- Email: [email protected]
HIV transmission and the law
543
remain in force. These include that export certificates be obtained from the TGA and that they be endorsed by the Embassy of the importing country, and in some cases also by the Department of Foreign Affairs and Trade. Peter Harrigan
procedures
Medicine and the Law HIV transmission and the law HIV infection hit the headlines in the UK earlier this when an HIV-positive man was alleged to have infected at least four women via unprotected sexual intercourse without telling them that he was infected. He had become infected via blood products. One woman has died from AIDS. The health authority concerned indicated that the man had repeatedly been offered counselling, and in its view his failure to accept advice was a matter of regrettable irresponsibility rather than wilful intention to infect. The health authority felt that public health legislation was unlikely to offer a solution and it has denied acting irresponsibly in not naming the man to ensure that women would know of the risk. This episode has been looked into by a local infectious diseases specialist, Prof A. M. Geddes. Predictably, perhaps, this case prompted suggestions that the law should be invoked to prevent patients who are infected from wantonly spreading the disease. What is the law here, in the UK, and in other countries? In England and Wales AIDS is not a "notifiable disease" within the meaning of the Public Health (Control of Diseases) Act 1984, but Sections 35, 37, and 38 do apply to patients with AIDS. Surprisingly, perhaps, it is doubtful whether these sections apply to patients infected with HIV who do not have AIDS. Section 35 allows for compulsory medical examination, Section 37 for compulsory removal to hospital, and Section 38 for compulsory detention in hospital if a magistrate is satisfied that such steps are necessary to prevent the spread of disease. Sections 37 and 38 might then be used to prevent a patient from spreading disease by sexual contact but no hospital in Britain has been used to restrain such a patient. The period of hospital detention might have to be many years. In a 1989 consultation document reviewing the law on infectious disease control, the Department of Health suggested that these powers might be repealed altogether. A person who infects a sexual partner with HIV without warning his or her partner of the risk might be guilty under the Offences Against the Person Act 1861 on the grounds of assault causing actual bodily harm. However, intent or recklessness would have to be proved. Consent would be a defence as would accident. HIV infection might be a consequence of unprotected sexual intercourse but not the intent, and without intent it would have to be shown that the infected person knew there was a serious risk of transmission but went ahead irrespective and without informing the partner. Consent to sexual intercourse could be said to refer to the act only. The infected status of the partner, whether disclosed or concealed, may be irrelevant. Some countries have made the knowing transmission of HIV an offence and do allow for compulsory detention for the purpose of preventing the spread of HIV. More than a dozen states in the USA have brought people whose behaviour poses a risk of HIV transmission within the scope
summer
quarantine legislation. Between 1987 and 1989, twenty legislated for the prosecution of people whose behaviour posed a risk, and in some states, even in the absence of statutes defming such behaviour as criminal, prosecutors have had recourse to the general criminal law. In some jurisdictions in Australia, AIDS and HIV infection have been added to the existing list of infectious or notifiable diseases, while in others HIV/AIDS specific public-health provisions have been enacted.2 In August, 1989, the New South Wales Public Health Act 1902 was used to detain an HIV-infected prostitute who had not responded to persistent attempts to persuade her to behave responsibly. Civil liberties groups highlighted the absence of a right of appeal for the detainee. However, the prostitute was not penalised despite admitting to knowingly infecting other persons, even though transmission in such
of
states
circumstances had been an offence in New South Wales since 1985. Amendments in some jurisdictions in Australia now provide avenues of appeal3 and reviews of public health legislation, whilst retaining provision for detention and for the offence of transmission, have tended to lead to more emphasis on counselling and support. In the former USSR, new laws were approved on AIDS in 1990, including provision for prosecuting a person infected with HIV who knowingly and deliberately puts others at risk. In the Nordic countries there is a range of attitudes. Sweden and Iceland treat AIDS under the umbrella of legislation on venereal diseases, so anyone suspecting that he or she may be infected with HIV would be obliged to seek medical advice and comply with examinations, treatment, and advice. In Norway, Denmark, and Finland, voluntary, non-coercive measures are applied.4 There seems to be no clear evidence that, where the possibility of transmission of HIV/AIDS by irresponsible behaviour is treated as an offence and coercive public health legislation has been used, control of the spread of the infection is any more or less effective than elsewhere. In Australia, which has had applicable legislation in place for some time, the emphasis seems to be shifting towards counselling, support, and education. In America a review of the court and Human Rights Commission decisions recognises that most criminal prosecutions of persons infected with HIV have involved behaviour that is highly
unlikely to transmit the virus such as biting, spitting, or splattering blood.5 The disadvantages of legislation are that those infected with HIV will find themselves treated as criminals, with the inevitable consequence that the disease will be forced underground. In the UK the Secretary of State for Health has indicated the Government will not support demands for specific legislation to make wilful transmission of HIV an offence. Medical Secretariat, Medical Defence Union, London, UK
C. M. Tomkins
Bayer R. Public health policy and the AIDS epidemic: an end to HIV exceptionalism? N Engl J Med 1991; 324: 1500-04. 2. Anon. Australian HIV/AIDS legal guide, 2nd ed. Sydney: Federation Press (in press). 3. Lansdell GT. AIDS, the law and civil liberties. Med J Aust 1991; 154: 1.
61-67. 4. Krasnik A,
Bjoerner J, Westphal Christensen B, et al. Community and individual considerations in legislation and test policy regarding HIV-infection in the Nordic countries: a cross national comparative study. Soc Sci Med 1989; 29: 577-84. 5. Gostin LO. The AIDS litigation project: a national review of court and Human Rights Commission decisions: the social impact of AIDS.
JAMA 1990;
263: 1951-70.
remain in force. These include that export certificates be obtained from the TGA and that they be endorsed by the Embassy of the importing country, and in some cases also by the Department of Foreign Affairs and Trade. Peter Harrigan
procedures
Medicine and the Law HIV transmission and the law HIV infection hit the headlines in the UK earlier this when an HIV-positive man was alleged to have infected at least four women via unprotected sexual intercourse without telling them that he was infected. He had become infected via blood products. One woman has died from AIDS. The health authority concerned indicated that the man had repeatedly been offered counselling, and in its view his failure to accept advice was a matter of regrettable irresponsibility rather than wilful intention to infect. The health authority felt that public health legislation was unlikely to offer a solution and it has denied acting irresponsibly in not naming the man to ensure that women would know of the risk. This episode has been looked into by a local infectious diseases specialist, Prof A. M. Geddes. Predictably, perhaps, this case prompted suggestions that the law should be invoked to prevent patients who are infected from wantonly spreading the disease. What is the law here, in the UK, and in other countries? In England and Wales AIDS is not a "notifiable disease" within the meaning of the Public Health (Control of Diseases) Act 1984, but Sections 35, 37, and 38 do apply to patients with AIDS. Surprisingly, perhaps, it is doubtful whether these sections apply to patients infected with HIV who do not have AIDS. Section 35 allows for compulsory medical examination, Section 37 for compulsory removal to hospital, and Section 38 for compulsory detention in hospital if a magistrate is satisfied that such steps are necessary to prevent the spread of disease. Sections 37 and 38 might then be used to prevent a patient from spreading disease by sexual contact but no hospital in Britain has been used to restrain such a patient. The period of hospital detention might have to be many years. In a 1989 consultation document reviewing the law on infectious disease control, the Department of Health suggested that these powers might be repealed altogether. A person who infects a sexual partner with HIV without warning his or her partner of the risk might be guilty under the Offences Against the Person Act 1861 on the grounds of assault causing actual bodily harm. However, intent or recklessness would have to be proved. Consent would be a defence as would accident. HIV infection might be a consequence of unprotected sexual intercourse but not the intent, and without intent it would have to be shown that the infected person knew there was a serious risk of transmission but went ahead irrespective and without informing the partner. Consent to sexual intercourse could be said to refer to the act only. The infected status of the partner, whether disclosed or concealed, may be irrelevant. Some countries have made the knowing transmission of HIV an offence and do allow for compulsory detention for the purpose of preventing the spread of HIV. More than a dozen states in the USA have brought people whose behaviour poses a risk of HIV transmission within the scope
summer
quarantine legislation. Between 1987 and 1989, twenty legislated for the prosecution of people whose behaviour posed a risk, and in some states, even in the absence of statutes defming such behaviour as criminal, prosecutors have had recourse to the general criminal law. In some jurisdictions in Australia, AIDS and HIV infection have been added to the existing list of infectious or notifiable diseases, while in others HIV/AIDS specific public-health provisions have been enacted.2 In August, 1989, the New South Wales Public Health Act 1902 was used to detain an HIV-infected prostitute who had not responded to persistent attempts to persuade her to behave responsibly. Civil liberties groups highlighted the absence of a right of appeal for the detainee. However, the prostitute was not penalised despite admitting to knowingly infecting other persons, even though transmission in such
of
states
circumstances had been an offence in New South Wales since 1985. Amendments in some jurisdictions in Australia now provide avenues of appeal3 and reviews of public health legislation, whilst retaining provision for detention and for the offence of transmission, have tended to lead to more emphasis on counselling and support. In the former USSR, new laws were approved on AIDS in 1990, including provision for prosecuting a person infected with HIV who knowingly and deliberately puts others at risk. In the Nordic countries there is a range of attitudes. Sweden and Iceland treat AIDS under the umbrella of legislation on venereal diseases, so anyone suspecting that he or she may be infected with HIV would be obliged to seek medical advice and comply with examinations, treatment, and advice. In Norway, Denmark, and Finland, voluntary, non-coercive measures are applied.4 There seems to be no clear evidence that, where the possibility of transmission of HIV/AIDS by irresponsible behaviour is treated as an offence and coercive public health legislation has been used, control of the spread of the infection is any more or less effective than elsewhere. In Australia, which has had applicable legislation in place for some time, the emphasis seems to be shifting towards counselling, support, and education. In America a review of the court and Human Rights Commission decisions recognises that most criminal prosecutions of persons infected with HIV have involved behaviour that is highly
unlikely to transmit the virus such as biting, spitting, or splattering blood.5 The disadvantages of legislation are that those infected with HIV will find themselves treated as criminals, with the inevitable consequence that the disease will be forced underground. In the UK the Secretary of State for Health has indicated the Government will not support demands for specific legislation to make wilful transmission of HIV an offence. Medical Secretariat, Medical Defence Union, London, UK
C. M. Tomkins
Bayer R. Public health policy and the AIDS epidemic: an end to HIV exceptionalism? N Engl J Med 1991; 324: 1500-04. 2. Anon. Australian HIV/AIDS legal guide, 2nd ed. Sydney: Federation Press (in press). 3. Lansdell GT. AIDS, the law and civil liberties. Med J Aust 1991; 154: 1.
61-67. 4. Krasnik A,
Bjoerner J, Westphal Christensen B, et al. Community and individual considerations in legislation and test policy regarding HIV-infection in the Nordic countries: a cross national comparative study. Soc Sci Med 1989; 29: 577-84. 5. Gostin LO. The AIDS litigation project: a national review of court and Human Rights Commission decisions: the social impact of AIDS.
JAMA 1990;
263: 1951-70.