Support services for people living with HIV would benefit
from better information and support around prosecutions for the sexual
transmission of HIV, according to a report released yesterday by researchers
from Sigma Research and Birkbeck College.
The study explored how criminal prosecutions for HIV
transmission in England and Wales are handled by those who deliver clinical,
psychosocial and community support for people with HIV. The report paints a
picture of professionals grappling with the difficulties of communicating
complex legal information in an appropriate way for each individual. They must
weigh up competing concerns and responsibilities, including their own patient’s
health and wellbeing, the health of unidentified sexual partners and the legal
liability of their own organisation.
Catherine Dodds, Matthew Weait and colleagues recommend the
creation of a single dedicated online resource containing information about the
latest clinical and scientific developments that may impact on legal
decision-making, as well as training about legal definitions and defence
arguments for those who provide clinical and non-clinical HIV services.
The research is based on discussions in seven focus groups
in England and Wales conducted late last year, with 75 participants from both
clinical and community sectors.
Since then, the British HIV Association (BHIVA) and the
British Association for Sexual Health and HIV (BASHH) have published a position statement on the responsibilities of clinicians in relation to HIV
transmission and the law. It is hoped that this document may meet some of the
needs described in the research.
The research participants generally had a broad awareness of
the topic and of the practical and ethical issues it raises. Moreover, many
respondents had a basic understanding of the conditions that could lead to a
But there was significant confusion about the technical
legal meaning of ‘recklessness’, and the specific precautionary behaviours that
would provide a sufficient legal defence.
There was considerable discussion in the groups about the
extent to which an individual’s use of condoms was sufficient to avoid a charge
of recklessness. And participants struggled with the legal uncertainty about
the relevance of an undetectable viral load. “It’s almost like there is degrees of recklessness you are describing,”
said one clinician. “What one person
describes as reckless, the evidence can be interpreted differently.”
While some participants gave service users a clear message
about disclosure of HIV status being the only means to avoid blame, others felt
frustrated by the inherent challenges in explaining the law.
“The law is so, kind
of, not clear that it is very hard to clarify anything… I would find it to be
very hard to be very clear, honestly. It is very vague I think, how we talk.”
And there were instances where participants’ understanding
of the law was guided more by ‘common sense’ and a personal view of morality,
rather than the law itself. For example, one service provider said: “Reckless means doing it intentionally,
repeatedly and ignoring any advice not to do it, and still putting the other
person at risk.”
Moreover, many participants had nuanced views about an
individual’s responsibility for what happens within a sexual relationship. They
argued that responsibility is not always uniform, and needs to be understood
within specific circumstances that can constrain precautionary behaviour. If
violence, blackmail or destitution could be a consequence of disclosure of HIV
status, some participants felt that such individuals could not take full
responsibility for HIV exposure.
“Where the woman may
not have the power to be able to truly consent to having sexual relationships.
Plus, added on to that, she definitely doesn’t have the power to be able to
disclose. But she also, because of immigration and things like that, may not
have the power to leave at that moment. So, I mean that is where recklessness becomes
really...I mean, is it reckless behaviour if it is potentially lifesaving for
Participants described how they judged the best means of
approaching the topic of criminalisation with patients and clients. They
acknowledged this was complex information to convey, which needed to be
well-timed and appropriately tailored for each individual. Community
organisations frequently waited until a service user raised the issue before it
was discussed, in order to avoid undue concern.
In contrast, clinics usually included criminalisation as
part of a routine set of information that they were sure to pass on to those
who were newly diagnosed with HIV, often by a health adviser or clinical nurse
specialist. But the issue could come up at another time:
“In every consultation
there is the potential for it [to arise in discussion] because you are taking
their sexual history.”
Clinicians felt the need to protect themselves against
“It has affected my
practice. I will check that I have been through everything. I’ll write, ‘I have
discussed condom use and what that means’. I’ll write that we have discussed
risk reduction. More detail and documentation.”
Clinicians took detailed notes of the information they had
provided, but did not necessarily check or record whether the patient had fully
understood. On the other hand, community-based organisations were more
selective about what was and was not recorded, in order to protect their
service users should records be seized by the courts. While excluding some
details, some would record that a client reported disclosing to a sexual
Service providers were sometimes faced with clients who
wanted to pursue criminal prosecutions, usually when first diagnosed. The vast
majority of respondents tried to discourage this, either by explaining how
distressing police procedures and court cases could be, or by attempting to
meet the individual’s other support needs.
“As soon as you give
information and emotional support, you find an immediate shift. Especially if
you signpost them onto services. You see a change of mind very fast if you
support them in the right way.”
Participants discussed the ethical dilemmas and personal
conflicts that confronted them when dealing with service users whose behaviour
might put others at risk. Some participants described feeling frustrated that
after a certain point, they could do no more and were powerless to control the
actions of others.
“So that was quite a
difficult situation, because [the patient] told me that they were not sexually
active, and the interpreter was aware that they were sexually active, and he
strongly suspected that they were not using condoms.”
Others accepted such situations more easily:
“If they are
knowledgeable and consenting in some ways, to be honest, it is none of my
When discussing the idea of professional responsibility, participants
were generally clear that their duty of care was to their own patient or
service user. But there was considerable debate within the groups about whether
they also had a responsibility to protect the health of others who could be at
risk of infection. “You have got your
clinical hat on, and your public health hat on,” said one participant.
The researchers comment that these debates about the
practice of public health ethics appeared in many cases to be the first time
that such discussions were widely aired between colleagues. Especially in the
clinicians’ focus groups, there was often a lack of consensus on appropriate
The authors recommend that organisations create
opportunities for staff at all levels to discuss ethical issues and exchange
best practice. Moreover, organisations need to have internal policies and
procedures for staff to refer to.
Participants often expressed uncertainty about where to go
to for accurate written legal information, for example in order to deal with
specific questions from service users about grey areas in the law. The authors
recommend the development of a single website that collates practical,
accessible and up-to-date information on the issue, including the material already published by National AIDS Trust, Terrence Higgins Trust, NAM and the HIV Justice Network.
Moreover, given the difficulties participants had in identifying
the best sources of expert criminal legal advice, such a website could play a
role in making such referrals.
The authors also recommend the development of training and
education programmes in the criminal law for those who provide clinical and
non-clinical HIV services. Such work should count as Continuing Professional