An ethical analysis of the mandatory exclusion of immigrants who test HIV-positive

On 20 September 2000, Canadian newspapers reported that Health Canada recommended to Citizenship and Immigration Canada (CIC) that testing all prospective immigrants for HIV, and excluding those testing positive, constitutes "the lowest health risk course of action." Subsequently, the Minister of Citizenship and Immigration stated that CIC is indeed considering implementing mandatory HIV testing for all prospective immigrants to Canada, and excluding all those testing positive (with the exception of refugees and family-class sponsored immigrants) from immigrating to Canada on both public health and "excessive cost" grounds. This proposal was met with vehement opposition from a broad range of organizations and individuals. In particular, they pointed out that, as stated in the International Guidelines on HIV/AIDS and Human Rights (UNHCHR/UNAIDS, 1998: para 105), "[t]here is no public health rationale for restricting liberty of movement or choice of residence on the ground of HIV status." At the time of going to print, no final decision had been made about whether mandatory HIV testing for all immigrants would be implemented. There are sound ethical, legal, and public policy arguments against imposing mandatory testing and excluding those who test HIV-positive.     

A proposed exception to the AIDS confidentiality laws for psychiatric patients

The authors offer psychotherapists a proposed exception to strict acquired immune deficiency syndrome (AIDS)-related confidentiality laws. The proposal is based on previously established exceptions to the psychotherapist-patient privilege. The recommended breach of confidentiality applies only to cases that meet all of the following criteria: (1) A patient knows that he or she has a human immunodeficiency virus (HIV) positive blood test and has been informed of AIDS-related safety precautions, (2) the HIV-positive patient has a mental disorder, and (3) it is reasonable to believe that the mental disorder has significantly impaired or may significantly impair the patient's ability and behavior to follow AIDS-related safety precautions.     

Survey reveals knowledge and attitudes of Canadians regarding HIV/AIDS

According to a national survey, almost two out of every three Canadians think the federal government should be spending more to fight HIV/AIDS. The survey also found that: (a) although most Canadians know a lot about HIV/AIDS, there are some significant gaps in their knowledge; and (b) although most Canadians think HIV/AIDS is a serious problem, the vast majority do not consider themselves to be at risk for HIV infection. Few Canadians blame people for contracting HIV through sex or drug use, but many Canadians are still uncomfortable associating with people with HIV/AIDS in certain settings.     

Sub-Saharan African randomised clinical trials into male circumcision and HIV transmission: methodological, ethical and legal concerns

In 2007, WHO/UNAIDS recommended male circumcision as an HIV-preventive measure based on three sub-Saharan African randomised clinical trials (RCTs) into female-to-male sexual transmission. A related RCT investigated male-to-female transmission. However, the trials were compromised by inadequate equipoise; selection bias; inadequate blinding; problematic randomisation; trials stopped early with exaggerated treatment effects; and not investigating non-sexual transmission. Several questions remain unanswered. Why were the trials carried out in countries where more intact men were HIV-positive than in those where more circumcised men were HIV-positive? Why were men sampled from specific ethnic subgroups? Why were so many participants lost to follow-up? Why did men in the male circumcision groups receive additional counselling on safe sex practices? While the absolute reduction in HIV transmission associated with male circumcision across the three female-to-male trials was only about 1.3%, relative reduction was reported as 60%, but, after correction for lead-time bias, averaged 49%. In the Kenyan trial, male circumcision appears to have been associated with four new incident infections. In the Ugandan male-to-female trial, there appears to have been a 61% relative increase in HIV infection among female partners of HIV-positive circumcised men. Since male circumcision diverts resources from known preventive measures and increases risk-taking behaviours, any long-term benefit in reducing HIV transmission remains uncertain.     

AIDS-related risks in the health care setting: HIV testing of health care workers and patients

Do patients and health care workers have the legal right to know each other's HIV status? Professor Flanagan argues that they do not. Given that with appropriate precautions the risk of transmitting HIV in the health care setting is extremely small and that the discriminatory consequences of HIV disclosure can be extremely high, it is suggested that the right of a patient or a health care worker not to disclose their HIV status must outweigh the other's "right to know."     

Barcelona 2002: law, ethics, and human rights. HIV testing for peacekeeping forces: legal and human rights issues

In 2001, the United Nations Security Council established an Expert Panel to study the issue of whether the UN should institute HIV testing of peacekeeping personnel. This article, based on a 9 July 2002 presentation to the XIV International AIDS Conference (abstract TuOrG1173), reports on the findings of a paper prepared for the Expert Panel by the Canadian HIV/AIDS Legal Network. The paper examined whether it is permissible for the UN to implement mandatory HIV testing of its peacekeeping personnel, and whether HIV-positive UN peacekeeping personnel should be excluded or restricted from service on the basis of their HIV status or HIV disease progression. The article describes some of the court cases in which these issues have been considered; discusses the importance of analyzing such issues in the context of a human rights-based approach to the pandemic; and formulates a series of key principles for guiding UN decision-making. The article concludes that a policy of mandatory HIV testing for all UN peacekeeping personnel cannot be justified on the basis that it is required in order to assess their physical and mental capacity for service; that HIV-positive peacekeeping personnel cannot be excluded from service based on their HIV status alone, but only on their ability to perform their duties; and that the UN cannot resort to mandatory HIV testing for all UN peacekeeping personnel to protect the health and safety of HIV-negative personnel unless it can demonstrate that alternatives to such a policy would not reduce the risk sufficiently. In the end, the Expert Panel unanimously rejected mandatory testing and instead endorsed voluntary HIV counselling and testing for UN peacekeeping personnel.     

HIV/AIDS and human rights revisited

In their article, Sofia Gruskin and Daniel Tarantola demonstrate how, as the number of people living with HIV and with AIDS continues to grow in nations with different economies, social structures, and legal systems, HIV/AIDS-related human rights issues are not only becoming more apparent, but also increasingly diverse. In the 1980s, the relationship of HIV/AIDS to human rights was only understood as it involved people with HIV or AIDS and the discrimination to which they were subjected. The concerns included mandatory HIV testing; restrictions on international travel; barriers to employment and housing, access to education, medical care, or health insurance; and the many issues raised by named reporting, partner notification, and confidentiality. Almost 20 years into the epidemic, these issues remain serious and most often have not been resolved. In the 1990s, however, there was increased understanding of the importance of human rights as a factor in determining people's vulnerability to HIV infection and their consequent risk of acquiring HIV infection and their chances of accessing appropriate care and support. And most recently, human rights have also come to be understood to be directly relevant to every element of the risk/vulnerability paradigm. Gruskin and Tarantola identify three situations and three levels of governmental obligations that should be considered when identifying the specific needs and related rights of individuals in the context of HIV/AIDS. They conclude that policymakers, program managers, and service providers must become more comfortable using human rights norms and standards to guide and limit government action in all matters affecting the response to HIV/AIDS; and that those involved in HIV/AIDS advocacy must become more familiar with the practicalities of using international human rights law when they strive to hold governments accountable.     

Draft discussion paper on HIV/AIDS and immigration released

In October 2000, the Canadian HIV/AIDS Legal Network released a 57-page draft discussion paper on HIV/AIDS and immigration, reacting to the announcement that HIV testing may become mandatory for all prospective immigrants to Canada. A final version of the paper will be released in early 2001.     

Inactivation of human immunodeficiency virus (HIV) by ionizing radiation in body fluids and serological evidence

A method to use ionizing radiation to inactivate HIV (Human Immunodeficiency Virus) in human body fluids was studied in an effort to reduce the risk of accidental infection to forensic science laboratory workers. Experiments conducted indicate that an X-ray absorbed dose of 25 krad was required to completely inactivate HIV. This does not alter forensically important constituents such as enzymes and proteins in body fluids. This method of inactivation of HIV cannot be used on body fluids which will be subjected to deoxyribonucleic acid (DNA) typing.     

Rural HIV: Brief interventions for felony probationers

HIV/AIDS in Southern rural America has been described as an epidemic. Furthermore, the HIV prevalence rate among criminal justice populations is higher than the general population in both rural and urban areas. One segment of the criminal justice population, felony probationers, has not been targeted for HIV/AIDS interventions and little is known about rural HIV risk behaviors. Probation is an appropriate setting for examining HIV interventions because rural participants can be easily identified and contacted. Thus, the purpose of this paper is to describe an HIV intervention for Southern rural probationers and to profile participants (N=800) on their demographics and risk behaviors by degree of criminality. Results suggest that HIV interventions are needed to target rural probationers, especially those with extensive arrest histories since they engage in high-risk behaviors, including illicit substance use and unprotected sex. This project is supported by grant #R01DA11580 from the National Institute on Drug Abuse. The opinions expressed are those of the authors.     

Toward Rational Criminal HIV Exposure Laws

This article examines criminal HIV exposure statues that address undisclosed exposure through consensual sexual activity. Twenty-seven U.S. states have adopted some form of HIV exposure statute. Thirteen of these statutes specifically address exposure through sexual activity, while another eleven statutes could be applied to exposure through sexual activity, while another eleven statutes could be applied to exposure through consensual sexual interactions. Although the penalties for breach of these laws are often severe, the risk of actual harm posed by the many of the behaviors prescribed is minimal and in some cases virtually nonexistent. After an overview of the various types of U.S. criminal HIV exposure statutes and discussion of the risk of HIV transmission through the various sexual activities addressed in the laws, the authors highlight the tenuous relationship between proscribed activities and actual risk of virus transmission. The authors address this limitation in the law by offering a framework for the evaluation and construction of HIV exposure statutes that considers not only the intent of the HIV-positive actor but also the risk that his or her conduct poses to others.     

Australia: court orders doctors to pay damages to woman who contracted HIV from her husband

IN a case that received extensive media coverage, the New South Wales Supreme Court has found two doctors negligent for failing to take steps to make a bride aware that she was at risk as a result of her prospective husband's HIV infection. The court awarded the woman AUD$727,437 in damages. The couple had attended the physicians together to be tested for HIV and other sexually transmitted infections, but had received their test results separately. She subsequently contracted HIV as a result fo unprotected sexual intercourse with him.     

Developments in South African law on HIV/AIDS

South Africa has a powerful legal framework that offers high levels of protection to people living with HIV/AIDS, yet discrimination against people living with HIV/AIDS continues to be widespread in South African society. Court cases decided in 2003 regarding children's issues and health care testify to this ongoing discrimination, and to the potential of the South African legal system to uphold the rights of people living with HIV/AIDS.     

Preventing HIV transmission via HIV exposure laws: applying logic and mathematical modeling to compare statutory approaches to penalizing undisclosed exposure to HIV

Twenty-four U.S. states have enacted HIV exposure laws that prohibit HIV-positive persons from engaging in sexual activities with partners to whom they have not disclosed their HIV status. There is little standardization among existing HIV exposure laws, which vary substantially with respect to the sexual activities that are prohibited without prior serostatus disclosure. Logical analysis and mathematical modeling were used to explore the HIV prevention effectiveness of two types of HIV exposure laws: "strict" laws that require HIV-positive persons to disclose their serostatus to prospective partners prior to any sexual activity and "flexible" laws that require seropositive status disclosure only prior to high-risk sex (e.g., unprotected anal or vaginal intercourse). These laws were compared relative to each other and to a no-law alternative. The results of these analyses indicate that, under most (though not necessarily all) circumstances, both strict and flexible exposure laws can be expected to reduce HIV transmission risk relative to the no-law alternative, with flexible exposure laws producing the greater reduction in risk. This study demonstrates how logical analysis and mathematical modeling techniques can make an important contribution to the construction of a rational basis for decisions about a highly contested public health policy issue.     

Resolving legal, ethical, and human rights challenges in HIV vaccine research

In the absence of a cure for AIDS, attention has turned to the possibility of developing a preventive vaccine for HIV infection. Yet many scientific, ethical, legal, and economic obstacles remain. At the current rate, the development and production of an effective vaccine could take 15 to 20 years or longer. If tens of millions more HIV infections and deaths are to be avoided in the coming decades, vaccine research needs to be greatly expedited. Furthermore, it must be undertaken ethically, and the products of this research must benefit people in developing countries. This article, an edited and updated version of a paper presented at "Putting Third First," addresses challenges arising in HIV preventive vaccine research in developing countries. It does not address clinical research in developing countries relating to treatments or therapeutic vaccines. Nor does it address legal and ethical issues relating to HIV vaccine research in industrialized countries, although similar issues arise in both contexts. The article concludes that while ethical codes are silent on the obligation to undertake research and development, international law provides strong legal obligations--particularly with regard to industrialized states--that should be invoked to accelerate HIV vaccine development, and distribution.     

Commons committee recommends significant increase in funding for AIDS strategy

A House of Commons committee says that current funding for the Canadian Strategy on HIV/AIDS should be more than doubled. It calls for designated funding for inmates and First Nations and Inuit peoples, and for HIV vaccine research. Finally, it says that more federal government departments need to become involved in the response to AIDS.     

Fatal Disseminated Cryptococcus as the Initial Presentation of HIV Infection in the Era of Highly Active Antiretroviral Therapy

Abstract:  Despite the availability of highly active antiretroviral treatment, many HIV-positive patients still present for the first time with a low CD4 count or an acquired immune deficiency syndrome (AIDS) defining illness. This may be due to patients' refusal to be tested for HIV, delay in seeking medical treatment, or the misdiagnosis of an AIDS-associated condition. We present a 39-year-old African American male with undiagnosed HIV, who died shortly after arrival to the emergency room. An autopsy was performed at the Dallas County Medical Examiners' Office, and the cause of death was determined to be disseminated cryptococcosis. Further investigation at autopsy revealed HIV 1/2 antibody positivity and HIV western blot positivity. This case demonstrates the importance of considering complications of HIV as a cause of death, even when the patient has no prior history.     

HIV/AIDS legal issues in the United States

The HIV/AIDS epidemic continues to be a leading public health issue in the United States. During the past decade, the epidemic has shifted away from the gay community, although gay and bisexual men continue to be the largest single HIV exposure category. Now, HIV increasingly affects low-income people of colour in urban areas, as well as women. As AIDS becomes more and more a minority, inner-city disease, public focus on the epidemic as a significant social and political issue is waning. While a full survey of current issues in US law is beyond the scope of this article, the focus here is on current issues that are highly relevant to the direction the epidemic appears to be taking.     

HIV/AIDS and legal developments in Germany

Case law has helped to define the legal environment for people infected and affected by HIV/AIDS in Germany. This article describes court decisions in three areas that may be of interest to Canadian readers: criminal law, confidentiality, and the use of illegal drugs to control pain. It also describes the situation of refugees with HIV/AIDS.     

Barcelona 2002: law, ethics, and human rights. Advancing research and access to HIV vaccines: a framework for action

In light of the continuing spread of HIV infection and the devastating impact of the disease on lives, communities, and economies, particularly in the developing world, the investment in new treatments, vaccines, and microbicides has clearly been inadequate. Efforts must be intensified to develop effective HIV vaccines and to ensure that they are accessible to people in all parts of the world. This article is a summary of a paper by Sam Avrett presented at "Putting Third First: Vaccines, Access to Treatments and the Law," a satellite meeting held at Barcelona on 5 July 2002 and organized by the Canadian HIV/AIDS Legal Network, the AIDS Law Project, South Africa, and the Lawyers Collective HIV/AIDS Unit, India. In the article, Avrett calls for immediate action to increase commitment and funding for HIV vaccines, enhance public support and involvement, accelerate vaccine development, and plan for the eventual delivery of the vaccines. The article briefly outlines steps that governments need to take to implement each of these objectives. The article also provides a menu of potential actions for vaccine advocates to consider as they lobby governments.