A woman in Windsor Ontario with no infections or other health risks relevant to transfusions was rejected as a blood donor because her intellectual disability made it difficult for her to understand the lengthy screening form she had to fill out before she could donate.

The woman and her mother filed human rights complaints against Canadian Blood Services (CBS) and Health Canada. The complaint alleged that both organizations had failed to accommodate the woman during the screening process.

The woman’s complaints against both the CBS and Health Canada were initially dismissed, and, ultimately dismissed again on judicial review (i.e. appeal). It remains to be seen whether the woman and her mother will continue their legal battle and file a further appeal.

What Happened?

In February 2012, the woman in question attended a mobile blood donor clinic in Lasalle, Ontario wishing to donate blood. The CBS nurse screener met with the woman alone and asked her to fill out the Donor Health Assessment Questionnaire (DHAQ) to her. This is a form all potential donors are asked to fill out and consists of a series of questions intended to assess their health, potential for giving blood, and potential risk to the national blood system.

The nurse attempted to explain some of the DHAQ questions in “simpler” language, but ultimately screened the woman out of the process, did not allow her to donate, and deemed her “indefinitely deferred”. The nurse’s notes quoted the woman’s mother telling the nurse that the woman had the intellectual ability of a three-to-five-year-old. The nurse also noted “donor cannot read and doesn’t have an understanding of timeframes, transmissible disease-unable to understand questions even when restated in simpler fashion”.

Later that same month, the woman attended a different clinic and attempted again to donate. When CBS learned of this it contacted the woman’s mother to attempt to get her to dissuade the woman from attending the clinic, telling the mother that donation would “never happen” for the woman.

In August of that year, CBS’ Associate Medical Director spoke to the woman’s mother on the phone and offered to conduct an External Medical Examination (EME), a process the CBS may offer when there are issues arising from the initial screening and/or DHAQ. The woman’s mother did not proceed with the EME on behalf of the daughter.

In December 2012, the woman’s mother filed the human rights complaint against CBS and Health Canada on behalf of the daughter, alleging that CBS had discriminated against the daughter on the basis of her intellectual disability by denying her the ability to donate blood and barring her from doing so indefinitely.

The Complaints

At the hearing, the woman argued that she could have completed the DHAW with assistance from a “clear-language interpreter”, similar to a sign-language interpreter or foreign language interpreter.

The CBS argued, essentially, that granting the woman’s requested accommodation would result in undue hardship for the agency, since it would create undue risk to the safety of Canada’s blood supply.

The Human Rights Commission ultimately dismissed the complaint against the CBS, finding that the “opportunity to give blood” does not constitute a service under section 5 of the Canada Human Rights Act, and there could therefore not have been discrimination.

The Commission also dismissed the complaint against Health Canada on the grounds that Health Canada “is not the party responsible for the alleged discriminatory act”.

Both dismissals were upheld on judicial review, with the Federal Court finding no breach of procedural fairness, no error in law, and finding that the Commission’s decisions had been reasonable.

The Federal Court did note, as a nod to what they called the woman’s “exceptional kindness and generosity”, that:

…It has been estimated that just under half of Canadian adults are eligible to give blood, and of those eligible only 3-5% actually donate (see Canadian Blood Services v Freeman, 2010 ONSC 4885 at para 49 [Freeman]). Ms. Dewan is one of those exceptional individuals who wanted to donate her blood to help others in need. Regrettably, she was also one of the many found to be ineligible to donate blood.

What’s Next?

The National Post has reported that the woman is considering a further appeal, telling the Post that she “felt disappointed, not too happy about it…mad too”.

A CBS spokesman told the Post that the agency works hard to accommodate donors and that it is “unfortunate” that they could not do so in this instance. He explained that in order to ensure safety “all donors must understand the risks and responsibilities of blood donation, which can be somewhat complicated” and that the solutions that had been suggested as accommodations could “undermine” CBS’ “ability to assess that understanding”. CBS had rejected the use of a clear-language interpreter arguing that rephrasing the screening questions in more easily understandable terms or changing the vocabulary would be a risk.

Tess Sheldon, of ARCH Disability Law Centre in Toronto stated that this issue is “about people with disabilities having an equal chance to take part…making sure that the blood-donor screening process is accessible”. She further noted that “clear language is not baby talk…it’s not changing the message, it is just using sentences that are short and clear, using only necessary words, using words that are direct and straightforward”. She likened it to sign-language or foreign-language interpreters who both make necessary changes where words cannot be directly translated, but still maintain precision in translation.

We will continue to follow developments in this matter and will blog about updates as they become available. In the meantime, if you have a health law or regulatory question, contact the experienced health lawyers and litigators at Wise Health Law. We rely on more than 30 years of combined health law and litigation experience to provide clients with exceptional legal guidance. With offices in both Oakville, Ontario and downtown Toronto, we are easily accessible. Contact us online, or at 416-915-4234 for a consultation.

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