Duty to Report
“We in Toronto will not report people to the police, but we tell people who’ve been infected that they have the option of going to the police.”1
— Rita Shahin, associate medical officer of health, Toronto Public Health
Many AIDS service organizations believe that criminalizing HIV transmission increases stigma and harms prevention efforts.2 It can cut off the very people who are unwilling or unable to take precautions from the support that could make their lives less dangerous.
Why? It makes sense that a person wouldn’t want to get help if she risks opening herself up to charges.
So where does this leave service providers? Stopping the spread of HIV is a public health issue. What is your duty to the public good? And what does a duty to report have to do with Canada’s Charter of Rights and Freedoms?
What happens if I council an HIV-positive woman, but do not contact her sex and/or drug-injecting partners about their possible exposure to the virus?
Service providers – such as counsellors – cannot be criminally charged for failure to warn people who might be affected.3
Is there a law requiring a service provider to contact police?
No. A service provider does not have to inform the police if a client does not disclose prior to engaging in high-risk sex or injection drug use. However – under court order, search warrant, subpoena or other judicial process – a service provider may have to provide police with information about clients.4
When served with a police search warrant, an organization might be able to say it wants to “assert privilege” over a client’s information. Asserting privilege is a request that the police seal the documentation they take in an envelope. The envelope should not be opened until a court decides whether the police can legally use it.5
If your organization receives a search warrant or subpoena, get legal advice – and inform the person named – as soon as possible.
What if children are in danger?
If you believe a child (under age 16) is in need of protection, you have a duty to report it to the Children’s Aid Society – but not the police.6
Duty to report
Due process and Charter rights have to be respected in interventions imposed on an individual by the state.7 These measures include:
- advance notice of the intervention
- the right to counsel
- timely reviews of existing decisions
- the right to a fair hearing
- the right to appeal
According to the Canadian HIV/AIDS Legal Network:
- There are few and limited situations in which client confidentiality can be breached. Under Canadian law, there is no general “duty to warn” the police if, as an example, a service provider comes to know that someone is at risk of HIV infection.
- For non-regulated organizations (including most social service organizations), there is no legal obligation to warn third parties at risk of harm, including the risk of HIV infection.
- Employees who are members of a professional body (like registered nurses and social workers) may have an ethical duty to disclose client information to prevent harm where a client’s behaviour places a known person at risk of HIV infection.
- An organization, its staff and its volunteers may be sued in civil court by a client and found civilly liable if they disclose client information without consent, or without being compelled to do so under a search warrant or court order.
- An organization, its staff and its volunteers who do not take steps to prevent harm to a third party may be sued in civil court by anyone who suffers harm as a result of the failure to take those steps. But since no Canadian court has decided this issue, it is not clear whether the third party would win or lose the case.
“The positive person is always at risk. Men will have sex knowing the woman is HIV-positive then blame her if they get infected. If anything happens I am guilty. There’s no one else in the bed to prove I made him wear a condom.”8
More from Shared Health Exchange
- Duty to Report
1HIV disclosure can be dangerous, Krishna Rau, Xtra, November 28, 2008
2Reducing HIV Transmission by People Unwilling or Unable to take Precautions, Ontario Advisory Committee on HIV/AIDS, 1997
3After Cuerrier: Canadian Criminal Law and the Non-Disclosure of HIV-Positive Status, R. Elliott, Canadian HIV/AIDS Legal Network, 1999
4Disclosure of HIV-Positive Status To Sexual and Drug-Injecting Partners, Ontario Advisory Committee on HIV/AIDS, January 2003
5HIV Disclosure & the Criminal Law in Canada: Responding to the Media and the Public, Canadian AIDS Society
6Disclosure of HIV-Positive Status To Sexual and Drug-Injecting Partners, Ontario Advisory Committee on HIV/AIDS, January 2003
7Persons who fail to disclose their HIV/AIDS status: Conclusions reached by an Expert Working Group, Canada Communicable Disease Report, March 2005
8“Maureen” speaking at a forum on HIV disclosure and criminalization, HIV disclosure can be dangerous, Krishna Rau, Xtra, November 28, 2008