Freedom or tuberculosis

By Gauntlet Editorial Board

A Winnipeg woman who has been in jail since April for refusing to receive treatment for tuberculosis had her incarceration extended by another 90 days this week. The woman was diagnosed last December, but after missing medical appointments the Winnipeg Regional Health Authority obtained an arrest warrant so she could be treated.

Should the health authority be allowed to detain someone who has a disease? If the disease is highly contagious and threatens the safety of the public, the answer is uncontrovertibly yes. Because tuberculosis is particularly dangerous — if left untreated long enough it can never be cured, and not taking the full treatment risks making it resistant to antibiotics — the health authority is right to interfere.

It’s less clear that the state has the right to force people to get better. People refuse treatment for a number of reasons and, at least in some cases, they have the right to refrain from treatment. Jehovah’s Witnesses, for example, refuse blood transfusions because they believe that blood is sacred. But communicable diseases are different. Other people are put at risk if a disease like tuberculosis goes untreated.

Whether or not the state can order people to get better (rather than just keeping them away from harming others) is an interesting question, but not one of direct relevance to this case. Her being quarantined is the important part. After receiving her 90-day sentence the woman allegedly didn’t protest so perhaps she has come around to the importance of getting treatment after all. Or perhaps she doesn’t find prison that bad. Her reason doesn’t make a difference. If it were the case that she didn’t want treatment because of religious reasons, it isn’t clear how that would affect the result. She should still be prohibited from going out in public with a contagious and dangerous disease.

The Canadian Civil Liberties Association has complained that the woman should have been put in a hospital and not a prison. It’s true that she has been detained to be treated, not to be punished, but the result amounts to the same thing. She is being held in the medical centre of the prison (presumably separated from other prisoners so they don’t risk infection). If she was kept in a hospital the circumstances would essentially be the same, except that preventing her from leaving would be more difficult. Surely a person who has demonstrated her reluctance to be treated is at risk of leaving.

Patients refusing care isn’t altogether unusual. Often people are unaware of the risks of avoiding treatment, don’t think it’s worthwhile, or, as in this case, are afraid of other repercussions (the woman has engaged in prostitution). Incarceration wasn’t the first resort. The WRHA tried various tactics to get her to cooperate, including giving her gift cards to Winnipeg shops in exchange for treatment. It’s appropriate to have laws in place in case such methods fail.

Any cries of draconian treatment are exaggerated. So too are claims of paternalism. The state isn’t forcing treatment on her primarily for her own interest — although that’s likely a factor. They’re forcing it on her so she can leave prison and go back to society.

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