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Legal Issues

 

 

Governmental Obligations

 

The most efficient mode of transmission is the transfusion of tainted blood or blood products. Courts have ruled that organizations/companies that distribute blood are providers of a service and hence subject to all the tort laws affecting liability. Negligence needs to be proved. When there is a need for knowing the identity of a donor, courts have favored disclosure.

 

Individuals who knowingly partake in activities that can transmit the virus have been charged with attempted murder, assault with a dangerous or deadly weapon, or reckless endangerment. In addition to the usual sexual acts, there have been convictions for biting, spitting, and stabbing with a syringe. The defendant must have been aware of her/his HIV status by way of testing, exhibiting symptoms of infection, or having knowledge of a previous sexual partner who is HIV+.

 

A false diagnosis of HIV infection can be grieved, but most courts impose a requirement of actual physical injury, rather than just emotional distress. Similarly, a failure to diagnose HIV infection is actionable.

 

Plaintiffs claiming fear of exposure to the virus as a reason for an action are usually required to prove that their mental distress is a result of circumstances posing an actual risk of transmission. People charged with DWI cannot reject a request for a blood test due to fear of exposure. A surgeon who transfused donor blood when an autologous transfusion was available was found liable.

 

Employers have a duty to protect their employees, but following the CDC's Universal Precautions is sufficient to deflect liability.

 

1988 Washington State AIDS Omnibus Act prohibits discrimination on the basis of HIV.

 

34 states have criminal laws that punish people for exposing another person to HIV

 

 

 

 

There are many legal issues associated with HIV-disease.

 

Sweden was the first country (3/8/1983) to mandate the reporting of confirmed and suspected cases of AIDS. They added to that by promulgating recommendations for infection control in March of 1985.

 

The US statement on Universal Precautions was recommended by the Centers for Disease Control in 1985 but was not mandated until the 1991 OSHA Bloodborne Pathogens Standard, which applied to all health care settings.


In the US, after years of widespread discrimination, Congress passed a series of Federal laws to protect people living with HIV/AIDS from discrimination based on their HIV status and to give them the same legal protections as any other person with a medical disability.

 

One of the first legal protections was the 1990 Americans with Disabilities Act (ADA). It expanded the reach of the Rehabilitation Act of 1973 and made discrimination on the basis of disability unlawful.

 

A few years later, Congress enacted another important legal protection, the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA is designed to protect the privacy of patients’ medical records and other health information.

 

 

 

 

 In India, Mumbai High Court in 1997 ruled that:

 

1) A government/ public sector employer cannot deny employment or terminate the service of an HIV-positive employee solely because of their HIV-positive status, and any act of discrimination towards an employee on the basis of their HIV-positive status is a violation of Fundamental Rights.

 

2) The services of HIV-positive employees can only be terminated if they pose a substantial risk of transmission to their co-employees or are unfit or unable to perform the essential functions of their job. Determining whether a person is unfit or incapable of performing their job must be made on the facts of each specific case by conducting an individual inquiry (beyond a mere diagnostic test).

 

3) The court also held that an HIV-positive person can suppress their identity and use a pseudonym in the course of court proceedings in order to protect themselves from further discrimination.

 

Legal barriers in sub-Saharan Africa

 

In many countries, there are laws criminalising people who expose others to HIV or transmit the virus via sexual intercourse. Supporters of criminalisation often claim they are promoting public health or justify these laws on moral grounds. However, such laws do not acknowledge the role of ART in reducing transmission risk and improving the quality of life for those living with HIV.

 

The past decade has seen new wave of HIV-specific criminal legislation in parts of sub-Saharan Africa. In Western Africa, a number of countries have passed such laws following a regional workshop in Chad in 2004 which aimed to develop a 'model' law on HIV and AIDS for the region.

 

The law guarantees pre and post-testing counselling and anti-discrimination protections in employment and insurance for people living with HIV. However, it holds HIV-positive people responsible for disclosing their status to anyone they have sexual intercourse with as well as measures to prevent HIV transmission. If they do not, they face criminal sanctions. Under these types of laws, there is the possibility that pregnant women living with HIV could be prosecuted for transmitting the virus to their baby.

 

As the HIV epidemic develops, countries in sub-Saharan Africa will need to assess how to allocate currently limited treatment resources. There are also more fundamental barriers to overcome, particularly HIV-related stigma and discrimination, the issue of gender inequality and HIV-specific criminal legislation. Removing such barriers would encourage more people to get tested and seek out treatment, reducing the burden of HIV across the region.

 

 

 

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