Commercial Litigation and Dispute Resolution Blog

On March 2, 2013, the Emergency Intervention Disclosure Act, S.B.C. 2012, c. 19, was quietly enacted.  This statute had been on the books since 2012 but not in force.  The purpose of the Act is to authorize the involuntary sampling of bodily fluids where those samples are not being offered voluntarily.  For example, it covers situations such as a police officer or medic being spat on while providing treatment to a homeless drug addict who may have HIV or hepatitis.  The underlying concern is exposure to contagious diseases that may not immediately manifest themselves but that may require immediate preventative treatment. 

The Act was originally met with criticism in the press and from special interest groups, largely on the grounds that it grants overly intrusive powers to violate the privacy and bodily integrity of “source individuals” without any practical benefit.  Most first responders follow safety protocols, including getting vaccinations and peremptory treatment, long before any compelled blood test can be obtained to see whether, in fact, they were exposed to any risk.   

The involuntary testing of a person’s bodily fluids is obtained under a “testing order”.  To get such an order, the applicant must have “come into contact with a bodily substance of another individual” in certain circumstances.  Presently, those circumstances are limited to contact “while providing emergency health services” or while performing duties as a first responder (i.e. firefighters, police, paramedics, etc.).  Additional circumstances can be prescribed by regulation but none have been yet.  There is some suggestion it may be extended to victims of crime.

The application is made to the Provincial Court.  It must be made within 30 days of the alleged contact.  Generally, the “source individual” must be given four days’ notice of the application.  This notice requirement can be waived where it is either “impossible or impracticable”.  To obtain a testing order, it must be proven that:

a)      there are reasonable grounds to believe that the applicant has been exposed to “a pathogen that causes a prescribed communicable disease”;

b)      analyzing the applicant’s bodily fluid will not determine any infection in a timely manner;

c)      obtaining a sample will not endanger the life or health of the source individual;

d)      there is no reasonable alternative to obtain the needed information; and

e)      the testing order is necessary to decrease or eliminate the health risk to the applicant. 

The opinion of a physician on the medical issues is required.  If ordered, the sampling is done by a qualified analyst.  The test results are given to the applicant’s physician and to the source individual’s physician (if they have one).  The test results must remain confidential and there are fines for any breach of confidentiality.

While this legislation makes for good optics and publicity, only time will tell whether it is of any practical benefit.   On its face, it only applies to a limited number of possible applicants.  Similar legislation in Alberta is rarely used.  As a practical matter, it may often be difficult to find the “source individual” to do the testing on, let alone serve them with the application.