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."

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Undetectable But Infectious?

posted: 10/02/2009

One of the hottest topics over the last twelve months has been the infectiousness (or otherwise) of people taking HIV treatment who have an undetectable viral load in their blood.
 

The debate was kick-started a year ago by what’s come to be known as the “Swiss Statement”. This said that individuals taking HIV treatment who had an undetectable viral load and no sexually transmitted infections were essentially non-infectious to their partner in a monogamous heterosexual relationship.
 

The authors of the Swiss Statement noted that effective HIV treatment suppressed viral load to undetectable levels in both blood and semen.
However, two studies presented to the CROI Conference in Montreal, Canada, have confirmed that HIV can be undetectable in blood, but still detectable in semen in a minority of men, even without any STIs.
 

1 in 7 "undetectable" men have detectable and infectious semen

A Canadian study involving 25 men found that undetectable viral load in the blood, was found with detectable virus in about 1 in 7 semen samples. The virus in semen was potentially infectious.
 

Semen virus sometimes blips and becomes detectable

The study also showed that viral load in semen occasionally “blipped” to detectable levels.
About a third of men who’d been taking long-term HIV treatment that suppressed viral load to undetectable levels in the blood occasionally had detectable HIV in their semen.

A larger French study looked at paired blood and semen samples from 145 men taking HIV treatment. Viral load was undetectable in 85% of these paired samples. But in 3% of samples, HIV was undetectable in blood and detectable in semen – viral load in these samples ranged between 250 and 1200 copies/ml.
Most of these detectable samples were “blips”, and the French researchers found good levels of anti-HIV drugs in the patients’ semen.
 

There was discussion about the implications of these findings, in particular if the levels of HIV found in semen involved a significant risk of HIV transmission. There was only one case of HIV transmission in the French study, but this involved a patient who wasn’t taking his treatment properly.
 

Swiss should not claim undetectable people can never transmit

However, both sets of researchers concluded that an undetectable viral load in blood doesn’t always mean that viral load is undetectable in semen, and that successful HIV treatment doesn’t entirely eliminate the risk of HIV transmission. So the Swiss statement was a bit too dogmatic - transmission is possible but seems really unlikely.

You can sign up for NAM's CROI conference dailiy update here

HIV+ Working Surgeon

posted: 14/01/2009

An HIV-positive surgeon in Israel is being allowed to continue working. He or she is taking HIV treatment and has an undetectable viral load. The Israelis have effectively issued a statement, rather like the Swiss statement we have been reporting on over the last year. Both statements are about how effective HIV treatment can reduce infectivity to close to zero.

simple precautions are enough

The Israeli Ministry of Health has decided that the surgeon with HIV who is receiving antiretroviral treatment may return to carrying out invasive surgical procedures, providing that he or she maintains an undetectable viral load, follows infection control procedures and uses two layers of surgical gloves when operating. 
 

Time for UK HIV+ healthcare workers ban to be reviewed

Healthcare workers with HIV are routinely banned from surgical procedures of any kind, even very minor ones such as stitching wounds. This affects some doctors, midwives, some nurses, dentists, and some ambulance staff, among others. 
 

The Israeli decision is increasing the pressure on bodies regulating UK and other countries' healthcare employment to review their guidance on healthcare workers with HIV engaging in exposure-prone, invasive procedures.

In the United Kingdom, for example, the General Medical Council and the General Dental Council require that HIV-positive healthcare workers desist from carrying out exposure-prone procedures – anything that involves cutting, suturing, use of needles or delivery of babies using forceps or suction, and almost all dental work, – and all healthcare workers recruited to the National Health Service who will be carrying out these types of procedures are tested for HIV. Many healthcare workers have been forced to retire or change careers as a result of the guidance, including several in the NorthWest of England.
 

The Israeli statement is the first official acknowledgement that HIV treatment reduces the risk of bloodborne HIV transmission to such low levels that a doctor, dentist, nurse or midwife can continue working.
It could help reduce stigma for people with HIV, as long as media storms about fears of HIV transmission from healthcare workers can be avoided.
 

NAM's HIV Treatment Update in August/September took a detailed look at whether healthcare workers should be allowed to carry out surgical procedures.
 

HIV is present in potentially infectious quantities in blood, semen, vaginal fluids and breastmilk and, as a result, HIV can be passed on through injecting drug use, unprotected sex, and from a mother to her baby.
 

It’s not inevitable that a person exposed to HIV will become infected with the virus. One of the factors that affects this risk is the viral load of the person with HIV. HIV treatment lowers viral load both in blood and genital fluids.
There’s recently been a lot of debate about the infectiousness of people taking HIV treatment who have an undetectable viral load.
 

Swiss doctors kick-started the debate about a year ago. In a statement, they said that a person taking HIV treatment, who’d had an undetectable viral load for at least six months, who took all their medication and who didn’t have a sexually transmitted infection, was not infectious to their heterosexual partners.
 

The current consensus seems to be that HIV treatment, and all the Swiss conditions, reduces the risk of sexual transmission, but that a small risk may still be present.
 

Full report in the USA's Morbidity and Mortality Weekly Report
Some further details are in the aidsmap report
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