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REVIEW ARTICLE
Year : 2008  |  Volume : 29  |  Issue : 2  |  Page : 63-67
 

Ethical and legal issues in AIDS


Skin Institute, Mehmoor Ganj, Varanasi - 221 010, India

Correspondence Address:
Vineet Kaur
Consultant Dermatologist and Venereologist, B-34, Brij Enclave, Varanasi - 221 005
India
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/0253-7184.48726

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   Abstract 

Law and medical ethics are two disciplines with a considerable overlap. Law lays down the established rule for conduct, the violation of which creates criminal or civil liability; ethics is more about expected conduct, that is, what ought to be? The two key issues in medical ethics are confidentiality and consent. In no other disease scenario do these two take on such importance as in HIV and AIDS. The fact that often patients confidentiality and public interest come into conflict further complicates matters. Whether it is with regard to marriage or employment, there is no National Law yet, as to which can be used as a guideline. Different High Courts and the Supreme Court have at different times given judgments that vary vastly, and so the ­matter remains confusing. A National Initiative has requested lawyers to collectively draft a bill, to provide clarity, consistency, and predictability. The article examines the dynamics of such issues, citing examples from India and abroad and the present status of the draft bill prepared in 2006 is that it has been and submitted to the government.


Keywords: HIV, medical ethics, legal issues


How to cite this article:
Kaur V, Singh G. Ethical and legal issues in AIDS. Indian J Sex Transm Dis 2008;29:63-7

How to cite this URL:
Kaur V, Singh G. Ethical and legal issues in AIDS. Indian J Sex Transm Dis [serial online] 2008 [cited 2019 Nov 18];29:63-7. Available from: http://www.ijstd.org/text.asp?2008/29/2/63/48726



   Introduction Top


The legal rights of an HIV-infected person and the ethical obligations of the medical profession and general public has not received careful attention till date and so has not been precisely defined. There are questions like confidentiality, consent of the person before taking blood for HIV test, discrimination of person infected with HIV infection for employment, and various other issues which are present and will be explored.

Law applied to medicine is now an important academic discipline, with rigorous standards, as the general public in India is becoming more aware of the individual's rights, at least among the urban population.

Law and medical ethics are disciplines with frequent areas of overlap. The parameters of each are, however, distinct. Law is the established rule for conduct, the violation of which may create criminal or civil liabilities.

Ethics is the identification of values, while Law is the expression of values and social rules.

Ethics says: What ought to be? Law says: What has to be?

Law and ethics thus share the common goal of creating and maintaining social good.

Legal recognition of medical malpractice is confined to violation of a specific law, criminal nature of the malpractice, and admissibility of compensation, e.g., compensation can only be sought if harm and loss are demonstrated. Malpractice not resulting in loss or harm does not qualify for compensation; such malpractice can still qualify as unethical conduct involving penalty to the doctor.

Medico legal issues examine how the law regulates medical practice. This is a matter of increasing importance because today patients are more prepared to challenge conventional medical wisdom and they are more aware of their rights. In earlier days doctors or health providers were considered demigods.

The foundation for contemporary medical ethics was laid at a time of one-to-one doctor-patient relations, which included doctor's response to patient's complete faith in the doctor, which included complete confidentiality. While nowadays a large number of doctors work in or are associated with large scale organizations. Records cease to be the property of individual doctors; become available not only to the doctors, but also to other personnel like social workers etc.

Ethical principles do not change, but their application in new situations is a continuous process, like for instance, we had ethical principles pertaining to infectious diseases and sexually transmitted diseases, but the appearance of an emergency situation created by an almost fatal infectious disease, has changed the application of the same ethical issues on this emerging condition.

Doctors have the privilege of regulating their own professional affairs through the Medical Councils of respective countries, which lay down their ethical guidelines. These ethical guidelines are not just a set of rules or a code to be consulted in order to find an answer to every difficult situation. They are a set of principles which doctors must apply in each situation, together with their judgment, experience, knowledge, and skills. Some of these codes are incorporated in public laws.

Law and medical ethics are both dynamic and are in a constant state of change, i.e., new legislations and court decisions crop up and medical ethics respond to challenges created by new technology, law or other influences.

Code of medical ethics by the Medical Council of India (MCI) was amended in 2002. It is called Indian Medical Council (professional conduct, etiquette, ethics) Regulation, 2002. It has two salient features which have a direct bearing on HIV-infected patients in medical practice. One is Consent and the other is Confidentiality.

Consent: The amended code states: Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of a minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed.

No act of in vitro fertilization or artificial insemination shall be undertaken without the informed consent of the female patient and her spouse as well as the donor. Such consent shall be obtained in writing after the patient is provided, at her own level of comprehension, with sufficient information about the purpose, methods, risks, inconveniences, disappointments of the procedure, and the possible risks and hazards.

A registered medical practitioner shall not publish photographs or case reports of his/her patients without their permission, in any medical or other journal in a manner in which their identity could be made out. If the identity is not to be disclosed, the consent is not needed.

There is no mention that one has to take consent before taking a blood test for HIV. In the western world it is obligatory to take consent and they have ethical codes on this issue.

Why a person refuses an HIV test? There is stigma of HIV infection; there is fear of loss of confidentiality and fear of discrimination. Above all it is 'denial' to the possible reality. There have been such situations in the past. Such a fear existed with syphilis in the pre-penicillin era and with leprosy in the pre-multi drug therapy era.

In spite of some controversy, the consensus is to take consent, because it is a question of respecting an individual's right to autonomy over health-care decisions. This right is critical because of the overwhelming stigma that continues to color this infection and because of the enormous personal, social, and medical consequences of the diagnosis of HIV infection.

Unlike other common law countries such as the UK, US, and Australia, where a patient's consent is required for any medical test or procedure, no such legal principle is recognized here. Accordingly any challenge to compulsory HIV tests would probably need to rely upon extension of constitutional rights to privacy.

The prevailing view of Health Professionals in India is mandatory HIV testing for patients as it is desirable for the protection of health professionals and other patients, although there is no recognized scientific basis for such a policy. In the US a national survey [1] of 864 physicians and 1339 members of general public revealed that 63 percent of Americans believe that mandatory HIV test would improve the overall health of the US population.

In some countries there are public debates on mandatory HIV testing of new borns. [2]

Here the conflicts are:

Fetal rights vs. Women's rights

Public Health Welfare (Preventing HIV transmission) vs. Civil liberties and privacy rights

Under normal conditions, the consent to test for HIV is mandatory in the US. In case of minors the consent of parents is taken. In this situation the conflict is between the rights of the mother and the newborn. If the mother does not give consent it is the State which has to decide in the interest of the new born. The government or the State has 'parens patriae powers'.

Confidentiality: This is the next important issue in HIV-infected patients and medical practice.

The amended code of ethics of MCI states, "Confidential information entrusted by patients to a physician should never be revealed unless their revelation is required by the laws of the state. However to protect a healthy person against a communicable disease to which he is about to be exposed the physician should act as he would wish another to act towards one of his own family members in similar circumstances." The Registered Medical Practitioner shall not disclose the secrets of his patient that have been learnt in the exercise of his/her profession except:

  1. In a court of law under the orders of the judge.
  2. Notifiable disease.
  3. In circumstances where there is a serious and known risk to a specific person and/or community.


The specific issues debated are: If a person is HIV positive and is going to be married, should we tell to the prospective spouse? The person to whom this positive patient is to be married has a definite and serious risk to get a disease which is almost fatal.

Even in the western world where Human Rights Organizations are very active, there are debates on "is there a legal duty to protect or warn third parties?" Whether a therapist has a duty to protect third parties when his/her patient, if HIV positive, persists in engaging in unprotected sex with an unknowing partner, involves complex clinical and legal questions? There is great importance of confidentiality in the doctor-patient relationship, but there are times when this must be weighed against the risk to others, which could be minimized or averted by disclosure. In the American legal history there had been an important judgment [3] in the Tarasoff vs. State of California case in 1976. In this case it was held that a psychologist had the duty to warn a murder victim and her family that his client has threatened to kill her; the information which he got during his psychological treatment. Although information related to HIV status is generally regarded as highly confidential and many states of USA, which give it a statutory protection, recognize that there can be a need for disclosure to persons at risk. The New York Statute states that the physician should counsel the infected person about the importance of informing contacts. If the physician reasonably believes the infected person will not do so, then the physician may make the disclosure after informing the infected person.

In 1999, when a hospital in India had disclosed the patient's HIV status to his fiancι's family, the patient challenged the hospital's action on the ground that the breach of confidentiality had irreparably damaged his right to marry, and sued for damages. The court at first instance held that HIV positive people did not have right to marry (Mr. X vs. Hospital Z. AIR 1999 SC PG 295). Subsequently the SC upheld the right to marry (Mr. X vs. Hospital Z, 2002. SCCLCOM 701).

There is increased discrimination against people with HIV which needs a legal and social response. [4] The World Health Organization (WHO) Global program on AIDS (GPA) and VDT [5] passed a resolution on 'Avoidance of discrimination in relation to HIV-infected people and people with AIDS'. GPA has laid certain principles regarding partner notification, as part of a comprehensive AIDS prevention and control program, which must be adhered to.

Partner notification should:

  1. Respect the human rights and dignity of the partners and the index person.
  2. Be a balanced part of a comprehensive AIDS prevention and control program on sexually transmitted diseases (STD, maternal and child health, family planning, and substance abuse prevention).
  3. Be voluntary and not coercive, and index person and their partners should have full access to the available services independent of their willingness to cooperate with partner notification activities.
  4. Be confidential, including written records, locating information for partners, and, in provider referral, the identity of the index persons may be able to be inferred.
  5. Be undertaken only when appropriate support services are available to the index persons and partners; the minimum requirements are counseling on the implications of having been exposed to infection, the availability of voluntary, confidential HIV testing with pre-and post-test counseling and appropriate health and social services; the quality of these services should be assured and regularly monitored.


There is thus an apparent conflict between patient confidentiality and Public Health. We are happy that the Amended Ethical Code 2002 of the Indian Medical Council has taken care of this point.

Very little legislation refers specifically to HIV or AIDS. Even in the case of Public Health Legislation, where one might have expected it to be amended to include HIV, it has not occurred. As a correlation there is a great deal of legislation on infectious diseases which pre-dates the HIV epidemic, but which now affects the legal rights of people living with HIV and AIDS (PLWHA), often with anomalous and undesirable consequences. The Case of Lucy vs. the State of Goa, Daman and Diu (AIR 1990. Bombay 355) - a challenge was mounted against a provision in the Goa public Health Act, 1985, which permitted State authorities to isolate and detain a person with HIV indefinitely. The Bombay High Court held that although this was an infringement of an individual's right to liberty that right had to give way to public interest in such a situation. The Government of Goa had amended the Goa Public Health Act 1985 (section 53.1.vii) under which Lucy was isolated and detained, which was later confirmed by the Bombay High Court. The Government of Goa repealed this Act in 1996, an extremely welcome action. Similarly in Vijaya vs. Chairman and MD Singaran Clothes Ltd (AIR 2001 A.P 502), it was held that subjecting an individual to compulsory HIV testing was not unconstitutional, even though it infringes the individual's right to privacy, because the state has an obligation under constitution to take steps to improve public health.

HIV infection and criminal behavior

A number of persons acquire HIV infection through sex between man and man or injecting drugs. There are laws which criminalize these type of behaviors, which can lead to police harassment and other punitive measures, which obstruct efforts to support, encourage safer sex, and safe drug using practices. There is an urgent need to bring the criminal law into harmony, with an effective HIV strategy, whether by decriminalization of certain conduct or by negotiations and cooperation with law enforcement agencies.

Employment and HIV positivity

There are many instances where applicants with HIV positivity are denied jobs. Mr. X was denied a job by the State Bank of India because he was HIV positive. On Jan 16, 2004, Bombay High Court upheld employment of PLWAHA. The court said that protection and dignity of HIV-infected persons is essential for the prevention and control of HIV/AIDS.

Andhra Pradesh Revised Police Manual prohibits entry of persons who are HIV positive into government service. The Government, however, feels that there is no public health rationale for mandatory testing of a person for HIV/AIDS. The ministry also guarantees equal rights to education and employment as to other members of the society. HIV status of a person should be kept confidential and should not in any way affect his right of employment, position at workplace, marital relationship, and other fundamental rights.

Existing Legislation and Policies:

  1. Goa Public Health amendment of 1985 (Section 53.I.v11) allowed the public health authorities and police discretion to isolate people with HIV/AIDS; repealed in 1996.
  2. Railway Board Administrative Notification of 1989 designating HIV/AIDS as an "infectious disease" which can allow denial of passage. Rescinded in 1996.
  3. In 1992 Administrative Notification from Ministry of Health (GOI) to all state governments directing them to ensure nondiscriminatory access to treatment and care of PLWHAs in all central and state government health care institutions.
  4. The Government has, by administrative orders, required the screening for HIV of all units of blood to be used for transfusion purposes.
  5. May 1997 Mumbai High Court judgment held that employers cannot base employment decisions on HIV status, for employment.


There is, however, no comprehensive legislation in India addressing HIV/AIDS. There have been some court decisions, which also have been changing with the better understanding of the disease by the public and lawyers. Considering the importance of this subject an advisory group was set up to initiate the process of creating a legislation in 2002, by Mr. Kapil Sibal and the Project Director of the National AIDS Control Organization (NACO). The presence of a nationally applicable statute would lend consistency, clarity, and predictability for the courts to effectively pass judgment in HIV/AIDS cases. They approached an NGO (Lawyers Collective Unit) to draft a legislation on HIV/AIDS. The Lawyers Collective HIV/AIDS Unit (LCHAU) has consulted all the concerned organizations and involved people and drafted legislation. The Union Health Ministry has sent the bill for a feed back from the state and union territory governments, which have been approved.

The key elements of the draft bill on HIV/AIDS [6] are . :

  1. Prohibition of discrimination related to HIV/AIDS within public and private spheres.
  2. Resurgence of Informed Consent for HIV-related testing, HIV-related treatment, and HIV-related research.
  3. Guarantee of confidentiality of HIV-related information (including HIV + status) and exceptions to it.
  4. The right to access treatment related to HIV/AIDS as a part of the right to health, recognized under the Indian Constitution.
  5. The right to safe working environment for health care workers and other persons whose occupation may put them at risk of exposure to HIV.
  6. Protection of strategies for risk reduction, which otherwise are subject to criminal sanction under various laws, which have severely impeded risk reduction work in the past.
  7. Prohibition of quackery in the context of HIV/AIDS.
  8. Norms for Information, Education, and Communication (IEC) programs and materials.
  9. Creation of innovative implementation mechanisms including institutional grievance redressal machinery and HIV/AIDS Commissions. This will be supported by special procedures to be followed in courts, including suppression of identity, and speedy trials.
  10. Special provisions for those who are disproportionately affected by the epidemic, particularly women, children, persons in the care and custody of the State, who due to social, economic, legal, and other factors find themselves more vulnerable to HIV.


The draft bill after approval of Health Ministry was sent to the Ministry of Law in August 2007, which has stalled it. It has deleted two chapters, one on treatment of HIV/AIDS, and the other on risk reduction.

The draft bill says that people living with AIDS and HIV infection should get treatment as a matter of right. The chapter on risk reduction, which sought to grant immunity to various targeted intervention programs, which provide condoms to sex workers and homosexuals, and clean syringes for intravenous drug users (IDU), to prevent the spread of the disease, are in conflict with the Indian Law. Under the law, all these are seen as abetting the crimes of prostitution, homosexuality, and drug abuse.

 
   References Top

1.National e-survey: Business wire Feb. 2005.  Back to cited text no. 1    
2.Lambert DR, Greenlaw J. Clinical problem-solving: Refusing HIV testing. N Engl J Med 1998;338:1544-5.  Back to cited text no. 2  [PUBMED]  
3.Parizer KL. Mandatory HIV testing of new-borns in United States. Biomed Ethics 1999;4:27-32.  Back to cited text no. 3  [PUBMED]  
4.Gostin LO. AIDS Litigation project: A national review of court and human rights commission decisions, part II. JAMA 1990;263: 2086-93.  Back to cited text no. 4  [PUBMED]  
5.World Health Organization. Global Programme on AIDS: Current and future directions of the HIV/AIDS Pandemic, Geneva, April 1991.  Back to cited text no. 5    
6.The HIV/AIDS Bill, 2006.  Back to cited text no. 6    




 

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