Hospital Detention for HIV

posted: 07/09/2009

How many people now remember that 24 years ago a Manchester gay man with HIV was locked up for 10 days in the  hospital by order of the city's Magistrates, just because he had AIDS?

It has never happened since in this country, but HIV lock-ups often happen in Sweden, and might even happen once again in this country, if Parliament allows the Department of Health and the Health Protection Agency to get their way.

The government is consulting on changing the infectious diseases regulations which could allow it to force people into hospital isolation wards and more, if they have infectious diseases. The deadline for comments on the proposed rules is at the end of this month.

We are campaigning to make sure people living with HIV cannot be touched by any updated public health law and regulations.

What happened almost 25 years ago in Manchester?
There is a very brief mention in our history page for 1985,  but it was an event that rocketed Manchester and HIV onto the front page of the papers locally and nationally. Manchester AIDS-line, which became George House Trust, was closely involved and (now Councillor) Paul Fairweather, a gay rights worker at the former Gay Centre in Bloom Street, was in the thick of the campaigning. There were pickets outside the Town Hall and the old Monsall Isolation Hospital, and a national demonstration was held here. We’ve never forgotten it, and at Secrets and Lives, Cllr Paul Fairweather reminded our audience about it.

Old files and papers

We've dusted off old files and the papers to find out exactly what happened and tell the story again here. We’ll be reminding the government that they didn’t get away with discriminating against people with HIV in 1985, and shouldn’t even be thinking of making laws and regulations that would allow this again today.

What was it like in 1985?
It’s a bygone age in UK HIV history. For a start no-one talked about HIV - if people ever talked about the virus, they called it HTLV3. There were no tests available at clinics for it in Manchester, only in London.

There were only two people known to have AIDS in the city, and both gay men were ill in Monsall Hospital. In the whole of the UK there were only 100 people, gay men and haemophiliacs, with AIDS at the start of 1985. Now there are over 70,000 with HIV.

We knew the virus was sexually transmitted but not how exactly - so oral sex was thought to be high risk, as well as anal and vaginal sex. The connection between the virus and AIDS wasn’t properly understood. Gay men were struggling to get to grips with the idea of using condoms.

Hysteria and Panic

It was at the height of AIDS hysteria, but the first public campaign - the tombstone and leaflet campaign warning Don’t Die of AIDS - didn’t start until the following year, 1986.

In the UK press, AIDS was in the headlines and caused alarm. In most newspapers such as the Sun and Manchester Evening News, and on radio stations (Piccadilly Radio - now Key 103 and Magic), the prejudice was obvious.

Haemophiliacs were "innocent victims," whereas gay men and injecting drug-users brought it upon themselves. Firemen banned the kiss of life, and holiday makers cut short cruises on the QE2 for fear of getting AIDS from a passenger. A 9-year old haemophiliac was allowed to go to school, but some parents kept kids away. Actor Rock Hudson died of AIDS in the first days of October. He was the first major public figure known to die of AIDS. Almost as much of a shock to most people was to discover such a butch film star was gay.

Swirling in a cesspit of our own making - Manchester Chief Constable

And the Chief Constable of Greater Manchester Police, James Anderton, preached that gay men were "swirling about in a human cesspit of their own making". Gay papers, like Capital Gay and Mancunian Gay, provided the most accurate news and information.
 

Can I go home please, just for the weekend?

One of the two men in Monsall Hospital decided in the middle of September 1985 that he wanted a weekend break from hospital, to go to his home in South Manchester, where he would be looked after by his friends and family, and then he’d go back in the hospital. He asked his doctor if he could do this one Saturday morning. The doctor refused. In fact the doctor couldn’t stop him leaving the hospital and knew this, but didn’t tell the man.

Whirlwind of events that Saturday

A whirlwind of events followed that Saturday. We don’t know why, but the doctor panicked. He called the Council’s medical officer and asked her to stop him leaving the hospital. She called the Chair of the Environmental Services Committee, who authorised the making of an emergency application to the Magistrates Court.

The City Solicitor was called in and a special sitting of the Magistrates was held. The Magistrates, in open court, granted an Order for 3 weeks detention in the hospital, named him and said it was to protect the public from AIDS.

The hostile local press and independent radio were tipped off and his name and the details were broadcast and published - including in the national press.

The man has no idea any of this is going on behind his back, until he was presented with the Court Order.

10 days detained by Court Order

He spent the next 10 days in compulsory detention at hospital before he and his friends could get a solicitor and the Crown Court could review the decision. No doubt the stress added to his health problems.

Outrage and Uproar

Meanwhile absolute uproar broke out in the city’s gay community. The Council had already promised to do what it could to dampen down AIDS hysteria. But here was the council using the courts in a way which just poured petrol on the flames of that hysteria. The Public Health (infectious Diseases) Act had been rushed through Parliament only in the summer of the year before (1984) and in February of 1985, AIDS was quickly added to the official list of infectious diseases. Now the Council was using that panic list and law to detain a gay man who posed no health threat to anyone.

There were demonstrations and pickets outside the hospital and Town Hall.

Crown Court frees man

The Crown Court decided to approve the application by the man's solicitor for the order to be withdrawn 'by consent.' The man was spared the rest of the 11 days of forcible detention.

Withdrawal ‘by consent’ means the Council didn't attempt to defend its application, and it could not have produced a shred of evidence to justify the man's continued detention, because legally it was indefensible - he was no health risk to anyone.

A city behaving badly - but then it promises: never again
The city’s gay men’s consultative committee demanded the city council promise never to use the law again, and to campaign for its repeal. The vote was tight, but it agreed not to use the law again.

All involved - hospital doctor, city health officer, chair of social services, city solicitor, magistrates clerk, magistrates, the radio and press, all behaved badly. They had no legal power to act as they did in the circumstances and all were swept up in the panic and power-rush of taking emergency action. Nobody stopped to think and ask questions. No-one told the man in Monsall. He had no solicitor to say the law doesn’t allow you to do this to me.

Why are we concerned now?
In Sweden a man with HIV was ordered to be detained and isolated under their public health laws for an incredible seven years. Detention and isolation happens to quite a number of people with HIV in Sweden. Fortunately the European Court of Human Rights said in 2005 that this is illegal and breaches people's human rights under Article 5.

They ruled that detention for HIV always has to be a last resort, after everything else has been tried and has failed to prevent the person from passing it on. We don't think that judgement goes far enough - after all the criminal law can be used against reckless sexual transmission of HIV and that's more than enough protection for public health. But at least the European Court has drawn a useful line in the sand to protect people with HIV from unreasonable detention on health grounds.

There are some infectious diseases that are passed on easily by day to day contact. If they are serious - for example multiple drug-resistant TB - then there is a case for using the law to prevent its spread and protect the public, but only if the person doesn’t agree to temporary isolation for treatment, until they are no longer a risk to others.

Why are Sexually Transmitted Infections even on the list of infectious diseases?

Sexually Transmitted Infections (STIs) are not public health hazards like drug-resistant TB. HIV and other sexually transmitted infections aren’t passed on by touching, sneezing and the like. People need to have sex with the person and even then the risk of HIV transmission is pretty low. We think there is no case at all for any STI to be included in public health powers in the 21st century in the UK.

HIV - we take action and we fight back

The government seems not to have learnt anything from Manchester's shameful behaviour in 1985 - you mess with people with HIV at your peril. We won’t stand for it again. We take action and we fight back. And we hope Manchester City Council will now do as it was asked 24 years ago and campaign to remove any possibility of this happening again under public health laws and regulations. 

Here’s a full transcript of the 1985 reports in Mancunian Gay - written by the campaigners in the thick of the action. You can see this for yourself, along with other papers in the local history collection, in Manchester central library, St Peter’s Square.

The European Court of Human Rights judgment Enhorn v Sweden 2005

A useful article on the Enhorn v Sweden and its application to UK Public Health law and the detention of people living with HIV 

[Medical Law Review 2006 14(1):132-143; doi:10.1093/medlaw/fwi038
© The Author [2005]. Published by Oxford University Press; all rights reserved.
The online version of this article is published under open access. Users are entitled to disseminate etc. this article for non-commercial purposes provided that: the original authorship is properly and fully attributed; the Journal and Oxford University Press are attributed as the original place of publication with the correct citation details given.]
 

Africa - Sterilising Women with HIV

posted: 23/06/2009

Some women in Africa are being sterilised without their consent after being told the procedure is a routine treatment for Aids, a lawsuit will claim.

Forty HIV-positive women in Namibia have been made infertile against their will, according to the International Community of Women Living with HIV/Aids (ICW). The group is preparing to sue the Namibian government over at least 15 cases.

Namibia, Democratic Republic of the Congo, Zambia, South Africa

Campaigners also report coerced sterilisation in the Democratic Republic of Congo, Zambia and South Africa, where according to one report a 14-year-old girl was told she could have an abortion only on condition that she agreed to sacrifice her reproductive rights.

The ICW has documented cases in Namibia where HIV-positive women minutes from giving birth were encouraged to sign consent forms to prevent them from having more children. Jennifer Gatsi-Mallet, its co-ordinator in the country, said: "They were in pain, they were told to sign, they didn't know what it was. They thought that it was part of their HIV treatment. None of them knew what sterilisation was, including those from urban areas, because it was never explained to them.

"After six weeks they went to the family planning centre for birth control pills and were told that it's not necessary: they're sterile. Most of them were very upset. When they went back to the hospital and asked, 'Why did you do this to us?' the answer was: 'You've got HIV'."

Discourages women from seeking HIV testing, treatment and care in pregnancy

Gatsi-Mallet said that some women were now afraid to go to hospital in case they are sterilised, and infertile women were often rejected by their husbands and communities: "In African culture, if you are not able to have children, you are ostracised. It's worse than having HIV."

African women aged between 20 and 34 have a higher prevalence of HIV than any other social group; in South Africa one in three is infected.

On average an HIV-positive mother has a one in four risk of transmitting the virus to her child. With the latest antiretroviral drugs, the probability can be cut to less than one in 50. But such medical interventions are underfunded and inaccessible to millions of women across the continent.

Namibian government policy?

The ICW accuses the Namibian government of encouraging state doctors to sterilise HIV-positive women as a means of preventing the spread of the virus. Its request to see the government's official guidelines has been refused. It hopes to bring 15 or more cases to court later this year.

A media report from Namibia last week highlighted the plight of Hilma Nendongo. A few weeks after giving birth, she was asked by a nurse: "Oh, did they tell you that you had been sterilised?"

Nendongo, 30, who is HIV-positive, suddenly remembered that hospital staff had told her to sign some papers as she entered the operating room for a caesarean section.

"It was a very big shock," she told Canada's Globe and Mail newspaper. "I was very emotional … I wanted a sister for my three boys, and now I can't have one."

South African court cases too

In South Africa, cases are being referred to the Women's Legal Centre with a view to a possible action. Promise Mthembu, a researcher at Witwatersrand University, said coerced sterilisations were happening in "very large areas" of the country.

Many patients were forced to undergo the operation as the only means of gaining access to medical services, Mthembu told the Mail & Guardian newspaper.

Source
 

End to HIV Treatment Charges?

posted: 07/05/2009

During the debate on the Health Bill in the House of Lords yesterday, the Government announced its intention to conduct a review of NHS charging for HIV treatment, which affects some migrants.

Deborah Jack, Chief Executive of NAT, comments:

“NAT was instrumental in securing this Government review, which is the first step to making access to HIV treatment in the UK a reality for all. NAT was one of the first organisations to recognise the unfairness in the treatment charges introduced by the Department of Health in 2004, and has worked with parliamentarians to use the Health Bill as an opportunity to review HIV treatment charges. We hope the review of current evidence will show that HIV treatment should be exempt from charges. This would ensure that some of the most vulnerable people in the UK would be able to access the vital care they need, both improving their health and reducing the risk of HIV being passed on.”

George House Trust's response

George House Trust warmly welcomes this announcement of a change of heart by government. In the last ten years the charging rules have been tightened, and the department of health has issued dodgy guidance - and been ticked off for this by the courts.

We need to wait to see the detail but it is excellent news that the government has at last responded positively to end the human rights violations and the harm treatment charging causes individuals and HIV prevention in England.

George House Trust drew attention to the International Covenant on Economic, Social and Cultural Rights which the UK signed over 30 years ago in 1976. Governments since have failed to make this part of our own law. This Coveneant gives everyone in any country the 'right to the highest attainable standard of health' and that means accessible HIV treatment for all in the UK. The current rules deny us this basic right in the Covenant.

The department of health's own guidance advises NHS Trusts to follow a human rights approach in providing healthcare but despite this keeps its charging rules.  Human rights in health - a framework for local action, 2007.
 

The Lords announcement

Court Rules on Treatment for Migrants

posted: 14/04/2009

Almost a year after the High Court said most migrants are entitled to free NHS hosptal treatment, the Appeal Court has now rejected that ruling. The long running struggle to ensure people living with HIV in this country always have free treatment will continue.

Although the Appeal Court ruling says there is no legal right to treatment, they did rule that the Department of Health Guidelines are unlawful.

Almost a year ago the High Court ruled that most migrants were "ordinarily resident" even if their asylum claim was refused. About a year before that the application was made to the High Court after a NHS hospital refused free treatment to a migrant. The Courts are very slow because there aren't enough courts and judges to deal with this type of case - a 'judicial review.'

Appeal Court rules

On the 30 March 2009 the Court of Appeal decided that the Department of Health's own guidance restricting access to healthcare for migrants is unlawful.

Solicitors brought a test case for the HIV and migrants organisations on behalf of a Palestinian former asylum seeker who is unable to return home and could not pay for treatment.

He was given the treatment he needed after the solicitors applied to court but the case went ahead anyway as a test case and to challenge to the government’s guidance.

At the High Court a year ago Mr Justice Mitting decided that refused asylum seekers could get free NHS treatment. His ruling was that migrants, including refused asylum seekers, are just as 'ordinarily resident' as any British person, and this entitles people to free NHS treatment.

Not lawfully resident

The Department of Health then appealed and now the Court of Appeal has overturned the High Court decision. The Court of Appeal rejected the High Court's approach, finding that refused asylum-seekers could not be lawfully resident in the UK. Anyone not lawfully resident cannot be ordinarily resident, and that means no right to free treatment.

However, the Court also decided that the guidance is unlawful because it fails to explain what hospital’s should do if a patient cannot pay for treatment and cannot return home immediately.

The solicitors are considering whether to appeal to the House of Lords or not, and would need the House of Lords permission to make an appeal. 

In the meantime there is likely to be confusion about how to apply the judgement and the new guidance. The Department of Health has wasted no time in telling NHS Trusts to follow the Appeal Court's ruling.

Reactions to ruling

Solicitor Adam Hundt of Pierce Glynn, who took the case commented:

“The Dept. of Health guidance said that hospitals should not provide treatment unless patients paid for it in advance, but this ignores the fact that many of these patients, like A, are destitute, and many cannot return home, so they are not treated until they require life-saving treatment. In my experience, sadly, by that time it is often too late, and that treatment is usually far more expensive, so the current rules don’t make clinical, economic or humanitarian sense, and I am glad that the Court has recognised this. I hope that the Dept of Health will now make it clear to hospitals that they must treat patients who cannot pay and cannot return home for the time being - and not just wait until they are at death’s door.” 
 

The decision disappointed refugee and health welfare groups. Donna Covey, of the Refugee Council, said she was concerned that the charging regime for failed asylum seekers was still in place. She said those people who were unable to go home straight away often ended up destitute and homeless. "To refuse treatment to them simply because they cannot pay for it is appalling and inhumane," she said.

Deborah Jack, of the National Aids Trust, said anxiety over medical bills would deter many people from seeking the care they needed. She said the government should use its review of healthcare charges to end its policy of ill-health for the most destitute.

Department of health advice letter

The Department of Health has issued a letter to NHS trusts before the new Guidance is published in the autumn.

The letter says 

• Trusts shouldn't charge people treated free as 'ordinarily resident' for the period of time between the two court rulings
• people already on treatment are entitled to have it continued for free
• Trusts must always provide any immediately necessary treatment, including all maternity treatment. It's a matter for clinical judgement if care is 'immediately necessary.' HIV care could fall within this - especially if there is symptomatic illness, or CD4 count is low.
• Trusts must provide urgent treatment (which is treatment that isn't immediately necessary but which can't wait until the person can be reasonably be expected to return to their home country). This is likely to include HIV care under BHIVA treatment guidelines. It is a matter of clinical judgement whether the care is 'urgent'.
• Treatment should not be delayed or cancelled if the person can't pay for urgent or immediately necessary treatment.
• Trusts have the option to write off debts where it proves impossible to recover them, or where it would be futile to begin pursuing them, for instance when the person is known to be without funds (our emphasis - this will apply to most migrants with HIV).
• even non-urgent routine elective treatment can be provided depending on how long the person is likely to remain in this country - eg if the return home is not likely to be within a 'medically acceptable time.'
• immediately necessary, urgent and non-urgent treatment will require Trusts to assess when a patient is likely to return home based on "their plans, intentions or ability to do so."
• Trusts must not charge anyone identified as actual or suspected victims of human trafficking by either the UK Border Agency, or the UK Human Trafficking Centre. This is nothing to do with the Appeal Court, but because the European Convention on human trafficking came into force on 1 April.
• can't now bill the person's local Primary Care Trust for treating any people who are "chargeable."

The Department of Health letter says they will update the Guidelines, as required by the Court, in the autumn. HIV and migrants organisations will be pressing for a practical, humane approach.

People living with HIV in NW England who have problems with treatment charging for hospital care should always contact our services team.

The Appeal Court's ruling

Swiss Court Frees HIV+ Man

posted: 10/03/2009

In the first ruling of its kind in the world, the Geneva Court of Justice has freed a man given 18-months prison for exposing someone to HIV.The court ruled that the risk of HIV transmission while the man was on treatment was far too low to justify the conviction.

In Switzerland, public health law effectively made it a crime simply for people with HIV to have any  unprotected sex. However this court has now changed this. It accepted expert testimony from Professor Bernard Hirschel – one of the authors of the Swiss Federal Commission for HIV/AIDS consensus statement on the effect of treatment on transmission – that the risk of sexual HIV transmission during unprotected sex on successful treatment is 1 in 100,000. It ruled that this level of risk was far too low to keep unprotected sex a public health crime.

The case began in Lausanne in 2007, when a court sentenced the HIV-positive man, originally from the Democratic Republic of the Congo, to a suspended 28-month sentence for having unprotected sex, without telling his woman partner his HIV status.

Swiss HIV Law

Under the public health parts of the Swiss criminal law, Article 231 allows prosecutions against HIV-positive individuals for having unprotected sex, with or without disclosure. The UK doesn’t have a public health criminal law about disease exposure. Prosecuting and criminalising public health was dropped in the UK because it goes against the principle of encouraging people to come for testing and treatment. Criminalising public health drives people with health needs underground and protecting public health becomes far more difficult.

People with HIV in Switzerland can also be prosecuted under Article 122, for an attempt to engender grievous bodily harm. This makes it an attempted grievous bodily harm to have unprotected sex, even if there is no HIV transmission. People with HIV in Switzerland are jailed simply for having unprotected sex. This can't happen under English law. Here HIV transmission has to take place before the charge of "grievous bodily harm" can be made. There is no English crime of attempted grievous bodily harm.

Deborah Glejser of Swiss community HIV organisation, Groupe SIDA Genève, explains that although this public health law could be used even more harshly, to prosecute unprotected sex even when HIV status has been disclosed, in practice, the Swiss only prosecute HIV exposure without disclosure. Suspended sentences are normal so this man’s imprisonment was unusual.

Trial judge refused to consider Swiss statement

A second complaint last year led to the man standing trial again in Geneva in November 2008. According to a report in The Geneva Tribune, an expert medical witness had testified that although treatment greatly reduces the risk of transmission, there remained a residual risk. Although the man's lawyer had put forward the statement by the Swiss Federal Commission for HIV/AIDS as evidence, and Geneva's deputy public prosecutor wanted to suspend the hearing to consult with the Swiss HIV Commission, the lower Geneva court refused to allow this. This made it his second conviction so he was sent to jail for 18 months, in December 2008.

This clearly annoyed the deputy Public Prosecutor who felt justice was not being done or being seen to be done. The court refused to consider the evidence even the prosecutor thought was relevant. We are left with the suspicion that a white Swiss native would have not been jailed for 18 months like this black African migrant. The British pattern of a disproportionate numbers of migrants being jailed for HIV crimes is found across much of the globe

It's Super-Public-Prosecutor to the rescue

Late in February the deputy public prosecutor came to the rescue and told the Geneva Court of Justice that he was convinced by the Swiss Federal Commission for HIV/AIDS that the risk of transmission for an HIV-positive individual on successful treatment was less than 1 in 100,000. Under the circumstances he wanted to appeal so as to withdraw the charge and for the court to cancel the conviction.

On Monday, the Geneva Court of Justice acquitted the man, who was freed  after almost three months in prison. Geneva’s deputy public prosecutor, Yves Bertossa, called for the appeal, told the newspaper Le Temps that although there is still some debate regarding the slight risks of transmission in people on successful treatment this should not be used unfairly: "One shouldn't convict people for hypothetical risks,” he said.

Swiss statement did what it set out to do

Professor Hirschel said that he was very pleased with the outcome. It was, he said, the main reason that he and his colleagues issued their January 2008 statement of advise for courts and prosecutors.

The Swiss panel has had enormous global attention and a great deal of criticism for openly talking about and applying the lessons of modern HIV treatment to the lives of people living with HIV. Swiss HIV clinicians wanted to put a stop to much of the jailing of people with HIV - simply for having unprotected sex without any HIV transmission.

Deborah Glejser of Groupe SIDA Genève added that Monday’s ruling means that, in Switzerland, HIV-positive people on treatment which is working properly should no longer be prosecuted for having unprotected sex. She hopes that this ruling will help people in other countries that prosecute HIV exposure – and she’s been contacted by many already.

Hopes for fall in global prosecutions

Last May, a five member US Court of Appeals for the Armed Forces panel rejected, but only by a narrow majority, an appeal by an HIV-positive soldier who had previously pleaded guilty to HIV exposure, following unprotected sex with two women without disclosing his HIV status. And last July, a Canadian court considered and rejected the Swiss statement in the case of a man charged with having unprotected sex with six women.

Following Monday's ruling, however, Geneva’s deputy public prosecutor, Yves Bertossa, believes it is only a matter of time before other jurisdictions realise that prosecutions for HIV exposure should not take place when the accused is on successful antiretroviral therapy. He told Radio Lac: “There are some medical advances which can change the law. I think that in other [parts of Switzerland] or in other countries, the same conclusions should apply to their laws."

source