A Department of Health consultation paper that sets out the English Government’s proposals for changes to the Public Health (Control of Disease) Act 1984 appears to considerably widen the potential use of coercive powers of justices of the peace (JPs) or magistrates and may even criminalise HIV-positive individuals who have unprotected sex, according to Dr Matthew Weait, an expert on HIV and the law.
The Public Health (Control of Disease) Act, passed in 1984, consolidated earlier legislation, much of it dating back to the 19th century. The Act gives local authorities certain powers to prevent and control the spread of six notifiable diseases (specifically cholera, plague, relapsing fever, smallpox, typhus and food poisoning). A second piece of public health law – the Public Health (Infectious Diseases) Regulations 1988 – adds a further 24 diseases, including AIDS, but notHIV infection to the list of notifiable diseases.
The document implicitly suggests that HIV, as well as AIDS, should be covered by this new legislation when it notes: “Infectious diseases were once seen as a problem that would disappear in the foreseeable future. The emergence of new diseases such as HIV/AIDS and Severe Acute Respiratory Syndrome (SARS), and the re-emergence of old diseases such as tuberculosis, have shown that that is not the case.”
It has been argued by many, including the authors of a 1989 Department of Health Review on Infectious Disease Control, that current public health laws are confusing and outmoded, and the current consultation paper proposes that these powers should be brought up-to-date with “more modern and flexible provisions”, in particular by:
- Supplementing current powers that allow an infected person to be medically examined and detained in hospital with powers that may be more effective at controlling the spread of disease such as keeping a person in quarantine.
- Increasing the scope of the Act to cover contamination by deliberate or accidental release of chemicals or radiation as well as infectious disease.
In a March 28th press release announcing the publication of the consultation paper, Caroline Flint, Minister for Public Health, noted: “What we need is modern, up-to-date legislation that takes account of the latest scientific knowledge and allows us to respond, in an effective and proportionate way, to the threats posed by the spread of infectious disease or contamination by chemicals or radiation. The consultation paper sets out our proposals for achieving that, and I hope that a wide variety of interests will respond to the consultation paper.”
Sir Liam Donaldson, England’s Chief Medical Officer, added: “This consultation provides an opportunity to think about what 21st century legislation should replace the existing provisions. I hope that as many people as possible will take this opportunity to help shape future law on infectious diseases and contamination.”
However, Dr Matthew Weait, of the Research Institute for Law, Politics and Justice at Keele University, suggests that these more “modern and flexible provisions” may have an unintended impact on people living with HIV. “I am very concerned about the potential implications of the Department's proposals,” he tells aidsmap.
He points out that ‘Proposal 14: Power to require risk-reduction measures’ includes what the document calls a “necessary widening of the existing power”. That proposal states:
- "We propose that in future it should be possible for a justice of the peace to order actions (their italics) not, as now, only where a person is suffering from disease, but where a person poses, or may pose, a risk of infecting or contaminating others. (their italics). Other things being equal, the arguments for using the power are likely to be stronger where a person is known to pose an immediate risk to others. But there could be cases where use of the power might be justified even if there is no immediate risk to others, or even no certainty that there will be a risk to others in future.” (Sections 5.7 and 5.8, p 26)
“This approach would self-evidently widen the potential use of coercive powers considerably,” says Dr Weait. “It would mean, for example, that an HIV-positive person could forcibly be removed to, and detained in, a hospital on the basis that he or she may pose a risk of infecting another person, even if there is no evidence whatsoever upon which to base that assessment.”
Even more worrying, however, is ‘Proposal 24: Criminal offences’, which may criminalise an HIV-positive person who has unprotected sex without disclosing their HIV status, something which is currently not a crime in England. The Consultation Paper states:
- "We …propose to repeal the provisions in Part II on criminal offences and instead to provide in primary legislation for two criminal offences of:
- Knowingly or recklessly putting others at risk of infection or contamination contrary to provisions made in or under the Act; and
- Failing to comply with a requirement created in or under the Act (for example, failing to comply with directions under an order by a justice of the peace to observe home quarantine, or with a requirement in regulations to provide information in certain circumstances)”
This is of particular concern to Dr Weait: “The first offence would, at a stroke, introduce exposure liability where none in English law currently exists, and, arguably, further extend liability by criminalising those positive people who merely know their status – as opposed to those who are aware of the risk of transmission. It is the proposal for a power to determine the conduct that would attract liability that is of concern. It is not, for example, inconceivable that HIV-positive gay men could be required not to frequent saunas, or other places where they may meet to have sex, or be required to disclose their HIV status to existing or potential partners,” notes Dr Weait.
He adds that these recommendations ignore evidence-based policy developments. “To give a concrete example: while it may seem logical and justifiable, on public health grounds, to impose a legal obligation on people to disclose their known HIV-positive status to prospective sexual partners, or (as a deterrent) to impose substantial fines on those who expose others to the risk of infection, such measures would be based on (i) a misunderstanding of the dynamics of, and barriers to, disclosure, (ii) a (false) assumption about the correlation between disclosure and safer sex, and – more generally – (iii) a model that identifies people with HIV as the only participants in a potentially risky encounter who bear any responsibility for the risk-taking itself or for any unwanted consequences that ensue. There are fundamental differences between HIV and, for example, air- or water-borne pathogens. Each may be infectious, but HIV is not contagious. In an effort to rationalise the law there is a danger that these differences will be ignored – with significant implications for the civil liberties of people living with HIV and AIDS.”
The consultation paper, which can be found on the Department of Health website, is concerned solely with the law in England. The consultation runs until 25th June 2007.
Next month, Edwin Cameron, Justice of the South African Supreme Court of Appeal, one of the world's leading figures on HIV and the law, will be speaking on the role of the law in the HIV and AIDS epidemic at a central London event co-sponsored by NAM, the National AIDS Trust and the School of Law Birkbeck, University of London.
Using the law in the AIDS epidemic: Sword or Shield? will take place on Thursday 28thJune, from 7-9pm, at BIrkbeck University of London, Malet Street, London WC1E 7HX.
To secure a place at this event, please email: policyandcampaigns@nat.org.uk