Canada: Male Call study finds more than half of gay men with HIV fear being prosecuted for not disclosing their HIV status

Two-thirds of men who have sex with men believe that people with HIV-AIDS should face criminal charges if they fail to disclose their status to a sexual partner. But that number varied a lot depending on circumstance, with 83 per cent saying non-disclosure before anal sex should be a crime, and 42 per cent saying failure to disclose HIV status before oral sex was a criminal act. Only 17 per cent said failing to disclose should never be criminalized. “The consensus is there should be legal measures in place related to disclosure,” Dan Allman, an assistant professor in the Dalla Lana School of Public Health at the University of Toronto, said in an interview. “At the same time, there is a feeling that legal measures won’t have an impact. There’s an innate understanding that disclosing your HIV status is hard and criminal laws aren’t going to make it easier,” he said.

The survey, dubbed Male Call involved 1,235 detailed interviews with men who have sex with men. The research shows that 26.2 per cent of respondents did not know their HIV status because they had not been tested recently; that number jumped to 50.6 per cent among bisexual men. Overall, 67.2 per cent of the men surveyed were HIV-negative, and 6.6 per cent HIV-positive.

Most of those who had not been tested said they were confident they were HIV-negative because their sexual practices put them at low risk. But a significant minority, 17 per cent, said they did not want to know their status, either because they could not deal with being infected or out of fear it could cause legal problems.

The fear associated with being HIV-positive was pervasive. The poll showed that 83 per cent of men worry about being stigmatized because of HIV, while 68 per cent fear being rejected by other gay/bisexual men, and 51 per cent fear being prosecuted for not disclosing their HIV status. 17.8% agreed that in the current legal climate it was better not to know your HIV status.

Full report available here: http://www.malecall.ca/technical-report/

UK: New research calls for better guidance for HIV service providers on criminal law, confidentiality and ethics

Yesterday saw the release of an important new UK study, Keeping Confidence: HIV and the criminal law from service provider perspectives, which explores how HIV criminalisation impacts those who deliver health and social care services for people with HIV.

The report’s lead author, Dr Catherine Dodds, from Sigma Research at the London School of Hygiene & Tropical Medicine, said: “Although HIV health and social care professionals expressed diverse views about their potential role in such cases, they gave a clear sense that criminal prosecutions for the transmission of HIV would not improve public health. Instead, it was most common to hear descriptions of such cases leading to increased stigma, reduced trust between service users and providers, and traumatic consequences for those involved in such cases.”

Study co-investigator, Matthew Weait, Professor of Law and Policy at Birkbeck, Univerisity of London, said: “This important and innovative research demonstrates both the problems that HIV criminalisation creates for clinical and social care providers and the need for solutions at both national and regional level. Care providers working in HIV and sexual health are concerned primarily with the health and wellbeing of their service users – which is of course as it should be; but there is also evidence that criminalisation is compromising their work. Increased awareness and understanding of, and inter-organisational communication about, legal issues is critical, and Keeping Confidence makes practical recommendations as to how that work might be taken forward for the benefit of prevention and support.”

Roger Pebody from aidsmap.com does an excellent job of summarising the study and its findings in this news report:

The study explored how criminal prosecutions for HIV transmission in England and Wales are handled by those who deliver clinical, psychosocial and community support for people with HIV. The report paints a picture of professionals grappling with the difficulties of communicating complex legal information in an appropriate way for each individual. They must weigh up competing concerns and responsibilities, including their own patient’s health and wellbeing, the health of unidentified sexual partners and the legal liability of their own organisation.

Read more at aidsmap.com

The report was launched in central London yesterday at a one-day meeting attended by around 70 HIV service providers, representatives of most of the UK’s community-based HIV organisations, and people living with HIV.

Following presentations of the report’s main findings, a panel consisting of a health adviser, and representatives of community-based organisaton and a people living with HIV discussed the implications for them.

Ceri Evans, Senior Health Adviser at the West London Centre for Sexual Health, Chelsea and Westminster Hospital, highlighted that there may not be a ‘best time’ to inform a newly diagnosed individual of their new legal obligations. Athough she agreed that the post-testing counselling session may not be ideal, she noted that since the criminal law potentially covers all sexually transmissable infections, including genital herpes, and there is usually only a single oppportunity to provide counselling following a new herpes diagnosis, that information about the law might need to be provided to some patients sooner rather than later.

Of note, the report’s fieldwork, involving 75 providers of HIV health and social care services in England and Wales, was undertaken in the latter half of 2012. Since then, the British HIV Association (BHIVA) and the British Association for Sexual Health and HIV (BASHH) have released an updated position statement on HIV Transmission, the Law and the Work of the Clinical Team which provides clinicians with information and guidance on managing many of the issues highglighted as problematic in the research. Lead author, Dr Mary Poulton, Consultant and Clinical Lad, Sexual Health and HIV, Kings College Hospital, London, outlined the main recommendations and provided case studies that illustrated how the decision-guiding algorithm regarding third-party disclosure might be particularly useful.

The rest of the meeting focused around discussing the report’s recommendations, which were as follows.

National recommendations

1. HIV service professionals will benefit from a single website or webpage that collates practical and accessible information about criminal prosecutions for the sexual transmission of HIV. It will need to be updated as new resources become available, and older ones are revised. New resources should be published as required in order to keep pace with clinical and scientific developments in the treatment of HIV that may impact on legal decision-making. The online resource can also identify the best sources of expert criminal legal advice where those are available.

2. A nation-wide programme of continuous professional development in the criminal law should be available to those who provide clinical and non-clinical HIV services. Topics covered should include: straightforward legal definitions and defence arguments, how and when to raise discussions about legal responsibilities, professional liability, communication skills development through the use of scenarios, and existing policy and practice models.

3. Key contacts with an interest in criminal prosecutions should be identified in each clinical and non-clinical HIV service organisation.This process should feed into the development of an updated list for the explicit use of disseminating information about information and training discussed in recommendations 1 and 2 above.The key contacts will also be utilised as the main organisational contact for the development and dissemination of resources to inform people with HIV about the law in this area.

Local recommendations

4. Existing professional guidance and associated documents should be discussed and adapted for local use. This will translate differently in specific settings, and it may lead to the development of local criminalisation policies or protocols, or values statements in some workplaces. At a minimum, such activities should strive for internal consistency on advice, facilitation and support.

5. Opportunities should be created for clinics and community-based organisations to exchange best practice as it relates to criminal prosecution for HIV transmission and to discuss where they agree and disagree on a conceptual level about the ethics of responsibility and public health in HIV prevention.

6. Alongside the development of local criminalisation protocols, all organisations will need to review their confidentiality policies, ensuring that they are accessible to service users, and compatible with internal agreements about criminalisation.

Whilst there was broad consenus regarding many of the recommendations, implementation will depend on various stakeholders collaborating, as well as sufficient funding.

Of note, currently only Australia has a website on HIV and the law aimed specifically at HIV healthcare professionals. The Australian Association of HIV Medicine (ASHM) online Guide to Australian HIV Laws and Policies for Healthcare Professionals covers civil, criminal and public health law, and also includes reference to national guidance on the Management of People with HIV who Place Others at Risk.

The entire day was filmed by the HIV Justice Network and video of the main presentations and final disussion outcomes will be available soon.

UK: Updated guidance on HIV transmission, the law and the work of the clinical team now published

The British HIV Association (BHIVA) and the British Association for Sexual Health and HIV (BASHH) have produced updated guidance on HIV Transmission, the Law and the Work of the Clinical Team.

This guidance is aimed at those working in the field of HIV medicine, especially clinicians, but will also be of use to general practitioners and people living with HIV who want to understand the legal and medical basis for some of their care decisions.

The guidance begins with a clear statement against HIV criminalisation:

BHIVA and BASHH believe that this use of the law is unhelpful and potentially harmful to public health and support UNAIDS recommendations to limit the use of criminal law and the Oslo declaration view that a “non-punitive, non-criminal HIV prevention approach” is preferable.

Covering the law in England & Wales as well as Scotland, the document aims to provide information and guidance on managing issues related to sexual transmission of HIV based on current scientific evidence. It applies generic ethical and professional principles but with a greater emphasis on providing a confidential environment in which extremely sensitive matters can be frankly and fully discussed. This enables appropriate care of people with HIV and benefits public health by encouraging individuals to access testing and treatment. Within this framework this document sets out the roles and responsibilities of health care professionals when caring for individuals living with HIV.

Consistent with the recent BHIVA and the Expert Advisory Group on AIDS (EAGA) position statement on the use of antiretroviral therapy to reduce HIV transmission, the guidance notes:

In most situations the appropriate use of antiretroviral treatment is at least as effective as condoms in preventing sexual transmission of HIV. This is accepted by the [Crown Prosecution Service of England and Wales] and [Scottish Crown Office and Procurator Fiscal Service] so it is likely that evidence showing that the defendant was taking effective antiretroviral treatment at the time of the alleged transmission may be used to demonstrate that they were not reckless.

The guidance also clearly states that healthcare professionals “must be mindful of their duty not to work beyond their expertise in legal matters. For people with HIV, advice must include the routes of HIV transmission and how to prevent transmission, with information about safer sexual practices, the use of condoms and suppression of viral load. Advice must be given in a non-judgmental way.”

It also discusses issues of confidentiality, noting that “it is important when considering breaching confidentiality to weigh up all potential harms as there may be situations where disclosure of HIV status to protect a sexual partner results in considerable harm to an individual e.g. domestic violence. In situations where a health care professional believes that an HIV positive individual continues to put sexual contacts at risk their duties and subsequent action depend upon the type of contact.” See Figure 1 below.

The guidance also clearly states that “no information should be released to the police unless patient consent has been verified or there is a court order in place, except in very limited circumstances defined by the [General Medical Council].”

Importantly, it also notes that only individuals can make complainants to the police “and health care workers should remain impartial during discussions with patients.”

Finally, it provides clear advice to both help prevent transmission of HIV to sexual partners and to avoid prosecution for ‘reckless’ HIV transmission. Accordingly, people with HIV should do at least one of the following:

Use a male or female condom fitted correctly along with water-based lubricant. Individuals doing this are unlikely to be seen as reckless for legal purposes. In the event of a condom split, it is advisable to disclose HIV status in order to support the partner’s decision whether or not to obtain post-exposure prophylaxis (PEPSE), which should be taken within 72 hours. The need for PEPSE will depend upon the type of sexual activity and the HIV viral load. An assessment of the risk should be undertaken by a clinician according to the BASHH PEPSE guidelines. Disclosure in these situations would suggest that the person with HIV was not reckless.

Adhere to effective (suppressed viral load) antiretroviral medication. There is growing evidence of extremely low/minimal risk of transmission when plasma HIV is fully suppressed with the use of antiretroviral medication. In some situations an undetectable viral load can afford protection equivalent to or greater than that of condoms. A person with HIV is unlikely to be seen as reckless when relying on a suppressed viral load instead of condom use if they have been counselled accordingly by an HIV clinician or similar medical authority. It is recommended that this discussion is documented in the patient’s medical records.

In addition people with HIV should be advised that disclosure of HIV positive status to a partner before sex is important to support informed agreement around risk and safer sex behaviours. To avoid successful prosecution an individual who is not taking effective antiretroviral medication and does not use a condom must disclose their HIV status to sexual partners before sex takes place.

The entire guidance is reproduced below.

HIV Transmission, the Law and the Work of the Clinical Team, January 2013. Matthew Phillips, Mary Poulton et al.