UK healthcare workers need better information and guidance on HIV criminalisation

Roger Pebody
Published: 07 March 2013

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 prosecution.

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 her?”

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 possible litigation:

“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 partner.

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 business.”

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 professional roles.

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 Development activities.

BHIVA and BASHH position statement

Focus group discussions took place before the publication last month of the BHIVA and BASHH position statement on HIV Transmission, the Law and the Work of the Clinical Team.

The document provides clinicians with information and guidance on managing issues related to sexual transmission of HIV and disclosure of HIV status. The document applies general ethical and professional principles, but with a particular emphasis on the importance of confidentiality.

The position statement sets out the roles and responsibilities of healthcare professionals when caring for people living with HIV:

  • to give appropriate advice about HIV transmission and prevention,
  • to provide appropriate support, especially around disclosure of HIV status,
  • to ensure the confidentiality of medical information, and
  • to keep meticulous records of all consultations.

The position statement affirms that both condoms and adherence to successful antiretroviral therapy can – in specified circumstances – be equally effective in preventing HIV transmission. “A person with HIV is unlikely to be seen as reckless when relying on a suppressed viral load instead of condom use if they have been counselled accordingly by an HIV clinician or similar medical authority,” the document states. “It is recommended that this discussion is documented in the patient’s medical records.”

Moreover the document clarifies the appropriate response of a healthcare professional whose patient has not disclosed to their sexual partner. The circumstances in which it would be appropriate for the clinician to breach their patient’s confidentiality are extremely limited.

BHIVA and BASHH also make clear that clinicians must not answer police questions about their patients, unless there is a court order or the patient has given consent.

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