Slide Presentation for Summit on Opportunities for Improving HIV Diagnosis, Prevention, & Access to Care in the U.S., Nov. 29-30, 2006; addressed areas of potential legal liability raised by implementation of September, 2006 CDC Guidelines on HIV testing.
This San Francisco Chronicle op-ed by Sigrid Fry-Revere exposes the fiscal motives behind, and the harmful consequences of, legislative efforts to routinize HIV testing and eliminate written consent. The author, a bio-ethicist at the Cato Institute, notes that a bill before the California Assembly in 2007 is driven by the federal Ryan White CARE Act funding requirements that penalize jurisdictions that do not maximize finding new HIV cases and reporting them by name. To increase testing, California lawmakers are seeking to eliminate written consent for HIV related testing and with it candid discussions with patients about HIV risk, whether HIV testing is appropriate for them, and the meaning and possible consequences of a positive test, including discrimination. Unnecessary testing and the withholding of information foster mistrust and deter those most at risk from seeking medical care. Moreover, with the volume of names reported to the CDC, the loss of confidentiality and the stigma and discrimation that follow are serious and predictable risks. Refusing to explain these risks to patients because they might not consent to HIV testing if they knew about them removes the informed part from informed consent."
An HIV-positive man sued his dentist under the New Jersey Law Against Discrimination (LAD) and the AIDS Assistance Act, for the dentists illegal and discriminatory refusal to provide routine dental care because of his HIV status. The dentist also disclosed, for reasons unrelated to his medical care, the plaintiffs HIV-status to a person outside the office. As an excuse for denying plaintiff treatment, the dentist claimed that his staff felt unsafe and that he believed that, in order to treat an HIV-positive person, the dentist would need to have special equipment and cleaning practices. The complaint highlights the fallacy of the dentists arguments by reiterating the American Dental Associations position that standard practices are completely adequate to protect dentists and dental workers from risk of HIV infection by patient contact, and that it is medically and scientifically unwarranted and unethical for dentists to refuse to treat individuals solely because of HIV status.
This chart summarizes the guidelines and policies currently in place regarding HIV-positive health care workers (HCW) in all 50 states, as well as some U.S. territories. To our knowledge, it is the most comprehensive compilation of this information available. For each state, the chart includes any relevant guidelines, statutes, or regulations, as well as definitions of 'HCW' and 'invasive procedure' adopted by the state. It also includes information on the state's policy related to testing HCWs for HIV, notification of patients, and implementation of restrictions on the practice of HIV-positive HCWs.
The guidelines, statutes, and regulations referenced in this document were adopted between 1991 and 1993 in response to a CDC directive that was eventually codified. In the 15 years since these policies were put in place, the limited ways in which HIV transmission is a genuine risk, and the absence of such risk to health care patients, has been solidly confirmed . In 2000, Professor Larry Gostin called for a revision of the national policy restricting the practices of HIV-positive HCWs, concluding that such a policy is not necessary because of the negligible risk of HIV transmission from HCW to patient. Gostin also asserted that, because the policy unnecessarily stigmatizes HIV-positive HCWs, some HCWs might avoid or delay testing, or leave the medical profession altogether. (See Lawrence O. Gostin, A Proposed National Policy on Health Care Workers Living with HIV/AIDS and Other Blood-Borne Pathogens, 284 JAMA 1965 (Oct. 18, 2000)).
The CDC’s public acknowledgement of, and efforts to reduce, HIV-related stigma run counter to the CDC’s own policy on HIV-positive HCWs. The CDC has stated that “the stigmatization of persons infected with HIV and the groups most affected by HIV… is a barrier to testing.” (See 49 MMWR 1062 (Dec. 1, 2000). At the same time, the CDC has issued, and maintained for more than 15 years, a policy that overtly stigmatizes HIV-positive HCWs, sometimes even at the expense of testing. Perhaps now is the time to revisit the issue and call on the CDC to amend its recommendations related to HIV-positive HCWs.
This report summarizes discussion from two international electronic fora in which advocates, service providers, and HIV-positive women discussed services and policies related to the sexual and reproductive health of HIV-positive women. While the discussions spanned numerous countries and cultures, common threads appeared regardless of the geographical or cultural context. These threads provide lessons for all advocates seeking to promote the well-being of HIV-positive women. Issues such as confidentiality, domestic abuse, and reproductive rights were discussed, with the overarching issue being the high degree of stigma and discrimination experienced by HIV-positive women. Most strikingly, the discussions revealed widespread violations of the human rights of HIV-positive women as a result of the stigma and discrimination that they faced. These violations provided a backdrop to virtually all other topics discussed, creating major obstacles to the attainment of appropriate care and services by HIV-positive women. Another major theme was the lack of the most basic services responsive to the needs of HIV-positive women. Women described significant barriers at the domestic, community, regional and national level in realizing their rights and sexual and reproductive health. Among those mentioned included: inaccessibility of health centers; lack of respect for female patients' rights and judgmental attitudes among health care workers. The report is published by EngenderHealth, Harvard University, International Community of Women Living with HIV/AIDS, Ipas, and the United Nations Population Fund.
This guide aims to provide sexual and reproductive health program planners, managers, and providers with the information necessary to integrate voluntary counseling and testing (VCT) for HIV within their services. VCT is not merely the simple assent to testing, but rather "the process by which an individual undergoes confidential counselling to enable the individual to make an informed choice about learning his or her HIV status and to take appropriate action." Counseling for VCT consists of pre-test, post-test, and follow-up counseling. VCT is a human-rights based approach to HIV testing and treatment that enables patients to make informed decisions; it has been shown to be an effective strategy to facilitate behavior change for HIV prevention, as well as to reduce the stigma and discrimination associated with HIV. The guide discusses the benefits of VCT and the barriers to implementation, and provides specific steps for each stage of implementing VCT, including the initial assessment of community need, planning, implementation, monitoring, and evaluation. The guide was produced by the United Nations Population Fund and the International Planned Parenthood Foundation.
The International Covenant on Civil and Political Rights (the “ICCPR”) represents one-third of what is informally referred to as the “International Bill of Rights.” The other two thirds consist of the International Covenant on Economic, Social and Cultural Rights (the “ICESCR”) and the Universal Declaration of Human Rights.
The ICCPR outlines universal civil and political rights; particularly relevant for HIV/AIDS issues are: the right to marry and found a family (Article 23); the right to privacy (Article 17); freedom of expression and information (Article 19); freedom of assembly and association (Article 22); freedom of movement (Article 12); the right to liberty and security of person (Article 9); and freedom from cruel, inhuman or degrading treatment or punishment (Article 7). State parties to the convention must also guarantee that any person whose rights under the convention are violated shall have an effective remedy and shall have her right to such a remedy determined by a competent authority provided by the legal system of the state, and that the state will develop the possibilities of judicial remedy specifically.
As a convention, the ICCPR is binding on all parties that ratify it; those who sign but do not ratify it are obligated not to act contrary to the purpose of the convention under Article 18 of the Vienna Convention. Article 40 of the covenant requires state parties to submit reports on the national human rights situation every five years, which are studied and commented on by the United Nations Human Rights Committee. Article 41 establishes an optional procedure by which states grant other states the right to bring a complaint against them before the Committee alleging a violation of human rights; the result is an attempt at a “friendly solution.”
There is also an optional protocol, available separately in the Resource Bank, to allow individuals who are victims of violations of ICCPR to present complaints before the Committee against a state that has ratified the convention and violates its obligations.
The United States is a party to the ICCPR, but not to the optional protocol, and has made several “reservations” – a declaration that purports to exclude or modify the meaning of certain provisions of the treaty. However, the validity of some of these reservations is subject to debate; many states objected to the reservations as contrary to the object and purpose of the ICCPR, and as impermissibly citing domestic law to dodge obligations under the Convention.
The United Nations General Assembly Declaration of Commitment on HIV/AIDS represents “a global commitment to enhancing coordination and intensification of national, regional and international efforts to combat [HIV/AIDS] in a comprehensive manner.” It was unanimously adopted and signed by the 189 Member States at the United Nations General Assembly Special Session on HIV/AIDS in June 2001. This Special Session marked the first time that the General Assembly gave its exclusive attention to the HIV/AIDS epidemic.
The Declaration notes contributing factors to the spread of the epidemic, including discrimination, denial, lack of confidentiality, gender inequality, poverty, and illiteracy. It also reaffirms a human rights approach to HIV/AIDS, and declares a commitment to take action in the following categories, with a timeline for achievements by 2003 and 2005:
Fostering leadership at all levels of society
Prevention efforts
Care, support, and treatment
Realization of human rights and fundamental freedoms
Reducing vulnerability by empowering vulnerable groups such as women
Assisting children orphaned and made vulnerable by HIV/AIDS
Alleviating social and economic impact of HIV/ADIS
Furthering research and development
Responding to the HIV/AIDS needs created by conflict
Creating new, additional, and sustained resources
Maintaining the momentum and monitoring progress
While the Declaration is a UN document, the primary responsibility for imeplemtning its commitments rests with the states, who are required to conduct national periodic reviews of their progress. However, as declaration, this document is non-binding on states that have signed it.
This document is useful to those seeking to understand the many social, economic, cultural, and legal issues underlying the HIV/AIDS epidemics, as well as a human rights based approach to HIV/AIDS. It is also useful to demonstrate international responses to HIV/AIDS.
Five years later, the United Nations General Assembly reaffirmed its Commitment to the Declaration of Commitment in the Political Declaration on HIV/AIDS, available separately in the Resource Bank.
A revised and consolidated version of the original guidelines published in 1996, the purpose of the Guidelines is “to assist States in creating a positive, rights-based response to HIV that is effective in reducing the transmission and impact of HIV and AIDS and is consistent with human rights and fundamental freedoms.” The Guidelines are a joint project of the United Nations Office of the High Commissioner for Human Rights and UNAIDS. The consolidated guidelines include the revised Guideline 6, which reflects the human rights dimensions of access to HIV prevention, treatment, care, and support. The document consists of three parts: 1) twelve guidelines for state action; 2) recommendations for dissemination and implementation of the Guidelines; and 3) a description of the human rights principles underlying a positive response to HIV. The primary users are intended to be states, but it is also meant to inform intergovernmental organizations, non-governmental organizations, networks of people living with HIV, community-based organizations, networks on ethics, law, human rights, and HIV, and AIDS service organizations. It is also useful for any person looking for interested in a rights-based approach to HIV/AIDS and specific steps needed to implement such an approach.
