LETTERS * CORRESPONDANCE
We will consider for publication only letters submitted in duplicate, printed in letterquality type without proportional spacing and not exceeding 450 words. All the authors must sign a covering letter transferring copyright. Letters must not duplicate material being submitted elsewhere or already published. We routinely correspond only with authors of accepted letters. Rejected letters are destroyed. Accepted letters are subject to editing and abridgement.
correct the frequent incorrect statements that it has published over the past year. If I am wrong the pertinent references can be quoted in future CMAJ articles.
Seules peuvent etre retenues pour publications les lettres recues en double dont la longueur n'excede pas 450 mots. Elles doivent etre mecanographiees en qualite "correspondance" sans espacement proportionnel. Tous les auteurs doivent signer une lettre d'accompagnement portant cession du copyright. Les lettres ne doivent rien contenir qui ait ete presente ailleurs pour publication ou dejia paru. En principe, la redaction correspond uniquement avec les auteurs des lettres retenues pour publication. Les lettres refusees sont detruites. Les lettres retenues peuvent etre abregees ou faire l'objet de modifications d'ordre redactionnel.
[The CMA responds.]
Informed consent to HIV antibody testing ecent articles on aspects of AIDS published in CMAJ imply or state that there is a legal requirement for informed consent to HIV antibody testing. I have not been able to find any relevant legislation. Some hospitals have a requirement or policy that informed consent is necessary.
In her editorial "Women and HIV infection and AIDS in Canada: Should we worry?" (Can Med Assoc J 1990; 143: 1171-1173) Dr. Catherine A. Hankins states: "HIV antibody testing in Canada still requires informed consent." I contend that there may be an ethical requirement, but there is no specific legal requirement. If I am right CMAJ should
D.P. Hill, MD, FRCPC Vice-president, medical affairs Ottawa General Hospital Ottawa, Ont.
Dr. Hill may well be correct that at present there is no Canadian legislation that deals specifically with the requirement of informed consent for HIV antibody testing. However, in my estimation that does not mean that there are no legal guidelines governing the matter. There is some relevant case law, namely the Supreme Court of Canada case of R. v.
Dyment.' In that case a physician took a vial of free-flowing blood from an unconscious patient without the patient's or other appropriate proxy decision-maker's consent and through a series of circumstances had the blood tested for the alcohol level. As a result of the test findings the patient was charged with and convicted of impaired driving. The Supreme Court, on appeal, held that such unconsented-to use of the blood was in contravention of section 8 of the Canadian Charter of Rights and Freedoms. The matter is worth quoting in extenso, since it affects the perception of many
physicians. The Charter breach was a very serious one: a violation of a person's body is much more serious than a violation of his office or even his home. The sense of privacy transcends the physical. The dignity of the human being is
equally seriously violated when use is made of bodily substances taken by others for medical purposes in a manner that does not respect that limitation. Here of course there was no consent and none could be implied from the circumstances. The simple fact is that Mr. Dyment was brought to the hospital for medical treatment. Whether the actions of the doctor could, in strictness, be justified as an emergency measure necessary for the preservation of the life or health of Mr. Dyment, I need not explore.... However, I would emphasize that the doctor's sole justification for taking the blood sample was that it was to be used for medical purposes. He had no
right to take Mr. Dyment's blood for other purposes [emphasis added].... Some provinces expressly vest the property of blood samples in the hospital, a matter I consider wholly irrelevant. What I wish to emphasize, rather, is that I cannot conceive that the doctor here had any right to take Mr. Dyment's blood and give it to a
stranger for purposes other than medical past the time of its taking [emphasis added]. Indeed, the doctor, in extracting the blood, placed himself in a situation where, pursuant to professional ethics and likely to hospital management regulations as well, he was charged with a duty to use the blood only for medical purposes. Under these circumstances, the sample was surrounded by an aura of privacy meriting Charter protection.
To test blood for HIV seropositivity is, of course, to test it "for medical purposes." Therefore, it is possible to interpret these words as allowing a blood test for HIV antibody status. However, the court effectively ruled this out in two ways. First, it said that the physician had no right to take Dyment's blood "for purposes other than medical past the time of its taking." The phrase CAN MED ASSOC J 1991; 144 (4)
403
We will consider for publication only letters submitted in duplicate, printed in letterquality type without proportional spacing and not exceeding 450 words. All the authors must sign a covering letter transferring copyright. Letters must not duplicate material being submitted elsewhere or already published. We routinely correspond only with authors of accepted letters. Rejected letters are destroyed. Accepted letters are subject to editing and abridgement.
correct the frequent incorrect statements that it has published over the past year. If I am wrong the pertinent references can be quoted in future CMAJ articles.
Seules peuvent etre retenues pour publications les lettres recues en double dont la longueur n'excede pas 450 mots. Elles doivent etre mecanographiees en qualite "correspondance" sans espacement proportionnel. Tous les auteurs doivent signer une lettre d'accompagnement portant cession du copyright. Les lettres ne doivent rien contenir qui ait ete presente ailleurs pour publication ou dejia paru. En principe, la redaction correspond uniquement avec les auteurs des lettres retenues pour publication. Les lettres refusees sont detruites. Les lettres retenues peuvent etre abregees ou faire l'objet de modifications d'ordre redactionnel.
[The CMA responds.]
Informed consent to HIV antibody testing ecent articles on aspects of AIDS published in CMAJ imply or state that there is a legal requirement for informed consent to HIV antibody testing. I have not been able to find any relevant legislation. Some hospitals have a requirement or policy that informed consent is necessary.
In her editorial "Women and HIV infection and AIDS in Canada: Should we worry?" (Can Med Assoc J 1990; 143: 1171-1173) Dr. Catherine A. Hankins states: "HIV antibody testing in Canada still requires informed consent." I contend that there may be an ethical requirement, but there is no specific legal requirement. If I am right CMAJ should
D.P. Hill, MD, FRCPC Vice-president, medical affairs Ottawa General Hospital Ottawa, Ont.
Dr. Hill may well be correct that at present there is no Canadian legislation that deals specifically with the requirement of informed consent for HIV antibody testing. However, in my estimation that does not mean that there are no legal guidelines governing the matter. There is some relevant case law, namely the Supreme Court of Canada case of R. v.
Dyment.' In that case a physician took a vial of free-flowing blood from an unconscious patient without the patient's or other appropriate proxy decision-maker's consent and through a series of circumstances had the blood tested for the alcohol level. As a result of the test findings the patient was charged with and convicted of impaired driving. The Supreme Court, on appeal, held that such unconsented-to use of the blood was in contravention of section 8 of the Canadian Charter of Rights and Freedoms. The matter is worth quoting in extenso, since it affects the perception of many
physicians. The Charter breach was a very serious one: a violation of a person's body is much more serious than a violation of his office or even his home. The sense of privacy transcends the physical. The dignity of the human being is
equally seriously violated when use is made of bodily substances taken by others for medical purposes in a manner that does not respect that limitation. Here of course there was no consent and none could be implied from the circumstances. The simple fact is that Mr. Dyment was brought to the hospital for medical treatment. Whether the actions of the doctor could, in strictness, be justified as an emergency measure necessary for the preservation of the life or health of Mr. Dyment, I need not explore.... However, I would emphasize that the doctor's sole justification for taking the blood sample was that it was to be used for medical purposes. He had no
right to take Mr. Dyment's blood for other purposes [emphasis added].... Some provinces expressly vest the property of blood samples in the hospital, a matter I consider wholly irrelevant. What I wish to emphasize, rather, is that I cannot conceive that the doctor here had any right to take Mr. Dyment's blood and give it to a
stranger for purposes other than medical past the time of its taking [emphasis added]. Indeed, the doctor, in extracting the blood, placed himself in a situation where, pursuant to professional ethics and likely to hospital management regulations as well, he was charged with a duty to use the blood only for medical purposes. Under these circumstances, the sample was surrounded by an aura of privacy meriting Charter protection.
To test blood for HIV seropositivity is, of course, to test it "for medical purposes." Therefore, it is possible to interpret these words as allowing a blood test for HIV antibody status. However, the court effectively ruled this out in two ways. First, it said that the physician had no right to take Dyment's blood "for purposes other than medical past the time of its taking." The phrase CAN MED ASSOC J 1991; 144 (4)
403
