HIV and the Criminal Law

posted: 22/07/2010

A new book, HIV and the Criminal Law, has just appeared online from NAM/aidsmap. It will also be published on paper in the autumn.

HIV & the Criminal Law is about criminalisation of HIV transmission and exposure and the effects this has on individuals and society. It is written for people living with HIV, advisers, policy and lawmakers, people in the criminal justice system, and journalists.

George House Trust's policy expert Chris Morley helped with the production of the book by commenting and making suggestions on some of the chapters.

Here's the book's contents which available to read in full here

• Preface By The Hon. Michael Kirby AC CMG and Edwin Cameron, Justice of the Constitutional Court of South Africa
• Introduction - How this resource addresses the criminalisation of HIV exposure and transmission
• Fundamentals - An overview of the global HIV pandemic, and the role of human rights and the law in the international response to HIV
• Laws - A history of the criminalisation of HIV exposure and transmission, and a brief explanation of the kinds of laws used to do this
• Harm - Considers the actual and perceived impact of HIV on wellbeing, how these inform legislation and the legal construction of HIV-related harm
• Responsibility - Looks at two areas of responsiblity for HIV prevention: responsibility for HIV-related sexual risk-taking and responsibility to disclose a known HIV-positive status to a sexual partner
• Risk - An examination of prosecuted behaviours, using scientific evidence to determine actual risk, and how this evidence has been applied in jurisdictions worldwide
• Proof - Foreseeability, intent, causality and consent are key elements in establishing criminal culpability. The challenges and practice in proving these in HIV exposure and transmission cases
• Impact - An assessment of the impact of criminalisation and HIV – on individuals, communities, countries and the course of the global HIV epidemic
• Details: international resource and individual country data - a summary of laws, prosecutions and responses to criminalisation of HIV exposure or transmission internationally, and key sources of more information.

Ordering paper copies of the book

If you want to buy a paper copy when this appears in the autumn please email NAM

Clinics Guide to Law and HIV

posted: 23/04/2010

Have your say about the draft guidance for HIV clinics from BHIVA / BASHH about HIV transmission, the law and the work of the clinical team, 2010. The deadline for your comments is Friday 21 May 2010.

There have been prosecutions for reckless transmission of HIV in the UK since 2001 (Scotland) and 2003 (England & Wales). The prospect of prosecutions raises complex questions among medical practitioners about their ethical and legal responsibilities related to HIV transmission, particularly around disclosure of information on HIV status.
 

Although established generic ethical and professional principles continue to apply, certain features of the HIV epidemic have required special consideration.
 

An underlying principle in the provision of clinical care for people with HIV is the need for a secure and confidential environment in which extremely sensitive matters can be frankly and fully discussed. The importance of ensuring that full trust is maintained by people with HIV in their clinical services is fundamental, not only for the health of people living with HIV but also for people who may wish to seek information or testing and thus for the wider public health.
 

This guidance document sets out these responsibilities, and how these relate to the roles and responsibilities of health care professionals when caring for individuals infected with HIV.
 

Roles and responsibilities of Health Care Professionals

• Health care professionals have a central role to advise and support patients and to maintain confidentiality according to professional guidance and the law.
• For HIV positive individuals, advice must include the routes of HIV transmission, how to prevent transmission, with information about safer sexual practices and the use of condoms.
• Discussion of sexual health needs must take place regularly according to relevant BASHH guidelines to enable the giving of appropriate advice.
• There is individual and public interest in maintaining confidentiality; this may be outweighed in order to prevent serious harm to others.
• 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 close contacts at risk their duties and subsequent action depend upon the type of contact (see figure one).
• No information should be released to the police unless there is verified consent from the patient or there is a court order in place.
• It is up to an individual patient to make a decision about complaining to the police and health care workers should remain impartial during discussions with patients.
• Those involved (complainant and defendant) in cases of reckless transmission are likely to need specialist legal advice and support and referral to THT direct would be appropriate.
• Sources of further information are listed in appendix two.

Vulnerable Groups

There are special considerations with regards cases of alleged reckless transmission in those under 18, or anyone with learning difficulties, discussed in section 5.
 

You can download the document and then submit any comments using this online form. 
 

Please make your comments here by Friday 21 May

Psychologists and Confidentiality

posted: 08/03/2010

A 20 page booklet of guidance from the British Psychological Society advises psychologists working in the NHS how to deal with HIV confidentiality where people may be exposing their partners to HIV. The guidance – ‘Criminalisation of HIV Transmission – guidelines regarding confidentiality and exposure’ has best practice guidelines, sections on dealing with police enquires and on disclosing information to partners, and what the various codes of ethics and types of professional guidance say.

These guidelines on HIV confidentiality and disclosure were developed to help clinical psychologists where HIV-positive clients have not disclosed their status to their sexual partners and there is a significant risk for HIV transmission. They have also been developed to assist clinical psychologists when clients believe they have contracted HIV under these circumstances.

This 2009 booklet costs £4.70 to people who are not members of the British Psychological Association.
 

Expert Prosecutions Panel

posted: 03/11/2009

Clive Anderson (the broadcaster and barrister) chairs an expert panel to discuss prosecution of HIV transmission issues.

London’s City Law School hosts an impressive pnel of speakers on 1 December, World AIDS Day, to debate the issues around the criminalisation of HIV transmission.
 

• What are the arguments for and against criminalising the transmission of HIV and other serious sexually transmitted infections?
• What are the legal principles that inform this complex area of law
• Wat factors should be taken into account when deciding to prosecute?
• Should public health considerations take priority over demands for retribution and punishment?
• What evidence is there that criminalisation works?

Your Panel of Pundits

Clive Anderson, Barrister & Broadcaster - Chair

Yusef Azad, Director of Policy & Campaigns, National AIDS Trust

Catherine Dodds, Senior Research Fellow, Sigma Research, University of Portsmouth

Arwel Jones, Team Leader of the Domestic Affairs Division Crown Prosecution Service

Matthew Weait, Reader in Socio-Legal Studies, School of Law, Birkbeck University and author of Intimacy and Responsibility, The Criminalisation of HIV Transmission.

Bookings
Place          Oliver Thompson Lecture Theatre, Northampton Square, London EC1V 0HB
map and directions
 

18.00 Registration, 18.30 Panel and discussion, 20.00 Networking & refreshments
 

HIV Prosecutions Guide

posted: 26/05/2009

A handy guide for people living with HIV about prosecutions for HIV transmission is now available. THT and NAT have produced this guide for people living with HIV.

Yusef Azad, Director of Policy and Campaigns, NAT, commented:

“Today the majority of investigations into HIV transmission do not go to court but they can still cause much distress for all involved. NAT is still campaigning for an end to prosecutions for reckless transmission of HIV through consensual sex. But while prosecutions occur we are working with THT to ensure that all those involved – lawyers, prosecutors, police, support organisations, healthcare workers and most importantly people living with HIV understand the law. Everybody living with HIV in England and Wales should read this leaflet.”

Lisa Power, Head of Policy, Terrence Higgins Trust, said:

"It's really important that everyone with HIV knows what the law says and does in relation to their lives. We've supported many people - both complainants and defendants - who got involved in prosecutions for passing HIV without taking proper advice and regretted it later. This leaflet would have helped them."

As well as producing guidance for individuals living with HIV, George House Trust, THT and NAT are working to ensure police investigate allegations of reckless or intentional HIV transmission appropriately.

With George House Trust assistance, THT recently produced the report Policing Transmission

Anyone concerned about prosecutions for HIV transmission in Northwest Engalnd should call George House Trust's services team 0161 274 4499 or email.

If you live outside Northwest England call THT Direct on 0845 12 21 200.

The legal situation around transmission of HIV shifts and changes with each court case and this leaflet is brand new, but in the months ahead things may change. Information should be checked for accuracy if you are reading the Guide long past May 2009. Instead check the prosecutions pages of both NAT and THT using the links below.

THT and NAT's Guide to Prosecutions for HIV Transmission

Other information on the THT prosecutions page and at NAT's prosecutions page