Needlestick Injuries, Surgical Careers and the Human Rights Code

In order to become a lawyer in Canada, one must:
  1. Be admitted and complete law school;
  2. Pass the Bar exams (Barrister & Solicitor in Ontario);
  3. Complete the experiential component:
    • Article for 10 months (in Ontario), or
    • Complete the Law Practice Programme (course-based + experience).
  4. Complete other requirements by the provincial regulatory body. In Ontario, the Law Society of Upper Canada (LSUC) requires:
    • An online ethics and professionalism course, and
    • Be of good character.
  5. Sign the Rolls of the Court of Appeal for Ontario and the Superior Court of Justice;
  6. Take the Barrister & Solicitor's Oath:
  • I accept the honour and privilege, duty and responsibility of practising law as a barrister and solicitor in the Province of Ontario. 
  • I shall protect and defend the rights and interests of such persons as may employ me. 
  • I shall conduct all cases faithfully and to the best of my ability. 
  • I shall neglect no one’s interest and shall faithfully serve and diligently represent the best interests of my client. 
  • I shall not refuse causes of complaint reasonably founded, nor shall I promote suits upon frivolous pretences. 
  • I shall not pervert the law to favour or prejudice any one, but in all things I shall conduct myself honestly and with integrity and civility. 
  • I shall seek to ensure access to justice and access to legal services. 
  • I shall seek to improve the administration of justice. 
  • I shall champion the rule of law and safeguard the rights and freedoms of all persons. 
  • I shall strictly observe and uphold the ethical standards that govern my profession. All this I do swear or affirm to observe and perform to the best of my knowledge and ability.
It is the articling process that sets Canada apart from the United States. In the US, there is no requirement for post-graduate on-the-job training. Once one passes law school and the bar exam they can be called to the Bar.

I was fortunate to obtain both a summer job while in law school and later article at a Bay Street labour and employment law firm. What I enjoyed about this was the amount of human rights work I was able to do. About 90% of human rights work is in the employment sector, which is mainly covered by the Ontario Human Right Code ("the Code"). The Code protects people from discrimination on enumerated grounds. For instance, employment is covered by Section 5:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
One of the most often litigated issues in employment is the duty to accommodate people with disabilities. Regardless of how the worker became disabled, employers have a duty to work with the person to the point of undue hardship. In other words, employers must do everything reasonable to continue to employing someone with a disability. Questions, however, often arise as to what constitutes a disability within the meaning of the Code, what reasonable accommodation is required, and undue hardship really means.

The Code provides in s. 17(2) that a court or tribunal can only find that the duty to accommodate has been discharged if the person responsible for accommodating those needs would suffer undue hardship considering:
  • the costs;
  • outside sources of funding, if any; and
  • health and safety requirements, if any.
Flash forward to my first year of medical school. We were discussing occupational exposure to diseases, such as HIV and Hepatitis B and C (often termed Blood Borne Viruses). We were also discussing the obligation to disclose your HIV and hepatitis status and how that may affect your career options in medicine.

In Canada, medical schools, after offering admission but before officially enrolling the student, require the student to complete certain medical requirements. One of these is a blood test to determine HIV and hepatitis status. Additionally, the student must show current vaccinations for certain diseases and in the case of Hepatitis B, show that a lab has confirmed they have developed immunity to the virus.

There are similar requirements for practicing physicians. For instance, the College of Physicians and Surgeons of Ontario ("CPSO") requires physicians to report annually if they are seropositive for HIV, Hepatitis B or C and they conduct "exposure prone procedures".

This raises a number of points:
  • Organizations cannot ask for health-related information unless there is a bona fide requirement and only then can they ask for the minimum information needed.
  • That information cannot be used to discriminate against those with a disability.
  • Organizations have a duty to accommodate people with disabilities to the point of undue hardship.
Unfortunately, some of these discussions, including in lectures given by medical experts, were not very nuanced. Several times we were told that if we contracted a blood borne virus, we would not have a career in surgery. That is an oversimplification and does not capture the prohibition against discrimination on the grounds of disability to the point of undue hardship balanced with the need to protect the public. Of course, medical experts are generally not legally trained.

A common Medical College of Canada Qualifying Examination ("MCCQE") - the licensing exam for physicians in Canada - asks what the risk of transmission is for a needle stick with the patient's blood. They are (approximately):

Note that the risk of transmission from a healthcare worker to the patient is orders of magnitude smaller than the risk of transmission from the patient.

It is this risk that forms the basis for potentially limiting a physician's practice. But let's not forget that organizations cannot discriminate against people on the grounds of disability unless the accommodation would cause them to suffer undue hardship (generally from a health and safety standpoint).

In other words, the CPSO would have to show that there would be an unacceptable risk to patients that could not be mitigated by managing the physician's viral load or taking additional precautions. Note that courts have often rejected the position that any additional risk to the public is unacceptable. Such a position would not meet the requirement to accommodate people with disabilities.

While I have not done extensive research into this, I suspect that a fraction of a fraction of a percent risk of transmission (which could be infinitesimally small depending on the circumstances) would likely mean that it would be discriminatory to restrict the physician's practice.

Referring to the CPSO's Policy on Blood Borne Viruses, we see a much more nuanced approach than what was discussed in some of my lectures:
D. Seropositive Physicians 
Physicians who have tested positive for HBV, HCV, and/or HIV and who wish to begin performing or assisting in performing exposure prone procedures in Ontario or to continue performing or assisting in performing exposure prone procedures must be under the care of a treating physician who has expertise in the management of their infection (e.g., infectious diseases expert, hepatologist). This includes physicians who wish to perform or assist in performing procedures that may become exposure-prone (for example, a laparoscopic procedure that may convert to an open procedure) and also includes physicians who will have the potential to perform or assist in performing exposure prone procedures in the course of providing day-to-day care even though they may not be currently performing them.

Physicians who have tested positive for HBV, HCV, and/or HIV must undergo such regular testing as is recommended by their treating physician, and approved by the College for the purposes of monitoring their health, including their viral loads.
In determining whether seropositive physicians will be able to continue performing or assisting in performing exposure prone procedures, the College’s priority is to ensure that patient safety is protected. The College will evaluate each situation based on the specific facts, including the physician’s practice and viral loads, and will consider the best available evidence and the recommendations of the Expert Panel where applicable. [Emphasis and underlining added]
In "Appendix A" of the same policy:
Based on the information the College receives, there are two potential outcomes for a physician. If a physician poses no increased risk of causing harm to a patient based on his or her serologic status, the physician will be monitored to ensure that the physician continues to pose no increased risk of harm. If a physician poses a higher risk of harm to a patient then practice restrictions may be imposed. Where the College requires assistance in coming to a decision, the College will convene an Expert Panel.  A physician will have an opportunity to make representations and to provide his or her own expert’s opinion if he or she wishes to do so. [Emphasis added]
While the language appears to state that "no increased risk" is permissible, the question comes down to how the risk is assessed.

Such risk assessments have been undertaken in different contexts. For example, the Supreme Court of Canada ruled in R v Mabior that consent to sexual intercourse was not vitiated where an HIV-positive man had a low viral and used a condom. In Mabior, the discussion was whether there was a "realistic risk of HIV transmission" which would constitute a "significant risk of serious bodily harm". While that is arguably a much higher threshold than being discussed here, it goes to show that courts and tribunals are alive to the actual risk of transmission of blood borne viruses. The CPSO policy, to me, also shows that they are alive to this issue as well.

This is all to say that should a medical student have a needlestick injury, there are a number of considerations. First, the risk of actually contracting a blood borne illness is not necessarily large. Second, getting the appropriate Post-Exposure Prophylaxis ("PEP") can help if received in a timely manner. Third, even if a blood borne illness results, it is not necessarily the end of one's surgical career. Finally, it may be possible to make a claim to the Workplace Safety and Insurance Board if one is required to change careers on account of the workplace injury.

With this post, I hope to point out that if a medical student suffers a needlestick injury (and many of us will at some point), a change of careers is not a foregone conclusion. Hopefully, it will be one fewer thing to worry about.


Popular Posts