Health Law and Access to Medications

Depending on our resources and the issue, HALCO may provide free summary advice and/or representation to people living with HIV in Ontario. If we cannot assist, we will do our best to provide information and referrals to other services.

We may be able to assist with the following matters:

  • Access to Medications
  • HIV Testing (with limited exceptions, only for people living with HIV)
  • Public Health Issues (e.g., section 22 Orders, contact tracing)

The Steps to Justice Website offers step-by-step information about health law and other common legal problems. https://stepstojustice.ca/legal-topic/health-and-disability/

Ontario Drug Benefit program (ODB)

The Ontario Drug Benefit program (ODB) provides prescription drug coverage for Ontario residents who have a valid Ontario Health Insurance Program (OHIP) card and who are:

  • OHIP+ for babies, children, youth and young adults age 24 years and under (program started January 1, 2018 and changed April 1, 2019; see below.
  • receiving social assistance (Ontario Works, Ontario Disability Support Program benefits)
  • registered for the Trillium Drug Program
  • 65 years of age and older (two levels of coverage, depending on income – see below)
  • children receiving benefits from Ontario’s Assistance for Children with Severe Disabilities program (ACSD)
  • living in a Long-Term Care Home or Home for Special Care, or
  • receiving professional services under the Home Care program.

The Ontario government website includes an online tool to find out if a drug is covered by the OHIP+/ODB: www.ontario.ca/page/check-medication-coverage/.

OHIP+ provides free prescription drugs for children and youth aged 24 and under who live in Ontario and have Ontario Health Insurance Plan (OHIP) coverage but who do not have private insurance.  OHIP+ coverage is automatic for all babies, children and youth who have OHIP coverage, so there is no need to register.  With the child’s OHIP health card or health care number, pharmacies will fill prescriptions without any charges, dispensing fees, co-payments or deductibles.  You can find more information about OHIP+ on the Ontario government website: www.ontario.ca/page/learn-about-ohip-plus.

As of April 1, 2019, children and youth who are in any way captured by private insurance access the private insurance and are not be covered by OHIP+. You can find more information in our OHIP+ changes post. If children have significant prescription drug costs that are not covered by the private insurance, they can access the Trillium Drug Program (see below).

The Trillium Drug Program is an ODB program for Ontario residents who do not qualify under the other Ontario Drug Benefit programs and who do not have other similar or equivalent prescription drug coverage. The Trillium Drug Program provides assistance to people who have prescription drug costs that are high relative to their household income. The Trillium Drug Program has deductibles and co-payments.

ODB Co-payments

There is a $2 ODB co-payment per prescription (no co-payment for OHIP+) but most pharmacies choose not to charge this co-payment to their clients.  For people 65 and older, the co-payment is either $2 for lower income seniors or $6.11 per prescription (after $100 deductible). Most pharmacies do not charge the $2 co-payment, so lower income seniors do not pay and seniors who are not “lower income” pay $4.11 per prescription.

ODB Deductibles

Seniors who are not “lower income” pay a $100 annual deductible.

Trillium Drug Program registrants pay an annual deductible based on the number of people in your household and the income of the people in your household.

You can get more information about Ontario Drug Benefit programs by calling Service Ontario: toll-free telephone 1-866-532-3161, TTY toll-free 1-800-268-7095, or by visiting the ODB Main Page: https://www.ontario.ca/page/get-coverage-prescription-drugs

Other Ontario Prescription Drug Programs

Ontario has a number of other publicly funded prescription drug programs, including:

  • Exceptional Access Program
  • Compassionate Review Policy
  • hospital prescription drugs
  • New Drugs Funding Program for Cancer Care
  • Special Drugs Program
  • Inherited Metabolic Diseases Program
  • Respiratory Syncytial Virus Prophylaxis for High-Risk Infants Program
  • Visudyne Program (age-related macular degeneration)

You can find more information on the government of Ontario website: https://www.ontario.ca/page/ontario-public-drug-programs

Health Care Provider Access to your publicly funded prescription, monitored drug and pharmacy services information

The Ontario government provides health care providers with access to your publicly funded prescription, monitored drug and pharmacy services information.  You can find more information on the Ontario government website:  https://www.ontario.ca/page/health-care-provider-access-drug-and-pharmacy-service-information

If you want to block access to health care providers, you can notify the Ontario Ministry of Health and Long-Term Care by completing a form.  The Ministry has consent withdrawal/reinstatement forms on website: https://www.ontario.ca/page/health-care-provider-access-drug-and-pharmacy-service-information#section-2

Information about your prescription medications may be important for treatment decisions. If you are thinking about restricting access to your information, we suggest that you talk to a health care professional you trust.

Some Other Sources of Prescription Drug Assistance

 

Public Health Law

“Public Health” is concerned with the health of the community and focuses on three main areas:

  • prevention and health protection: to prevent conditions that could cause risk to the health of the community,
  • screening: to identify health problems in order to respond, and,
  • health promotion: to encourage health in individuals and the community.

In Ontario, Public Health is organized into 36 separate regions, each with their own Public Health Unit (link to list on Ontario government website).

Public Health in your community is generally the responsibility of your local Public Health Unit.  However, the Government of Canada is also involved with Public Health issues.

Public Health is concerned with HIV/AIDS in all three areas of community health:

  • to prevent people from becoming infected with HIV
  • to screen to identify people who are infected and to ensure that they receive the supports that they need (please see our HIV Testing page for more information)
  • to promote healthy attitudes and behaviours.

Public Health Units are legally responsible for protecting public health by trying to prevent the transmission of various infections, including HIV.

Public Health counsels people about sexual health, safer sex, and HIV and STI prevention.

Public Health staff have the legal power to issue an Order if they believe that there is a risk someone will pass on HIV or another STI to someone; and that the Order is necessary to decrease or eliminate that risk. The Order will usually tell the person what they must and must not do. If you get a Public Health Order and you want to fight it, you only have 15 days to file an appeal, so you should contact us right away for legal advice.

HIV disclosure: A legal guide for gay men in Canada / Dévoilement du VIH: guide d’information sur le droit pour les hommes gais en Canada

The guide was last updated in 2013 – please see HIV and the Criminal Law in Canada for more recent information about HIV disclosure: https://www.halco.org/wp-content/uploads/2023/10/HIV-and-the-Criminal-Law-in-Ontario_Update_September-2023-002.pdf

The guide, written for gay men living with HIV, offers information about HIV disclosure and Canadian criminal law. It also has information about disclosure and other areas of the law, such as public health, privacy, employment, travel and immigration. The guide provides resources and contacts for more information.

The guide is available in print and to download as a pdf.  You can download the guide as a pdf (on our website):

HIV testing and reporting in Ontario

HIV is the Human Immunodeficiency Virus. HIV is the virus that causes AIDS. AIDS is the Acquired Immunodeficiency Syndrome.

Being infected with HIV is often called “living with HIV” or being “HIV-positive”.

In the past, HIV testing was only accessible through a healthcare provider or a designated testing site. Recently, some people have been able to get HIV self-testing kits that allow them to test on their own or with the help of others such as community organizations. For more information about self-testing, see here.

Other than self testing, here are two main ways in Ontario to get tested for HIV infection: nominal testing (using your name) and anonymous testing anonymous (not using your name). And note that if someone tests positive for HIV using a self-testing kit, they will have to get a confirmatory nominal test before they can get medical care for HIV. The key difference between getting a nominal or anonymous test is that the person’s name will automatically be reported to their local Public Health Unit if they test positive nominally.

For information about the differences between nominal and anonymous HIV testing, as well as details about what gets reported to Public Health authorities when people test positive for HIV, see here.. The guide also provides information about reducing the possibility of a person’s name being reported to Public Health authorities after testing positive anonymously and accessing HIV-related medical care. In addition, the guide includes some information about HIV self-testing kits.

For more information about Public Health Law in Ontario, please see our Public Health Law page: www.halco.org/areas-of-law/health/public-health-law .

For more information about the reporting of HIV to Public Health, please see below.

Informed consent for testing

In Ontario, there are two ways to get tested for HIV: nominal testing and anonymous testing. You must give “informed consent” before being tested, whether the test is done nominally or anonymously. Informed consent means that you:

  • understand the procedures and the consequences of being tested, including Public Health reporting requirements;
  • receive pre-test and post-test counselling to prepare for the test and test result; and,
  • give your permission to be tested.

If someone tests you for HIV without your informed consent, you may want to get legal advice.

Nominal testing

Nominal testing means you are tested using your own name. 

If your nominal test is positive for HIV, the testing laboratory will report your HIV infection, your name, date of birth, gender, and contact information to Public Health.  Your local Public Health unit (https://www.ontario.ca/page/public-health-unit-locations ) will contact you for counselling and support, and to refer you to HIV-related services, including treatment.

In Ontario, Public Health requires that your sexual and needle-sharing partners be notified that they may have been exposed to HIV. This is known as contact tracing, partner counselling, or partner notification. Depending on the circumstances, Public Health may let you or your doctor notify your partners, and may require proof that your partners were notified. Or, Public Health may do the partner notification directly. Public Health should not disclose your name to your partners, but your partners might figure out that it is about you.

Anonymous testing

Anonymous testing means you are tested without having to give your name or personal information.

In Ontario, only an anonymous testing clinic can test you without your name. If your anonymous test is positive for HIV, the testing laboratory will tell Public Health about the positive test result but will not share your name or contact information. If you received counselling about preventing the transmission of HIV before you had the test, the doctors and registered nurses at anonymous testing clinics are not required to report your name and contact information to Public Health.

If your anonymous HIV test is positive, keep your positive anonymous HIV test code from the anonymous testing clinic. The anonymous testing clinic will refer you for medical treatment. The doctor or registered nurse who will treat you is not required to test you again for HIV, but some doctors and nurses may still require you to take a nominal HIV test to confirm your anonymous positive test. If you have a nominal HIV-positive test, the testing laboratory will tell Public Health, and will give your name and information. See Nominal testing above to find out what happens when you are reported to Public Health.

If you would prefer not to have your name and information reported to Public Health by the testing laboratory, you can ask the treating doctor or nurse to do an anonymous viral load test. The viral load test measures the amount of HIV in your blood and is used to make decisions about your treatment. Your doctor can only do an anonymous viral load test if you have your positive anonymous HIV test code. If your viral load test is done anonymously, the laboratory and your doctor are not required to report your name and contact information to Public Health.

We do not know yet what could happen if you refuse to consent to have a nominal test. It is possible that your doctor or nurse might have a duty to report your name and contact information to Public Health.

If you test HIV positive at an anonymous testing clinic, we encourage you to keep your positive anonymous HIV test code. If you have questions about Public Health reporting requirements, we encourage you to contact us for free legal advice as soon as possible after you receive the positive anonymous HIV test result (ideally before you seek medical treatment).

Public Health might still find out about your HIV

Although the above noted change in reporting requirement has taken place, some others are still required to report HIV to Public Health, including: hospital administrators; and, those in charge of institutions such as prisons, child care centres, long-term care homes, psychiatric facilities and private hospitals.

Also, we are not sure what may happen in some First Nations communities because the federal government (Health Canada) may handle HIV testing and reporting instead of Ontario (Public Health).

Reporting of AIDS is different than it is for HIV. Most health care professionals, including doctors and nurses, are required to report AIDS to Public Health.

There is still so much that is not known. Even if a doctor or nurse does not require you to have a nominal test and orders an anonymous viral load test using your positive anonymous HIV test code, we cannot say with certainty that Public Health will not learn your HIV status and your personal information.

Remember, only an anonymous testing clinic can test you without your name.

How can you get an anonymous HIV test?

Anonymous HIV tests are free in Ontario. You do not need an Ontario Health Insurance Plan (OHIP) card or number to get an anonymous HIV test. To find an anonymous testing clinic in Ontario, you can contact the free, confidential Ontario AIDS & Sexual Health Infoline (you do not have to give your name or information):

What happens when you go for an anonymous HIV test?

At the anonymous testing clinic, you will be asked for your year of birth and the town or city where you live. If you do not want to give this information, you can just give the year you were born. A counsellor will talk with you about your risk of HIV infection and help you make an informed decision about getting tested (see Informed Consent for Testing above).

Most anonymous testing clinics use the “rapid HIV test”, also known as the “point of care” test (POC test). The rapid test requires a drop of blood from a finger prick, and the test result is available in a few minutes.

If your rapid test is negative, it means HIV is not showing in your blood at the time of the test. It can take up to 3 months for HIV to show in your blood, so a counsellor will talk to you about whether you should have a follow-up test at a later date. The counsellor will also talk to you about protecting yourself from future risks.

If your rapid test is “reactive”, it means you are probably infected with HIV. A second test is needed to confirm that you have HIV.

The counsellor will talk with you about having this second test. The second test is still anonymous, but you will be given an anonymous identification (ID) test code. A sample of your blood is taken and sent to the testing laboratory. It takes about 2 weeks for the anonymous testing clinic to get your test result. A counsellor will meet with you again to talk about the result. If this test confirms that you are HIV-positive, then the counsellor will talk with you about things like:

  • managing your health and HIV, including medical care
  • preventing the spread of HIV
  • getting support and more information.

Health care and privacy

Health care professionals, including doctors and registered nurses, owe their patients a duty of confidentiality, there are situations where health care professionals are permitted to release a patient’s health care information without the patient’s consent. This webpage does not address privacy law issues. For privacy-related information, please see the Privacy Law page of our website: www.halco.org/areas-of-law/privacy-law. For privacy law advice, please contact us.

Other sources of information about HIV testing

The Ontario Ministry of Health and Long-Term Care and Ontario Public Health websites include information about HIV:

The Public Health Agency of Canada (PHAC) HIV Screening and Testing Guide is available in English and French on the government of Canada website:

Complaints against Health Professionals

Health Professionals provide many services to people in Ontario. Health professionals include: doctors, nurses, dentists, optometrists, physiotherapists, chiropractors, etc. They may work in a hospital, another health care facility, a public clinic or a private medical office. Their work is regulated by laws and by their governing bodies.

  • If you have a concern about the way that a health professional has treated you, there are several different options, including:
  • the governing organizations have complaints policies.
  • Human Rights laws also apply to the services of health professionals (for more information about Human Rights laws in Ontario, please visit our Human Rights page: www.halco.org/areas-of-law/human-rights).
  • You may be able to sue the health professional.

There are different rules and time limits for each option so you should get legal advice right away.

If you are living with HIV in Ontario, you can contact us for free legal advice.

If you are living in Ontario but you are not living with HIV:

  • You can contact the Human Rights Legal Support Centre www.hrlsc.on.ca/en/welcome.  You can also contact your local community legal clinic to find out about services in your community.
  • The Law Society Referral Service (LSRS) of the Law Society of  Ontario is an on-line service that provides a referral to a lawyer or paralegal for an in-person or phone consultation of up to 30 minutes at no charge: https://lsrs.lso.ca/lsrs/welcome. The LSRS crisis telephone for people in custody, in crisis, in a shelter or in a remote community without internet access is 416-947-5255 or toll-free 1-855-947-5255, Monday to Friday 9 am to 5 pm. For more information please see the Law Society Referral Service information on the Law Society of Ontario website: https://lsrs.lso.ca/lsrs/welcome.  The Law Society of  Ontario was formerly the Law Society of Upper Canada.