Although the law can provide a foundation for fighting discrimination, recent criminal prosecutions for the reckless transmission of HIV have arguably led to an intensification of the stigma associated with HIV.

This section provides an introduction to some key legal rights and responsibilities of HIV-positive people. It was accurate at the time this booklet went to press, but the law is subject to change, because of both court rulings and laws passed by parliament. No matter what your circumstances, it is important to obtain specialist advice from a lawyer.

If you need HIV-related legal advice, contact one of these organisations and ask to be put in touch with a specialist lawyer:

• THT Direct: 0845 1221 200
• UK Coalition of People Living with HIV and AIDS: 020 7564 2180
• African HIV Policy Network: 020 7017 8910

The UK Law and HIV/AIDS Project at Keele University is a good source of information if you are interested in the impact of the law on the lives of people with HIV. You can find their website here:

http://www.keele.ac.uk/research/lpj/Law_HIV-AIDSProject/index.htm

Confidentiality

Medical records are confidential. This means that nobody can see your medical records without your consent. There are some limits to this confidentiality. These can be practical. For example, in order to provide you with the best care, doctors might need to discuss your case between themselves.

The confidentiality of medical records can also be breached if it is deemed to be in the public interest. ‘Guidance for doctors’ states:

“You may disclose information about a patient, whether living or dead, in order to protect a person from risk of death or serious harm. For example, you may disclose information to a known sexual contact of a patient with HIV where you have reason to think that the patient has not informed that person, and cannot be persuaded to do so. In such circumstances you should tell the patient before you make the disclosure, and you must be prepared to justify a decision to disclose information. You must not disclose information to others, for example relatives, who have not been, and are not at, risk of infection.”

Medical records can also be used in a court of law if they are relevant to a case. Doctors should only surrender confidential medical records to the police when they have been told to do so by a court order. It is important to know that the confidentiality of medical records is not absolute.

HIV transmission and the criminal law

The first successful prosecution for HIV transmission in England and Wales was in October 2003, when a man was convicted of unlawfully and maliciously inflicting grievous bodily harm under section 20 of the Offences Against the Person Act, 1861. There have been eight further convictions and one acquittal since then. In 2001, a man was convicted in Scotland, which has a different legal system, of having “recklessly injured” his sexual partner after infecting her with HIV.
In England and Wales a person cannot be criminally liable simply because he or she exposed someone to the risk of HIV transmission. Similarly, a person is not liable of a criminal offence simply because they have transmitted HIV to another person. For a conviction, it is necessary to show that a person intended to infect the other party with HIV, or that they were reckless as to this possibility – that is, that the defendant was aware of the risk of infection, but proceeded anyhow. 

At the moment it is thought that you cannot be convicted for the reckless transmission of HIV if you told the person you infected that you were HIV-positive before you had sex and they consented to sex and they consented to the risk of infection.

It is also important to know that condoms, when used properly, provide excellent protection against HIV and most other sexually transmitted infections. Many lawyers think that even if HIV transmission did occur with a partner to whom you did not you did not disclose your HIV status, the use of a condom for the entire duration of sex every time you had sex together would prevent you from being treated as reckless. However, this argument has yet to be tested in court.

As stated above, there is no liability under English law simply for exposing someone to the risk of HIV transmission. It is possible that there could be a prosecution for an attempt to inflict grievous bodily harm in such a case, but the prosecutor would have to show that the defendant actually intended to transmit the disease. It would not be enough to show that the positive person was simply reckless as to the possibility of the disease being transmitted. That said, there was recently concern when the police investigated the sexual activity of an HIV-positive woman after a person with whom she had had unprotected sex complained to the police, even though that person was not infected by her.

In Scotland, however, it is at least theoretically possible that there could be a prosecution for “reckless endangerment” in the absence of actual transmission.

One prosecution for the reckless transmission of HIV has ended in a verdict of not guilty. An expert witness showed that virological evidence could not prove that the defendant transmitted HIV to the complainant. The case showed the importance of seeking specialist legal advice immediately if the police start to investigate you for the reckless transmission of HIV.

The Crown Prosecution Service consulted the public about the use of the criminal law to prosecute people who recklessly infect others with HIV. They said in this consultation that they wanted to do their bit to prevent further HIV infections. But none of the specialist organisations working in HIV prevention think that prosecutions for reckless transmission have done or will do anything of the sort. Indeed, these prosecutions have further stigmatised people with HIV and ignored the realities of people’s sex lives.

There is also concern that criminalisation has undermined a fundamental principle of HIV prevention – that everybody has a responsibility to look after their own health. What’s more, there is concern that HIV-negative people will now have the expectation that people with HIV will disclose their status to them before having sex. Not only is this unrealistic, but it’s completely impractical. In the UK, approximately one third of those who are HIV- positive are unaware of their infection – how can they disclose their HIV status if they do not know it? In addition, there are concerns that criminalisation of HIV transmission will deter the untested from having a test. 

If you find yourself being investigated for the reckless transmission of HIV, contact a specialist HIV agency immediately and ask to be put in touch with a lawyer who has expertise in the criminal transmission of HIV. You are likely to find the following organisations particularly helpful:

• THT Direct: 0845 1221 200
• UK Coalition of People Living with HIV and AIDS: 020 7564 2180
• George House Trust: 0161 274 4499
• HIV Scotland: 0131 558 3713

Immigration and asylum law

HIV-positive migrants to the UK are often stigmatised or experience discrimination in their day-to-day lives in areas of fundamental importance such as access to healthcare.

It you are an HIV-positive migrant or asylum seeker it therefore makes good sense to understand how the law affects you so you can make sure that you are treated fairly and that discriminatory behaviour can be challenged.

This section provides a brief overview of immigration and asylum law. It is, however, in no way a comprehensive statement of the law and is no substitute for specialist advice. Immigration law is complex, changes frequently and it can be important to meet deadlines and follow correct procedures in order to preserve your legal rights. For that reason, anyone facing a problem concerned with this area of the law should seek proper advice at the earliest possible opportunity.  A good place to start is telephoning THT Direct on 0845 1221 200.

Leave to enter the UK and HIV-positive status
When a person requires permission to enter, the UK’s current (and long-standing) policy is that the fact that a person is HIV-positive, or has AIDS, is not in itself a ground for refusing permission to enter the UK (permission may, of course, still be refused if that person does not otherwise qualify for permission under other immigration rules). However, the effect that a medical condition may have on a person’s ability to support himself or herself is a factor which the Immigration Officer may take into account in deciding whether to grant permission to enter.
A person who intends to remain in the UK for more than six months should normally be referred to the Medical Inspector for examination, and the inspector will be expected to estimate the cost of any treatment that may be required so that this can be considered by the Immigration Officer.

Entering the UK for medical treatment
A person may seek permission to enter or remain in the UK in order to receive private medical treatment. In particular, it will be necessary for such a person to show that he or she has sufficient funds to meet the costs of treatment. It is also necessary that the applicant “can show, if required to do so, that any proposed course of treatment is of finite duration”. It would not, therefore, normally be possible to use these provisions to seek entry to the UK for ongoing HIV or AIDS treatment, although they could, for example, apply for permission to enter to seek treatment for an HIV-related illness. Permission to enter for private medical treatment will, in practice, only be a realistic option for the wealthy. NHS treatment is not automatically free for those from overseas.

Can HIV be a ground for remaining in the UK?
Where a person is entitled to apply for permission to enter and live in the UK on grounds unrelated to their HIV-positive status, then the same principle as noted earlier applies: the fact that someone is HIV-positive or has AIDS is not in itself a basis for refusing that application.
However, there may be cases where a person has no other grounds to remain in the UK, but wishes to seek discretionary permission to remain on the basis that they will not receive adequate medical treatment in their home country.
Such applications may be bolstered by reference to the European Convention on Human Rights, article 3 of which provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. The European Court of Human Rights held that it would be a breach of article 3 for the UK government to deport a prisoner, very close to death as the result of AIDS, to his home country of St Kitts where care would be inadequate and he would be at a real risk of dying under most distressing circumstances.
However, in 2005, the House of Lords confirmed that the decision would be applied only in very exceptional circumstances. The House of Lords ruling concerned a Ugandan citizen who entered the UK claiming asylum. She was diagnosed as being HIV-positive while in the UK. Her claim for asylum was unsuccessful, and she claimed that to return her to Uganda would violate her rights under article 3 of the European Convention. The court rejected this argument, holding that article 3 would not be violated solely on the basis that the medical facilities in the country to which a person was to be sent did not match those in the country which that person was to be removed from.
Following this decision, current Home Office guidelines state that “where the claimant would be in no worse position than the majority of people in his country of origin who suffer from the same condition, then a grant of Discretionary Leave would not normally be appropriate as it would not be an exceptional case.” It is important, therefore, that if an application for discretionary leave is to be made, that care is taken to prepare a full and detailed case explaining the relevant circumstances.

Asylum law
In an appropriate case, it is possible that an HIV-positive person who has a “well-founded fear of persecution” because of their HIV status if they are returned to their home country might be able to claim asylum on that basis. Again, it would be essential to prepare a full and detailed case in support of such an application.

Money - Welfare benefits

Not having enough money to live on can be a source of shame for some people.  State benefits may be available to you, depending on your individual circumstances. Rules governing access to benefits can be very complex and change regularly. Before making an application it makes good sense to seek specialist advice to make sure that your claim results in you getting all the benefits to which you are entitled. THT Direct, your local HIV organisation or the Citizens Advice Bureau should be able to help you.

Many local authorities now provide specialist housing and benefits advice through the Supporting People initiative. Supporting People aims to provide the assistance and advice that is required to help you maintain your living arrangements, and one of the target groups is people with IV. You should contact your local authority to find out how Supporting People works in your area.

You need to complete application forms for benefits accurately and honestly and inform the relevant organisation of any changes in your circumstances that might affect your eligibility for benefits.

It is a crime to claim benefits that you are not entitled to and you could end up having to repay the money and face a fine and even a prison sentence.