The mandatory reporting of communicable diseases dates at least as far back as the Book of Leviticus, which described notification for a disease it labelled as leprosy.1 Current public health legislation, as well as recent amendments to health professions legislation, suggest that health practitioners in Alberta may have a duty to report that a patient is infected with Human Immunodeficiency Virus (“HIV”) or has Acquired Immunodeficiency Syndrome (“AIDS”).
Duty to Report Pursuant to the Public Health Act
Section 22(1) of the Public Health Act (“PHA”)2 requires a “health practitioner” (any person providing “health care” or “treatment” to any person) to notify the appropriate medical officer of health if the practitioner is aware that a person under their custody, care or control has a communicable disease specified in the Regulations. The Communicable Diseases Regulation3 identifies HIV and AIDS as communicable diseases requiring notification; AIDS was added to the list of communicable diseases in 1983 and HIV was added in 1998.
A report must be made if the health practitioner “has reason to believe” that his or her patient has HIV or AIDS. This level of belief, does not appear to require that the health practitioner have been involved in testing for HIV or AIDS, or that the health practitioner be directly involved in the patient’s HIV or AIDS treatment. The obligation to report appears to exist even if there is no apparent threat of harm to the public or to particular persons from that patient having HIV or AIDS.
The mandatory reporting requirement in public health legislation is analogous to mandatory reporting requirements in other types of legislation. In 2006, the Supreme Court of Canada commented on mandatory reporting requirements in child welfare legislation in the case of Young v. Bella4. The Supreme Court of Canada confirmed the following general principles in relation to mandatory reporting obligations:
- The person making a report is not obliged to conduct their own investigation to determine if the reported information is accurate.
- The person reporting is obliged to have reasonable cause to make a report, i.e., to possess information that the authorities reasonably ought to be asked to look into, even if it turns out to be misinformation.
- In order for there to be reasonable cause to make a report, there must be some information upon which a reasonable person must believe that a report ought to be made.
Where a report is made in good faith and is based on some information, section 66.1 of the PHA provides that there will be no liability for making the report.
Section 22 of the PHA requires that the report be made to the appropriate medical officer of health. Given recent changes in the health system in Alberta, it is not clear if this report will be collected by medical officers of health located in health regions as was previously the case. However, a report can likely be made by contacting the office of the Chief Medical Officer of Health. Disclosure must be made within 48 hours from the time that the health practitioner has reason to believe that the patient is infected with HIV or has AIDS.
Pursuant to the Public Health Act Forms Regulation5, the report must contain the following information:
(a) the name, gender, age, date of birth, address, telephone number and personal health number of the infected person;
(b) any other demographic information relating to the infected person as specified by the appropriate medical officer of health;
(c) the name of the disease;
(d) all clinical and epidemiologic details pertinent to diagnosis or follow-up; and
(e) the name of the person reporting.
Despite this exhaustive list, it is not likely that a health practitioner will be faulted for failing to provide the information listed above if such information was not collected from the patient. The duty to report will likely be met where sufficient information is provided to the public health authorities to permit the cross-referencing about already-reported cases, or to permit follow-up regarding newly-reported cases.
A failure to comply with the PHA can result in a $2,000 fine for a first offence, and a $5,000 fine for subsequent offence. In fact, it does not appear as though any health practitioner in Alberta has ever been prosecuted for failing to meet the mandatory reporting requirements contained in public health legislation.6 From anecdotal reports, it appears that few health practitioners are making reports regarding HIV or AIDS status. Although there is no explicit exception in the PHA for cases in which a report has already been made, it may be that knowledge that a report has already been made to the public health authorities will relieve a health practitioner from responsibility for further reporting. It may be that reform of the legislation is required given that it is not clear if it will be strictly construed.
Notwithstanding the requirement to make a report to the appropriate medical officer of health, information regarding communicable diseases should still be considered confidential and should only be disclosed to the extent necessary to comply with the requirements of the legislation. Good faith reporting pursuant to s. 22 of the PHA is unlikely to contravene Alberta privacy legislation or applicable professional standards of practice. Nevertheless, a health practitioner making such a report should make a note on the patient’s file that disclosure was made and referencing the appropriate section of the legislation.
Duty to Report Pursuant to the Health Professions Act
An additional duty to report HIV or AIDS status may also be found in a section of the newly-amended Health Professions Act (“HPA”)7. Section 1.1(1) of the HPA, which came into force in September 2008, requires that a regulated member immediately disclose to the appropriate medical officer of health the “existence of a nuisance or a threat that may be injurious to public health”. Nuisance is broadly defined as a “condition that is or that might become injurious or dangerous to the public health, or that might hinder in any manner the prevention or suppression of disease”.
These amendments to the HPA came about in response to recent well-publicized public health incidents such as the failure of sterilization procedures in Alberta hospitals. It could also be that the disclosure requirement in s. 1.1 of the HPA includes notification in the event that a particular patient’s HIV or AIDS status indicates a risk of harm to the public. Interestingly, while the HPA provides protection from liability to certain persons such as employees of a college, it does not contain a similar explicit protection for regulated members making a disclosure pursuant to s. 1.1, as is provided in s. 66.1 of the HPA.
It is possible that a duty to report pursuant to s. 1.1 of the HPA would extend to an instance in which a health professional knows or has reason to suspect that a patient with HIV or AIDS is engaging in risky behaviour. It may be that this type of disclosure is akin to a health practitioner’s common law duty to warn third parties of harm. From the limited case law on the duty of a professional to warn third parties of harm, it can be seen that professionals may have a discretion or even a duty to warn of imminent risk of serious harm to identifiable third parties. Such a discretion may also be found in professional and ethical guidelines. Where there is a duty or discretion to warn third parties of harm, it may arguably be sufficient to make the necessary report to the public health authorities as these authorities would then undertake the necessary steps to provide partner and contact notification, as well as other necessary protection measures where necessary.
Despite the existence of statutorily-mandated public health reporting, case law regarding the duty to warn, and whether such a duty would arise on a particular set of facts, is in its infancy in Canada. Any professional who is concerned about risk of harm to the public or to certain individuals should consider seeking advice from their professional regulatory body and/or seeking legal advice. As well, the HIV/AIDS Legal Network recommends that health practitioners who regularly encounter these issues should consider developing specific health information policies about counselling patients with HIV and AIDS so that patients understand the possible limitations to confidentiality at the outset of the relationship.8
1 L.E. Rozovsky & F.A. Rozovsky, AIDS and Canadian Law (Toronto: Butterworths, 1992) at 18-19.
2 R.S.A. 2000, c. P-37.
3 A.R. 238/85.
4 2006 SCC 3.
5 A.R. 197/2004.
6 However the authors of one article note that in one particular case in Ontario, it was reported in the media that public health authorities were considering prosecuting a physician who was refusing to provide information regarding one of his HIV positive patients: J. Hamblin & M.A. Somerville, “Surveillance and Reporting of HIV Infection and AIDS in Canada: Ethics and Law” (1991), 41 U. Toronto L.J. 224 at 226.
7 R.S.A. 2000, c. H-7, as amended by S.A. 2007, c. 32.
8 “HIV/AIDS and the Privacy of Health Information” (2004) at p. 13, online: HIV/AIDS Legal Network <http://www.aidslaw.ca/> (date accessed: November 20, 2008).