For solicitors who advise on the telephone or who attend detainees at a police station a question may arise as to whether an HIV-positive detainee should disclose their status to the police.

In some circumstances the decision may be taken away from the detainee – for example, if another person at the scene of the arrest discloses the fact to the arresting officers, or if the arrested person has medication on them from which an HIV–positive status can be inferred.

Detainees may be eager to disclose their status if they need access to medication. On arrival at a police station all medication and indeed most other property will be removed from the detainee. Access to medication will not be permitted without the sanction of a Divisional Surgeon.

It is generally inadvisable for an HIV–positive detainee to disclose their status to the police. In the first place, general experience has shown that HIV–positive detainees are treated less considerately during the course of their detention. Secondly, adverse inferences relating to the alleged offence for which the person has been arrested may be drawn – for example, if a man has been arrested for an alleged offence of sexual misbehaviour and discloses that he is HIV–positive he may suffer an attitude of 'Oh well, he must be gay and must therefore have committed the offence'. Thirdly, it has been routine police practice for an individual's HIV status to be recorded on the police national computer (PNC).

This practice has been a source of considerable disquiet, since it means that HIV–positive people who have come into contact with the police and whose status has been ascertained – not necessarily with their consent – can be readily identified. When there are regular calls for controls on 'irresponsible people with AIDS', it is clear why the central recording of 'criminals or semi–criminals' who are HIV–positive causes so much concern. In mid-1991 there were press reports that the police in Cleveland took the recording of detainees' HIV status one step further by displaying photographs of people suspected of being HIV–positive on a police station noticeboard.

The practice of recording HIV status on the PNC was the subject of a complaint in 1992 by, amongst others, The Terrence Higgins Trust, to the Data Protection Registrar (DPR) – the public official who is responsible for the regulation of the storage and use of personal data (information about living individuals) on computer. The basis of the complaint was that the information was excessive and irrelevant and therefore held in breach of the Fourth Data Protection Principle, which provides that 'personal data held for any purpose or purposes shall be adequate, relevant and not excessive in relation to that purpose or those purposes'.

The Registrar, in his eighth annual report, concluded:

It appears to me that there is a small, but foreseeable, risk of infection with HIV/AIDS which could arise in connection with policing activities. Accordingly, I am satisfied that, in general the holding of a factual warning signal, including an indication of HIV/AIDS status in the PNC conviction records, is neither excessive nor irrelevant to policing purposes.

In practice an individual's HIV status should have no relevance at all to their arrest or detention. The police should already have in place procedures to reduce the risk of contracting infections during arrest and detention without such procedures being dependent upon ascertaining the detainee's health status. Furthermore, even if such procedures are not implemented the information that an individual is HIV–positive invariably becomes available after a 'risk' situation has passed. For example, if the police are dealing with someone injured and bleeding after a fight or car accident it is very unlikely that personal details sufficient to carry out a PNC check and ascertain health details will be obtained until after the immediate emergency has passed.

For these reasons The Terrence Higgins Trust, amongst others, made further representations to the DPR after the publication of his eighth annual report arguing against permitting the police to record an individual's HIV status on the PNC. These representations were instrumental in achieving a change of view on the part of the Registrar, who in his ninth annual report, stated:

I have reviewed the position which I took last year. The new factor is that there is now a firm policy on procedures, which should be adopted by police forces, to avoid the risk of HIV infection. Once these procedures are in place, whilst I would look at the facts of each particular case, the holding of HIV markers would seem to be irrelevant. Such markers would also possibly be excessive in view of the danger that they may encourage a false sense of security. This might undermine the hygiene procedures and put police officers at risk.

I have concluded that I should hold to my original view until there has been sufficient time for the necessary training and education activities for police officers to be put in place... I would expect an early development of the required courses and materials.

In his tenth annual report published in July 1994 the Registrar indicated that such training should have been completed by December 1993 and expressed some impatience with those police forces that were still retaining HIV markers on the PNC. The Registrar indicated that he might be obliged to take action if the retention of such information persisted as he regarded it as a breach of the Fourth Data Protection Principle.

In 1995 it was confirmed by the Office of the Data Protection Registrar that all police services had agreed to comply with the Registrar's requirement and to remove HIV markers from the Police National Computer.

In the situation where a detainee wishes to disclose their HIV status with a view to obtaining access to medication it is recommended that the detainee be advised to request the attendance of the Divisional Surgeon, explain the circumstances to them, insist that they treat the disclosure of HIV status as confidential, and ask them to authorise access to medication. As a matter of practice Divisional Surgeons routinely disclose information about a detainee's health to the police and indeed an officer may be present or nearby when the examination is carried out. However, Divisional Surgeons are not, despite their common title of 'police doctors', employed by the police, but are independent General Practitioners, and as such, it is submitted, subject to the same rules of confidentiality as if they were the detainee's own doctor. If a detainee specifically forbids disclosure, therefore, this will serve to remind the doctor of the duty of confidentiality and to emphasise the possible disciplinary consequences if disclosure occurs.

One final note of caution needs to be sounded with respect to advising an HIV–positive detainee at a police station and trying to ensure that their status is not needlessly disclosed. Very few telephone conversations between a detainee and their advising solicitor are confidential and, indeed, many outgoing telephone lines from a police station are routinely taped. Consequently, such matters should not be discussed over the telephone but only during a personal attendance at the police station.

HIV testing in police custody is discussed in HIV testing: HIV testing and consent.