Public Health Watch

posted: 29/10/2010

Updating of public health rules means public authorities in England and Wales have powers they can use against individuals with HIV to protect the public health from 'infection or contamination'. Magistrates can make compulsory public health orders (known as Part 2A orders) on people. Similar powers were used in Manchester against a man with HIV in 1985.

Late in 1985, just after Manchester AIDS-Line (later George House Trust) was set up with the help of a small grant from Manchester City Council, the same council used its public health powers backed by a magistrate. It compulsorily detained a man with HIV at Monsall Hospital. Major protests followed and, after a court case, he was freed to leave hospital a few days later.

This was the first and only time public health powers have been used against someone with HIV in this country. You can read more about this here.

New Health Protection Regulations

These old public health powers have now been updated in new Health Protection Regulations. Helpful guidance has been produced by the Department of Health on how to use (and not use) these powers.

This makes clear that in almost all cases using these powers to manage the risk of HIV or STI transmission would be inappropriate and should only be considered, if at all, in the most exceptional of circumstances.

HIV community and clinical organisations like BHIVA and BASHH oppose the use of these powers against people with HIV. They would cause more harm than good, damaging trust in STI and HIV clinic confidentiality, increasing HIV hate and discrimination, and would only ever be a short-term fix for someone with a life-long health condition.

More information

More information on the new public health powers and HIV can be found at the NAT website.
 

The official guidance makes clear that Part 2A orders 'are not a tool for managing long-term problems' and that the orders:

• are not meant in any way to change the current system and culture of confidentiality within sexual health services
• are not to be a routine part of managing those with HIV who present with evidence of ongoing unsafe sex (for example by presenting with repeated STI infection)
• are not generally appropriate for contact tracing
• could have harmful consequences for wider trust in sexual health services
• and that in the very exceptional circumstances where a Part 2A order might be considered, advice should be sought from the treating clinician and clinic director as to the possible consequences of such an order, and confidentiality must be respected at all times.

Even with this guidance, these powers could be misapplied to people with HIV or another sexually transmitted infection.

We, and NAT, are keen to hear about any attempts to coerce someone with HIV, through the use or threatened use of these powers. We do not expect the powers to be used, because the old powers were only used once against someone with HIV, 25 years ago, and have not been used again since. But it could happen. 

Department of Health: Health Protection legislation guidance 2010, laws and regulations

Guidance on Cuts, Equality and Fairness

posted: 28/10/2010

In making cuts and changes to services, public bodies have to obey equality law. Equality law does not prevent public bodies from making difficult decisions about reorganisation, relocation, redundancies, and service cuts, nor does the law stop public authorities from making decisions that may affect one group more than another.

A Must: Equality Impact Assessments
But the public equality duties do enable public authorities to show they are making decisions in a fair, transparent and accountable way, considering the needs and the rights of different members of their community.

The law says public bodies have to carry out an assessment of the impact that changes to policies, procedures and practices could have on different equality groups. These assessments help public bodies make better decisions, based on robust evidence. Public bodies must then 'have regard to' the impact any changes and cuts would have on sections of the community protected by equality law.

The assessment does not have to be a document called an Equality Impact Assessment, although this is what the Equality and Human Rights Commission recommends, as it helps public authorities:

• ensure they have a written record of the equality considerations they have taken into account
• ensure that their decision includes a consideration of the actions that would help to avoid or mitigate any unfair impact on particular equality groups
• make their decisions based on robust evidence
• make the decision-making process more transparent
• comply with the law.

If an Equality Impact Assessment is not done, then the public body must use an another method to systematically assess any adverse impact of a change in policy, procedure or practice.

It is a legal obligation which should remain a top priority, even in times of economic difficulty. Failure may result in authorities facing costly, time-consuming and reputation-damaging legal challenges.

The Equality and Human Rights Commission has launched a short guide to help put fairness and transparency at the heart of the difficult financial decisions through meeting the legal obligation to assess equality impact. The guide covers:

• What the law requires now
• What the law requires from April 2011
• Guidance (for practitioners and decision-makers)
• Relevant case law
• Best practice examples
• FAQs Public authorities and service providers
• FAQs Service users and organisations

Short Guide

Full details

Health Quango Cuts and HIV

posted: 27/07/2010

Eighteen health quangos will be cut to between eight and 10 over the next four years. The Health Protection Agency (HPA), which deals with HIV and infectious diseases, is one that will disappear within the next two years.
 

The Health Secretary Andrew Lansley justifies the quango cuts on the grounds that it would produce savings of more than £180m over the next four years by streamlining their functions and cutting their bureaucracy. Although the Department of Health's overall budget is being "ring-fenced", the growing demands on the NHS each year mean that significant savings need to be found.
 

Expert Criticism

Experts in infectious diseases criticised the plan to abolish the HPA as a statutory organisation and transfer its functions to the Secretary of State’s new Public Health Service. "It's a very bad idea because the HPA is an absolutely essential national resource," said Hugh Pennington, emeritus professor of bacteriology at Aberdeen University. "There is no merit in making changes to the HPA other than those that strengthen it. It's quasi-independent and a degree of separation between it and the rest of government gives it more scientific freedom and independence," Professor Pennington said.
 

The HPA plays an important role in monitoring and preventing HIV and other sexually transmitted infections in the UK. At the recent International Conference in Vienna it presented important research results and recommendations. Transfering its work to the Secretary of State’s new Public Health Service means its valuable independence disappears.

NAT concern

Deborah Jack, Chief Executive of NAT (National AIDS Trust) wrote to the Independent to say "We read with concern of the Government's plans to abolish the Health Protection Agency and merge it within a new Public Health Service directly accountable to the Secretary of State. As the UK's HIV policy organisation, for years we have benefited from the HPA's surveillance of HIV and other sexually transmitted infections. This information is vital in assessing the needs of the population and allowing effective targeting of resources, more important than ever in the present climate. We call on the Government to promise that public health surveillance and analysis will remain independent of ministerial interference to ensure impartiality, and that there is no deterioration in the quality and scope of the HPA's key public health functions, so essential to an evidence-based response to HIV."

The HPA in the Department's Quango Review

Here is what the Department of Health Review reports says about abolishing the HPA and setting up a Public Health Service within the Department of Health under the Secretary of State.
 

"3.42 We propose to support the cross-government public health strategy through the creation of a new Public Health Service directly accountable to the Secretary of State, to integrate and streamline existing health improvement and protection bodies and functions, with an increased emphasis on research, analysis and evaluation. As a part of that development we intend to abolish the Health Protection Agency and the National Treatment Agency for Substance Misuse as statutory organisations and transfer their functions to the Secretary of State as part of the Public Health Service.
[3.43 a paragraph about absorbing the National Treatment Agency for Substance Misuse into the Public Health Service.]
 

3.44 Our programme for public health will be set out later this year and more detail on what it means for these two organisations, and dedicated public health ring-fenced funding to support delivery of local services, will be set out in the context of the new Public Health Service. We will engage with the Health Protection Agency and the National Treatment Agency for Substance Misuse to ensure a smooth and orderly transition.
....

Legislative Changes
5.7 Many of the changes outlined in this document will require primary and secondary legislation. The Queen’s speech included a major Health Bill and a Public Bodies Bill for the first legislative programme. The Government will introduce these bills this autumn and the changes, where appropriate, will be enacted through one of these bills: our intention is that the majority of changes will be in place during 2012/13.
.....

The Public Health Service will in place by April 2012. (Annex C)"
 

NAT letter of concern to The Independent   

DH Arms Length Body Review report

Source

Department of Health press release

HIV Stigma and Harassment Action

posted: 24/03/2010

Ending HIV stigma and harassment has edged a little closer. An official inquiry is about to begin into progress by public authorities on eliminating disability harassment – and this includes HIV stigma. The Inquiry is called because of recent cases of severe disability harassment neglected by public authorities. Councils and the NHS, among other public bodies, are simply not doing what the law tells them to - eliminate disability harassment.

Last week George House Trust met with the Equalities and Human Rights Commission in Manchester at a consultation into exactly what the disability harassment inquiry should look into.
 

• We made it plain that the official Inquiry must include HIV and not just people with learning difficulties or mental health problems.
• We said that people with invisible but highly stigmatised conditions like HIV face considerable disability harassment and stigma, and many barriers to complaining.
• We said that public bodies, with rare exceptions, ignore their duty to eliminate HIV disability harassment and stigma.

Over the next year the Equality and Human Rights Commission will investigate and we have offered to help gather HIV evidence. We are working with NAT to make this a nationwide effort.
 

What will happen?
The Commission has considerable powers to force public bodies to act if they are not doing their job. We have a right to expect things to improve and the least we expect is public campaigns to make HIV stigma and harassment socially unacceptable everywhere, a bit like the Kick Racism out of Football campaign.
 

The powers the EHRC has to force public bodies to eliminate HIV stigma and harassment means HIV stigma and harassment could really start to fade away. We think the Commission should start using its powers - this is one of the best hopes we have for ending HIV stigma and harassment.
 

We’ll keep you updated on the Inquiry and how you can give evidence confidentially.
Disability Harassment Inquiry
 

HIV Prosecutions Focus

posted: 11/01/2010

HIV prosecutions and criminalisation in different countries is the focus of the latest issue of 'Reproductive Health Matters'.
 

One article looks at how gay men living with HIV in England and Wales have responded to prosecutions. This follows work by Sigma Research in its 2009 report ‘Relative Safety 2'. 
 

Does prosecution in an epidemic make public health better or worse?
 

42 HIV positive gay men, including some men using services at George House Trust, were asked what they knew about HIV prosecutions and how it may have changed their behaviour.
 

Only one in three are right about the law
There is considerable confusion among these gay men about the law and mistakes about whether their behaviour is legal or not. 1 in 3 of the men living with HIV were broadly right about how the law affects them. Most of the men were mistaken about the law.
 

Some of the men have changed their behaviour because of the law and reduced the risk of transmission, by telling partners their HIV status before sex, or in other ways.
 

Prosecutions have made HIV transmission more likely for most HIV positive men
But for most of the men, the law has made transmission more likely. Some of the men have felt pushed towards more anonymous sex, and are now less likely to tell partners they have HIV: HIV stigma is reinforced by prosecutions.
 

Other men felt that they were already being safe and so the law would not really matter because they wouldn’t pass on HIV anyway. But many of the men are making mistakes in their judgements about the risks so the likelihood of transmission rises.
 

A small number of other men are not able or willing to reduce their transmission risks despite the possibility of prosecution.
 

Public health harm outweighs the good
The aim of the criminal justice system is to provide justice, not to improve public health. But using the criminal law in an epidemic has few public health benefits and these are outweighed by the public health harms. Most of the men believe they are doing enough to prevent HIV transmission and that they are on the right side of the law. Most of them are mistaken about both.
 

The law is complicated and it doesn't fit the complex reality of living with HIV - the strong force of HIV stigma, the difficulties of accurately judging transmission risks in different situations, the impossibility of providing plain and simple advice, and the complexities of some men's lives, all make HIV transmission more likely.
 

Involving the law has bad unintended public health consequences. George House Trust has always argued that prosecutions for HIV transmission do more public health harm than good. The evidence is here.

 

Source Responses to criminal prosecutions for HIV transmission among gay men with HIV in England and Wales Catherine Dodds, Adam Bourne, Matthew Weait

This is based on research for Relative Safety 2 - Sigma Research 2009
 

Reproductive Health Matters Volume 17, Issue 34, Pages 4-224 (November 2009) €21 / US$28 for the single issue

Articles on HIV criminalisation in this journal

• Criminalising HIV transmission: punishment without protection
• Protecting HIV-positive women's human rights: recommendations for the United States National HIV/AIDS Strategy
• Responses to criminal prosecutions for HIV transmission among gay men with HIV in England and Wales
• Advocating prevention over punishment: the risks of HIV criminalization in Burkina Faso
• Vertical HIV transmission should be excluded from criminal prosecution
• Ten reasons to oppose the criminalization of HIV exposure or transmission
• International consultation on the criminalization of HIV transmission: 31 October – 2 November 2007, Geneva, Switzerland Joint United Nations Programme on HIV/AIDS (UNAIDS),
• Round Up: HIV and AIDS