Ethical Sub-Committee in
Although this Sub-committee does not meet on a regular basis the
work has continued and a document on the Legal, Ethical and Human
Rights Issues of HIV / AIDS in
was presented to the National AIDS Committee in December 2001. This
was the result of a review done by consultants McNeil and MacFarlene
on the gaps in legislation / policies in
as it relates to HIV / AIDS and related issues.
The presentation of this document was on
December 13, 2001
and was very well attended. There were over 76 participants
including the media who engaged in active discussion and made
suggestions for the ‘next steps’.
April 2, 2002 the Sub-committee hosted a consultative meeting for
the Caribbean Regional Project on HIV / AIDS Ethical, Legal and
Human Rights. The CARICOM Secretariat with CIDA Support is in the
process of planning a regional project to address the ethical, legal
and human rights aspects of HIV / AIDS in the Caribbean. As part of
this process the consultant asked the National AIDS Committee to
coordinate their first visit with stakeholders in Jamaica. The
meeting was very well attended with a wide representation of persons
from a variety of backgrounds i.e. human rights, private sector,
corrections, non-governmental body’s etc.
The review of ‘legislation, legal and ethical issues’ presented in
December 2001 remains a much sought after document and has been
submitted to the Office of the Attorney General by the Chief Medical
Officer for comment, input and guidance. A National appraisal of
Jamaica’s progress on addressing issues of stigma, discrimination,
legal and ethical issues were presented in
at a CARICOM, Regional Conference in June 2002. Although,
Jamaica has made progress in addressing some of these issues much
remains to be done. A new strategic plan will need to be developed
to adequately change or address issues that perpetuate stigma and
discrimination, especially men who have sex with men and those
involved in commercial sex work.
and Control Program
Promotion and Protection
Division of Ministry of Health
and Human Rights Issues in
McNeil & McFarlane
Jamaica's first reported AIDS case in 1982 the Ministry of Health
has been consistently addressing the problem by implementing
preventive measures and other programmes aimed at minimizing the
effect on the population.
HIV/AIDS was declared a notifiable disease under the Public Health
Act since 1985, three years after the first reported case in
Jamaica. Several Programmes have been introduced under the HIV/STI
Prevention and Control Programme:
Programme introduced to reduce transmission between mother and
child which offers free HIV test and anti-retroviral drugs at
delivery as well as replacement feeding.
helpline was established, providing counselling and information on
community organisations and non-Governmental organisations.
National AIDS committee and Parish AIDS committees.
Surveillance have been introduced.
Reference Laboratory have now been established. We have entered
into partnership agreement with various national and international
organisations eg. USAID/GTZ/CIDA.
been involved in spearheading the integration of HIV/STD and
become involved in the operation of programme for commercial sex
Maternal and Child Health programme has been strengthened at
reducing mother to child transmission of HIV.
has become involved in AIDS/STD prevention by targetting
adolescents through peer education, radio drama and planned
international partnerships have been formed.
Several other achievements have been recorded and this information
is available to both national and international communities by
Despite the credible performance to date within limited resources,
Jamaica has to bring new energy to the AIDS problem which is
daunting with the rate of infection estimated at 1-2% of the adult
population and over 20,000 persons in the island living with HIV
infection. What is even more 'scary' is the prevalence of the
infection in the age group 10-19 with teenager girls three (3) times
more at risk than their male counterparts.
Jamaica has a HIV/AIDS death rate of 12 persons per week and AIDS is
now the leading cause of death in the 30-39 age group. Not only is
the situation frightening in respect of the rate of infection and
death but the actual cost of treatment is overwhelming for a economy
such as ours when the cost of treatment is between Thirty Thousand
Dollars ($30,000.00) and Forty Thousand Dollars ($40,000.00) per
month, per patient for Anti-Retroviral Drugs.
This scarcity of funds has resulted in a higher rate of death among
the poorer groups which has in fact led to increased numbers of
orphans and widows.
Jamaica has launched a comprehensive attack on HIV/AIDS by pursuing
Parish and regional programmes which include the following:
high risk behaviour groups
Computerized HIV/AIDS STD Database
STD laboratory services.
Implementation of field test evaluations.
hundreds of public and private sector Health Professionals on STD
management and development and distributions of training Manuals
The current position now is that Jamaicans are more aware of HIV,
condom use is on the rise, although the practise of multiple
partners seems to have remained mostly unaffected.
The HIV infection prevalence rate among homosexuals does not appear
to have decreased, but has remained constant among prostitutes.
Jamaica has now committed to review its existing legal framework
recognising that the spread of the virus is now categorised as a
health and development issue.
This report is the result of three (3) weeks of research with the
following areas of interest and focus based on the terms of
reference to review legal, ethical and human rights issues:
and the Correctional System
Anti-discrimination and protective laws
of goods, services and information.
In the course of the research there was no consultation with any
stakeholder as it is the understanding that the outcome of the
research will serve as background information to begin the dialogue
towards a national strategy through consultation and collaboration.
This report therefore contains recommendations from the perspective
of the researcher and without the benefit of consultation with
The report is in four (4) sections with each considering the
different aspects of the issues.
- "Preliminary and Contextual Issues" deals with the rationale for
the research and the regional and international context.
Section 2 entitled "Literature Research and Review" addresses
the general issues of voluntary testing and counselling,
confidentiality, partner notification, diagnostic testing, informed
consent and testing of sex offenders.
This section also looks at AIDS and Immigration, the Criminal Law
Dimension, Employment, Education, Housing, Women and HIV/AIDS,
Insurance benefits and HIV/AIDS in Prison.
Section 3 entitled "Legislative Search" identifies the laws
selected by the researcher that may have some bearing on the issue
of HIV/AIDS within the context of the different
ministries/department that need to become involved in the process of
addressing the epidemic.
The laws have been grouped under broad headings of "Justice and
Human Rights", "Public Health", "Immigration", "Employment",
Insurance Benefits, Social Welfare", "Correctional Service",
"Criminal", "Education" and "Standards".
Reviews and Recommendations are made relating to the legislation
selected under each heading.
Section 4 entitled "Concluding Comments and Recommendations"
represents the priority areas that should get consideration in
formulating a strategic response to the crisis. It should be noted
however that the Section dealing with legislative search gives more
detailed reviews and recommendations relating to the legislative
framework and law reform issues.
The major recommendations are that:
A Fund for
Catastrophic Illnesses and Diseases be established with public and
private sector participation.
Since the issue is not a public health issue only but a
development issue, we propose that contributions be solicited from
the following as a start
- HEART Trust
- National Housing Trust
- National Insurance Scheme
- National budget
- Other donor groups/institution (including Global Trust Fund)
The vehicle of a trust should be used and should have the
necessary legal framework to undertake targeted fundraising.
The named Organizations were selected because of the impact of
HIV/AIDS on housing, insurance and manpower needs.
Comprehensive legislation be introduced to deal with the issue of
discrimination in all its form. This should not only focus on
HIV/AIDS but nonetheless must have express provisions relating to
vilification of persons living with HIV/AIDS. Issues of publicity
or anything that would stir up hatred, ridicule or contempt of
persons because of HIV status should be addressed. The legislation
should address the issues of housing, employment, education,
sexual orientation, sex discrimination, disability1.
be introduced under the powers of the Minister under the Public
Health Act that will make provisions for issues such as testing,
partner notification, contact tracing, duty to treat, duty to
warn, informed consent, confidentiality, counselling, experimental
research, living conditions in prison and other places of safety,
universal precautions and compensation for health care workers2.
alternative to recommendation 3, a specific HIV/AIDS legislation3
may be introduced that will take into consideration the same
issues. An Act may be more appropriate if the approach is going to
be sanction driven. There is strong body of opinion against this
approach as other citizens also face discrimination. A general
anti-discrimination legislation would be preferable.
be made to the Corrections Act to ensure that
" Prisoners are given the right to seek diagnostic testing and
request protective device for HIV/AIDS and other diseases directly
from medical personnel; with a corresponding right to have these
requests kept confidential except under "specified circumstances"(4).
Prisoners are to be given justiciable rights generally. This
embraces the principle of equivalent treatment to other members of
be made to the Offences Against the Persons Act to:
for criminal sanction where there is:
" Wilful transmission and or reckless disregard for life and
safety by knowingly exposing persons to the HIV virus.
" Knowingly donating infected blood.
for mandatory testing in "specified circumstances" concommitant
right of confidentiality in the circumstances.
make an offence, consensual sexual relation between adult men
when it takes place in private. This particular amendment will
assist greatly the efforts of control/prevention of HIV/AIDS
among the prison population as condom distribution among prison
population has been recommended as a preventive measure.
be made to the National Family Planning Act to expand the role of
the Board to do more than family planning in the traditional
sense. The amendments should embrace the family as a reproductive
as well as an economic and social unit with the Board having added
on effective parenting skills.
of good family life and values, and training in life skills.
Counselling in relation to pre and post test counselling and
training in relation to HIV/AIDS.
Registration of counselling, training and other activities in
both private and public sectors. This is aimed at
standardisation of training information and establishing basic
counselling standards. This could include certification and
be made to the National Insurance Act to clearly identify HIV/AIDS
illness as a disability. Even though this amendment may not be
necessary if anti-discrimination legislation makes suffering from
HIV/AIDS infection a disability, it may still be considered in
respect of benefits under the scheme including benefits to
"special" categories of children.
be introduced to give formal recognition to prostitution since
persons who are engaged in the practice are among the "high risk
group". Regulation of the practice will enhance the public health
There should be greater collaboration between the Poor Relief
Inspector and Health Care Personnel to allow for appropriate social
services and intervention measures for persons living with HIV/AIDS.
The guidelines and procedures must ensure confidentiality. The Poor
Relief Budget could be structured so that minimum contributions are
made to AIDS Hospices and facilities in lieu of the provision of
housing to the indigent who are living with HIV/AIDS.
of society must become engaged in "united effort" to access
resources and due regard to the interest of all stakeholders to
ensure that no group remains disinterested in the national effort
to address the problem.
a preventive measure must be used as the foremost tool aimed at
providing changes in risky behaviour, in the outlook of those
whose ignorance in sexual matters lead to indulgence in unsafe
sexual practices; and cultural disposition.
Jamaica's full participation in regional efforts to contain the
spread of the virus without breaching the human rights of the
citizens of the member states of CARICOM.
immigration issues and free movement of labour within CARICOM must
have priority place on the agenda in view of arrangements for
single market and economy.
should continue in her efforts to form partnerships/coalition
especially in areas relating to
- experimental drugs and vaccines
- access to affordable medication and treatment eg. bulk
for all persons (whether living with HIV/AIDS or not) must remain
in the case of HIV/AIDS must not be aimed at isolation or
quarantine of the persons living with AIDS except in exceptional
circumstances eg. habitual offender in case of wilful
transmission. Under the existing Public Health Act, the Minister
has wide powers to isolate and enforce quarantine measures which
can be utilised in "Specified Circumstances" but isolation as a
general strategy is not likely to be sustainable for a number of
counselling and education as a public health response. Public
health should have ownership of the process to ensure that public
health issues and perspectives remain paramount.
These recommendations are made against the background that
legislative reform alone will not realise the objectives of a
HIV/AIDS strategy within the context of our regional and
Education and adequate resources will be critical to implementation
of the strategy. It is important to remember that the virus is not
being spread because of lack of legislation or an inadequate AIDS
prevention programme. The issue is complex and the social, economic,
human rights, ethical and gender dimension must come into play with
full participation of people living with HIV/AIDS, business
community, non-governmental organisation and other members of civil
Recommendations relating to Selected Legislation
Constitution of Jamaica
By virtue of our constitution every person is entitled to
Fundamental Rights and Freedom of the individual whatever his race,
place of origin, political opinions, colour, creed or sex but
subject to rights and freedom of others for the public interest. The
following rights are addressed:
life, liberty, security of person, enjoyment of property and
protection of law, freedom of conscience and expression, peaceful
assembly and association and respect for private and family life.
These rights are looked at in the context of the proposed
anti-discrimination legislation mentioned in the priority
recommendation section. Many of these fundamental rights are
enshrined and form a part of the International Declaration of Human
Rights and in light of the fact that the AIDS epidemic cuts across
all racial, social, economic and political barriers hence its
inclusion as to elicit a comprehensive response.
Defender (Interim) Act
The Act, although it does not limit the rights of The Public
Defender to seek redress for and on behalf of any one category of
persons, is sufficiently wide to allow specially affected groups
such as persons living with HIV/AIDS to seek redress for specific
violations against them by a Ministry, department or agency of
Government, any Parish Council, statutory body or a company in which
Government or any agency of the Government holds not less than
fifty-one percent (51%). There is no need for any special categories
of persons to be singled out for their protection under the law in
order to protect their fundamental rights and freedoms. As such,
intervention may in itself lead to "favoritism" in favor of one
category of person over other groups.
Persons Legal Proceedings Act
The Act is sufficiently wide to cover actions by persons with
HIV/AIDS, whose rights have been breached or who are "accused" in
There is no special amendment that needs to be made in favor of
HIV/AIDS persons who are given the same treatment under the Act as
other members of the general community and there should be no
discrimination in favor of any special group of persons.
There is very little intervention required, if any, in respect of
amendment to this piece of legislation to ensure that it does not
facilitate transmission of HIV to workers or others involved in the
The regulations may need to be upgraded and made more precise in
respect of procedures to be observed and there may be need for
monitoring and surveillance to ensure that standards of operations
Medical and Nurses & Midwives Act
These are the most susceptible groups to be affected by HIV/AIDS, as
they have either a ethical or legal obligation to respond to
emergency situations and treat persons suffering from injury without
knowledge of the patients' HIV status. There must be clear
guidelines relating to universal precautions which must be agreed
upon and undertaken in all instances where body fluids are likely to
be passed and special provisions made for compensation for injury,
in the area.
There must be a corresponding responsibility to accept liability
where a patient becomes infected from a health care professional
that may be suffering from this illness. Health care professionals
and patients must have equivalency in treatment under the laws in
relation to the question of HIV testing and transmission. This means
that where mandatory testing or HIV status is not required of the
Health care professional for employment or continued employment or
before treatment is rendered by him then it is not to be required of
the patients before treatment of patient.
Regulations can be put in place to ensure that effective safety
mechanism and proper safety standards are in place to meet
international standards by using proper established standards to
This piece of legislation is now outmoded when read in the context
of International policies and guidelines and is so discriminatory in
its effect and approach to have long outlived its usefulness in its
current state that it provides a model for ensuring that any
legislation passed in respect of curtailing and preventing the
spread of a disease can quite easily become onerous and draconian in
its effect on the activities of one special category of persons,
bearing in mind the widespread and life long nature of HIV. Any
similar "isolation" legislation aimed at isolation of HIV persons
generally would have disastrous results in terms of our limited
resources and issues such as Health care cost and other factors,
given the available medical knowledge in respect of AIDS and global
initiatives to attack AIDS by way of Education. Such a policy as
used to treat leprosy, would be inappropriate in the circumstances.
Given the nature of the response of the International community in
the fight against AIDS and taking into consideration Jamaica's
support for some of these proposed strategies by the signing and
ratification of International Treaties, the country's national
response ought properly to reflect the points of emphasis which are
reflected in the global response. Nonetheless Jamaica has an
obligation to ensure that its response is adapted to suit the
special needs of its individual situation given the limitation in
respect of financial resources and the culture of its people and to
thereafter decide whether it must of necessity depart from the
specific recommendation of the international community, when there
are conflicting issues and to thereafter tackle the problem by
emphasizing its national perspective.
The Public Health Act refers to communicable diseases and in order
to bring HIV/AIDS under the same umbrella The Public Health Act
ought to be amended to include HIV/AIDS as a communicable disease.
A number of states particularly in the United States have gone the
route of criminalization or in contemplation of doing so5 in respect
of the wilful exposure to others by HIV/AIDS persons, or have dealt
with this issue by prosecuting HIV persons who recklessly endanger
the lives of others by having unprotected sexual contacts without
disclosure, or being criminally negligent of their sexual behavior
knowing of their HIV status. So far the cases studied have indicated
that there are onerous evidential difficulties in proving mens rea
(i.e. state of mind, intention) and in many cases the accused die
before the proceedings are completed. Nonetheless Jamaica must
decide whether this course should be pursued under the Criminal Law
i.e. by amendment of the Offences Against the Persons Act and or
whether initially to deal with it under the Public Health Act.
Should the latter be pursued the following conditions need to be
issue is adequately dealt with under Criminal law legislation.
as confidentiality must be looked at with emphasis on safeguarding
the rights of HIV person not to be exposed to unwarranted
testing should be mandatory or voluntary.
of education and counselling as the main weapon in the fight
against HIV/AIDS aimed at fostering personal responsibility by all
persons including those living with AIDS.
there should be the release of the status of HIV offenders to
their victims and whether the release of this information should
be pre or post conviction.
Appropriateness of the sentence whether it is the usual fine or
confinement or whether isolation and quarantining is the preferred
financial cost to providing special health care and nutritional
care for HIV persons incarcerated in these circumstances i.e.
importantly the cost of making financial and other provisions for
victims in these types of cases.
rights must at all time be subjected to the right of the general
should make specific provisions for compensation to workers in the
Health Industry who become infected by HIV/AIDS as a result of
There need be no amendment in respect of isolation and detention of
HIV persons as there are more than adequate provision but perhaps
the regulations could be examined to fine-tune the procedures to be
put in place to allow for more effective implementation.
In any event this Act is bolstered by the Quarantine Act in respect
of isolation and quarantine of infected persons.
Amendment to the law should be put in place to ensure strict
procedure with regard to the handling of bodily fluids and tissue
and the Regulations should be very specific with regard to negligent
handling of infected blood or failure to take necessary steps to
prevent donors or other persons requiring blood from coming in
contact with infected blood. Not only should it be an offence for
persons in the health care industry to be negligent but also the
penalty should be such as to ensure that the greatest care is taken.
Consideration could be given to the prosecution of individuals who
donate blood, knowing their HIV status is seropositive.
Amendments should be put in place for sex workers to be brought into
some formal system so that Regulations could be made to govern their
conduct so as to improve surveillance and monitoring of their
operations and to allow for counselling and education as to safe sex
practices and access to treatment of STI. But the question again
arises as to whether the testing should be voluntary or mandatory.
This of course would be a part of a major policy decision as it
relates to decriminalization of the sex trade and is likely to meet
with tremendous opposition from the many sectors in the economy
especially church organizations.
Admittedly, there are two areas in which it is believed that
mandatory testing should be introduced:
mothers i.e. prenatal testing: Note that although the reproductive
right of the woman is recognised it is believed that in this
instance when the right of the child is put in the balance it is
felt that this is an appropriate case for mandatory testing(6).
assault - where these questions arise
there should be pre or post conviction testing
should be at the request of the prosecution or the victim or
where it is found that the person is a habitual offender.
existing body of knowledge, mandatory testing is generally not
recommended on the basis that no sub-group within a population
should be discriminated against. The widespread nature of the AIDS
epidemic within a country, across sections and subgroups, it is
likely to be an ineffective and costly mechanism without
corresponding benefits for prevention of HIV/AIDS and curtailment of
In order to be fully effective the Act must be sufficiently wide to
cover all sexually transmitted diseases and including HIV/AIDS and
Hepatitis B and should therefore be amended to this effect.
Guidelines should be in place to coordinate the efforts of research
organizations in their fight against the spread of HIV/AIDS, so as
not to exclude them from the categories of persons, attempting to
treat or advertise on AIDS prevention so that they can get the
cooperation of the general public, to participate in clinical and
biomedical research although steps must be put in place to avoid
unethical or illegal research. Any such participation must only be
done after "informed consent" is carried out and research
proposals/protocols are reviewed by appropriate bodies (bioethics).
Several countries including some Caribbean countries have adopted
the route of mandatory testing for HIV, in respect of persons
seeking permanent residency. It is for Jamaica to decide whether it
will have an open policy as regarding admitting HIV persons for
residency or whether a person's HIV status should be considered in
the making of the decision given their specific resources and the
likely benefit to the country.
Factors to be taken into consideration before implementation of such
a policy are as follows:
rights of HIV/AIDS persons seeking admission should outweigh the
rights of Jamaicans generally not to overburden their health and
social resources by increasing demands by newly admitted HIV
high rate of transmission in the tourist "areas" of the Island
which would seem to indicate that research needs to be conducted
to ascertain whether there is any link between tourism and to the
spread of HIV/AIDS; whether permanent residence seekers should be
discriminated against as opposed to "tourist" or whether any
useful purpose can be served by the discrimination between the two
it adopts compulsory testing for HIV that should be only one
factor in considering whether to grant residency to such a person
and with consideration being given to whether the person's likely
contribution to the country as a whole will outweigh the cost to
our health care system.
(Adoption of) Act and Children Guardian Act
Both legislations have been examined for the scope and extent to
which they can be utilized to offer greater protection to children
who live with AIDS or become orphans because of HIV/AIDS.
need to be put in place for education and counselling of persons
involved in foster care and adoption in order to get them to
understand the needs of children living with HIV/AIDS or orphans
and to encourage adoptions by relatives so that children are able
to remain in normal surroundings.
also need to make the procedure for guardianship and adoption more
user friendly in order to avoid the inordinate lengthy delays and
to allow children with HIV/AIDS and orphans or vulnerable children
to adjust to new family situations as in short a time as possible.
That special provisions be made to include epidemics such as the
AIDS epidemic as "Public Calamities" warranting special solution in
order to protect the society from disorder, that may arise as a
result of large members of displaced persons having no residence.
Thoughts could also be directed at providing special housing for
prisoners with HIV/AIDS who are released without adequate provision
being made for their living arrangements. With the stigmatization of
persons living with HIV/AIDS it is likely that such persons are
unable to return to their communities which communities are often
hostile to their return and though it may lead to discrimination, it
may be the preferred course when compared to open community
Transmission facilities might also be put in place to allow
juveniles who have reached adulthood but are not yet able to manage
themselves, especially those with medical disabilities such as AIDS
to have temporary residence with guidelines on procedures being put
in place to aid transmission towards personal independence. In the
case of private dwelling there should be provision against landlord
discriminating on the basis of a persons HIV/AIDS status whether
perceived or real.
There appears to be no special reason to amend the legislation to
provide for implementation of an Income Tax Relief Policy to assist
HIV persons which would be discriminating in that other sufferers of
other diseases may not benefit equally unless it is to provide for
medical disability as a factor to be considered as to nonpayment or
reduction in the payment of tax for all categories of persons. This
also includes tax exempt status for AIDS organisation, Trust Funds
and employers who provide service to persons living with AIDS.
Family Planning Act
It can be explored whether the Family Planning Board's role could
possibly be expanded to undertake or increase their efforts in
respect of educational programs that extend to the teaching of
effective parenting skills and the actual promotion of family life,
to fulfill the objectives of Article 16 of the Charter of Civil
Society for CARICOM, to observe the objective of responsible
parenting and minimizing the risk of exposure to sexually
transmitted infections which will impact on a family economic and
social development. The Family Planning Board could also be given
responsibility for all counselling in relation to pre or post test
counselling activities and the training, licensing, and the active
coordination of counselling in private and public sector to ensure
certain minimum standards are maintained and agreed upon policies
implemented and measured.
Access to family planning methods including surgical intervention
for HIV positive women who choose not to have children and medical
abortion for HIV positive women (if desired) needs some
consideration from the policy makers.
Policy makers might take the view that the Act needs to make
specific mention of HIV as a disability, deserving of benefit since
the nature of the disease is so unique in its effect. There need to
be some widening of the category of persons who can access the
benefit payable to and on behalf of persons living with HIV/AIDS as
often times persons living with HIV/AIDS because of their physical
conditions are themselves incapacitated and being cared for by
Due to the "lifetime duration" of AIDS related illness and the
unpredictable nature of its effects on individual, there is likely
to be onerous burden on employers with limited resources whose
employees are victims of HIV/AIDS and the issue is whether or not
laws or rules must be enacted to limit the effect for these
employers and also self employed individuals and sole proprietors.
The laws of Jamaica in its current state does not allow same sex
relations and in particular marriage and persons involved in same
sex unions suffer the detriment of discrimination. Yet any attempt
to remove these legal barriers to entitle same sex spouses to
benefit will be met with widespread opposition, given the culture of
the society, but it is a decision for the policy makers. All
children under the Act should be included for orphan and "special
child" benefits and there should be no distinction between
legitimate and illegitimate children's entitlement.
Based on the free medical treatment mentioned under Section 15 of
the National Insurance Act this could prove burdensome for both
private employers as well as the government as HIV treatment is
If Jamaica pursues the route of legitimizing the sex trade then
provisions would have to be put in place for sex trade workers to
receive benefits and entitlement, although it would perhaps be by
virtue of being self-employed rather than employees of any person or
group of persons, in order to avoid legitimization of the "pimp"
industry by persons living on the earnings of a prostitute, which
remains an offence under our law. It is not being proposed that this
offence be repealed. The issue of the special "life time" disease
need special consideration under the Act7.
This is a strong case for public workers on whose body HIV/AIDS have
wreaked havoc, to gain some social and economic benefit through the
provisions under this Act.
In the case of private pension schemes, a new pension legislation is
now being looked at and interested persons or groups have been asked
to comment on same but principally it will not enlarge the pension
rights of the private worker, which will remain a contractual
arrangement between employee and employer.
Proposed legislation mainly focuses on fiduciary responsibility of
trustees and the need for licensing and mainly covers administration
and other regulatory matters, but because it does not discriminate
against any specific categories of person should not require any
amendment, to deal with the problems of HIV/AIDS persons.
The Legislation is sufficient in its provision to encompass
assistance to persons living with AIDS in areas such as housing,
medication, food and education but the ability of the relevant
agencies to deliver these services will be dependent upon the
resources available. Collaboration between Inspector, Medical
Officer and Family Planning to determine an appropriate framework
for intervention without breach of confidentiality and privacy is
Housing could be provided to NGO who set up and maintain AIDS
hospices with some minimum contributions from the Poor Relief
That the Corrections Act be amended to give prisoners the right to
seek diagnostic testing if they have reasonable cause to suspect
that they are suffering from certain diseases or that there has been
exposure to the risk of transmission for e.g. sexual assault cases
by other inmates. This should be tied to a corresponding amendment
to allow for non-disclosure of the results of their test except
under certain specified circumstances e.g. spouse right to be
warned, sexual assault, judicial authorization, and provisions
should be put in place for education and counselling the prison
population on transmission of communicable diseases in particular
AIDS and the persons right to privacy. This should be included in
the existing rehabilitation counselling and education programme.
should have the right to request protective devices such as
condoms and the right to have those requests for such kept
confidential (which would be bound up with proposed amendments)
under the "Offences Against the Persons Act". The Act must be
amended to make it a special offence for an inmate's medical
testing information to be released in circumstances other than
those mentioned previously. Provisions must also be made for
inmates who are living with HIV/AIDS to be given special medical
care with the Regulations being amended to provide for what would
amount to minimum medical care (i.e. whatever treatment and care
is made available in the country) in specified circumstances. It
is recommended that there be amendments for the Act to
specifically provide for occupational injury as a result of
HIV/AIDS transmission, which would give health care and prison
workers special rights of redress and entitlement as a result of
becoming infected during their employment. Such legislation should
make it clear as to the extent of the compensation to which they
would become entitled upon being diagnosed. This right should
extend to prisoners who become the victim of sexual assault while
guidelines should be put in place to allow prisoners whose rights
have been breached to have easier access to the Courts, rather
than by way of the "overburdened" Ombudsman/Public Defender who
may even lack the resources. This should be by way of the
appointment of some special legal Committee to be watchdogs on the
inmates' behalf. This Committee's power could extend to pursuing
the rights of prisoners under legislation other than the
Corrections Act or the Constitution (perhaps under the provisions
of a (proposed Anti-discrimination Act). In Australia for example
complaints by prisoners are lodged with the Commonwealth Human
Rights and Equal Opportunity Commission or with State government
anti-discrimination boards or Ombudsmen.
proposed that there be sufficient amendments to the Act to allow
for a more rehabilitative and reformatory approach by way of
education and to provide incentives to prisoners to seek to reform
themselves by education and the receipt of counselling, and to
make the Act less punitive in its effect while at the same time
providing continued safety reassurances for the public at large.
should adopt the point taken by one writer on the subject that
there should be drafting and implementation of uniform and
universal infection control guidelines for prisoners together with
regular monitoring of the implementations.
It should be
considered whether health officials should conduct HIV testing for
surveillance purposes, before admission, post admission and on
This will also be informed as to whether there will be a policy of
isolation in any circumstance.
Considerations should be given to the implementation of effective
sex and reproductive health education aimed at promoting safer sex
practices including abstinence in juvenile institutions; and the
teaching of sexual responsibility should be undertaken in order to
reduce the vulnerability of children to HIV exposure and to
implement an effective AIDS prevention plan and to provide adequate
treatment and care for children who are the victims of HIV.
Against the Persons Act
Jamaica decide to pursue criminal sanctions for HIV transmissions
the Act could be amended to specifically allow for willful
transmission of HIV to be an offense, but with safeguards put in
place to address such issues as confidentiality, victim health
care and to minimize discrimination.
absence of willful transmission there could be an amendment to
allow for reckless disregard for life and safety of others, or
some form of criminal negligence to allow for persons with
HIV/AIDS who behave indiscriminately knowing of their health
status, to be brought before the courts for their indulgence in
unsafe and unethical sexual practices, given the deadly nature of
amendments should be implemented requiring persons who have
reasonable cause to suspect their HIV status or who have knowledge
to make disclosure to certain specified categories of person e.g.
medical officer for the parish and their current sex partner(s)
(whose identity they should be required to disclose) so that such
person can be warned. With there being in place a corresponding
"offences" section to deal with unwarranted disclosure of this
information by health care and other workers in order to protect
such persons right to privacy.
legislation could make it an offense for persons living with
HIV/AIDS to knowingly give unsafe blood but the proving of such
offences would be onerous, given the burden of proof.
needs to be repealed as between consenting adults or dealt with by
way of amendment in or to continue to offer protection to young
males below the age of consent or non-consenting partners.
indecency as between men should only be an offense if it arises in
public and in a nonconsensual scenario such as rape.
be provisions in the law requiring testing whether mandatory or
voluntary of both victim and offenders in respect of sexual
assault cases in particular as it relates to young persons,
imbeciles or idiots or others who cannot consent and it is
recommended that the HIV test results of all sexual offenders be
made public to their sex victims or their next of kin, (whether it
be pre or post conviction). It should be an offence for a sexual
offender to withhold his consent to be tested for HIV in certain
circumstances and in these cases court orders should be sought if
voluntary testing is the route adopted.
It should be
an offence (dependent on the amendment to other legislation) for
sex workers to engage in prostitution without registering and
submitting to required and periodic testing for HIV or other
sexual disease and to engage in unsafe sex practices. Additionally
a duty should be imposed in respect of the following:
HIV status to clients.
The use of
positive client to inform status to sex worker.
With the decentralization of the Public Health Services, efforts are
being made to ensure standardization of Health care in Jamaica. The
newly launched Service Level Agreement between the Ministry of
Health and the regional Health Authorities now responsible for
health care delivery is a step towards formalization and
standardization of the Health care industry, and should lead to
consistency and coordination in the levels of care and is a powerful
weapon to be employed in arranging effective and meaningful response
to the HIV/AIDS prevention and treatment strategy which is being
pursued and the main thrust of any amendments should only be along
the path of ensuring that proper guidelines are formulated to allow
for monitoring, surveillance and continuous testing to ensure their
The Standard and Regulation Division of the Ministry of Health
should work in conjunction with the Bureau of Standards to ensure
that appropriate guidelines are in place particularly as it relates
to private sector involvement in the provision of goods relating to
prevention care and treatment. These include among other things
condoms, testing devise, equipment and needles.