Bob Leahy: Thank you for talking to PositiveLite.com about your case. Now before we get in to that, I want you to tell me first your background. Ken Pinkela: Sure! Ken Pinkela is still a card-carrying Lieutenant Colonel in the (US) army.
China: Warranted fears of stigma and discrimination in healthcare settings resulting in people with HIV not disclosing their status
“I was so desperate, and I could not imagine the future if I was really infected,” Fu Yi (pseudonym), a maternity doctor at Sichuan Provincial People’s Hospital in Chengdu, recalled her feelings when she was exposed to HIV-infected blood during a birth in 2010.
Fu accidentally exposed her injured foot to the blood of the HIV-positive patient who was delivering a baby – Fu did not know the patient was HIV-positive, until the blood test results came out the next day.
Fu immediately started to take anti-AIDS emergency prevention pills. She suffered from the side effects, vomit and nausea, for a month, and lived in an abyss of fear for over half a year until she was eventually declared HIV free, she told the Global Times.
This incident was made public recently when the media began to report on the danger of exposure to infectious diseases that medical professionals face.
“We call [what Fu experienced] ‘occupational exposure,'” Xiang Qian, with the healthcare associated-infections division at Sichuan Provincial People’s Hospital, told the Global Times.
Occupational exposure for medical staff can be defined as coming into contact with infectious virus or toxic substances at work, which can pose health risks, according to Xiang.
Fu was not the only medical worker who has been exposed to infectious diseases at work. As of press time, there are no national statistics available, but in the hospital where Fu works a total of 122 medical staff reported being exposed to infectious diseases in 2013, including AIDS, hepatitis B and syphilis, according to Xiang.
From January to November this year, 88 medical workers, 43 percent of them nurses and 29 percent of them doctors, were exposed to infectious diseases at work. Hepatitis B topped the list, with 45 percent of the incidents of exposure involving the disease, followed by syphilis with 14 percent and HIV with 7 percent.
Among those infectious diseases that medical staff are exposed to, HIV is the most serious.
The risk is heightened as many patients do not disclose their HIV infection to physicians when being treated for other conditions. Meanwhile, many physicians do not take the kinds of precautions necessary to avoid becoming infected.
Concealment
Pregnant women usually go through a full blood test for possible infectious diseases before the delivery, and the result comes the day of the birth.
But in Fu’s case, the patient’s critical condition meant that she had to perform the delivery immediately, Fu said.
The patient’s family concealed her medical history and told Fu the patient had no infections. Fu, who had no time to take extra precautions, went into the operating room with an injured foot.
“From the doctor’s perspective, concealing infectious diseases is unfair,” Fu said.
But in some HIV patients’ eyes, disclosing their disease would jeopardize their access to healthcare as some hospitals may transfer them to designated infectious disease hospitals that offer inferior treatment.
Bi De, (pseudonym), 26, an AIDS patient who organized a debate in Shenzhen in November on whether HIV carriers should disclose their disease to doctors not treating their HIV, said he understood the ethical necessity to disclose one’s infections.
“But after my experience, I would not tell them [doctors] again,” Bi said. He first learnt he was HIV positive was two years ago when he went to a hospital in Henan Province to receive treatment for facial paralysis, and the hospital told him about his disease and transferred him to a designated hospital in Zhengzhou.
“But the infectious disease hospital did not have enough resources, and I finally recovered [from his paralysis]after visiting a Traditional Chinese Medicine doctor,” Bi said.
In another high-profile case that came to light last year, an HIV-positive cancer patient sued a Tianjin hospital that refused to treat his cancer due to his HIV. The case was the first well-known case of an HIV carrier suing a hospital for discrimination.
After hearing of the case, then vice-premier Li Keqiang [now premier] immediately called for better treatment of HIV/AIDS patients.
But the Tianjin Hexi District Court last week rejected the case as the plaintiff failed to provide a legal basis for his claims, according to Beijing-based newspaper The Mirror.
Chinese media has reported many cases of hospitals delaying or refusing treatment to HIV carriers despite the regulation issued by the State Council in 2006 which stipulates that clinics and hospitals should not refuse or delay treatment for HIV/AIDS patients.
According to Xiang, hospitals should only transfer patients to designated infectious disease hospitals when their conditions could pose public health risks, such as if they have SARS or bird flu.
Shao Yiming, an AIDS expert at the Chinese Center for Disease Control and Prevention, told the Global Times that hospitals are obliged to treat the diseases of HIV carriers.
“The HIV virus has a lower transmission level than many other infectious diseases such as hepatitis B. Why can they [doctors] treat [the disease] of hepatitis B carriers but not those of HIV carriers?” Shao said.
By the end of 2013, the number of people infected with HIV/AIDS hit 810,000 in China, according to the National Center for AIDS/STD Control and Prevention.
Shao suggested the country should put the related laws into practice while making more effort to promote knowledge of HIV/AIDS among medical staff and society.
Safety protection awareness
Xiang’s hospital laid out protection guidelines for medical staff to minimize their exposure to infectious diseases, but many are reluctant to adopt them.
“For example, some doctors following extra safety protection guidelines have to wear two sets of gloves, which they believe affect their surgical performance,” Xiang said.
Who should pay for the safety protection equipment in a long run is another headache for Xiang.
As the government subsidy does not cover it, hospitals that make an insufficient profit find it difficult to afford the equipment, he said.
“Some hospitals would not even pay for their medical workers to have a hepatitis B vaccine,” He said.
But Fu, who has performed gynecological surgeries on two HIV carriers after she was exposed, has been extra careful since the exposure.
“I wear special masks to prevent the blood splashing, safety protection suits, shoes and other extra safety protection equipment when I perform surgeries,” she said.
South Africa: Forced or involuntary disclosure in healthcare settings disproportionately affecting women resulting in discrimination and gender-based violence, despite constitutional protections
Editor’s note: This story is part of a Special Report produced by The GroundTruth Project called “Laws of Men: Legal systems that fail women.” It is produced with support from the Ford Foundation. Reported by Tracy Jarrett and Emily Judem.
An HIV diagnosis is no longer a death sentence, thanks to advances in medicine and treatment in the last 30 years. But stigma against HIV/AIDS and fear of discrimination still run strong in South Africa, despite legal protections, as well as drastically improved treatment, prevention techniques and education. Today an estimated 19 percent of South African adults ages 15-49 are living with HIV.
And women, who represent about 60 percent of people living with HIV in South Africa, face a disproportionately large array of consequences, including physical violence and abuse.
“Upon disclosure of women’s HIV positive status,” reads a 2012 study by the AIDS Legal Network on gender violence and HIV, “women’s lives change, due to fear and the continuum of violence and abuse perpetrated against them.”
Although forced or involuntary disclosure of one’s HIV status — along with any discrimination that may result from that disclosure — was made illegal by South Africa’s post-apartheid constitution, experts and advocates say that public knowledge of these laws is limited and the legal system is not equipped to implement them.
Not only are women disproportionately affected by HIV, but they are also more likely to know their status. More women get tested, said Rukia Cornelius, community education and mobilization manager at the NGO Sonke Gender Justice, based in Johannesburg and Cape Town, because unlike men, women need antenatal care.
And often, she said, clinics give women HIV tests when they come in for prenatal visits.
The way hospitals and clinics are set up also are not always conducive to protecting privacy, said Alexandra Muller, researcher at the School of Public Health and Family Medicine at the University of Cape Town.
“People who provide services in the public system, at the community level, are community members,” said Muller. “This is an important dynamic when we think about stigma and disclosure.”
Doctors and nurses can see 60 to 80 patients per day in an overcrowded facility with shared consultation rooms, Muller said.
“There’s not a lot of consideration for how is a clinic set up,” added Cornelius, so that “a health care worker who has done your test and knows your status doesn’t shout across the room to the other health care worker, ‘okay, this one’s HIV-positive, that file goes over there.’”
Once HIV-positive women disclose their status, willingly or not,they are disproportionately affected by stigma because of the direct link between HIV and gender violence.
The Criminalization of HIV in Canada
(32 mins, BearPaw Media, Canada, 2014)
The Canadian Aboriginal population is one of the fastest growing groups being diagnosed with HIV today. Due to a lack of education, people living with HIV continue to face fear and discrimination. Court and legislator involvement in their lives makes matters even more complicated. This video features four Aboriginal Canadians diagnosed with HIV. In hearing their stories, the viewer will learn how they cope with the stigma surrounding their illness and live within the new rules governing the most intimate part of their lives.
See more at: http://ncsa.libguides.com/bearpawvideos
Canada: Social media campaign ‘Think Twice’ uses video to ask gay men to reconsider pressing charges for HIV non-disclosure
Last week saw the launch of a new phase of a targeted social marketing campaign by AIDS ACTION NOW! (AAN) that features 42 short videos from members and allies of Toronto’s LGBTQI community.
‘Think Twice’ asks HIV-negative and untested gay, bi, queer and trans men to reconsider pressing charges for HIV non-disclosure (where there was no alleged HIV transmission) when they discover that a sexual partner has not disclosed their HIV-positive status before sex.
In October 2012, the Supreme Court of Canada confirmed that non-disclosure of known HIV status can be charged as aggravated sexual assault – with up to life imprisonment and sex offender registration – even if the person with HIV uses a condom: in order to avoid legal liability, they must also have a low viral load.
‘Think Twice’ is an AAN campaign originally launched just prior to the Supreme Court’s ruling aimed at decreasing the number of criminal prosecutions related to HIV non-disclosure. AAN want people involved in the criminalisation of HIV non-disclosure—people living with HIV, their sexual partners, police, Crown prosecutors, health care providers and others—to consider the complexity and uncertainty of Canada’s overly broad approach to HIV criminalisation, and the implications of their role in criminal prosecutions for HIV non-disclosure.
The first part of their campaign targeted Crown prosecutors since they play a pivotal role in driving criminal prosecutions.
Since December 2012, the ‘Think Twice’ campaign has also focused on another key advocacy target – potential complainants.
This new phase of the ‘Think Twice’ campaign focuses specifically on gay, queer, and trans men and other men who have sex with men, due a change in community norms in the past few years that has resulted in an increase in the numbers of men going to the police to lay charges against other men living with HIV.
According to the Canadian HIV/AIDS Legal Network, while the majority of cases in Canada are against men who had sex with women, an increasing number of gay men and other men who have sex with men are being charged and prosecuted in Canada. Whereas there were only five known cases prior to 2006, a further 25 cases have been tracked up to December 2013.
In 2014, there has been at least one new case against a gay man. Another – where two men met in a Montreal sauna – dating back to 2005, is due to be heard by the Supreme Court of Canada next month.
For this latest phase of the ‘Think Twice’ campaign, AAN placed an open call for gay, queer, bi and trans men, and their allies, to make a video that answered the question: ‘In 45 seconds what would you say to gay men to convince them to think twice before going to the police when a sex partner hasn’t disclosed to them.’
Although they only expected to make 25, a total of 42 individuals made videos, in a project organised by Jordan Bond-Gorr, Lauryn Kronick, Tim McCaskell and Eric Mykhalovskiy and filmed by multi-disciplinary artist, John Caffery, in Toronto over one weekend in August.
The videos – along with the website www.thinktwicehiv.com – were launched on 18th November at Toronto’s Buddies in Bad Times theatre.
This compilation of 18 of the videos, produced by the HIV Justice Network, highlights the breadth of messages and the range of stakeholders involved.
It features (in order of appearance):
and John Greyson.
For more information about this campaign, visit the ‘Think Twice’ FAQ page.
UK: Study of people with HIV in Manchester finds legal literacy lacking on criminal prosecutions
People living with HIV in Manchester appear to have little understanding of their rights and responsibilities under English law to avoid prosecution for ‘reckless’ HIV transmission, according to a study presented to the British HIV Association Conference in Liverpool earlier this year.
Matthew Phillips and Gabriel Schembri surveyed 33 individuals (85% male, 64% gay, average age 36) attending the Manchester Centre for Sexual Health. The questionnaire contained four key prompts to discuss personal understanding of the law in relation to HIV. Participants were invited to write as much or as little as they wished in response to each of the prompts.
The investigators found that many of the participants had either a flawed understanding of the law, the sentences that could be passed, or both. They also found that some participants had very strong views on the morality of HIV transmission and had a range of views on the appropriateness of prosecutions for reckless HIV transmission.
When asked if the law had ever been discussed at their HIV clinic, or where they got their information from, many answered ‘no’ or ‘none’.
Participants discussed rights and responsibilities in relationship only to themselves, with responsibilities of a person with HIV potentially varying based on duration and status of a relationship. Conspicuous by its absence was any discussion of partner responsibility in attempting to avoid acquisition of HIV.
The authors concluded that
People living with HIV sometimes have a weak grasp of how the law relates to their behaviours, which places them at greater risk of prosecution in addition to unfounded fears about what is actually prosecutable in England and Wales. Relating HIV to the law brought out a complex range of issues, ranging from technicalities of how to disclose in relationships to morality of transmission. Participants considered relationship status to be important in relation to the law rather than actual transmission risk. Using Grounded Theory to inform a hypothesis, we can hypothesise that information regarding the law in relationship to HIV transmission is not reaching those actually living with HIV. Effort must be made by clinicians and advocacy groups to ensure that PLWHA have accurate information about the circumstances under which prosecution may occur, with sensitive exploration of beliefs which may impact on this understanding.
The poster of their presentation is below. The full text is currently in press in the Journal of the Faculty of Reproductive Healthcare.
Phillips M, Schembri G. HIV Transmission and the Law- What Do People Living With HIV Understand?
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HIV Criminalization: A Physician's Perspective
This essay is an excerpt from the LGBT/HIV criminal justice report, A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People with HIV. His name was Paul. I slid into the chair next to him in my examination room to console him as he cried.
HIV is not a Crime 2014 – the first HINAC aka The Grinnell Gathering (My Fabulous Disease, US, 2014)
Mark S. King (My Fabulous Disease) reports from the first HIV is Not a Crime conference, held in Grinnell, Iowa in 2014 in a moving video that includes interviews with people living with HIV who have been prosecuted.
Panel asks how HIV criminalization affects positive women
Canadian HIV/AIDS Legal Network discussion explored nondisclosure and sexual assault laws
Switzerland: New handbook for parliamentarians on effective HIV laws includes case study and interview with Green MP Alec von Graffenried
A new publication from the Inter-Parliamentary Union (IPU) and United Nations Development Programme (UNDP), written by Veronica Oakeshott, is an excellent new resource to help inform advocacy efforts to remove punitive laws and policies that impede the HIV response.
Aimed at parliamentarians, ‘Effective Laws to End HIV and AIDS: Next Steps for Parliaments’ (aussi disponible en français) is a practical handbook showing which types of laws are helpful and unhelpful in the HIV response, and provides examples of legislation from around the world that have been effective in limiting new HIV infections.
It also includes case studies and interviews with some of the parliamentarians involved in law reform, most notably with Swiss MP Alec Von Graffenried whose last minute amendment resulted in the new Law on Epidemics containing a clause that only criminalised intentional disease transmission.
Other case studies highlighted in the handbook include: decriminalisation of sex work in New Zealand; decriminalisation of personal drug use in Portugal; ending discrimination against people living with HIV in Mongolia: and legal recognition for transgender and intersex people in South Africa.
The Swiss Law on Epidemics was finally passed, following a national referendum, in September 2013. However, it won’t come into effect until January 2016.
Below is the section explaining how and why the Swiss law reform process took place. It’s an excellent example of how advocates saw an opportunity to work with clinicians, scientists and key parliamentarians in order to make a difference. It also shows that the law reform process can be a slow and complex undertaking. Patience here is definitely a virtue.
Switzerland: Decriminalisation of unintentional HIV transmission and exposure
Name of act
The Epidemics Act 2013
Summary
Repeals and replaces the old Epidemics Act and in doing so, changes Article 231 of the Swiss Penal Code, which in the past has been used to prosecute people living with HIV for transmission and exposure, including cases where this was unintentional. The changes mean that a prosecution can only take place if the motive of the accused is to infect with a dangerous disease. Therefore, there should be no further cases for negligence or cases where the motive was not malicious (i.e. normal sexual relationships).
Why the law is important for HIV
Criminalization of HIV transmission, exposure or non-disclosure creates a disincentive for testing and gives non-infected individuals false confidence that they will be informed of any infection. In reality, their partner may not even know his or her HIV status and everyone should be responsible for protecting their own sexual health. The latest scientific findings have shown that people on HIV treatment who have an undetectable viral load and no other sexually transmitted infections are not infectious. Such people may want to have consensual unprotected sex. Criminalizing them for doing so has no positive public health impact and is an intrusion into their private life. UNAIDS is calling for the repeal of all laws that criminalize non-intentional HIV transmission, non-disclosure or exposure.
How and why was decriminalization of HIV transmission and exposure introduced in parliament?
In 2007, the Swiss Government decided to revise the Swiss law on epidemics. This was not an HIV-specific law and the decision to review it was not HIV-related but due to concerns that Switzerland was not well-placed to deal with other global epidemics, such as severe acute respiration syndrome (SARS) and H1N1. However, HIV campaigners and persons working in public health saw an opportunity to insert a clause into the Act that would amend Switzerland’s current Penal Code, Article 231 of which has been used to prosecute people living with HIV for transmission and exposure. Since 1989, there have been 39 prosecutions and 26 convictions under Article 231 in combination with the Swiss law on “grievous bodily harm”.
In December 2007, the government began a consultation on a draft Epidemics Bill and campaigners proposed a clause in it amending Article 231 of the Penal Code. In 2010, the government introduced the draft Bill into parliament. However, HIV campaigners were not happy with the new Bill as tabled and campaigned for changes throughout its passage through parliament. Improvements to the Bill were made at the Committee stage but it was not until the final vote at the National Council in 2013 that a last-minute amendment was tabled by Green MP Alec von Graffenried, which achieved campaigners’ core aim of decriminalizing unintentional transmission or exposure.
Was cross-party support secured and, if so, how? How was a majority vote secured?
The last-minute amendment was tabled and passed with 116 votes to 40. The key arguments made in favour of the amendment centred on the unsuitability of public health law to deal with private criminal matters. This rather theoretical argument appealed to legislators, many of whom are practising lawyers or have a legal background. However, the wider case for decriminalization had been made to parliamentarians over a period of many years inside and outside parliament and was reinforced by new sci- entific announcements and court decisions. MPs across the political divide realized that HIV is no longer a death sentence, but a manageable condition and that the right treatment can reduce an individual’s infectiousness to zero. In this context, MPs were more open to the idea of legal change.
During the campaigning period of many years, different arguments were made to appeal to different MPs across the political spectrum. Those on the right often responded best to the notion of an individual’s responsibility to protect their own sexual health and those on the left responded better to public health arguments. Efforts were also made to lobby the head of health departments at the regional level, who were then able to communicate their support for the change to colleagues at the national level.
How long did it take to pass the law?
It took almost six years from the consultation on the first draft of the Bill until it was confirmed by referendum in September 2013. The law will come into effect in January 2016.
Read and/or download the entire publication below.
Effective Laws to End HIV and AIDS: Next Steps for Parliaments. Inter-Parliamentary Union, 2013