HIV criminalization laws are outdated, discriminatory and ineffective.