Legality of Eligibility Requirements to Donate Blood

The importance of donating blood cannot be overstated, one blood donation can save up to three lives.[1] Covid-19 has put an immense strain on the Canadian medical system. To meet the demand for blood, Canadian Blood Services (“CBS”) announced they would need 23,000 new donations just for the month of July 2021.[2]  CBS is the national non-for-profit organization which oversees blood donations in Canadian provinces outside of Quebec. To help meet the demand for blood donations CBS encourages those eligible to donate. However, there is an additional way to defend against blood supply shortages which is to expand the pool of candidates eligible to donate through policy and eligibility requirement changes.

Barriers for Men who Have Sex with Men (“MSM”)

Currently, under the CBS guidelines MSM must remain celibate for a period of three months to be eligible to donate. The objective is to protect recipients of blood donations from contracting HIV/Aids through the Canadian blood supply. This eligibility requirement has been challenged before in the civil law suit Canadian Blood Services v Freeman 2010 ONSC 4885 [3]. In this case CBS sued Mr. Freeman for negligent misrepresentation for donating blood while being ineligible due to him having sex with another man within the deferral period of one year. Mr. Freeman argued that he was being discriminated against and that this policy was a violation of Canadian Charter of Rights and Freedoms, s 15, of the Constitution Act, 1982, c 11 (the “Charter”). The Court found that Mr. Freeman did commit a negligent misrepresentation and that it was not a violation of his Charter s. 15 rights. The Court explained the donation of blood was not a right, that the policy was not discriminatory under the Charter s. 15, and that the policy was for the safeguarding of the public.

Currently, that eligibility requirement is being challenged again by Christopher Karas. In 2016, Mr. Karas filed a complaint with the Human Rights Commission, alleging that Health Canada and CBS discriminated against him by forcing adherence to the deferral period for MSM. Mr. Karas argues that this is contrary to s. 5 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (“CHRA”)[4] which states that is illegal to discriminate based on a prohibited ground, such as sexual orientation, for the provision of goods, services, facilities or accommodation. When this complaint was filed in 2016 the deferral period was one year but has since changed to three months. This matter is still ongoing but the decision by the Human Rights Commission Tribunal to include Health Canada within the scope of the litigation was found to be reasonable by the Federal Court on judicial review as they oversee the policies of the CBS.[5] The outcome of this case may lead to changes in the eligibility criteria, potentially modeled after the UK criteria, which allows anyone who has had the same sexual partner for the past three months to donate blood.[6]

Barriers for Those with Intellectual Disabilities

Another barrier is for those with intellectual disabilities. In Soulliere v Canada 2016 FC 1346[7], the Federal Court upheld a tribunal court decision that a woman with intellectual disabilities was not discriminated against when she was not allowed to donate blood due to her inability to give informed consent. The confusing and long forms made it difficult for her to understand the medical questionnaire provided by CBS. She and her family claim that with proper translation and explanation of the questions and forms, she could have properly consented. Currently, she may seek to appeal this decision.

Barriers Due to Language & the Requirement of Informed Consent

Another group currently ineligible to donate blood are individuals who are not fluent in English or French. CBS requires donors to complete a medical questionnaire and consent form and provide informed consent to the blood donation. This is in line with the Health Care Consent Act which governs the rules for consenting to health care procedures in Ontario. The Health Care Consent Act, 1996, SO 1996, c 2, Sch A (the “HCCA”), s. 10 (1) states a health practitioner shall not administer a treatment unless the person has given consent. Treatment is defined “as anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose”. The HCCA s. 11 explains that consent must be both informed and voluntary. Being that donating blood is a medical procedure, it requires the donor to give informed consent and therefore it is necessary to understand the required forms. The forms however are only available in English and French. The forms are long, comprehensive, and contain complicated language and phrasing. This can make it difficult for those without English or French fluency to understand the documents. Friends and family are not allowed to serve as translators as the possibility of mistranslations could lead to issues of consent.

Discriminatory Practices and the Need to Accommodate

On July 31, 2021, Tanya Walker discussed on CityNews that language is not a discriminatory ground under the Charter s. 15. Race, national or ethnic origin, colour, sex, age, etc. are grounds for discrimination but language is not. Under the Charter s. 16 services must be provided in Canada’s official languages of English and French, but is not required for other languages. Further, the Human Rights Code of Ontario s. 1 and the CHRA s. 5 make it clear that every person has a right to freedom from discrimination and equal treatment. It is discriminatory to not provide service or accommodate someone based on one of the prohibited grounds, such as race, sex, creed, ethnic origin etc. Language, however, is not one of the prohibited grounds under s.3 of the CHRA. This means that the CBS policy to only provide service in English and French is not legally discriminatory and there is therefore no duty to accommodate those who cannot speak English or French.

Potential Solution for Those Facing Language Barriers

One potential option is for CBS to have digital copies of the medical questionnaire and consent forms available in multiple languages to service a larger community. Another potential option is to submita complaint to the Human Rights Tribunal of Ontario or the Canadian Human Rights Commission.[8] Under s 40(1) of the CHRA, an individual or group of individuals may file a complaint with the Commission if they have reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice. Further, under s 43(1) of the CHRA, the Commission may designate an investigator to look into the complaint. After the conclusion of the investigation, s 44(1) requires the investigator to submit a report with its findings to the Commission. The Commission also has discretion, under s 47, to appoint a conciliator for the purpose of attempting to bring about a settlement of the complaint.

Takeaways

The need for blood donations is high and there are those who are ineligible but willing and viable candidates. Although there may not be a requirement to accommodate every group, the more accommodations made the more blood donations are possible.

You can also watch the related video here:
https://www.tcwalkerlawyers.com/radio-video/

References
[1] https://www.cedars-sinai.org/programs/blood-donor-services/about-donation.html
[2] https://globalnews.ca/news/8008095/canada-blood-donors-demand-summer/
[3] Canadian Blood Services v Freeman, [2010] OJ No 3811, 2010 ONSC 4885, 217 CRR (2d) 153, 204 ACWS (3d) 210, 2010 CarswellOnt 10810
[4] S. 3(1) of the Canadian Human Rights Acct
[5] Canada (Attorney General) v Karas, [2021] FCJ No 582, 2021 FC 594, [2021] ACF No 582
[6] https://www.blood.co.uk/who-can-give-blood/men-who-have-sex-with-men/
[7] Soulliere v Canadian Blood Services, [2016] CCS No 13068, 2016 FC 1346, [2016] FCJ No 1499, [2016] ACF no 1499
[8] https://owjn.org/2015/07/how-do-i-make-a-claim-under-the-ontario-human-rights-code/#:~:text=File%20an%20application%20to%20the,a%20hearing%20before%20the%20Tribunal

Tags: Civil Litigation Law

 

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