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Infection Control for Dentists Part 4 – Discriminating Based on AIDS

By August 1, 2017October 4th, 2019Practice Management

In this blog, I’m going to discuss whether dentists can refuse to treat a patient who carries a disease like AIDS or an HIV-related illness.  Section 1 of the Human Rights Code says that everyone is entitled to equal treatment with respect to services without discrimination based on their disability.  Importantly, the Human Rights Tribunal of Ontario has stated that people living with AIDS or HIV-related illness could be considered disabled.  The Human Rights Commission of Ontario (now called the Human Rights Tribunal of Ontario) issued a policy statement that stated:

“AIDS (Acquired Immunodeficiency Syndrome) and other medical conditions related to infection by the Human Immunodeficiency Virus (HIV) are recognized as disabilities within the meaning of the Code. All persons who have or have had, or who are believed to have or have had, or are perceived to have, AIDS or HIV-related medical conditions, including those who do not show symptoms of AIDS or AIDS-related illnesses, are entitled to the protection of the Code in employment, services, housing, contracts and membership in trade unions.”

This policy provides guidance to the Human Rights Tribunal of Ontario in its interpretation of the Human Rights Code.  As a result, dentist cannot discriminate against patients with AIDS or HIV-related illnesses.  This means that they can’t use unnecessary or extraordinary infection control or other measures that are not used for other patients.

In the seminal but dated case of Jerome v. DeMarco, 1992 CarswellOnt 5309, the question faced by the Ontario Board of Inquiry (responsible for deciding matters under the Human Rights Code of that time) was whether a dentist had discriminated against a patient who had AIDS.   In that case, Mr. Jerome complained of discrimination by his then dentist at the time, Dr. Paul DeMarco, on two grounds: (1) being denied dental / hygiene treatment as a patient because he had AIDS and (2) having his treatment deferred because he had AIDS.

By way of background, Mr. Jerome was 30 years old at the time.  He had AIDS.  He arrived for his check up and cleaning and was asked by the receptionist to fill out a medical, dental and insurance history form.   When he listed certain medication the receptionist wasn’t familiar with, the receptionist asked why he was taking it.  He replied that he had AIDS.   Dr. DeMarco came out and was then told that.  He asked Mr. Jerome to come into his office.  There is some dispute as to what happened next, but Dr. DeMarco claimed that he was willing to treat the patient, but not until later in the day (after his last appointment).  Dr. DeMarco claimed the delay was for good reason because he wanted to contact his physician, get information on enhanced infection control protocols for treating patients with AIDS and because he (not the hygienist) would have to do the cleaning (and wasn’t otherwise available until the end of that day).

Now, before addressing whether Dr. DeMarco had discriminated against Mr. Jerome, the Ontario Board of Inquiry stated that AIDS was a handicap (a protected head under the Human Right Code at that time) and hence a service provider could not discriminate on the basis that another person had AIDS.  At Paragraph 14:

14      Based upon the nature of AIDS as a disease and its implications for those who have it, and applying both the words of section 9(1)(b)(i) of the Code and the reasoning of the Supreme Court of Canada in the above cited cases [namely: Biggs v. Hudson (1988), 9 C.H.R.R. (B.C. Human Rights Council); E. (S.T.) v. Bertelsen (1989), 10 C.H.R.R. D/6294 (Alta. Bd. of Inq.); Fontaine v. Canadian Pacific Ltd. (1989), 11 C.H.R.R. D/288 (Cdn. Human Rights Tribunal)], I conclude that persons living with AIDS are handicapped within both the literal words and the spirit of the Code. As such they are entitled to protection from discrimination under Part 1 of the Code. It is accordingly appropriate to consider the instant case under sections 1 and 8 of the Code [emphasis added].

With respect to the first alleged grounds of discrimination – that Dr. DeMarco had discouraged or prevented Mr. Jerome from being a patient, the Board held that there wasn’t enough evidence to support this.   Mr. Jerome and Dr. DeMarco both testified that Dr. DeMarco was prepared to examine Mr. Jerome at the end of that day.  And Dr. DeMarco had not acted in such a way as to discourage Mr. Jerome from becoming a patient.  Dr. DeMarco had knowingly treated persons with AIDS in the past and had taken referrals from the AIDS Committee of Windsor.  Admitted, Dr. DeMarco had been asked to be taken off the referral list for the AIDS Committee of Windsor, but this didn’t amount to discrimination so long as he was willing to treat people with AIDS.  Moreover, although Dr. DeMarco was wearing gloves, a cap and masks, this was not viewed as discriminatory conduct to discourage Mr. Jerome from being a patient.  This was standard treatment attire for Dr. DeMarco.  For these reasons, the Board of Inquiry wrote the following at paragraph 33:

33      Accordingly, I hold that Dr. DeMarco did not refuse to treat Mr. Jerome either directly or by acting in a manner calculated to discourage Mr. Jerome from becoming a patient.

So what about deferring treatment?  Well, on that basis, the Board ruled that Mr. Jerome was treated differently than other patients because he had AIDS or because of Dr. DeMarco’s medical judgment.  As such, there was a case of discrimination.  But did Dr. DeMarco have a valid defence?

YES he did. The Human Rights Code of that time stated that, if Mr. Jerome could not be accommodated without undue hardship to Dr. DeMarco (considering the cost, outside sources of funding and health and safety requirements), then Mr. Jerome’s rights would not be violated.  In other words: if accommodating Mr. Jerome would cause undue hardship to Dr. DeMarco, then Dr. Demarco did not violate Mr. Jerome’s rights when he discriminated against him by deferring his treatment.

Well, at first the Board of Inquiry said that Dr. DeMarco wasn’t able to postpone treatment in order to get more details on infection control protocol with AIDS patients.  There was a lot of which is better: Universal Infection Control Precautions vs. Enhanced Infection Control Procedures for AIDS Patients.  You see, Dr. DeMarco was trying to argue that he should wait until he gets more information and is able to implement the UNIVERSAL precautions before treating Mr. Jerome.  This would have included doing things like draping walls and equipment and more thoroughly sterilizing equipment.  But there wasn’t enough time because Mr. Jerome came in that day for his appointment and no one knew he had AIDS until he completed the form that day. Plus, all the experts testified that no additional or enhanced infection control procedures were required above and beyond universal infection control precautions when treating AIDS patients.

So what about Dr. DeMarco wishing to postpone treatment until he contacted Mr. Jerome’s physican?  And what about Dr. DeMarco doing the treatment himself (instead of having a hygienist do it?).  Here, the Board accepted evidence that it was essential to consult with the attending physician on the patient in order to develop a safe and effective dental treatment plan.  The Board also found that Mr. Jerome required a deeper cleaning (which involved providing cutterage and a local anesthetic) than a hygienist was capable of giving.   So Dr. DeMarco HAD to provide the cleaning rather than the hygienist.  Finally, given Dr. DeMarco’s schedule that day, in order for him to do the cleaning required at the time of Mr. Jerome’s appointment, he would have to had to significantly delay another patient’s treatment (which had already begun).  Per the Board: “This would be very poor dental practice and an undue hardship upon that patient.  This would not have been the case for a normal cleaning, since Dr. DeMarco would have done an examination and the hygienist would have done the cleaning”.  Based on the health care needs of his other patient at the time, the earliest Dr. DeMarco could have treated Mr. Jerome was at the end of the day.

In conclusion, the Board found that Dr. DeMarco had provided a complete defence to the prime facie discrimination in the provision of services because of a disability. Per paragraph 54:

54      I have found that the Commission did not demonstrate a prima facie case of discrimination with respect to the first prong of its case, namely that Dr. DeMarco refused to treat Mr. Jerome directly or by acting in a manner calculated to discourage Mr. Jerome from becoming a patient. I have found that there was a prima facie case of discrimination with respect to the second prong. which is that of the deferral of treatment, but that the respondent has provided a complete defence to this under section 16 of the Code. I accordingly find that Dr. DeMarco did not discriminate in services with respect to Mr. Jerome on the basis of handicap. The complaint is dismissed.