one reason does not justify doing other tests on that blood sample. Testing for HIV antibodies has demonstrated the importance of applying to such tests the ethical and legal requirements for informed consent, which have always been accepted in theory. There is a difference between knowing a person's health status and using it to deny immigration. Consequently, admitting people who have a disease does not "make a farce of the medical examination required by the Department of Employment and Immigration". Even if we screened immigrants for HIV antibodies we need not necessarily exclude all who were positive. Australia has adopted this approach. The Immigration Act of 1976 requires that a person be an excessive burden - not just, as Dunn states, a "burden" on our health care system - before he or she becomes inadmissible on this basis. What constitutes an excessive burden? Will asymptomatic HIVantibody-positive immigrants be a excessive burden? Older people use more health care resources than young people. Are they therefore an excessive burden on the health care system? Does this mean that we should have a cutoff age for immigration? Inadmissibility on medical grounds may reflect, at least in some cases, a decision that is actually made on other grounds. We can choose "to market" a decision as being based on medical grounds - for example, the decision to exclude HIVantibody-positive people - because this makes it acceptable. Such medicalization of social problems, issues and decisions has a modern history of use, some (such as the abuse of psychiatry for political purposes) reprehensible. HIV-antibody-positive people should not, contrary to Dunn's opinion, be regarded as "a danger to [other] citizens" by virtue only of their HIV status. 282
CAN MED ASSOC J 1990: 142 (4)
Under the Immigration Act visitors are covered by the same medical provisions as immigrants. If HIV-antibody-positive immigrants were to be excluded because they were a danger to public health, to be consistent visitors should likewise be excluded. In short, Canadian law is potentially (though not now in practice) at least as exclusionary of HIV-antibody-positive visitors as US law, which has rightly been severely criticized. Furthermore, it is illogical to exclude only tourists "known" to be HIV antibody positive; indeed, it encourages fraud. It is difficult to imagine the consequences of Dunn's proposed scheme of placing tourists known to be HIV antibody positive "under close supervision by the public health authorities, with the loss of 'confidentiality' that this involves". Unwarranted invasiveness would become very likely and would be harmful not only to the affected person but also to society. It could also increase transmission of HIV because of conduct resulting from fear and even hostility. That Canada might become a haven for immigrants "ineligible elsewhere" can be regarded negatively or positively. It could be an important opportunity to demonstrate Canada's respect for human rights in not wrongly discriminating because of physical or mental handicap. Medical fitness may be a bona fide requirement for immigration, but in some cases it can be wrongly used. To state that "the patient" has a fatal condition that will be transmitted "to anyone with whom he or she has sexual contact" is far too broad and in some senses wrong. Sexual contact is not restricted to genital contact, and much sexual contact can involve "no-risk" behaviour; genital contact is unlikely to result in the transmission of HIV if "safer sexual practices" are followed, as they should be. I raise this point
for two reasons: we need to change some of our present patterns of thinking in order to deal with HIV, and we need to be very careful in our use of language in relation to HIV. With respect to not treating AIDS differently, if we refuse entry to asymptomatic people on the basis of HIV antibody testing we may be treating HIV infection differently from other diseases, because people asymptomatic for other fatal diseases for which there are markers may not, and in many cases probably should not, be tested for them. It is somewhat paradoxical that at the same time as we recognize that we have become a global village and as political and military walls come tumbling down, some of us advocate building another "wall" - of fear of a virus. It would be a tragedy if through our approaches to dealing with HIV infection we added to the unavoidable tragedies of this infection by actively or symbolically closing down the new, tentative recognitions that individually we are much more alike than different and that collectively we are one fragile world. Margaret A. Somerville, AuA (Pharm), LLB, DCL Director McGill Centre for Medicine, Ethics and Law Montreal, PQ
Why must you report an impaired colleague? I n his article Dr. Eike-Henner Kluge writes that "the duty to maintain quality control is the price physicians pay to have exclusivity of practice" and that this duty has been incorporated in the CMA's code of ethics, clause 27: "[An ethical physician] will report to the appropriate professional body any conduct by a colleague which might be generally consid-
haviour" frown on "whistle-blowered as being unbecoming to the [Dr. Kluge replies.: profession" (Can Med Assoc J ing". Clause 27 of the CMA's Dr. Shepherd's letter highlights an code of ethics really has no teeth. 1989; 141: 1080-1081). It is germane to Kluge's argu- essential difference in the ap- So physicians who are in need of ment that one professional body proach taken to physician impair- help don't get it, and the patients has moved the obligation to re- ment in Canada and the United suffer. port an impaired colleague from States. A quick check of relevant As I tried to point out in my the ethical to the legal sphere. The Canadian provincial regulations article, a physician has an ethical agency that grants medical li- and regulatory agencies has re- obligation to take appropriate cences in the state of Oregon is vealed that most provinces do not steps when he or she becomes the Board of Medical Examiners. have a reporting law like Ore- aware of a colleague's impairOne section of the laws governing gon's. British Columbia is one of ment. I am not sure that it is the practice of medicine in Ore- the few exceptions. Its Medical always necessary to enshrine ethgon (the Medical Practice Act), Practitioners Act, section 55, ical obligations in law. However, entitled "Duty to report violations states the following: physicians do find themselves in a or suspected violations", reads as special fiduciary position toward Every registered member shall report patients in virtue of what they do, follows. to the registrar the condition of any a fact that is recognized in the BC person registered under this Act statute. Perhaps it is time to exAny physician licenced by the Board whom he, on reasonable and probable amine publicly the whole issue. ... shall ... report to the Board any information such physician . . . may have which appears to show that a physician is or may be guilty of unprofessional or dishonorable conduct or is or may be mentally or physically unable to engage in the practice of medicine [ORS 677.415]. No person who has made a complaint as to the conduct of a licensee of the Board or who has given information or testimony relative to a proposed or pending proceeding for misconduct against the licensee of the Board, shall be answerable for any such act in any proceeding except for perjury committed by him [ORS 677.335].
Before being granted a licence in Oregon a physician must demonstrate familiarity with the Medical Practice Act. If the case Kluge outlines had occurred in Oregon Dr. W would not have been in a quandary. ORS 677.415 could be interpreted such that she would be legally obligated to report her concerns to the Board of Medical Examiners, which in turn might have investigated the evidence and taken action. Has this solution to Dr. W's quandary been implemented by any Canadian licensing agency? Robert Shepherd, MD 37 Beechmont Cres. Gloucester, Ont.
grounds, believes to be suffering from a physical or mental ailment, emotional disturbance or addiction to alcohol or drugs that, in his opinion, if the person continues to practise medicine or surgery, might constitute a danger to the public or be contrary to the public interest.
The need and indeed appropriateness of such formal reporting requirements are a matter of some debate in the Canadian medical scene. One side maintains that such requirements are counterproductive: they establish a confrontational framework that is not conducive to dealing with the problem in any except legal terms. Furthermore - so the argument goes - whether it is subsequently substantiated or not, the fact that a complaint is laid under such requirements threatens the personal and professional position of the physician in an irreparable fashion. The emphasis should be on prevention and help, not formal procedures. The other side maintains that, like any other profession, medicine is notoriously blind toward the shortcomings of its own members. As long as there is no formal reporting requirement there will be little actual reporting, because the canons of medical "good taste" and "collegial be-
Eike-Henner W. Kluge, PhD Director Ethics and Legal Affairs Canadian Medical Association
Geriatricians and the frail elderly rs. Roy Alan Fox, Avram Mark Clarfield and David Bryan Hogan recently outlined the "Competencies required for the practice of geriatric medicine as a consultant physician" (Can Med Assoc J 1989; 141: 1045-1048). In his editorial "Geriatrics - consolidating the specialty" (ibid: 1039) Dr. Bruce P. Squires said that more attention should have been paid to what geriatricians do as compared with what they know. Neither paper, in my view, dealt sufficiently with who the geriatricians know about and do things to, and this is important. It is not a matter of, in Squires' terms, "limiting their practice to old people" any more than cardiologists "limit" their practice to people with hearts. The geriatrician's constituency is the 10% to 15% of the elderly population who, in addition to their multiple CAN MED ASSOC J 1990; 142 (4)
283
CAN MED ASSOC J 1990: 142 (4)
Under the Immigration Act visitors are covered by the same medical provisions as immigrants. If HIV-antibody-positive immigrants were to be excluded because they were a danger to public health, to be consistent visitors should likewise be excluded. In short, Canadian law is potentially (though not now in practice) at least as exclusionary of HIV-antibody-positive visitors as US law, which has rightly been severely criticized. Furthermore, it is illogical to exclude only tourists "known" to be HIV antibody positive; indeed, it encourages fraud. It is difficult to imagine the consequences of Dunn's proposed scheme of placing tourists known to be HIV antibody positive "under close supervision by the public health authorities, with the loss of 'confidentiality' that this involves". Unwarranted invasiveness would become very likely and would be harmful not only to the affected person but also to society. It could also increase transmission of HIV because of conduct resulting from fear and even hostility. That Canada might become a haven for immigrants "ineligible elsewhere" can be regarded negatively or positively. It could be an important opportunity to demonstrate Canada's respect for human rights in not wrongly discriminating because of physical or mental handicap. Medical fitness may be a bona fide requirement for immigration, but in some cases it can be wrongly used. To state that "the patient" has a fatal condition that will be transmitted "to anyone with whom he or she has sexual contact" is far too broad and in some senses wrong. Sexual contact is not restricted to genital contact, and much sexual contact can involve "no-risk" behaviour; genital contact is unlikely to result in the transmission of HIV if "safer sexual practices" are followed, as they should be. I raise this point
for two reasons: we need to change some of our present patterns of thinking in order to deal with HIV, and we need to be very careful in our use of language in relation to HIV. With respect to not treating AIDS differently, if we refuse entry to asymptomatic people on the basis of HIV antibody testing we may be treating HIV infection differently from other diseases, because people asymptomatic for other fatal diseases for which there are markers may not, and in many cases probably should not, be tested for them. It is somewhat paradoxical that at the same time as we recognize that we have become a global village and as political and military walls come tumbling down, some of us advocate building another "wall" - of fear of a virus. It would be a tragedy if through our approaches to dealing with HIV infection we added to the unavoidable tragedies of this infection by actively or symbolically closing down the new, tentative recognitions that individually we are much more alike than different and that collectively we are one fragile world. Margaret A. Somerville, AuA (Pharm), LLB, DCL Director McGill Centre for Medicine, Ethics and Law Montreal, PQ
Why must you report an impaired colleague? I n his article Dr. Eike-Henner Kluge writes that "the duty to maintain quality control is the price physicians pay to have exclusivity of practice" and that this duty has been incorporated in the CMA's code of ethics, clause 27: "[An ethical physician] will report to the appropriate professional body any conduct by a colleague which might be generally consid-
haviour" frown on "whistle-blowered as being unbecoming to the [Dr. Kluge replies.: profession" (Can Med Assoc J ing". Clause 27 of the CMA's Dr. Shepherd's letter highlights an code of ethics really has no teeth. 1989; 141: 1080-1081). It is germane to Kluge's argu- essential difference in the ap- So physicians who are in need of ment that one professional body proach taken to physician impair- help don't get it, and the patients has moved the obligation to re- ment in Canada and the United suffer. port an impaired colleague from States. A quick check of relevant As I tried to point out in my the ethical to the legal sphere. The Canadian provincial regulations article, a physician has an ethical agency that grants medical li- and regulatory agencies has re- obligation to take appropriate cences in the state of Oregon is vealed that most provinces do not steps when he or she becomes the Board of Medical Examiners. have a reporting law like Ore- aware of a colleague's impairOne section of the laws governing gon's. British Columbia is one of ment. I am not sure that it is the practice of medicine in Ore- the few exceptions. Its Medical always necessary to enshrine ethgon (the Medical Practice Act), Practitioners Act, section 55, ical obligations in law. However, entitled "Duty to report violations states the following: physicians do find themselves in a or suspected violations", reads as special fiduciary position toward Every registered member shall report patients in virtue of what they do, follows. to the registrar the condition of any a fact that is recognized in the BC person registered under this Act statute. Perhaps it is time to exAny physician licenced by the Board whom he, on reasonable and probable amine publicly the whole issue. ... shall ... report to the Board any information such physician . . . may have which appears to show that a physician is or may be guilty of unprofessional or dishonorable conduct or is or may be mentally or physically unable to engage in the practice of medicine [ORS 677.415]. No person who has made a complaint as to the conduct of a licensee of the Board or who has given information or testimony relative to a proposed or pending proceeding for misconduct against the licensee of the Board, shall be answerable for any such act in any proceeding except for perjury committed by him [ORS 677.335].
Before being granted a licence in Oregon a physician must demonstrate familiarity with the Medical Practice Act. If the case Kluge outlines had occurred in Oregon Dr. W would not have been in a quandary. ORS 677.415 could be interpreted such that she would be legally obligated to report her concerns to the Board of Medical Examiners, which in turn might have investigated the evidence and taken action. Has this solution to Dr. W's quandary been implemented by any Canadian licensing agency? Robert Shepherd, MD 37 Beechmont Cres. Gloucester, Ont.
grounds, believes to be suffering from a physical or mental ailment, emotional disturbance or addiction to alcohol or drugs that, in his opinion, if the person continues to practise medicine or surgery, might constitute a danger to the public or be contrary to the public interest.
The need and indeed appropriateness of such formal reporting requirements are a matter of some debate in the Canadian medical scene. One side maintains that such requirements are counterproductive: they establish a confrontational framework that is not conducive to dealing with the problem in any except legal terms. Furthermore - so the argument goes - whether it is subsequently substantiated or not, the fact that a complaint is laid under such requirements threatens the personal and professional position of the physician in an irreparable fashion. The emphasis should be on prevention and help, not formal procedures. The other side maintains that, like any other profession, medicine is notoriously blind toward the shortcomings of its own members. As long as there is no formal reporting requirement there will be little actual reporting, because the canons of medical "good taste" and "collegial be-
Eike-Henner W. Kluge, PhD Director Ethics and Legal Affairs Canadian Medical Association
Geriatricians and the frail elderly rs. Roy Alan Fox, Avram Mark Clarfield and David Bryan Hogan recently outlined the "Competencies required for the practice of geriatric medicine as a consultant physician" (Can Med Assoc J 1989; 141: 1045-1048). In his editorial "Geriatrics - consolidating the specialty" (ibid: 1039) Dr. Bruce P. Squires said that more attention should have been paid to what geriatricians do as compared with what they know. Neither paper, in my view, dealt sufficiently with who the geriatricians know about and do things to, and this is important. It is not a matter of, in Squires' terms, "limiting their practice to old people" any more than cardiologists "limit" their practice to people with hearts. The geriatrician's constituency is the 10% to 15% of the elderly population who, in addition to their multiple CAN MED ASSOC J 1990; 142 (4)
283
