A Department of Health consultation paper that sets out the English
Government’s proposals for changes to the Public Health (Control of
Disease) Act 1984 appears to considerably widen the potential use of
coercive powers of justices of the peace (JPs) or magistrates and may
even criminalise HIV-positive individuals who have unprotected sex,
according to Dr Matthew Weait, an expert on HIV and the law.
The Public Health (Control of Disease) Act, passed in 1984, consolidated earlier legislation, much of it dating back to the 19th
century. The Act gives local authorities certain powers to prevent and
control the spread of six notifiable diseases (specifically cholera,
plague, relapsing fever, smallpox, typhus and food poisoning). A second
piece of public health law – the Public Health (Infectious Diseases)
Regulations 1988 – adds a further 24 diseases, including AIDS, but not HIV infection to the list of notifiable diseases.
The document implicitly suggests that HIV, as well as AIDS, should be
covered by this new legislation when it notes: “Infectious diseases
were once seen as a problem that would disappear in the foreseeable
future. The emergence of new diseases such as HIV/AIDS and Severe Acute
Respiratory Syndrome (SARS), and the re-emergence of old diseases such
as tuberculosis, have shown that that is not the case.”
It has been argued by many, including the authors of a 1989 Department
of Health Review on Infectious Disease Control, that current public
health laws are confusing and outmoded, and the current consultation
paper proposes that these powers should be brought up-to-date with
“more modern and flexible provisions”, in particular by:
- Supplementing current powers that allow an infected person to
be medically examined and detained in hospital with powers that may be
more effective at controlling the spread of disease such as keeping a
person in quarantine.
- Increasing the scope of the Act to cover contamination by
deliberate or accidental release of chemicals or radiation as well as
infectious disease.
In a March 28th press release announcing the
publication of the consultation paper, Caroline Flint, Minister for
Public Health, noted: “What we need is modern, up-to-date legislation
that takes account of the latest scientific knowledge and allows us to
respond, in an effective and proportionate way, to the threats posed by
the spread of infectious disease or contamination by chemicals or
radiation. The consultation paper sets out our proposals for achieving
that, and I hope that a wide variety of interests will respond to the
consultation paper.”
Sir Liam Donaldson, England’s Chief Medical Officer, added: “This consultation provides an opportunity to think about what 21st
century legislation should replace the existing provisions. I hope that
as many people as possible will take this opportunity to help shape
future law on infectious diseases and contamination.”
However, Dr Matthew Weait, of the Research Institute for Law,
Politics and Justice at Keele University, suggests that these more
“modern and flexible provisions” may have an unintended impact on
people living with HIV. “I am very concerned about the potential
implications of the Department's proposals,” he tells aidsmap.
He points out that ‘Proposal 14: Power to require risk-reduction
measures’ includes what the document calls a “necessary widening of the
existing power”. That proposal states:
- "We propose that in future it should be possible for a justice of the peace to order actions (their italics) not, as now, only where a person is suffering from disease, but where a person poses, or may pose, a risk of infecting or contaminating others.
(their italics). Other things being equal, the arguments for using the
power are likely to be stronger where a person is known to pose an
immediate risk to others. But there could be cases where use of the
power might be justified even if there is no immediate risk to others,
or even no certainty that there will be a risk to others in future.”
(Sections 5.7 and 5.8, p 26)
“This approach would self-evidently widen the potential use of coercive
powers considerably,” says Dr Weait. “It would mean, for example, that
an HIV-positive person could forcibly be removed to, and detained in, a
hospital on the basis that he or she may pose a risk of infecting
another person, even if there is no evidence whatsoever upon which to
base that assessment.”
Even more worrying, however, is ‘Proposal 24: Criminal offences’,
which may criminalise an HIV-positive person who has unprotected sex
without disclosing their HIV status, something which is currently not a
crime in England. The Consultation Paper states:
- "We …propose to repeal the provisions in Part II on criminal
offences and instead to provide in primary legislation for two criminal
offences of:
- Knowingly or recklessly putting others at risk of infection or
contamination contrary to provisions made in or under the Act; and
- Failing to comply with a requirement created in or under the
Act (for example, failing to comply with directions under an order by a
justice of the peace to observe home quarantine, or with a requirement
in regulations to provide information in certain circumstances)”
This is of particular concern to Dr Weait: “The first offence would, at
a stroke, introduce exposure liability where none in English law
currently exists, and, arguably, further extend liability by
criminalising those positive people who merely know their status – as
opposed to those who are aware of the risk of transmission. It is the
proposal for a power to determine the conduct that would attract
liability that is of concern. It is not, for example, inconceivable
that HIV-positive gay men could be required not to frequent saunas, or
other places where they may meet to have sex, or be required to
disclose their HIV status to existing or potential partners,” notes Dr
Weait.
He adds that these recommendations ignore evidence-based policy
developments. “To give a concrete example: while it may seem logical
and justifiable, on public health grounds, to impose a legal obligation
on people to disclose their known HIV-positive status to prospective
sexual partners, or (as a deterrent) to impose substantial fines on
those who expose others to the risk of infection, such measures would
be based on (i) a misunderstanding of the dynamics of, and barriers to,
disclosure, (ii) a (false) assumption about the correlation between
disclosure and safer sex, and – more generally – (iii) a model that
identifies people with HIV as the only participants in a potentially
risky encounter who bear any responsibility for the risk-taking itself
or for any unwanted consequences that ensue. There are fundamental
differences between HIV and, for example, air- or water-borne
pathogens. Each may be infectious, but HIV is not contagious. In an
effort to rationalise the law there is a danger that these differences
will be ignored – with significant implications for the civil liberties
of people living with HIV and AIDS.”
The consultation paper, which can be found on the Department of Health website, is concerned solely with the law in England. The consultation runs until 25th June 2007.
Next month, Edwin Cameron, Justice of the South African Supreme
Court of Appeal, one of the world's leading figures on HIV and the law,
will be speaking on the role of the law in the HIV and AIDS epidemic at
a central London event co-sponsored by NAM, the National AIDS Trust and
the School of Law Birkbeck, University of London.
Using the law in the AIDS epidemic: Sword or Shield? will take place on Thursday 28thJune, from 7-9pm, at BIrkbeck University of London, Malet Street, London WC1E 7HX.
To secure a place at this event, please email:
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