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Hiv Disclosure And Public Health
1. Kate Bukowski NZAF Policy Analyst HIV and the Law in New Zealand from a Public Health Perspective Public Health Association Conference 3 September 2009
11. Our mission/koromakinga Ki te arai i te tuku o te HIV me te whakapai ake i hauora me te oranga o nga tangata e ora ana me te HIV me te AIDS. To prevent the transmission of HIV and to support people affected by HIV and AIDS to maximise their health and wellbeing.
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Hinweis der Redaktion
Kai ora katoa and thank you for coming today to hear this presentation on HIV and the law from a public health perspective Over the last few days I have heard some wonderful presentations that have traversed the world of public health. I am aware that HIV is a small issue (and I am very new to this area). However in this presentation I hope to shed some light on HIV from a public health perspective. Robin Kearns presentation which I heard yesterday on “Values as a resource for revisioning public health in Aotearoa” resonated with me as he encouraged us a public health researchers and practitioner to remember that when we are looking upstream, there is more than one stream. In fact we need to look at water catchments. I think this is also a good analogy for the presentation I am about to make. HIV criminalisation happens in a much larger social context than one stream with one homogenous population of HIV+ people.
To contextualise this pres, recently in the media there has been some discussion about HIV and disclosure. This presentation will trace the history of New Zealand case law and look at PLWHIV legal rights and obligations in preventing the transmission of HIV. This will be looked at from the perspectives of both criminal law and a public health harm reduction approach. How to balance people’s behaviour and HIV status will be discussed. This will also be looked at in light of the current Public Health Bill. This presentation will also discuss the proposed discussion document that New Zealand AIDS Foundation’s has facilitated the drafting of. “The guidelines for how to work with people with HIV who pose risk to others.
In NZ HIV cases either come through police or public health officials, and usually follow the following process of: identifying the material risk of harm (Evans 2007) b) locating a criminal element, such as intent or disregard (Goldstein et al 2005). s156: Sees HIV as something HIV+ people are in control of and legally, they must take reasonable precautions to avoid transmitting HIV to other people as HIV can endange life, health and safety. s145: is the most common charge to be used: If HIV is transmitted and it cannot be shown that there was some care taken by the positive person for the safety of their partner (eg a condom or not sharing needles), the person will be criminally liable and may be sentenced to up to 7 years in jail. s 188(2): Can be applied if someone shows reckless disregard and they fail to discharge their duty of care. The Health Act (1956) – allows people to be detained to prevent the spreading of a disease if they are not taking adequate precautions. This is be used twice in the 1999 cases of Trusscott and Burley. This leg was designed to prevent the spread of influenza and TB, infections which pass. Quarantine doesn’t work so well for HIV+ people as quarantine may mean life quarantine. Cuba is the only country to quarantine its whole pop of HIV+ people.
As discussed earlier legal cases do not live in a political vacuum. The first HIV case in New Zealand was R v Mwai (1995) was a time when HIV screening for immigrants and refugees being debated (Cameron, Power, Le Mesurier, & Azad 2009). Mwai was a heterosexual Kenyan man who has unprotected sex with five women without disclosing his HIV status and infected two of these women with HIV. Section 156 was applied to this case. He was charged and imprisoned in New Zealand. He died three months after his deportation to Kenya. It is also important to note that of the HIV eight cases in New Zealand only three of the cases were men who had infected other men through homosexual contact. This is not in line with the fact that the majority of HIV transmissions in New Zealand were from MSM (81% in 2008). Also of note, two of the convicted people were of African descent (a amssive disproportionate rate) and three of the eight had a mental illness or intellectual disability. And this is an international trend
Up until 2005, it was unclear on whether there was a legal duty to disclose HIV status to discharge a person’s duty of care. However the New Zealand Police v. Dalley case ruled that using a condom and lubricant was a reasonable precaution to discharge the duty of care in a criminal nuisance prosecution under section 145 of the Crimes Act (1961). However this was for vaginal intercourse which has a lower risk of transmission than anal intercourse.
S 145 most commonly applied High risk low risk difference
However there is a case before the courts at the moment concerning an individual who allegedly intended to transmit HIV to others. It is important to remember that cases like this are rare. The majority of people with HIV take precautions to protect others from being infected with HIV. It is also important to remember lessons that have been learnt from past cases. What worked and what didn’t Eg Dalley vs Truscott
After this NZAF produced the resource , ‘HIV transmission and the law’ to inform HIV positive people that they had to take ‘reasonable precautions’ to avoid transmitting HIV. – only engaging in low risk sexual activity and using condoms and lube every time for anal intercourse. The Dalley ruling is an excellent match of the criminal law supporting a public health approach without persecuting people living with HIV.
Change NZAF proposed in NZAF’s 2008 submission on the Public Health Bill Data about new HIV diagnoses has been voluntarily collected alongside data about AIDS diagnoses since 1985. This data uses anonymous coding for the protection of the privacy of people living with HIV. Data about AIDS diagnoses has been collected in the same way but AIDS is a notifiable disease. The anonymous data on HIV has been crucial in monitoring the trends and state of the HIV epidemic in New Zealand. The NZAF supports HIV and STIs becoming notifiable under the proposals within the draft Public Health Bill. This will not change any aspect of a person’s current experience of the data collection, but will ensure the anonymous collection of the crucial data is protected in the future as well. Individuals will not be able to be identified through this proposed change.
Another move the Foundation has made due to the current HIV case is suggesting that some best practice guidelines are needed. At present the NZAF is chairing a working group from members of the National HIV and AIDS forum in drafting a set of guidelines to manage people with HIV who place others at risk. EG Victoria, Australia – HIV perpetrators –guidelines formed. Creating a NZ version. These guidelines propose an advisory board being established who will meet to discuss how to manage this group of people. It also proposes a set of levels from counselling and support to imprisonment, managing a HIV+ person in jail and after their release.. The working group comprises of PLWHA, medical officers of health, Maori representation, mental health experts and ID clinicians. If you have any experience and expertise in this area and would like to be involved please come and see me later.
Questions Resources up the front: Traffic light resource MP Briefing HIV Futures Card
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