THE LAW * QUESTIONS JURIDIQUES
AISadtelw:D
orshv
AIDS and the law: Do courtShave a place in
the bedrooms of the nation?
Cameron Johnston
S ince its discovery almost a decade ago, HIV has moved from the laboratory to the hospital, and finally to the courtroom. In that venue the virus won't meet its biologic match, but it might just gain legal status, either as a deadly weapon or as a biologic element that everyone should take precautions against. Indeed, the decisions made in court will be almost as interesting as the findings made in labs. A controversial HIV-related case that is now unfolding in a courtroom in London, Ont., is posing some perplexing challenges for both the legal and medical communities. Although such challenges are unlikely to contribute to knowledge about the disease itself, doctors and legal experts agree that this case, and others like it, will raise several questions about preventing the spread of HIV. Are there deficiencies in current public health legislation? Who is responsible for ensuring that safe sex really is safe? The case may also force a Canadian Charter of Rights and Freedoms ruling on some public health legislation that has been described as "draconian." The London case involves a 34-year-old man, Charles SseCameron Johnston is a freelance writer living in London, Ont. -
For prescribing information see page 2083
subject to a 2-year prison term. Ssenyonga has, in fact, been charged with breaking the injunction, a case that is now pending.
to date, the accused have been convicted only of "being a public nuisance," and not of the more serious assault charges. When a 39-year-old HIV-positive Ontario man was convicted of sexually abusing his four nieces, the sentence was no more severe than it would have been with a "normal" charge. But the Ssenyonga case has already attracted much attention from both doctors and lawyers. Four entire days of the preliminary hearing, which dragged on for more than a month, were taken up with legal arguments about whether the complainants should be allowed to testify in a closed courtroom and by using only their initials. (The court ruled they must testify in open court using their full names). A legal precedent could also be established because DNA "fingerprinting" is being used to prove conclusively that the complainants, one a former prostitute, were in fact infected by Ssenyonga. This will mark just the second time that DNA fingerprinting has been used in a Canadian criminal
This is not the first AIDStransmission case to find its way into a Canadian court, but it is the first to carry such severe potential penalties. Courts here have generally been lenient, or at least liberal, in cases thus far. In three cases
case. "The fact that the Crown Attorney's Office has sent three lawyers to prosecute this case tells me they really want to win in a big way," said Fletcher Dawson, the London lawyer who is represent-
nyonga, who is HIV positive. He has been charged with 12 criminal counts, including aggravated sexual assault, criminal negligence causing bodily harm, spreading a noxious substance and being a public nuisance. The charges were laid last spring after three women, all former sex partners of Ssenyonga, tested HIV positive and said they contracted the virus from him. If convicted, he could face life imprisonment. London's medical officer of health (MOH) has ordered him, under Section 22 (4) (h) of Ontario's Health Protection and Promotion Act (HPPA), to abstain from any sexual activities involving penetration. The ban applies even if a condom is used, and to sexual acts involving his fiancee. This order has been reinforced by a back-up writ from the Ontario Court's General Division: if he breaks the order he may be guilty of contempt of court and
CAN MED ASSOC J 1992; 146 (1 1)
2065
ing Ssenyonga. "We're breaking a lot of new ground here." As Dawson pointed out, nobody has ever been successfully charged with sexual assault in an AIDS-related case because in all instances the alleged victims consented to have sex. The Crown may argue that there was no consent because the plaintiffs did not know Ssenyonga was HIV positive, but Dawson does not think that will work. "If a woman has sex with a man she met in a bar who said he was a doctor, then in the morning discovers that he is a journalist, she cannot complain that she has been sexually assaulted. The consent has to relate to the act itself and nothing else." Dawson said the Crown must show that injuries occurred to prove criminal negligence. This
differs from medical negligence when a physician is charged with malpractice or negligence, it is not necessary to prove that damages occurred, only that the doctor was
negligent. Dawson said that if he wins the case, it could send the message that safe sex is a two-way street, and not the sole responsibility of either party. "Do we place the responsibility for ensuring that safe sex really is safe on the person who allegedly is spreading the disease, or do we place a shared responsibility on both parties?" he asked. He maintains that the civil charge under the HPPA likely offends the charter. "Whatever you might say about the facts of the case and whether or not he did spread the virus, the order made
by the MOH
was draconian. It broad and went far beyond what was required to address the public health concerns." Ontario's HPPA and all Canadian public health acts were designed originally to deal with highly contagious diseases - measles, typhoid, whooping cough and the like. Sexually transmitted diseases were added to the legislation comparatively recently, first as a means of reaching children who might contract the disease from an infected mother and, later, to trace women who might have become infected by soldiers returning to Canada after World War II. Unfortunately, nothing contained in the present legislation takes into account HIV's long incubation period, or the fact that the virus first began spreading in ho-
was too
London Free Press, Sue Bradnam
Ssenyonga (riht)wihlw. attt. e 'hf ae
Ssenyonga (right) with lawyer: case has attracted huge amount of attention 2066
CAN MED ASSOC J 1992; 146 ( 1)
19
LE I er JUIN 1992
mosexual communities where anonymous sexual activity made contact tracing difficult, if not impossible. "Present laws are deficient when it comes to addressing the unique and specific nature of HIV," said Dr. Iain Mackie, director of the HIV clinic at St. Joseph's Health Centre in London. Mackie is a Crown witness in the Ssenyonga case. The biggest problem, he said, is that the act allows an MOH to order the carrier of a virulent disease, such as tuberculosis, gonorrhea or bubonic plague, incarcerated, and to undergo treatment. However, HIV is considered communicable, not virulent; this means that the MOH's only recourse is to formally order a suspected carrier to refrain from doing anything that might spread the virus. The MOH may have the order confirmed by the General Division of the Ontario Courts, as was done in the Ssenyonga case. This guarantees that any breach of the order results in contempt-ofcourt charges. There, said Mackie, is the rub. "How do you incarcerate somebody or order them to seek treatment for a disease for which there is no known cure? Syphilis and gonorrhea are treatable but AIDS is not, so incarcerating a patient with AIDS would not serve the public interest." Even the MOH order represents a catch-22 situation, he argued, because the only way to determine if somebody has defied the order is to wait for more people to come forward who have been infected by the same carrier. Richard Shekter, former head of the health law section for the Canadian Bar Association (Ontario), said the only reason HIV receives special attention is that it is linked to two groups that society generally finds "unacceptable": homosexuals and intravenous drug abusers. "Hepatitis B has been around a lot longer than 2068
CAN MED ASSOC J 1992; 146 ( 1)
AIDS, it is a great deal more contagious and it can be fatal, too, but for years nobody has said anything about the spread of hep B," he said. Shekter, who heads the health law department of a Toronto law firm, said the HPPA fails administratively since the province's 42 medical officers are all free to make their own decisions. "You might have one area where the MOH works very aggressively against AIDS and another where he keeps a hands-off approach," Shekter argued. "There might be another area where he doesn't do anything at all because he knows nothing about the disease." The Canadian Bar Association pointed this out to the Ontario Ministry of Health in 1986, he said, but the province's chief MOH still has not drafted a uniform directive to cover all health units. Multiply this lack of consistency by the number of MOHs in each province and territory and the potential for different approaches becomes obvious. By last Dec. 1, Dr. Ian Gemmill, associate MOH for the Ottawa-Carleton Health Unit, had issued 18 HIV-related orders for people to come to the unit for counselling, to reveal the names of sexual partners, and in "one or two cases" to abstain from penetrative sex. There are 805 cases of HIV infection in the region. Gemmill added that these orders have had "positive" results in half the cases. Some of the patients do disobey them, or disappear after receiving one, but half of them started to come to the health unit for regular counselling and have made genuine efforts to change their lifestyles, he said. "If we have reason to believe that somebody may be putting people at risk, then we have a duty to call them in to remind them of their responsibility to others. We can't impose orders retroactively and we can't say the per-
son should have known better just because AIDS is getting so much public attention these days." However, Dr. John Blatherwick, Vancouver's MOH, disagrees with most MOH orders. "It's ludicrous for public health officers to think they could enforce a sex ban, and it's ludicrous for us to think we could prove that somebody was breaking a ban," he said. "This is such a hidden disease that unless we get the cooperation of the people who think they might be at risk, all of our work goes out the window." Orders to practise safe sex are the weapon of choice in Vancouver, but they're rarely used Blatherwick issued just one order last year. (Gemmill noted that safe-sex orders in BC may appear to carry more weight than those in Ontario because BC orders are delivered by the police; in Ontario they are delivered by a public health official.) "There is only one rule when it comes to AIDS transmission," Blatherwick said bluntly. "Both people are responsible for safe sex. We are talking about sex between consenting adults here, and if they can't figure out that safe sex means wearing a condom every time they go to bed, there is nothing I or anyone else can do to help them. The courts certainly have no place in the bedrooms of the nation." Most attempts to legislate public health will fail if governments refuse to address issues realistically, he added. If one sports star would publicly state that there is nothing unmanly about using a condom, said Blatherwick, it would accomplish far more than legislation ever could. "This isn't a virulent disease. This is totally preventable compared with other diseases. Judges and the courts should be saying that this is not the place for a government to intervene." But public health legislation will not be improved simply by
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LE I er JUIN 1 992
adding clauses about HIV and AIDS to existing laws, said Dr. Norbert Gilmore, professor of medicine at McGill University's Centre for Ethics, Medicine and Law. "Public health laws were drawn up to keep people out of circulation when their disease was at its most infectious stage, but for a disease like AIDS the infectious period is probably lifelong. Keeping the person out of circulation doesn't apply." And, he said, it would not be appropriate to draft "diseasespecific laws" aimed at AIDS or similar diseases. "We still have so much to learn about the disease. The last thing we need is to enact some kind of law that will become obsolete, or worse, will be stuck on the books once we start to learn more about the disease," he said. "Public health laws warn people not to do whatever they were doing to spread the disease. If that doesn't work, then you need to fall back on the criminal law." At any rate, using the courts to prosecute a case involving AIDS transmission is difficult. As in all criminal proceedings, the three legal tests of knowledge, intent and motive must be present for an accused to be convicted, said Shekter. As long as they are in place, he sees no reason why AIDS transmission should be treated differently from any other criminal offense. However, he admitted that proving knowledge, intent and motive may be so difflcult that governments might find it easier to draft legislation dealing with the problem. There is a precedent for disease-specific legislation, he added. In 1922 the Criminal Code was amended to make it a crime to spread a sexually transmitted disease such as syphilis. The law was repealed in 1985 because it had not been used for so long. Ironically, the AIDS crisis was by then in its infancy. Mackie, usually a strong supJUNE 1, 1992
porter of the interests of people with HIV infection or AIDS, feels that criminal procedures might be needed as a last resort for some people. However, the real issue is education, he said, and that should be the responsibility of the MOH. "If the MOH has failed to make an HIV-infected person aware of the nature of his actions, then you cannot blame the patient. If a person does not understand the nature of his act, then again, he may be blameless and it will be the system that has failed.
There is a precedent for disease-specific legislation. In 1922 the Criminal Code was amended to make it a crime to spread a sexually transmitted disease such as syphilis.
"But it's hard to believe that in 1992 there are still people who don't know what safe sex is all about, or how their unsafe sex can lead to the transmission of HIV. The courts should deal only with those people who knowingly and recklessly try to spread HIV . . . not the ones who haven't been educated." Gemmill said the fight against HIV and AIDS needs more than education. He favours creation of a consultative body comprising family doctors, psychiatrists, social workers and other health care professionals that would advise MOHs and be required to discuss every abstention order or safe-sex or-
der on a case-by-case basis. "Public health laws were not written to be punitive. They were written to help the public and the person who has the disease. There is a small number of cases where the criminal system needs to be used, but so far there are just three or four cases in Canada against a background of several thousand HIV cases." In some respects, Canadian lawmakers are lagging behind their American cousins. Because of the growing number of cases of pediatric AIDS in the US, and because 30% to 50% of these patients contract the disease in utero, there is a growing demand for mandatory HIV testing for all pregnant women. The states of Ohio and Delaware have already enacted such legislation, despite the obvious question of what to do when a pregnant woman tests positive. AIDS has already become a major medicolegal issue in the US. In the Journal ofLegal Medicine, Dr. Leon Prockop of the University of South Florida medical school argued that forced incarceration may soon become necessary for patients suffering from AIDS-related dementia. "Is there a point in the progress of cognitive impairment where the high-risk behaviour of the patient is such that the patient and society must be protected?" he asked. Other legal issues are sure to crop up here. Should there be mandatory HIV testing for health care workers in Canada? What happens when a health care worker tests positive?
Gemmill said that most Canadians support such tests, but health care workers and AIDS activists are strongly opposed. Today insurance companies routinely demand such tests, and he predicted that this practice will become more common across Canada unless a rational policy is put in place. The federal and provincial CAN MED ASSOC J 1992; 146 (I 1)
2069
human rights commissions are also becoming involved in the HIV issue. In one case, a Toronto hospital was ordered to reinstate an employee who was fired when it was learned that he was HIV positive. In another case, a human rights commission ruled that a nurse who quit her job rather than treat an HIV carrier was not justified in her actions. Most recently, a Newfoundland health care worker was dismissed after testing HIV positive. Ironically, the province's Daycare and Homemaking Services Act says any person carrying HIV, or who has AIDS or ARC (AIDSrelated complex), cannot work in the health care field. The employee, who is taking her case to the Newfoundland Human Rights Commission, claims that her dismissal means she is being discriminated against because she is ill. No matter what the outcome of the Ssenyonga case or others
that follow, it is inevitable that health ministers and medical officers will have to take a closer look at the present legislation. Uniform standards must be developed to ensure that HIV carriers are treated equally across the country. Isolation orders and poorly considered calls for incarceration of HIV carriers will only serve to drive these patients underground. More limited MOH orders, if they're as effective as Ian Gemmill claims, could serve a useful purpose in some cases. Rules requiring mandatory reporting of positive HIV tests, which are largely ignored, will probably have to be repealed and MOHs will likely have to develop closer working relationships with the doctors who handle HIV patients. Contact tracing may increasingly be left up to those in clinical practice, with MOHs being called in for only the most difficult cases.
Ultimately, education will prove the best way to reach HIV carriers, and the soft touch is likely to be more effective than the big stick. Even if the court decides in the Ssenyonga case that HIV is a deadly weapon - the actual trial could still be months away - society is going to have to learn to live with the disease as more Canadians, both homosexual and heterosexual, test positive for antibodies to HIV. "These people are not by any standards criminally inclined," said Dawson, Ssenyonga's lawyer. "They have normal human emotions and sexual needs. We have to be very careful that in trying to control a small group of people that we don't end up trampling on the rights of others." There is a fine line between public health and public persecution, Dawson argued. The courts are going to have to decide where that line is drawn.u
s Ie _A & I * INDICATIONS AND CLINICAL USES: PONSTAN (mefenamic acid) is indicated for the relief of pain of moderate severity in conditions such as muscular aches and pains, dysmenorrhea, headaches and dental pain. CONTRAINDICATIONS: PONSTAN (mefenamic acid) should not be used in patients who have previously exhibited hypersentivity to it. Mefenamic acid is contraindicated in patients with active ulceration or chronic inflammation of the upper or lower gastrointestinal tract. Ponstan should not be administered to patients who have previously experienced diarrhea as a result of taking the drug. (Mefenamic Acid) Capsules Mefenamic acid should be avoided in patients with pre-existing renal disease. WARNINGS: In patients with a history of ulceration or chronic THERAPEUTIC CLASSIFICATION inflammation of the upper or lower gastrointestinal tract, PONSTAN (mefenamic acid) should be given under close supervision and only after consulting Analgesic the Adverse Reactions Section. Certain patients who develop diarrhea may be unable to tolerate the drug because of recurrence of the symptoms on In should be promptly discontinued. PRECAUTIONS: If rash occurs, the drug should be promptly discontinued. A false-positive reaction for urinary bile, subsequent exposure. these subjects, the drug using the diazo tablet test, may result after mefenamic acid administration. If biliuria is suspected, other diagnostic procedures, such as the Harrison spot test, should be performed. In chronic animal toxicity studies PONSTAN (mefenamic acid) at 7 to 28 times the recommended human dose, caused minor microscopic renal papillary necrosis in rats, edema and blunting of the renal papilla in dogs, and renal papillary edema in monkeys. In normal human volunteers, BUN levels were slightly elevated following the prolonged administration of mefenamic acid at greater than therapeutic doses. Since mefenamic acid is eliminated primarily through the kidneys, it should not be administered to patients with significantly impaired renal function. As with other nonsteroidal anti-inflammatory drugs, borderline elevations of liver function tests may occur. Meaningful (3 times the upper limit of normal) elevations of SGPT or SGOT occurred in controlled clinical trials in less than 1% of patients. Severe hepatic reactions including jaundice and cases of fatal hepatitis, have been reported with other nonsteroidal anti-inflammatory drugs. Although such reactions are rare, if abnormal liver tests persist or worsen, if clinical signs and symptoms consistent with liver disease develop, or if systemic manifestations occur (eg. eosinophilia, rash, etc.), mefenamic acid should be discontinued. Mefenamic acid may prolong acetylsalicylic acid induced gastrointestinal bleeding. However, mefenamic acid itself appears to be less liable than acetylsalicylic acid to cause gastrointestinal bleeding. Mefenamic acid 500 mg and acetylsalicylic acid 650 mg four times a day both caused significant further lowering of the prothrombin concentration (mefenamic acid 3.48% and acetylsalicylic acid 2.75u/) in patients in whom the concentration had been initially lowered by anticoagulant therapy. Caution, therefore, should be exercised in administering mefenamic acid to patients on anticoagulant therapy and should not be given when prothrombin concentrations is in the range of 10 to 20% normal. Careful monitoring of blood coagulation factors is recommended. It is recommended that estimations of hemoglobin and blood counts be carried out at regular intervals. Mefenamic acid should be used with caution in known asthmatics. Use in pregnancy and in women of childbearing potential: The safety of mefenamic acid on reproductive capacity and pregnancy has not been established. Thus, mefenamic acid should be used in women of childbearing potential and during pregnancy only when the potential benefits are expected to outweigh the potential risks. Nursing mothers: Trace amounts of mefenamic acid may be present in breast milk and transmitted to the nursing infant: thus mefenamic acid should not be taken by the nursing mother because of the effects of this class of drugs on the infant cardiovascular system. Use in children: Safety and effectiveness in children below the age of 14 have not been established. ADVERSE REACTIONS: The most frequently reported adverse reactions associated with the use of PONSTAN (mefenamic acid) involve the gastrointestinal tract. The following disturbances were reported in decreasing order of frequency: diarrhea (approximately 5% of patients), nausea with or without vomiting, other gastrointestinal symptoms and abdominal pain. The occurrence of the diarrhea is usually dose related. Other gastrointestinal reactions less frequently reported were anorexia, pyrosis, flatulence, and constipation. Gastrointestinal ulceration with or without hemorrhage has been reported. Hematopoietic. Cases of autoimmune hemolytic anemia have been associated with the continuous administration of Ponstan for 12 months or longer. Decreases in hematocrit have been noted in 2-5% of patients and primarily in those who have received prolonged therapy. Leukopenia, eosinophilia, thrombocytopenic purpura, agranulocytosis, pancytopenia and bone marrow hypoplasia have also been reported on occasion. Nervous System: Dizziness, drowsiness, blurred vision, insomnia, nervousness and headache have occurred. Integumentary. Urticaria, rash and facial edema have been reported. Renal. As with other nonsteriodal anti-inflammatory agents, renal failure, including papillary necrosis, have been reported. In elderly patients renal failure has occurred after taking mefenamic acid for 2-6 weeks. The renal damage may not be completely reversible. Hematuria and dysuria have also been reported with mefenamic acid. Other. Eye irritation, ear pain, perspiration, mild hepatic toxicity and increased need for insulin in a diabetic have been reported. There have been rare reports of palpitation dyspnea and reversible loss of color vision. DRUG INTERACTION: Protein-bound Drugs. Because PONSTAN (mefenamic acid) is highly protein bound, it could be displaced from binding sites by, or it could displace from binding sites, other protein-bound drugs such as oral anticoagulants, hydantoins, salicylates, sulfonamide and sulfonylureas. Patients receiving mefenamic acid with any of these drugs should be observed for adverse effects. Anticoagulants and Thrombolytic Agents. Mefenamic acid enhances the hypoprothrombinemic effect of warfarin, therefore, concurrent administration of the drugs should be avoided whenever possible. If the drugs must be used concurrently, prothrombin time should be determined frequently and anticoagulant dosage adjusted accordingly; the patient should be observed for adverse effects. In addition, the ulcerogenic potential of mefenamic acid and the effect of the drug on platelet function may further contribute to the hazard of concomitant therapy with any anticoagulant or thrombolytic agent (eg. streptokinase). DOSAGE AND ADMINISTRATION: Administration is by the oral route, preferably with food. The recommended regimen in acute pain for adults and children over 14 years of age is 500 mg as an initial dose followed by 250 mg every 6 hours as needed, usually not to exceed one week. For the treatment of primary dysmenorrhea, the recommended dosage is 500 mg as an initial dose followed by 250 mg every 6 hours, starting with the onset of bleeding and associated symptoms. Clinical studies indicate that effective treatment can be initiated with the start of menses and should not be necessary for more than 2 to 3 days. AVAILABILITY: PONSTAN (mefenamic acid) is available in No. 1 Coni-snap capsule with an ivory opaque body and an aqua blue opaque cao. Each available in bottles of 100 and 500. REFERENCES: 1 Gabka J Ponstan dental study Berlin July 9 1974 2 Budoff PW Zomepirac sodium in the treatment of primary dysmenorrhea syndrome. N Eng J Med 307:714-719. 1982 3 Powell R, Smith RP Treatment of primary dysmenorrhea with an antiprostaglandin agent. (In) Symposium on The Role of Prostaglandins in Menstrual ^AI r D o M 2N3 Dsord -es Academy of Medicine Toronto, Ontario. June 20, 1980. pp 29-37 4 Rees MCP. Bernard At et al. Effect of fenamates on progstaglandin E receptor bifidig The Lancet 2541-542 1988 5 Smith RP, Powell JR The objective evaluation of dysmenorrhea therapy Am J Obstet Gynecol 137(3)1314-319. 1980 .Reg T M Warner-LambertCompany P on Product 1991 available IMS. onstar CDTI Parke-Davis Div., Wamer-Lambert itorriograph September request product Moriograph 6 iPAAB pp P
Canada Inc.
2070
CAN MED ASSOC J 1992; 146 (1 1)
auti. user
I(
LE I
er JUIN
1992
AISadtelw:D
orshv
AIDS and the law: Do courtShave a place in
the bedrooms of the nation?
Cameron Johnston
S ince its discovery almost a decade ago, HIV has moved from the laboratory to the hospital, and finally to the courtroom. In that venue the virus won't meet its biologic match, but it might just gain legal status, either as a deadly weapon or as a biologic element that everyone should take precautions against. Indeed, the decisions made in court will be almost as interesting as the findings made in labs. A controversial HIV-related case that is now unfolding in a courtroom in London, Ont., is posing some perplexing challenges for both the legal and medical communities. Although such challenges are unlikely to contribute to knowledge about the disease itself, doctors and legal experts agree that this case, and others like it, will raise several questions about preventing the spread of HIV. Are there deficiencies in current public health legislation? Who is responsible for ensuring that safe sex really is safe? The case may also force a Canadian Charter of Rights and Freedoms ruling on some public health legislation that has been described as "draconian." The London case involves a 34-year-old man, Charles SseCameron Johnston is a freelance writer living in London, Ont. -
For prescribing information see page 2083
subject to a 2-year prison term. Ssenyonga has, in fact, been charged with breaking the injunction, a case that is now pending.
to date, the accused have been convicted only of "being a public nuisance," and not of the more serious assault charges. When a 39-year-old HIV-positive Ontario man was convicted of sexually abusing his four nieces, the sentence was no more severe than it would have been with a "normal" charge. But the Ssenyonga case has already attracted much attention from both doctors and lawyers. Four entire days of the preliminary hearing, which dragged on for more than a month, were taken up with legal arguments about whether the complainants should be allowed to testify in a closed courtroom and by using only their initials. (The court ruled they must testify in open court using their full names). A legal precedent could also be established because DNA "fingerprinting" is being used to prove conclusively that the complainants, one a former prostitute, were in fact infected by Ssenyonga. This will mark just the second time that DNA fingerprinting has been used in a Canadian criminal
This is not the first AIDStransmission case to find its way into a Canadian court, but it is the first to carry such severe potential penalties. Courts here have generally been lenient, or at least liberal, in cases thus far. In three cases
case. "The fact that the Crown Attorney's Office has sent three lawyers to prosecute this case tells me they really want to win in a big way," said Fletcher Dawson, the London lawyer who is represent-
nyonga, who is HIV positive. He has been charged with 12 criminal counts, including aggravated sexual assault, criminal negligence causing bodily harm, spreading a noxious substance and being a public nuisance. The charges were laid last spring after three women, all former sex partners of Ssenyonga, tested HIV positive and said they contracted the virus from him. If convicted, he could face life imprisonment. London's medical officer of health (MOH) has ordered him, under Section 22 (4) (h) of Ontario's Health Protection and Promotion Act (HPPA), to abstain from any sexual activities involving penetration. The ban applies even if a condom is used, and to sexual acts involving his fiancee. This order has been reinforced by a back-up writ from the Ontario Court's General Division: if he breaks the order he may be guilty of contempt of court and
CAN MED ASSOC J 1992; 146 (1 1)
2065
ing Ssenyonga. "We're breaking a lot of new ground here." As Dawson pointed out, nobody has ever been successfully charged with sexual assault in an AIDS-related case because in all instances the alleged victims consented to have sex. The Crown may argue that there was no consent because the plaintiffs did not know Ssenyonga was HIV positive, but Dawson does not think that will work. "If a woman has sex with a man she met in a bar who said he was a doctor, then in the morning discovers that he is a journalist, she cannot complain that she has been sexually assaulted. The consent has to relate to the act itself and nothing else." Dawson said the Crown must show that injuries occurred to prove criminal negligence. This
differs from medical negligence when a physician is charged with malpractice or negligence, it is not necessary to prove that damages occurred, only that the doctor was
negligent. Dawson said that if he wins the case, it could send the message that safe sex is a two-way street, and not the sole responsibility of either party. "Do we place the responsibility for ensuring that safe sex really is safe on the person who allegedly is spreading the disease, or do we place a shared responsibility on both parties?" he asked. He maintains that the civil charge under the HPPA likely offends the charter. "Whatever you might say about the facts of the case and whether or not he did spread the virus, the order made
by the MOH
was draconian. It broad and went far beyond what was required to address the public health concerns." Ontario's HPPA and all Canadian public health acts were designed originally to deal with highly contagious diseases - measles, typhoid, whooping cough and the like. Sexually transmitted diseases were added to the legislation comparatively recently, first as a means of reaching children who might contract the disease from an infected mother and, later, to trace women who might have become infected by soldiers returning to Canada after World War II. Unfortunately, nothing contained in the present legislation takes into account HIV's long incubation period, or the fact that the virus first began spreading in ho-
was too
London Free Press, Sue Bradnam
Ssenyonga (riht)wihlw. attt. e 'hf ae
Ssenyonga (right) with lawyer: case has attracted huge amount of attention 2066
CAN MED ASSOC J 1992; 146 ( 1)
19
LE I er JUIN 1992
mosexual communities where anonymous sexual activity made contact tracing difficult, if not impossible. "Present laws are deficient when it comes to addressing the unique and specific nature of HIV," said Dr. Iain Mackie, director of the HIV clinic at St. Joseph's Health Centre in London. Mackie is a Crown witness in the Ssenyonga case. The biggest problem, he said, is that the act allows an MOH to order the carrier of a virulent disease, such as tuberculosis, gonorrhea or bubonic plague, incarcerated, and to undergo treatment. However, HIV is considered communicable, not virulent; this means that the MOH's only recourse is to formally order a suspected carrier to refrain from doing anything that might spread the virus. The MOH may have the order confirmed by the General Division of the Ontario Courts, as was done in the Ssenyonga case. This guarantees that any breach of the order results in contempt-ofcourt charges. There, said Mackie, is the rub. "How do you incarcerate somebody or order them to seek treatment for a disease for which there is no known cure? Syphilis and gonorrhea are treatable but AIDS is not, so incarcerating a patient with AIDS would not serve the public interest." Even the MOH order represents a catch-22 situation, he argued, because the only way to determine if somebody has defied the order is to wait for more people to come forward who have been infected by the same carrier. Richard Shekter, former head of the health law section for the Canadian Bar Association (Ontario), said the only reason HIV receives special attention is that it is linked to two groups that society generally finds "unacceptable": homosexuals and intravenous drug abusers. "Hepatitis B has been around a lot longer than 2068
CAN MED ASSOC J 1992; 146 ( 1)
AIDS, it is a great deal more contagious and it can be fatal, too, but for years nobody has said anything about the spread of hep B," he said. Shekter, who heads the health law department of a Toronto law firm, said the HPPA fails administratively since the province's 42 medical officers are all free to make their own decisions. "You might have one area where the MOH works very aggressively against AIDS and another where he keeps a hands-off approach," Shekter argued. "There might be another area where he doesn't do anything at all because he knows nothing about the disease." The Canadian Bar Association pointed this out to the Ontario Ministry of Health in 1986, he said, but the province's chief MOH still has not drafted a uniform directive to cover all health units. Multiply this lack of consistency by the number of MOHs in each province and territory and the potential for different approaches becomes obvious. By last Dec. 1, Dr. Ian Gemmill, associate MOH for the Ottawa-Carleton Health Unit, had issued 18 HIV-related orders for people to come to the unit for counselling, to reveal the names of sexual partners, and in "one or two cases" to abstain from penetrative sex. There are 805 cases of HIV infection in the region. Gemmill added that these orders have had "positive" results in half the cases. Some of the patients do disobey them, or disappear after receiving one, but half of them started to come to the health unit for regular counselling and have made genuine efforts to change their lifestyles, he said. "If we have reason to believe that somebody may be putting people at risk, then we have a duty to call them in to remind them of their responsibility to others. We can't impose orders retroactively and we can't say the per-
son should have known better just because AIDS is getting so much public attention these days." However, Dr. John Blatherwick, Vancouver's MOH, disagrees with most MOH orders. "It's ludicrous for public health officers to think they could enforce a sex ban, and it's ludicrous for us to think we could prove that somebody was breaking a ban," he said. "This is such a hidden disease that unless we get the cooperation of the people who think they might be at risk, all of our work goes out the window." Orders to practise safe sex are the weapon of choice in Vancouver, but they're rarely used Blatherwick issued just one order last year. (Gemmill noted that safe-sex orders in BC may appear to carry more weight than those in Ontario because BC orders are delivered by the police; in Ontario they are delivered by a public health official.) "There is only one rule when it comes to AIDS transmission," Blatherwick said bluntly. "Both people are responsible for safe sex. We are talking about sex between consenting adults here, and if they can't figure out that safe sex means wearing a condom every time they go to bed, there is nothing I or anyone else can do to help them. The courts certainly have no place in the bedrooms of the nation." Most attempts to legislate public health will fail if governments refuse to address issues realistically, he added. If one sports star would publicly state that there is nothing unmanly about using a condom, said Blatherwick, it would accomplish far more than legislation ever could. "This isn't a virulent disease. This is totally preventable compared with other diseases. Judges and the courts should be saying that this is not the place for a government to intervene." But public health legislation will not be improved simply by
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adding clauses about HIV and AIDS to existing laws, said Dr. Norbert Gilmore, professor of medicine at McGill University's Centre for Ethics, Medicine and Law. "Public health laws were drawn up to keep people out of circulation when their disease was at its most infectious stage, but for a disease like AIDS the infectious period is probably lifelong. Keeping the person out of circulation doesn't apply." And, he said, it would not be appropriate to draft "diseasespecific laws" aimed at AIDS or similar diseases. "We still have so much to learn about the disease. The last thing we need is to enact some kind of law that will become obsolete, or worse, will be stuck on the books once we start to learn more about the disease," he said. "Public health laws warn people not to do whatever they were doing to spread the disease. If that doesn't work, then you need to fall back on the criminal law." At any rate, using the courts to prosecute a case involving AIDS transmission is difficult. As in all criminal proceedings, the three legal tests of knowledge, intent and motive must be present for an accused to be convicted, said Shekter. As long as they are in place, he sees no reason why AIDS transmission should be treated differently from any other criminal offense. However, he admitted that proving knowledge, intent and motive may be so difflcult that governments might find it easier to draft legislation dealing with the problem. There is a precedent for disease-specific legislation, he added. In 1922 the Criminal Code was amended to make it a crime to spread a sexually transmitted disease such as syphilis. The law was repealed in 1985 because it had not been used for so long. Ironically, the AIDS crisis was by then in its infancy. Mackie, usually a strong supJUNE 1, 1992
porter of the interests of people with HIV infection or AIDS, feels that criminal procedures might be needed as a last resort for some people. However, the real issue is education, he said, and that should be the responsibility of the MOH. "If the MOH has failed to make an HIV-infected person aware of the nature of his actions, then you cannot blame the patient. If a person does not understand the nature of his act, then again, he may be blameless and it will be the system that has failed.
There is a precedent for disease-specific legislation. In 1922 the Criminal Code was amended to make it a crime to spread a sexually transmitted disease such as syphilis.
"But it's hard to believe that in 1992 there are still people who don't know what safe sex is all about, or how their unsafe sex can lead to the transmission of HIV. The courts should deal only with those people who knowingly and recklessly try to spread HIV . . . not the ones who haven't been educated." Gemmill said the fight against HIV and AIDS needs more than education. He favours creation of a consultative body comprising family doctors, psychiatrists, social workers and other health care professionals that would advise MOHs and be required to discuss every abstention order or safe-sex or-
der on a case-by-case basis. "Public health laws were not written to be punitive. They were written to help the public and the person who has the disease. There is a small number of cases where the criminal system needs to be used, but so far there are just three or four cases in Canada against a background of several thousand HIV cases." In some respects, Canadian lawmakers are lagging behind their American cousins. Because of the growing number of cases of pediatric AIDS in the US, and because 30% to 50% of these patients contract the disease in utero, there is a growing demand for mandatory HIV testing for all pregnant women. The states of Ohio and Delaware have already enacted such legislation, despite the obvious question of what to do when a pregnant woman tests positive. AIDS has already become a major medicolegal issue in the US. In the Journal ofLegal Medicine, Dr. Leon Prockop of the University of South Florida medical school argued that forced incarceration may soon become necessary for patients suffering from AIDS-related dementia. "Is there a point in the progress of cognitive impairment where the high-risk behaviour of the patient is such that the patient and society must be protected?" he asked. Other legal issues are sure to crop up here. Should there be mandatory HIV testing for health care workers in Canada? What happens when a health care worker tests positive?
Gemmill said that most Canadians support such tests, but health care workers and AIDS activists are strongly opposed. Today insurance companies routinely demand such tests, and he predicted that this practice will become more common across Canada unless a rational policy is put in place. The federal and provincial CAN MED ASSOC J 1992; 146 (I 1)
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human rights commissions are also becoming involved in the HIV issue. In one case, a Toronto hospital was ordered to reinstate an employee who was fired when it was learned that he was HIV positive. In another case, a human rights commission ruled that a nurse who quit her job rather than treat an HIV carrier was not justified in her actions. Most recently, a Newfoundland health care worker was dismissed after testing HIV positive. Ironically, the province's Daycare and Homemaking Services Act says any person carrying HIV, or who has AIDS or ARC (AIDSrelated complex), cannot work in the health care field. The employee, who is taking her case to the Newfoundland Human Rights Commission, claims that her dismissal means she is being discriminated against because she is ill. No matter what the outcome of the Ssenyonga case or others
that follow, it is inevitable that health ministers and medical officers will have to take a closer look at the present legislation. Uniform standards must be developed to ensure that HIV carriers are treated equally across the country. Isolation orders and poorly considered calls for incarceration of HIV carriers will only serve to drive these patients underground. More limited MOH orders, if they're as effective as Ian Gemmill claims, could serve a useful purpose in some cases. Rules requiring mandatory reporting of positive HIV tests, which are largely ignored, will probably have to be repealed and MOHs will likely have to develop closer working relationships with the doctors who handle HIV patients. Contact tracing may increasingly be left up to those in clinical practice, with MOHs being called in for only the most difficult cases.
Ultimately, education will prove the best way to reach HIV carriers, and the soft touch is likely to be more effective than the big stick. Even if the court decides in the Ssenyonga case that HIV is a deadly weapon - the actual trial could still be months away - society is going to have to learn to live with the disease as more Canadians, both homosexual and heterosexual, test positive for antibodies to HIV. "These people are not by any standards criminally inclined," said Dawson, Ssenyonga's lawyer. "They have normal human emotions and sexual needs. We have to be very careful that in trying to control a small group of people that we don't end up trampling on the rights of others." There is a fine line between public health and public persecution, Dawson argued. The courts are going to have to decide where that line is drawn.u
s Ie _A & I * INDICATIONS AND CLINICAL USES: PONSTAN (mefenamic acid) is indicated for the relief of pain of moderate severity in conditions such as muscular aches and pains, dysmenorrhea, headaches and dental pain. CONTRAINDICATIONS: PONSTAN (mefenamic acid) should not be used in patients who have previously exhibited hypersentivity to it. Mefenamic acid is contraindicated in patients with active ulceration or chronic inflammation of the upper or lower gastrointestinal tract. Ponstan should not be administered to patients who have previously experienced diarrhea as a result of taking the drug. (Mefenamic Acid) Capsules Mefenamic acid should be avoided in patients with pre-existing renal disease. WARNINGS: In patients with a history of ulceration or chronic THERAPEUTIC CLASSIFICATION inflammation of the upper or lower gastrointestinal tract, PONSTAN (mefenamic acid) should be given under close supervision and only after consulting Analgesic the Adverse Reactions Section. Certain patients who develop diarrhea may be unable to tolerate the drug because of recurrence of the symptoms on In should be promptly discontinued. PRECAUTIONS: If rash occurs, the drug should be promptly discontinued. A false-positive reaction for urinary bile, subsequent exposure. these subjects, the drug using the diazo tablet test, may result after mefenamic acid administration. If biliuria is suspected, other diagnostic procedures, such as the Harrison spot test, should be performed. In chronic animal toxicity studies PONSTAN (mefenamic acid) at 7 to 28 times the recommended human dose, caused minor microscopic renal papillary necrosis in rats, edema and blunting of the renal papilla in dogs, and renal papillary edema in monkeys. In normal human volunteers, BUN levels were slightly elevated following the prolonged administration of mefenamic acid at greater than therapeutic doses. Since mefenamic acid is eliminated primarily through the kidneys, it should not be administered to patients with significantly impaired renal function. As with other nonsteroidal anti-inflammatory drugs, borderline elevations of liver function tests may occur. Meaningful (3 times the upper limit of normal) elevations of SGPT or SGOT occurred in controlled clinical trials in less than 1% of patients. Severe hepatic reactions including jaundice and cases of fatal hepatitis, have been reported with other nonsteroidal anti-inflammatory drugs. Although such reactions are rare, if abnormal liver tests persist or worsen, if clinical signs and symptoms consistent with liver disease develop, or if systemic manifestations occur (eg. eosinophilia, rash, etc.), mefenamic acid should be discontinued. Mefenamic acid may prolong acetylsalicylic acid induced gastrointestinal bleeding. However, mefenamic acid itself appears to be less liable than acetylsalicylic acid to cause gastrointestinal bleeding. Mefenamic acid 500 mg and acetylsalicylic acid 650 mg four times a day both caused significant further lowering of the prothrombin concentration (mefenamic acid 3.48% and acetylsalicylic acid 2.75u/) in patients in whom the concentration had been initially lowered by anticoagulant therapy. Caution, therefore, should be exercised in administering mefenamic acid to patients on anticoagulant therapy and should not be given when prothrombin concentrations is in the range of 10 to 20% normal. Careful monitoring of blood coagulation factors is recommended. It is recommended that estimations of hemoglobin and blood counts be carried out at regular intervals. Mefenamic acid should be used with caution in known asthmatics. Use in pregnancy and in women of childbearing potential: The safety of mefenamic acid on reproductive capacity and pregnancy has not been established. Thus, mefenamic acid should be used in women of childbearing potential and during pregnancy only when the potential benefits are expected to outweigh the potential risks. Nursing mothers: Trace amounts of mefenamic acid may be present in breast milk and transmitted to the nursing infant: thus mefenamic acid should not be taken by the nursing mother because of the effects of this class of drugs on the infant cardiovascular system. Use in children: Safety and effectiveness in children below the age of 14 have not been established. ADVERSE REACTIONS: The most frequently reported adverse reactions associated with the use of PONSTAN (mefenamic acid) involve the gastrointestinal tract. The following disturbances were reported in decreasing order of frequency: diarrhea (approximately 5% of patients), nausea with or without vomiting, other gastrointestinal symptoms and abdominal pain. The occurrence of the diarrhea is usually dose related. Other gastrointestinal reactions less frequently reported were anorexia, pyrosis, flatulence, and constipation. Gastrointestinal ulceration with or without hemorrhage has been reported. Hematopoietic. Cases of autoimmune hemolytic anemia have been associated with the continuous administration of Ponstan for 12 months or longer. Decreases in hematocrit have been noted in 2-5% of patients and primarily in those who have received prolonged therapy. Leukopenia, eosinophilia, thrombocytopenic purpura, agranulocytosis, pancytopenia and bone marrow hypoplasia have also been reported on occasion. Nervous System: Dizziness, drowsiness, blurred vision, insomnia, nervousness and headache have occurred. Integumentary. Urticaria, rash and facial edema have been reported. Renal. As with other nonsteriodal anti-inflammatory agents, renal failure, including papillary necrosis, have been reported. In elderly patients renal failure has occurred after taking mefenamic acid for 2-6 weeks. The renal damage may not be completely reversible. Hematuria and dysuria have also been reported with mefenamic acid. Other. Eye irritation, ear pain, perspiration, mild hepatic toxicity and increased need for insulin in a diabetic have been reported. There have been rare reports of palpitation dyspnea and reversible loss of color vision. DRUG INTERACTION: Protein-bound Drugs. Because PONSTAN (mefenamic acid) is highly protein bound, it could be displaced from binding sites by, or it could displace from binding sites, other protein-bound drugs such as oral anticoagulants, hydantoins, salicylates, sulfonamide and sulfonylureas. Patients receiving mefenamic acid with any of these drugs should be observed for adverse effects. Anticoagulants and Thrombolytic Agents. Mefenamic acid enhances the hypoprothrombinemic effect of warfarin, therefore, concurrent administration of the drugs should be avoided whenever possible. If the drugs must be used concurrently, prothrombin time should be determined frequently and anticoagulant dosage adjusted accordingly; the patient should be observed for adverse effects. In addition, the ulcerogenic potential of mefenamic acid and the effect of the drug on platelet function may further contribute to the hazard of concomitant therapy with any anticoagulant or thrombolytic agent (eg. streptokinase). DOSAGE AND ADMINISTRATION: Administration is by the oral route, preferably with food. The recommended regimen in acute pain for adults and children over 14 years of age is 500 mg as an initial dose followed by 250 mg every 6 hours as needed, usually not to exceed one week. For the treatment of primary dysmenorrhea, the recommended dosage is 500 mg as an initial dose followed by 250 mg every 6 hours, starting with the onset of bleeding and associated symptoms. Clinical studies indicate that effective treatment can be initiated with the start of menses and should not be necessary for more than 2 to 3 days. AVAILABILITY: PONSTAN (mefenamic acid) is available in No. 1 Coni-snap capsule with an ivory opaque body and an aqua blue opaque cao. Each available in bottles of 100 and 500. REFERENCES: 1 Gabka J Ponstan dental study Berlin July 9 1974 2 Budoff PW Zomepirac sodium in the treatment of primary dysmenorrhea syndrome. N Eng J Med 307:714-719. 1982 3 Powell R, Smith RP Treatment of primary dysmenorrhea with an antiprostaglandin agent. (In) Symposium on The Role of Prostaglandins in Menstrual ^AI r D o M 2N3 Dsord -es Academy of Medicine Toronto, Ontario. June 20, 1980. pp 29-37 4 Rees MCP. Bernard At et al. Effect of fenamates on progstaglandin E receptor bifidig The Lancet 2541-542 1988 5 Smith RP, Powell JR The objective evaluation of dysmenorrhea therapy Am J Obstet Gynecol 137(3)1314-319. 1980 .Reg T M Warner-LambertCompany P on Product 1991 available IMS. onstar CDTI Parke-Davis Div., Wamer-Lambert itorriograph September request product Moriograph 6 iPAAB pp P
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