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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”



Governments' 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 policies?

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 administrators.

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."[1] Also in 1994, Scottish researchers documented as many as eight cases of custodial seroconversion.[2]

• There is evidence of the rapid spread of hepatitis B and C in prisons and, by extension, of the potentially rapid transmission of HIV:

• 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 Canada.[3]

• 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;[4] (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;[5] (3) a third study of male inmates in British Columbia showed a prevalence of 28 percent.[6]

• 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 Wales (NSW).[7]

• Fifty prisoners launched a legal action against the State of NSW for non-provision of condoms.[8] 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".[9]

• A 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.[10]

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 authorities.

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.[11]

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[12] 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 cases.[13]



Elements of the Tort of Negligence

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.[14]

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 prisoner's favour.

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.[15]

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.[16] In fact, because some concern has been voiced regarding use of bleach[17], 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 Harm?

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.[18] 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."[19]

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 inadequate.


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.

Contributory Negligence

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."[20] 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 funding."[21]

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".[22] 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 proceedings".[23]



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."[24]

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.[25] 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.


[1] 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.

[2] 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; 310(6975):289.

[3] Health Services Statistics. The Correctional Service of Canada, July 1995.

[4] 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): 132-134.

[5] 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.

[6] 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.

[7] 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.

[8] 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.

[9] Editorial. Prisoners Sue for the Right to Condoms. [Australian] HIV/AIDS Legal Link 1994; 5(1):1.

[10] M Kennedy. Prison Discrimination Case Continues. [Australian] HIV/AIDS Legal Link, vol 6, no 2 (June 1995) at 12.

[11] These arguments are addressed infra, in R Elliott. Prisoners' Constitutional Right to Clean Needles and Bleach.

[12] 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.

[13] Examples include not preventing injury to one prisoner by another (Dixon v State of Western Australia [1974] 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 CLR 177).

[14] Supra, note 8.

[15] R Jürgens, N Gilmore. Canadian Expert Committee on AIDS and Prisons Releases Final Report. [Australian] HIV/AIDS Legal Link 1994; 5(3):12.

[16] 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.

[17] 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.

[18] Supra, note 8 at paras 14-15.

[19] Plaintiff's Outline of Submissions, para 1.7.

[20] McLaughlin J in Hall v Hebert (1993) 101 DLR (4th) 129.

[21] Canadian HIV/AIDS Policy & Law Our Sponsors , vol 1, no 2 (January 1995).

[22] L Rozovsky, F Rozovsky. AIDS and Canadian Law. Toronto: Butterworths, 1992, at 54.

[23] 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.

[24] Melbourne Age, 7 June 1994; The Australian, 7 June 1994; Melbourne Age, 3 February 1995.

[25] Supra, note 10.