Responsibility in Preventing Prisoners' Exposure to HIV in Prisons
Do prisoners have a right to the
means that would allow them to protect themselves against
contracting HIV and other diseases in prisons? Can prison systems be
forced to provide condoms, bleach, and sterile needles? Can and
should the law be used to achieve change in prison HIV/AIDS
The following articles by Ian
Malkin and Richard Elliott discuss these questions. Malkin analyzes
whether the tort of negligence can be used to prevent prisoners'
exposure to HIV, and Elliott discusses whether denying prisoners
access to sterile needles and/or to bleach constitutes a violation
of their rights under the Canadian Charter of Rights and Freedoms.
The Role of the Law of Negligence
in Preventing Prisoners' Exposure to HIV While in Custody
It is no secret that prisons detain
a large number of injecting drug users, gay men, lesbians, and
individuals who identify as "straight" but who engage in same-sex
activities. These individuals are among the most marginalized and
disadvantaged in the community, and imprisonment heightens their
marginalization. Because many prisoners engage in unsafe activities,
they run the risk of contracting HIV/AIDS: this risk, and the spread
of the virus, could be diminished substantially if it were not for
the negligent conduct and choices of governments and prison
It is unreasonable for a prison
authority to assert that because it does not want to be seen to
encourage same-sex or drug-use activity in prison, it can pretend
that it does not occur, and not provide measures to contain its
spread. Because administrators manifestly cannot guarantee an
environment free from the danger of infection, there is not only a
moral duty to face up to that danger and address it, but a legal one
as well. Its non-fulfillment amounts to negligence.
Recent developments highlight
the importance of putting the search for legal redress on the legal
and political agenda:
• The possibility of
seroconversion in prisons has become a documented reality: Dolan
reported Australia's first confirmed case of custodial
seroconversion, warning that "a disturbingly high number of HIV
transmissions might have occurred," and adding that, "given the
prevalence of infection and the prevalence of risk behaviour it
would appear that the potential [for further seroconversions] is
enormous." Also in 1994, Scottish researchers
documented as many as eight cases of custodial seroconversion.
There is evidence of the rapid spread of hepatitis B and C in
prisons and, by extension, of the potentially rapid transmission of
From January to July 1995, 200 new cases of active hepatitis C and
18 new cases of hepatitis B were reported in federal prisons in
Three studies undertaken in Canadian prisons revealed hepatitis C
seroprevalence rates of between 28 and 40 percent: (1) in the first
study, undertaken at Prison for Women in Kingston, 39.8 percent of
the 86.9 percent of inmates who participated tested positive;
(2) in the second study, undertaken at Joyceville Institution, a
federal medium security federal penitentiary near Kingston, 27.9
percent of the 408 participating prisoners tested positive;
(3) a third study of male inmates in British Columbia showed a
prevalence of 28 percent.
Similar figures are reported from other prison systems. For example,
in prisons in Victoria (Australia), 39% of 3627 prisoners tested had
been exposed to hepatitis C; 46% had a history of injecting drugs.
Prevalence of hepatitis is as high as 50% in prisons in New South
Fifty prisoners launched a legal action against the State of NSW for
non-provision of condoms. Their lawyer noted that "[i]t
is no proper part of the punishment of prisoners that their access
to preventative means to protect their health is impeded".
prisoner who seroconverted while in a maximum security institution
in Queensland, Australia, has launched an action for damages for
negligence against the Queensland Corrective Services Commission.
These developments leave no room
for complacency and, combined with the threat of legal actions by
prisoners contracting HIV and other infections in prison, may
provide the catalyst necessary to the institution of
long-recommended changes and reasonable responses to HIV by prison
The Potential Usefulness of a
Legal Action in Negligence
Given the increasing dangers
posed by HIV and hepatitis in prisons, brought into focus by cases
of seroconversion in custody, there is more reason than ever to
utilize a legal approach involving an old, somewhat flexible
proceedings in the attempt to achieve substantive change in
correctional policy: prisoners may be able to demonstrate the need
for changes in prison authorities' and governments' behaviour by
instituting an action in negligence. Canadian prisoners could also
raise important constitutional law arguments based on Canadian
Charter of Rights and Freedoms violations.
The tort of negligence gives
rise to a private action or civil claim. An action in negligence is
initiated by the aggrieved individual (not by the police or the
Crown, if a particular act can be characterized as criminal in
nature) who alleges that she or he has a cause for complaint. The
complainant, or plaintiff, contends that she or he suffers harm or
damage that was caused by a wrongful, careless, or unreasonable act
or omission of another person, entity, or institution (the defendant
in the proceedings).
The law of negligence is about
balancing interests – a defendant's conduct on the one hand, and the
rights of those affected by that conduct on the other. During the
last several years, the law of negligence has struggled to resolve
disputes in contexts far removed from those traditionally seen to be
the site of careless activity, such as transportation accidents. It
has taken on the role of ombudsman and
standard-setter, in an attempt to formulate and shape desirable
behaviour. It can also act as educator, deterrer and compensator,
and is being used increasingly by various elements of the community
who otherwise have nowhere to turn to seek redress. At the very
least, these marginalized, disenfranchised individuals are using the
law of negligence to make significant public statements.
In the prison context, the
primary objective is not necessarily one of securing damages for a
prisoner whose seroconversion is causally linked to a prison
authority's negligence, but a means through which institutional
improvements can be effected. The law of negligence can provide a
check on how well (or badly) duties are fulfilled, and gauge whether
behaviour ought to be changed. This is particularly important in the
prison context, where the relationship of dependence – respecting a
prisoner's every need – is fundamental to existence and survival.
Prison authorities have in fact been found negligent in several
Elements of the Tort of
In order for an action in
negligence to succeed, the plaintiff needs to prove that he or she
was owed a duty of care by the defendant, that the standard of care
owed was not met, and that the breach caused actual harm.
Duty of Care
Without question, prison
authorities owe a duty of care to those in their custody, based on
the proximate relationship of custodian and detainee. There is,
however, one possible stumbling block, which is dependent on the
court's characterization of the specific decision under
consideration: the authorities may argue that prisoners' complaints
concern policy or planning decisions of government, dictated by
resource implications or politics, and that therefore no duty is
owed. Although this arose in the Prisoners case in NSW, it
was not fatal to the claim.
Breach of the Duty of Care
Establishing a breach of duty –
a failure to exercise the degree of care that is reasonable in the
circumstances – may be difficult. The central question is: What
constitutes reasonable behaviour on the part of prison authorities?
Answering it requires authorities to abandon arguments drawn from
moralizing, compelling them to engage in a dialogue embracing
notions of responsibility, practicality, and confrontation of harm.
The measures currently in place
to contain the spread of HIV in Canadian prisons are as follows: all
systems provide some educational programs, and offer voluntary HIV
testing to prisoners; most provide condoms, but rarely are they
easily and discreetly accessible; in some systems, condoms are not
available at all; lubricant is often not available even where
condoms are available; some systems provide bleach; no system
provides syringes or sterile needles. The issue is: could prison
authorities be held liable in negligence for failing to comply with
the standard of reasonable care expected of them, if they persist in
refusing to provide access or easy access to condoms, dental dams,
lubricant, bleach, and sterile needles in prisons?
Unlike previous HIV-related
litigation, where claims focused on what hospitals and blood banks
ought to have known at particular dates in the past, in this context
there is no doubt that prison authorities have not only for several
years been able to foresee the likely harm of their policies, but in
fact have known of the existence of HIV/AIDS and how it is
transmitted in prisons. The issue, then, relates not simply to the
prison authorities' knowledge of the risk of transmission, but to
their actual conduct, which seems premised on wilful blindness to
these recognized dangers. This should all weigh quite heavily in a
On the one hand, in determining
whether conduct is negligent or not, immeasurable values such as
community concepts of justice, health, life, and freedom of conduct
are taken into account: they favour a prisoner's contention that she
or he has been wronged. On the other hand, the authorities may
contend that the need to manage institutions effectively – embracing
fears of labour-related strife – justifies their inaction. However,
the seriousness of the risk of not providing effective, inexpensive
measures favours a finding of carelessness: its gravity dictates
that a strong public health, harm-reduction approach must be taken
as the only reasonable response to the risk of transmission.
A court's ultimate finding
cannot be predicted with confidence. Knowledge of measures used
elsewhere, as well as the recommendations of bodies such as the
World Health Organization, can be helpful in assessing what
constitutes a reasonable response. Regard would be had to the fact
that many prisons worldwide provide access to condoms and to bleach,
and that provision of sterile needles is being successfully piloted
in Switzerland. The latter is particularly important: the success of
the Swiss program demonstrates that provision of sterile needles in
prison is not merely the product of the imagination of
pie-in-the-sky, ivory-tower academics or committees who could be
said to have little appreciation of the actual difficulties
associated with implementing such a measure. We now know that a
sterile needle-distribution program in prison can realistically and
successfully be implemented. In fact, because some
concern has been voiced regarding use of bleach, the
only reasonable response to the risk of transmission from IV drug
use may be the one that seems hardest to swallow: do on the inside
what is done on the outside – provide clean needles. The fact that
most systems do not provide syringes is an inadequate response to an
allegation of carelessness: while examples of similar conduct may be
helpful, they do not determine findings of fault. Poor practices do
not excuse failures to do what a reasonable enterprise ought to do.
Has the Claimant Suffered
Traditionally, claimants have to
have suffered actual harm before they can bring a negligence action;
the "gist of the action" is damage. The relief granted has always
been in the form of damages. However, in the NSW claim, Dunford J
made some remarkable comments that dramatically affect the nature of
the action: there appears to be no reason why the court should not
grant an injunction in an appropriate case, even without proof of
damage. This approach is certainly appropriate
whenever preventative measures are demanded. As the plaintiffs'
lawyers argued, "[i]f the plaintiffs contract HIV or hepatitis in
consequence of the continuing breach of the duty of the defendant,
their losses will be irreparable, and damages will scarcely be a
suitable alternative remedy. The plaintiffs ought not wait until
they have compensable injury before they can take action in respect
of the defendant's continuing breach of the duty of care."
Causality: Is the Harm the
Result of the Breach?
A court certainly has the
opportunity to resolve causality in the plaintiff's favour,
depending on the facts of the particular case. However, the
potential stumbling blocks should not be underestimated. Were it not
for the failure to provide a prisoner with sterile needles, bleach,
dental dams, or condoms, depending on the nature of the behaviour in
a particular instance, would a prisoner have contracted the virus?
No. Of course, a negative response assumes there is evidence that
the prisoner was HIV-negative prior to incarceration for a period
longer than the six-month "window period" and that the infection
occurred in prison. From a litigation perspective, the prisoner
recently identified as having seroconverted while in prison would
obviously be the plaintiff best able to litigate successfully. The
argument that the measures might not have been used has been raised:
however, this does not address making them available –
thereby empowering the individual prisoner to make the decision to
use or not use them (rather than the authorities). Authorities also
may argue that the true cause of infection is the plaintiff's own
behaviour, especially where education addressing risk reduction is
provided; in response, it may be contended that the provision of
education programs without providing condoms, bleach, and needles is
Even if a plaintiff can
establish a cause of action to the satisfaction of the court, the
defendant still has the opportunity to negate the plaintiff's case
by raising one of the following defences:
Voluntary Assumption of Risk
The most troublesome hurdle in a
plaintiff's case may be the authorities' expected argument that the
sufferer "voluntarily assumed the risk" of injury. However, this
defence is not insurmountable, and courts have been loath to give
effect to it because of its harshness in result. For example,
whether a plaintiff "freely and willingly" ran the particular risk
is contentious. If a drug-dependent prisoner shared an unclean
needle, it could hardly be argued that she or he "voluntarily
assumed the risk" of infection. In situations involving consensual,
unprotected sexual activity, the issue is far more complex, but
courts have in the past been prepared to recognize the complexity of
human will and the importance of a broad understanding of the
circumstances in which decisions are made. Of course, the
authorities and perhaps the public and courts may have little
"sympathy" for a plaintiff who engages in risky behaviour. But no
one is asking for sympathy; rather, the demands are for reasonable,
responsible conduct on the part of custodians. Further, a detainee's
vulnerability in comparison to the power enjoyed by prison
management cannot be ignored where the plaintiff's "free and
willing" behaviour is at issue.
The authorities may argue that a
prisoner's own act of practising unsafe sex or using injecting drugs
with unclean instruments should be considered a failure to take care
with respect to her or his own safety. The courts may hold the
prisoner contributorily negligent and apportion damages. To do so,
however, would be to unrealistically assess the true dynamics of
prison life: because of imprisonment, there is less opportunity for
prisoners to truly take care of their own safety, as they are
virtually totally dependent on the authorities for their care.
Because drug use and sexual
activity are prohibited in prison, it might be argued that a
prisoner's illegal conduct defeats her or his claim. This defence
should fail: unless the infringed law itself states (or implies)
that a civil claim cannot be brought for an injury sustained while
committing the prohibited act, the mere fact that the prisoner acted
illegally does not disallow the action. Prison regulations are
intended to serve institutional management efforts rather than to
preclude civil recovery. The Supreme Court of Canada narrowly
circumscribed the availability of illegality as a defence: "Its use
is justified where allowing the plaintiff's claim would introduce
inconsistency into the fabric of the law, either by permitting the
plaintiff to profit from an illegal or wrongful act, or to evade a
penalty prescribed by criminal law. Its use is not justified where
the plaintiff's claim is merely for personal injuries sustained as a
consequence of the negligence of the defendant."
Here, a prisoner neither profits from infringing the regime's rules,
nor evades penalties in doing so; the illegal conduct is legally
irrelevant. As Jürgens states: "The fact that prisoners put
themselves at risk of contracting HIV by engaging in sexual activity
and drug use, both prohibited in prisons, is not a sufficient excuse
for not acting. This has been understood outside prisons, where
needle exchanges have been set up with government approval and
The Value of the Common Law –
and Its Limits
"Will the complainant succeed?"
Possibly. But success in the traditional sense is not entirely the
issue in these circumstances. Even if a prisoner fails, the expenses
facing the authorities in having to defend claims of this nature may
prove to be a factor weighty enough to tip the balance in favour of
changed policies. Of course, this is not intended to minimize
important factors in all HIV-related litigation: "a person who is
actually suffering from AIDS ... may not have the physical or
emotional strength to instruct counsel, attend discovery proceedings
and be subjected to the rigour of a trial". A
prisoner's opportunity to enforce "common law duties is curtailed by
limited access to legal aid, and probably by their own reluctance to
become involved in legal disputes with their custodians. In the case
of prisoners with HIV/AIDS it may be additionally unattractive
because of the stresses associated with involvement in legal
However, in order to make a
statement, some individuals may be willing to endure the rigours of
litigation. And while legislation would certainly be a far better
means by which to institute harm-reduction measures than court
action, litigation and the threat of it may provide a reason for
legislators' effecting improvements. The action, by and of itself,
cannot compel the introduction of the necessary legislative
initiatives; however, in conjunction with other strategies it may
fuel reform. Regardless of actual outcomes, policies may change as a
result of embarrassing publicity: it is because of the publicity
generated by the prisoners' condom case in NSW that some politicians
have hinted that change may be forthcoming. For example, the
Australian federal health minister criticized prison authorities'
resistance to providing preventative measures, stating that "[p]eople
are sentenced to jail, not to be infected," and that "they deserve
the same level of care as people outside get."
The non-provision of sterile
needles and the often difficult access to other harm-reduction
measures in prisons in Canada and in other countries cannot be
justified: compliance with the conduct of other prison systems does
not excuse culpable, careless behaviour. If a negligence action can
help demonstrate to the public and authorities the need to respond
to the risk of the spread of HIV and hepatitis in prisons, then
instituting proceedings will have proven worthwhile. However, as
noted earlier, one of the problems with using the law of negligence
as it is traditionally understood, and not as suggested by Dunford
J, is that damage must have occurred. In Australia and Scotland,
with the recognition of documented cases of custodial seroconversion,
this requirement has been satisfied; an after-the-fact remedy can
now be pursued, if the sufferers wish to do so. A case has already
been instituted by a prisoner who contracted HIV while in prison in
Queensland, Australia. It seems inevitable that other
cases will soon be instituted by prisoners, in Canada or elsewhere,
who have seroconverted while in prison and who would have used
condoms or bleach or syringes had they been available. They will sue
the authorities for their failure to satisfy the reasonable level of
care owed to them by refusing to provide preventative measures. The
problem is real. Only the most irresponsible authorities and
governments would persist – at their potential legal peril – in
refusing to provide measures that would prevent the grave harm of
custodial seroconversion. Courts are now in a position of being able
to legally condemn the authorities' inaction.
- Ian Malkin
Thanks to Ralf Jürgens for his
assistance, and to Simon Chesterman for his invaluable work as
research assistant and contributions in writing some segments of a
detailed version of this paper, to be published in the December 1995
volume of the Melbourne University Law Review. A longer
version of this paper can also be found in HIV/AIDS in Prisons –
A Discussion Paper, to be published by the Canadian HIV/AIDS
Legal Network and the Canadian AIDS Society in November 1995.
 K Dolan, W Hall et al.
Letter to the Editor: Evidence of HIV Transmission in an Australian
Prison. Medical Law Journal of Australia 1994; 160:734.
 B Christie. Scotland:
Learning from Experience. British Medical Journal 1995;
310(6975):279; A Taylor, D Goldberg et al. Outbreak of HIV Infection
in a Scottish Prison. British Medical Journal 1995;
 Health Services Statistics.
The Correctional Service of Canada, July 1995.
 PM Ford, C White, et al.
Seroprevalence of Hepatitis C in a Canadian Federal Penitentiary for
Women. The Canada Communicable Disease Report 1995; 21(14):
 M Pearson, PS Mistry, et al.
Voluntary Screening for Hepatitis C in a Canadian Federal
Penitentiary for Men. The Canada Communicable Disease Report
1995; 21(14): 134-136.
 RG Prefontaine, RK Chaudhary,
et al. Analysis of Risk Factors Associated with Hepatitis B and C
Infections in Correctional Institutions in British Columbia.
Canadian Journal of Infectious Diseases 1994; 5: 153-56.
 See N Crofts, T Stewart, et
al. Spread of Bloodborne Viruses among Australian Prison Entrants.
British Medical Journal 1995; 310 (6975): 285, and P Brown,
cited in C Zinn. Australia: Climbing the Political Agenda.
British Medical Journal 1995; 310 (6975): 279.
 Prisoners A to XX
inclusive v State of NSW (Supreme Court of NSW, Dunford
J, 5 October 1994); see R Jürgens. Australia: Prisoners Sue for the
Right to Condoms. Canadian HIV/AIDS Policy & Law Our Sponsors ,
vol 1, no 1 (October 1994) at 5; Australia: Update on Prison Condom
Case. Canadian HIV/AIDS Policy & Law Our Sponsors , vol 1, no 3
(April 1995) at 3.
 Editorial. Prisoners Sue for
the Right to Condoms. [Australian] HIV/AIDS Legal Link 1994;
 M Kennedy. Prison
Discrimination Case Continues. [Australian] HIV/AIDS Legal Link,
vol 6, no 2 (June 1995) at 12.
 These arguments are
addressed infra, in R Elliott. Prisoners' Constitutional Right to
Clean Needles and Bleach.
 See A Linden. Reconsidering
Tort Law as Ombudsman. In: F Steel, S Rodgers-Magnet (eds).
Issues in Tort Law. Toronto: Carswell, 1983, at 1-23; A Linden.
Canadian Tort Law. Toronto: Butterworths, 1993, at 1-29.
 Examples include not
preventing injury to one prisoner by another (Dixon v
State of Western Australia  WAR 69; L v
Commonwealth (1977) 10 ALR 269; Nada v Knight
(1990) Aust Torts Reports 81-032); and failing to protect detainees
from injuring themselves (Howard v Jarvis (1958) 98
 Supra, note 8.
 R Jürgens, N Gilmore.
Canadian Expert Committee on AIDS and Prisons Releases Final Report.
[Australian] HIV/AIDS Legal Link 1994; 5(3):12.
 See Canadian HIV/AIDS
Policy & Law Our Sponsors vol 1, no 1 (October 1994) at 1; and vol
1, no 4 (July 1995) at 2.
 See, eg, Correctional
Service of Canada. HIV/AIDS in Prisons: Final Report of the
Expert Committee on AIDS and Prisons. Ottawa: Minister of Supply
and Services Canada, 1994, at 68-69; K Dolan. Evaluation of a
Program of Syringe Decontamination for NSW Prisoners. Unpublished
paper presented at the Australian and New Zealand Society of
Criminology 10th Annual Conference, 28 September 1994, at 7.
 Supra, note 8 at paras
 Plaintiff's Outline of
Submissions, para 1.7.
 McLaughlin J in Hall
v Hebert (1993) 101 DLR (4th) 129.
 Canadian HIV/AIDS Policy
& Law Our Sponsors , vol 1, no 2 (January 1995).
 L Rozovsky, F Rozovsky.
AIDS and Canadian Law. Toronto: Butterworths, 1992, at 54.
 J Norberry. HIV/AIDS,
Prisons and the Law. In: J Fortuin (ed). Issues in HIV/AIDS in
the Australian Prison System. Canberra: Australian Institute of
Criminology, 1992, at 83, 92.
 Melbourne Age, 7
June 1994; The Australian, 7 June 1994; Melbourne Age,
3 February 1995.
 Supra, note 10.