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Take Your Medicine, Or Else!
August 8, 2006 permalink
Canadians have inherited the common law right to remain silent when dealing with the police, but not with a doctor. We have seen several cases in which a mother questioned a doctor about treatment for her child resulting in loss of custody to CAS. This is the first case in which silence has brought on a criminal conviction. The state claims the power to conceal the identity of the person it has convicted. Lisa Priest reports with a pro-doctor, and anti-mother, slant. More facts and comments follow the article.
Mother convicted of hiding HIV status for son's birth
Globe and Mail Update
An Ontario mother has been convicted for hiding her HIV status, which denied doctors the chance to treat her baby and possibly prevent her newborn son from being infected — a case considered the first of its kind in Canada.
The mother of two pleaded guilty to failing to provide the necessaries of life. On April 6, Mr. Justice Anton Zuraw sentenced her to a six-month conditional sentence, followed by three years of probation, Hamilton-based assistant Crown attorney Karen Shea has confirmed.
Until today, news of her conviction had escaped public view.
“The moment that child was born, the child did not have an opportunity to have the medication,” Detective Brien Smyth of Hamilton Police Service said in a telephone interview. “We had our fingers crossed, hoping the baby did not ever get HIV.”
As it turned out, the baby did test positive for the human immunodeficiency virus when he was 2½ months old. He turns 2 next month.
The woman's lawyer, Larissa Fedak, refused comment. Her client, who lives in Hamilton, could not be reached for comment.
She is not being named to protect the identity of her son.
The charge the woman was convicted of is typically reserved for cases of child neglect. In this case, her conviction stems not from what she did or didn't do during her pregnancy, but her behaviour after the baby was born.
“I think it's such a unique case, I hope we never see another one like it,” Det. Smyth said. “It's unfathomable.”
Unfathomable, he said, because the mother was counselled about the risks of transmitting HIV to her baby during her first pregnancy. When she came to Canada in April of 2003, she was HIV-positive and far along in her pregnancy. Hamilton doctors advised her about ways to reduce the chances of passing the virus onto her baby.
Steps included receiving antiretroviral therapy two hours prior to delivery, having a cesarean section, ensuring the newborn received antiretroviral therapy and refraining from breastfeeding, according to the synopsis of offence that was filed in Provincial Court.
Today, if a woman with HIV takes antiretroviral therapy during pregnancy, she can deliver her baby vaginally, so long as her viral load is below 1,000 copies per millilitre, which is the amount of HIV normally present in blood. If she takes the drugs and does not breastfeed, and the baby receives antiretroviral therapy within the first 72 hours of life, the chances of the infant getting the virus are just 1 per cent, said Stanley Read, director of the HIV/AIDS program at the Hospital for Sick Children in Toronto.
If a woman follows none of the precautions, her chances of passing the virus on to her newborn are 25 to 30 per cent.
“We haven't had an infected baby of a mom who took medication, however badly, for three years, maybe four now — and that's across Canada,” Dr. Read said in an interview in Toronto. “The only transmission to babies has been when mom didn't get diagnosed, didn't get treated or didn't take her treatment.”
The convicted woman followed the advice of Hamilton doctors during her first pregnancy. On June 30, 2003, she gave birth to a healthy girl who never acquired the virus, according to the synopsis of offence.
But things went differently the second time.
She discontinued her antiretroviral therapy in August, 2004, even though it had reduced her viral load to undetectable levels. When her viral load climbed, it necessitated a scheduled cesarean section on Aug. 27, 2004, which she did not show up for, according to the synopsis of offence.
It is not clear why she treated the second pregnancy so differently. The only clue is that when speaking to a McMaster University Medical Centre social worker about the possible transmission of HIV to her baby, she described it as being “in God's hands,” the synopsis says.
She did assure that same social worker that although she was going to have a vaginal birth, she would allow the newborn to receive antiretroviral therapy, according to the synopsis of offence.
But when she experienced abdominal pains, she did not go to McMaster University Medical Centre — the hospital where she had received prenatal care. Instead, she went to a different hospital.
On Aug. 30 at St. Joseph's Hospital in Hamilton, she told health-care workers that she had not received prenatal care but was healthy and had experienced no complications during her pregnancy. She denied being HIV-positive. Blood tests were ordered.
Days later, on Sept. 4, 2004, she went back to St. Joseph's, where she gave birth to her son. Staff was still not aware of her HIV status because results from her blood tests were not yet available.
A social worker became concerned by the lack of prenatal care and what was described as the woman's poor attitude, according to the synopsis of offence.
The social worker then contacted the Children's Aid Society, which is the point where the hospital learned the woman was HIV-positive. By that time, the baby was three days old; he was immediately given antiretroviral drugs, according to the synopsis of offence.
In connection with the same offence, the woman was also charged with criminal negligence causing bodily harm and aggravated assault. However, those charges were withdrawn, Ms. Shea, the assistant Crown attorney, confirmed.
Shortly after the woman's arrest in late May of 2005, both of her children were apprehended by the Catholic Children's Aid Society of Hamilton. For privacy, the society cannot divulge whether the children are in their care, said Karen Dolyniuk, manager of development and communications.
The case is highly unusual. Experts say most pregnant women who test positive for HIV do everything possible to reduce the chances of transmitting the virus to their babies, and statistics concur.
From 1984 to 2005, there were 2,206 Canadian babies exposed to the virus in the womb. Of those, 496 babies were infected, 1,612 were not infected and the remainder could not be confirmed, most because they were lost to follow up, said Jennifer Pennock, an epidemiologist with the Public Health Agency of Canada in Ottawa.
“What we've seen over time is that when we look at the proportion of babies confirmed to be infected, it has decreased over time,” she said in a telephone interview.
For example, in 1994, 40 per cent of infants exposed to HIV in the womb contracted the disease. But by 2005, the rate of infected babies had fallen to 4 per cent.
Although testing rates have climbed across the country over the past few years, there are still tens of thousands of pregnant women each year who are never tested for HIV. Consequently, an estimated 15 to 20 babies are born with the virus each year, according to Robert Remis, a public-health-sciences professor at the University of Toronto, who has studied HIV/AIDS extensively. Many of these infections could be prevented if the women were diagnosed and treated.
“I believe women are more concerned about not getting tested than getting tested,” Dr. Remis said in a telephone interview.
One who feels that way is Denise Becker, 47, of Kelowna, B.C. It was only when her daughter Katie died at six months of age in 1994 that Ms. Becker discovered she had HIV and had passed it on to her daughter.
“When I found out I hadn't been offered the test, I was just floored,” Ms. Becker said by telephone. “It was never brought up to me by any of my general practitioners.”
In Ontario, the rate of HIV testing in pregnant women is 89 per cent, according to Frank McGee, AIDS co-ordinator for the Ontario Health Ministry. Since the testing program began in 1999, an estimated 50 HIV transmissions have been prevented.
“It's very important that pregnant women be tested,” Mr. McGee said in a telephone interview.
Source: Globe and Mail
Note: According to a Hamilton informant familiar with the facts of the case, the parents are African Muslims and the mother does not speak English. On the birth of the first baby, she was not aware of her HIV infection. When it became known, the father threatened to kill her if she disclosed her HIV status. The mother and second baby were transferred from McMaster to St Joseph's under police protection, to save the mother from the father's threats. The Globe and Mail (and the prosecutor) put an anti-mother spin on the facts.