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

        

"Paradoxically enough, the only way in which we will deal effectively with the problem of the rapid spread of this epidemic is by respecting and protecting the human rights of those already exposed to the virus and those most at risk"


Justice Michael Kirby
High Court of Australia

http://www.lawyerscollective.org/lc-hiv-aids/Abstracts/abstracts.htm


The paradox of HIV is that it is the rights of affected populations and those most at risk that must be protected in order to prevent the spread of the epidemic. In the HIV/AIDS pandemic, it is widely misunderstood that the rights of the society or community at large can best be safeguarded by resorting to the systems of mandatory testing, breach of confidentiality and discrimination against people living with HIV/AIDS. However it has now been well established that in fact the rights of the society or the community at large can be effectively safeguarded only by providing voluntary testing, non-disclosure of HIV status and non-discrimination of people living with HIV/AIDS. Public health strategies must endeavour to create an enabling environment for people living with HIV/AIDS or at the risk of contracting HIV/AIDS so that they can safely access facilities of counselling and health care, thus promoting the prevention of further spread of HIV.

Contrary to international public health experience, identical versions of a Human Immunodeficiency Virus (H.I.V.) Bill* are being considered in the respective state assemblies of Maharashtra and Karnataka. The state governments have not proposed the Bills; they are private members' Bills. It may be pointed out that the National AIDS Control Organization (herein referred to as NACO) has categorically stated that the Bill does not have the support of either the Central or the State Government.

The apparent objective of the Bill is to promote the overall security of society through the prevention and control of the spread of HIV infection whilst providing optimal medical care for people living with HIV/AIDS. However the provisions of the Bill, if implemented, would result in breach of HIV-positive person's right to consent before testing, right to confidentiality of sero-status and right to non-discrimination. In effect, the Bill would serve to drive the epidemic underground and thus exacerbate the further spread of it.

Discrimination

Section 3 of the Bill seeks to prevent discrimination against people living with HIV/AIDS in relation to access to public places, use of utensils in places open to the general public, access to rivers, streams, use of public conveyance etc. The Bill does not take into account that, in reality, discrimination is not practiced against an HIV-positive person in their use of or access to public places, restaurants, wells, rivers, public conveyance etc. HIV is not easily apparent and a person living with HIV/AIDS is not easily identifiable, therefore people living with HIV/AIDS are not ordinarily prevented from accessing public places, restaurants etc. In fact, people living with HIV/AIDS encounter discrimination and are denied their rights in the areas of healthcare, employment and insurance. The Bill is silent on these key areas of discrimination.

Intentional Transmission

Section 4 of the Bill sets out a provision that makes 'a person who in all reasonable probability would have known her/his status' liable for punishment. The provision does not indicate guidelines for deciding what 'reasonable probability' of an individual having knowledge of her/his HIV status would be. Knowledge of HIV-positive status could be attributed to an individual merely on the basis of an individual's behaviour. Thus even if a person has never tested for HIV and does not know her/his HIV positive status, s/he may be penalized under this provision. Section 4 also states that actual transmission is not necessary to make a person liable. This could also be interpreted to mean that the mere marriage of an HIV-positive person to another person who is not HIV-positive though with the free and full informed consent of the other partner would be an offence. Furthermore a sexual act between an HIV-positive person and a non-positive partner even if it is with full and free informed consent and does not result in transmission of HIV would result in making the HIV-positive partner liable. This section is not clear as to what kind of 'practice or behaviour' would be considered as having tendency to place other person at risk. A person having casual sex or even HIV-positive physicians in their daily medical practice may be considered to have engaged in the practice or behaviour having tendency to place another person at risk. No safeguards are provided for the abuse of this provision, which could easily result in the victimization of people living with HIV/AIDS.

In India, there exist sufficient provisions in the Indian Penal Code (herein referred to as IPC) providing for punishments for the offence of intentional transmission of HIV. If a person intentionally transmits HIV he can be prosecuted under Sections 269, IPC (i.e. negligent act likely to spread disease dangerous to life) and Section 270, IPC (i.e. malignant act likely to spread infection of disease dangerous to life). Thus the penal provisions of the Bill are redundant and unnecessary.

 

Health Care

Section 5 of the Bill specifically sets out a provision whereby a medical professional, before conducting any invasive medical procedure, which would place her/him at risk can refuse to perform such a procedure unless the patient undergoes an HIV test and the practitioner is informed of the result. This is clearly not based on any sound scientific study or data. It simply assumes that there is significant risk of medical practitioners contracting HIV from their patients and if they (medical practitioners) get the patient tested they will take adequate precautions on the basis of a report which indicates an HIV-positive result. The data that is available on occupational exposure of health care workers shows that the risk of transmission from patients is so miniscule that it can be ignored. This provision is based on faulty logic. At the time of the test the patient may be in the window period resulting in a false negative report. By the Bill's logic, in case of an HIV-negative report, the medical practitioner can be complacent about taking precautions, thus defeating the very object of the exercise. This will only give the medical practitioner a false sense of security. Doctors must realize that every patient is a possible HIV-case and they must take universal precautions in case of all patients coming to them for treatment.

This provision will also lead to mandatory testing of the patients and violation of their fundamental rights. Tests are not necessarily confirmatory as the individual may be in the window period at the time of the test. There is also a possibility that the result is a false positive; this is very high in the case of low sero-prevalence settings such as India. Thus a negative result does not rule out the presence of HIV. Under the testing policies and guidelines of NACO and the World Health Organization (herein referred to as WHO), there cannot be any HIV testing without the consent of the individual being tested. Already in most public and private hospitals, doctors conduct an HIV-test as a matter of routine without consent though such practice is illegal. This provision will only encourage such mandatory 'routine' testing. International experience clearly indicates that public health strategies that provide for coercive and mandatory testing have negative public health repercussions. The tendency is for people living with HIV/AIDS not to avail treatment that requires mandatory testing thus negating the very objective of providing treatment.

Under Section 5, medical professionals could 'legitimately' deny treatment to individuals thus misusing this provision. As it is, medical practitioners today, particularly in the private health care sector, carry out an HIV test on the patient and on an HIV- positive report, the patient is denied medical treatment. This provision would only let the private sector off the hook and the burden of treatment would have to be disproportionately borne by the public health care sector.

Ostensibly to safeguard patients from contracting HIV infection from HIV-positive doctors, the Bill provides for the disclosure of the HIV-positive status of medical practitioners to the HIV Prevention Board - an additional administrative body to be instituted under Section 6 of the Bill. The creation of an additional administrative body, where there already exist administrative bodies such as NACO and the city and state AIDS control societies, is a flagrant waste of precious resources. Every medical practitioner who has the knowledge of her/his HIV-positive sero-status is required to disclose such fact to the Board before every invasive procedure. This provision apparently seeks to safeguard the interest of the patient in not becoming HIV-positive during the medical procedure. It is unsupported by any scientific data. Data conclusively indicates that the risk of transmission from the health care worker to a patient is virtually non-existent.

Though there is no significant risk of health care workers being infected by patients who are HIV-positive, health care workers have legitimate fears and apprehensions that must be addressed. Their main apprehension is that of being exposed to HIV and the consequent measures that are required to be taken, which are unfortunately absent in the local scenario. It is well established that transmission of HIV to health care workers can be virtually prevented by taking universal precautions. However, in the unlikely event that health care workers do get exposed to HIV, there are measures that can be taken rapidly, viz. post exposure prophylaxis (herein referred to as PEP). The regimen for PEP is available locally and is not prohibitively expensive. Having PEP within reach will go a long way to allaying the fears and apprehensions of the health care workers in providing medical treatment for people living with HIV/AIDS.

Section 8 of the Bill states that any person who is aware of her/his HIV status is mandatorily required to give information of their status to the HIV Prevention Board. This provision also states that any medical practitioner who becomes aware of the HIV-positive status of an individual is bound to give information of the patient's HIV status to the Board. This would result in an absolute breach of a citizen's fundamental right to keep their HIV status confidential.

The Central and State Governments have in their wisdom till date not made HIV status notifiable under the provisions of the Epidemic Diseases Act. However this provision would result in making HIV status notifiable. Experience the world over has shown that making sexually transmitted diseases notifiable has had negative public health implications. People living with HIV/AIDS whose confidentiality is breached, will not avail of services and the epidemic will be driven further underground.

High-Risk Areas

Perhaps the most draconian section of the Bill, Section 10, is the one that confers upon the State Government the power to notify certain areas as high-risk areas. These areas would be deemed high-risk if the incidence of HIV in such areas would so high as to expose the public in that area to a high risk of HIV infection.

This provision totally ignores the fact that it is engaging in unsafe behaviours spreads HIV. The risk of acquiring HIV has absolutely nothing to do with geographic areas. Public notification of high-risk areas on the basis of the incidence of HIV in that area would result in stigmatization of citizens living in the said areas. People not living in notified high-risk areas would falsely believe that they were immune to the risk of contracting HIV. This would give them a false sense of security and they may resort to unsafe behaviours. The notification of certain areas as high-risk areas would thus be counter-productive to preventing the further spread of HIV.

The provisions could also result in further targetting and isolation of already marginalized vulnerable groups like sex workers, eunuchs, drug-users, men who have sex with men etc. leading to the further spread of the epidemic.

 

Mandatory Testing

Section 8 of the Bill provides that the HIV Prevention Board is given power to require any person to furnish information, to submit him or herself for an HIV test and to remove him or herself forthwith to a hospital for special care and medical treatment.

As previously mentioned, international experience indicates that mandatory testing and isolation will discourage people living with HIV/AIDS from coming out in the open and availing of services and counseling facilities. Even if an individual voluntarily wants to test for HIV, s/he may not do so if s/he is coerced and there exists a possibility of being isolated on the basis of positive sero-status.

Section 11 directly interferes with the personal liberty of the individual. Under the Constitution and as common law, no person can be tested without his/her informed consent. However, this provision does not lay down any guidelines or factors that the Board would rely upon in coming to the conclusion that there was a reasonable suspicion of a person being HIV-positive. Hence the exercise of the power to interfere with an individual's liberty is left totally to the whims and fancies of the Board. The individual's consent is completely disregarded. The Bill does not provide for any safeguards to prevent against arbitrary action by the Board. Though it is true that actions taken under the Bill would have to pass the test of 'good faith', it would be virtually impossible for an individual to prove bad faith or malafide intent in terms of actions taken under the Bill.

The testing policies and guidelines set down by NACO as well as the World Health Organization expressly prohibit mandatory testing. These policies have been developed relying upon a considerable amount of national and international experience. There is no reason to overturn well-tested policies for undisclosed reasons.

There is no assurance that the HIV Prevention Board would treat the information received under the provisions of the Bill as confidential. This would have the effect of driving the epidemic further underground by discouraging people who are at risk or consider themselves to be at risk to access voluntary testing and counseling and health services.

Section 11 also fails to consider that the individual may be in the window period. Would the Board repeatedly subject an individual to HIV testing? It would be a heavy economic burden if repeated tests were conducted. Furthermore even after a person is removed to a hospital, one fails to understand what treatment would be provided to him/her? Considering that the epidemic is progressing rapidly, relying on hospital-based or institution-based care would be too expensive, impractical and often unaffordable. The Bill fails to take into consideration that it is an accepted position that home-based and community-based care features necessarily in the HIV/AIDS epidemic the world over.

Collective Response

For the aforementioned reasons, the proposed Bill that is before the legislative assemblies of Maharashtra and Karnataka is counter-productive to any and all strategies for preventing the further spread of HIV/AIDS. Thus it is of critical importance that we, as concerned individuals all of whom are affected by HIV/AIDS, mobilize a collective response to ensure that this Bill does not become law.

Editor: Dr. Mandeep Dhaliwal, Project Co-ordinator

*Full text of the proposed Bill can be found at the Lawyers Collective HIV/AIDS Unit website at www.hri.ca/partners/lc

 

Campaign Against the Suspension of the Right of 
People Living With HIV/AIDS to Marry

June 23rd, 1999 - Bombay High Court heard the case of AC & Others v. Union of India & Others (Writ Petition No. 791 of 1999). The Union of India and NACO have filed a reply supporting the petitioners' right to marry provided that the prospective spouse is informed about the HIV status and thereafter gives full, free and informed consent to the marriage. The division bench of Justice Ghodeshwar and Justice Srikrishna felt that the matter was of great importance and gave rise to several critical issues of public interest, which required careful consideration. Thus an order was passed for an expedited final hearing.

July 10th, 1999 - Jyoti Sangh, an Ahemdabad based NGO organized a public meeting on the right of people living with HIV/AIDS to marry. The meeting was addressed by Mr. Ashok Bhatt - Minister of Health, Gujarat, Mr. Girish Patel - Senior Advocate, Dr. Saxena - Gujarat State AIDS Control Society and Mr. Anand Grover - Advocate & Director, Lawyers Collective HIV/AIDS Unit.

July 24th, 1999 - AIDS Forum, Bangalore, Karnataka hosted a public meeting on the right of people living with HIV/AIDS to marry. The meeting was addressed by Sangamitra Iyengar - Director, Samraksha, Dr. Ravi - NIMHANS and Mr. Anand Grover, Advocate & Director, Lawyers Collective HIV/AIDS Unit.

July 31st, 1999 - Deepak Charitable Trust in Baroda, Gujarat organized a public meeting on the right of people living with HIV/AIDS to marry. The meeting was addressed by Aruna Lakhani - Deepak Charitable Trust, Dr. Marfatia - HOD, Dept. of Skin & VD, S.S.G Hospital, Tulsi Boda - Human Rights Activist, Bunny Nag - Baroda Citizen's Council and Mr. Anand Grover, Advocate & Director, Lawyers Collective HIV/AIDS Unit.

All these meetings have been extremely well attended and a strong, collective voice advocating the restoration of the right of people living with HIV/AIDS to marry is emerging. Similar meetings are being organized in Mumbai, Delhi and other major cities in India. It is crucial at this time to mobilize support and initiate a signature campaign to challenge the decision of the Supreme Court of India. A form letter for the signature campaign is available from the Lawyers Collective HIV/AIDS Unit via fax, e-mail or the website. The aim is to collect at least 100 000 signatures by December 1999. The signatures will be sent as a formal representation to the Supreme Court of India on the behalf of concerned individuals who oppose the judgment of the Supreme Court and want to restore the fundamental right of people living with HIV/AIDS to marry.

 

  Lawyers Collective HIV/AIDS Unit provides legal aid and allied   services for people affected by HIV/AIDS. The main objective of   the Unit is to protect and promote the fundamental rights of   persons living with HIV/AIDS, who have been denied their rights in   areas such as:

  · Health care
  · Employment
  · Terminal dues like gratuity, pension
  · Marital rights relating to maintenance, custody etc
  · Housing

  The Unit is involved in initiating public interest litigation on issues   like the right to marry, confidentiality, access to health care, safe   blood supply, etc. Lawyers Collective HIV/AIDS Unit also   conducts workshops on legal and ethical issues relating to   HIV/AIDS for people living with HIV/AIDS, lawyers, judges,   health care providers, NGOs etc.

 

MONTHLY DROP-IN MEETINGS
Lawyers Collective HIV/AIDS Unit holds monthly drop-in meeting on the first Thursday of each month at 5:00 p.m. The objective of the meeting is to share experiences, information and discuss issues of concern. We invite your active participation in these meetings.

 

Please send your comments and queries to the address given below.

Those affected by HIV/AIDS seeking legal aid, advice and support are welcome to contact us at:

Lawyers Collective HIV/AIDS Unit
7/10, BOTAWALLA BUILDING, 2ND FLOOR
HORNIMAN CIRCLE, FORT
MUMBAI - 400 023
TEL: 22 267 6213/9 FAX: 22 270 2563
E-MAIL :
aidscaw@bom5.vsnl.net.in or aidslaw@vsnl.com
Hours : Monday – Friday : 10:00 a.m. – 7:00 p.m.
Saturday : 10:00 a.m. – 4:00 p.m.