Despite accepting that non–discrimination is the only effective approach to the epidemic and that attempts to regulate people with HIV are both unlikely to control the spread of the virus or benefit the individuals concerned, the Government has introduced discriminatory Regulations which can be used to detain people with AIDS.

The Public Health (Infectious Diseases) Regulations 1988 (SI 1988 No 1546) apply certain provisions of the Public Health Act 1984 to HIV and AIDS, but do not make either a notifiable condition (such as tuberculosis).

The following sections of the Public Health Act apply:

Section 35 states that a magistrate may order a medical examination if he or she receives a written certificate from a registered medical practitioner who has been nominated by the local authority stating that:

“(a) that there is reason to believe that some person in the district”

“(i) is or has been suffering from AIDS, or”

“(ii) though not suffering from such a disease, is carrying an organism capable of causing it, and

(b) that in his own interest, or in the interest of his family, or in the public interest, it is expedient that he should be medically examined, and”

“(c) that he is not under the treatment of a registered medical practitioner, or that the registered medical practitioner who is treating him consents to the making of an order.”

This section therefore also applies to people suspected of being HIV-positive. The medical examination may include bacteriological and radiological tests and similar investigations.

Section 37 allows a magistrate to order the compulsory removal of a person with AIDS to a hospital. The magistrate must be satisfied, after an application by a local authority, that a person has AIDS and that proper precautions to prevent the spread of infection cannot be or have not been taken and that the person is a serious risk of infecting others. Space in a hospital must be available and the District Health Authority must consent.

Section 38, as amended by the Regulations, permits a magistrate, at the request of a local authority, to detain a person with AIDS in hospital for as long as is necessary in his or her opinion, if the person involved would on leaving hospital not take proper precautions to prevent the spread of the disease:

“(a) in his lodging or accommodation, or”

“(b) in other places to which he may be expected to go if not detained in hospital”

If a person with AIDS detained under section 38 discharged themselves they would be committing a criminal offence. Magistrates have the power to make these decisions in the absence of the affected person.

Section 43 authorises a local authority or doctor to prevent the removal of the body of a person who has died with AIDS from hospital, except direct to a mortuary or for burial or cremation.

Section 44 imposes a duty on anyone in whose premises a person has died with AIDS to take “such steps as are reasonably practicable” to prevent persons coming unnecessarily into contact with the body.

Both provisions carry criminal penalties.

Similar powers to compulsorily examine and detain persons with AIDS in Scotland exist under sections 45-59 of the Public Health (Scotland) Act 1897, which allow for people with any infectious disease to be so detained.

It is accepted that the regulations providing for detention are unlikely to be used in relation to AIDS. An earlier version of the 1988 regulations was controversially used in 1985 to detain a man in Manchester in hospital. A successful appeal was brought by the Terrence Higgins Trust on his behalf, but at that point he elected to stay in hospital voluntarily. The present writer is not aware of the detention power having been used since then.