Legal and Ethical Sub-Committee in Jamaica
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 Jamaica 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 Jamaica 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’.
On 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 Tobago 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.
Report for HIV/AIDS Prevention
and Control Program
Health Promotion and Protection
Division of Ministry of Health
HIV/AIDS Legal, Ethical
and Human Rights Issues in Jamaica
McNeil & McFarlane
Since 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:
- Pilot 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.
- AIDS/STD helpline was established, providing counselling and information on HIV/STI.
- Training of community organisations and non-Governmental organisations.
- Establishing National AIDS committee and Parish AIDS committees.
- HIV Sentinel Surveillance have been introduced.
- National HIV Reference Laboratory have now been established. We have entered into partnership agreement with various national and international organisations eg. USAID/GTZ/CIDA.
- FAMPLAN has been involved in spearheading the integration of HIV/STD and family planning.
- ACOSTRAD has become involved in the operation of programme for commercial sex workers.
- MCH - Maternal and Child Health programme has been strengthened at reducing mother to child transmission of HIV.
- Red Cross has become involved in AIDS/STD prevention by targetting adolescents through peer education, radio drama and planned activity.
- Several international partnerships have been formed.
Several other achievements have been recorded and this information is available to both national and international communities by websites(1).
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:
- Education of high risk behaviour groups
- New Computerized HIV/AIDS STD Database
- Regular HIV/AIDS/STI surveillance.
- Expansion of STD laboratory services.
- Implementation of field test evaluations.
- Training of hundreds of public and private sector Health Professionals on STD management and development and distributions of training Manuals and Guidelines.
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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:
- Public Health Legislation
- Criminal Law and the Correctional System
- Anti-discrimination and protective laws
- Regulation 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 stakeholders.
The report is in four (4) sections with each considering the different aspects of the issues.
Section 1 - "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.
- Regulations 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.
- In the 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.
- Amendments 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 the society.
- Amendments be made to the Offences Against the Persons Act to:
- provide 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.
- provide for mandatory testing in "specified circumstances" concommitant right of confidentiality in the circumstances.
- not to 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.
- Amendments 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 responsibility for:
- Educating on effective parenting skills.
- Promotion 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 licensing issues.
- Amendments 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.
- Legislation 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 response.
10. 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.
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- All sectors 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.
- Education as 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.
- Ensure 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.
- The 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.
- Jamaica 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 purchasing.
- Human Rights for all persons (whether living with HIV/AIDS or not) must remain a priority.
- Legislation 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 obvious reasons.
- Compulsory 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 international commitments.
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 society.
Specific 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.
Public 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.
Poor 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 criminal proceedings.
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 industry.
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 are observed.
Dental, 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 avoid transmission.
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.
Public Health Act
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 addressed:
- Whether the issue is adequately dealt with under Criminal law legislation.
- Issues such as confidentiality must be looked at with emphasis on safeguarding the rights of HIV person not to be exposed to unwarranted discrimination.
- Whether testing should be mandatory or voluntary.
- Utilization 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.
- Whether 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 method.
- The financial cost to providing special health care and nutritional care for HIV persons incarcerated in these circumstances i.e. isolated.
- Just as importantly the cost of making financial and other provisions for victims in these types of cases.
- Individuals rights must at all time be subjected to the right of the general public.
- The Act should make specific provisions for compensation to workers in the Health Industry who become infected by HIV/AIDS as a result of occupational risks.
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:
- Pregnant 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).
- Sexual assault - where these questions arise
- whether there should be pre or post conviction testing
- whether it should be at the request of the prosecution or the victim or where it is found that the person is a habitual offender.
On the 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 its transmissions.
Venereal Disease Act
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:
- Whether the 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 positive persons.
- Given the 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 groups.
- That where 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.
Children (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.
- Provisions 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.
- There is 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 hostility.
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.
National 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.
National Insurance Act
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 others.
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 exorbitant.
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.
Poor Relief Act
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 urged.
Housing could be provided to NGO who set up and maintain AIDS hospices with some minimum contributions from the Poor Relief Budget.
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.
- Prisoners 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 imprisoned.
- Procedural 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.
- It is 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.
- Finally we 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 release.
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.
Offences Against the Persons Act
- Should 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.
- In the 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 the disease.
- Some 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.
- The 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.
- Section 76 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.
- Gross indecency as between men should only be an offense if it arises in public and in a nonconsensual scenario such as rape.
- There should 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:
- Disclosing HIV status to clients.
- The use of condom.
- HIV 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 effective operation.
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.