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Module 10 hiv-aids legal & ethical issues

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  • 1. HIV AND AIDS LEGAL AND ETHICAL ISSUES AND ART
    • ALLAN ACHESA MALECHE
    • LL.B (Hons) Nbi, Dip Law, (KSL)
    • RACHIER & AMOLLO ADCVOCATES/ KENYA ETHICAL LEGAL ISSUES NETWORK. (KELIN)
    • [email_address]
  • 2. OBJECTIVES
    • To enable participants demonstrate the linkages between HIV and AIDS and Human Rights.
    • To enable participants comprehend the ethical and legal issues in HIV and AIDS generally.
    • To enable the participants to identify and handle the ethical and legal issues they may encounter in dealing with ARVs in special circumstances.
    • To enable participants appreciate their legal and ethical obligations in providing ART.
  • 3. CONTENTS
    • UNIT 1:The Linkages between HIV and AIDS and Human Rights.
    • UNIT 2:Legal and Ethical issues in HIV and AIDS.
    • UNIT 3:Legal and Ethical issues in ART in special circumstances.
    • U NIT 4 : T he R ole of the Health Care Provider.
  • 4. UNIT 1
    • The L inkages between HIV and AIDS and H uman Rights.
  • 5. INTRODUCTION
    • What is a human right?
    • Where did the Human Rights Originate from?
    • Where do we find these rights?
    • What is their relevance to HIV and AIDS?
  • 6. DEFINITION OF HUMAN RIGHTS
    • Human rights are universal legal guarantees protecting individuals and groups against actions by States (governments), which interfere with fundamental freedoms and human dignity.
    • Human rights law obliges governments to do some things, and prevents them from doing others .
  • 7. Claim (Right) Holder VALID CLAIM CORRELATIVE DUTY Duty Bearer
  • 8. DEVELOPMENT OF HUMAN RIGHTS PRINCIPLES
    • Human Rights Principles developed from cruel, inhuman, degrading and dehumanising treatment of man by man in history.
    • The reaction of the international community towards the following atrocities also played a role in development of international instruments and guidelines with respect to human rights .
  • 9. THE ATTROCITIES AGANIST MAN BY MAN
      • African Slave Trade;
      • World War II atrocities;
      • Nazi Physicians and the Nuremberg Trials;
      • Japanese Vivisection Experiments;
      • Tuskegee Syphilis Experiment;
      • Apartheid;
      • The Willow brook Hepatitis Study
  • 10. EXAMPLES OF INTERANTIONAL INSTRUMENTS INCORPORATING HUMAN RIGHTS
    • Some of the international instruments that have made known human right principles include:
      • The Universal Declaration of Human Rights (UDHR)
      • The International Covenant on Economic, Social And Cultural Rights; (ICESCR)
      • The International Covenant on Civil And Political Rights. (ICCPR)
  • 11. EXAMPLES OF INTERNATIONAL INSTRUMENTS
      • The Convention on The Elimination Of All Forms Of Discrimination Against Women; (CEDAW);
      • The Convention on The Elimination Of All Forms Of Racial Discrimination; (CERD);
      • The Convention on The Rights Of The Child; (CRC);
      • The Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment; (CAT )
      • African Charter on Human and Peoples Rights;
  • 12. EXAMPLES OF INTERNATIONAL INSTRUMENTS
      • American Convention on Human Rights;
      • European Convention on Human Rights;
      • Universal Declaration on Bioethics and Human Rights 2005;
      • Convention on the Rights and Dignity of Persons with Disabilities 2006
  • 13. HUMAN RIGHTS PRINCIPLES RELEVANT TO HIV and AIDS
    • The right to non-discrimination, equal protection and equality before the law ; this right ensures that PLWHA are not discriminated against .
    • The right to life . this right ensures that PLWHA are assured of a guarantee to live and cannot be denied to do so on the basis of their HIV status .
  • 14.
    • The right to the highest attainable standard of physical and mental health . This right ensures that PLWHA can be able to access health treatment and they may not be refused emergency medical treatment.
    • The right to work ; This right ensures that PLWHA are not discriminated at work and are ensured of acquiring work irrespective of their HIV status
  • 15.
    • The right to liberty and security of the person . This right empowers PLWHA to make their own decisions about medical treatment and it protects them from being treated in a cruel or inhuman manner
    • The right to freedom of movement . It allows persons who are infected to freely move around the country, hence PLWHA cannot be forced to live in a separate place away from the rest of the society
  • 16.
    • The right to privacy . It enables a PLWHA to keep information about to his status to himself. It further protects them from being forced to disclose their status for purpose or receiving essential services
    • The right to freedom of opinion and expression and the right to freely receive and impart information . This right helps in ensuring availability of information on how to prevent HIV and AIDS in schools or prisons
  • 17.
    • The right to freedom of association . It ensures that a PLWHA is not forcefully separated from other people.
    • The right to marry and found a family .
    • The right to equal access to education.
    • The right to an adequate standard of living.
  • 18.
    • The right to social security , assistance and welfare.
    • The right to share in scientific advancement and it’s benefits.
    • The right to participate in public and cultural life.
    • The right to be free from the torture and cruel, inhuman or degrading treatment or punishment.
  • 19. TO WHAT EXTENT CAN A PERSON ENJOY HIS RIGHT?
    • Enjoyment of these rights is made subject to the rights of others, to public interest, morality, public order and the general welfare of a democratic society.
  • 20. WHY SHOULD WE PROTECT HUMAN RIGHTS?
    • Protection of human rights is essential to safeguard human dignity and to ensure an effective, rights based response to HIV.
    • Spread of HIV is disproportionately higher among certain populations e.g. women and children and this is partly due to lack of human rights protection which dis-empowers these groups.
  • 21. PROTECTION OF HUMAN RIGHTS (2)
    • When Human rights are protected fewer people become infected and those PLWHA and their families can cope better with HIV.
  • 22. SUMMARY
    • HIV and AIDS initiatives work best where there is a supportive legal and ethical environment which is protective to human rights.
    • Where such legal framework exists there have been tangible gains to public health in AIDS control and management programmes.
  • 23. UNIT 2 The Legal and Ethical issue in HIV and AIDS.
  • 24. INTRODUCTION
    • Generally HIV and AIDS raise the following Legal and Ethical Issues:
      • Testing for HIV
      • Confidentiality
  • 25.
      • The Place / Role of the Criminal Law in the Prevention, control and management of HIV and AIDS
      • The Tug of war between the protection of Human rights on the one hand and the promotion of Public Health interests on the other
      • The need for advancement of Biomedical research on the one hand and the importance of protection of the human research subject
      • Gender and cultural issues
  • 26. TESTING
    • The legal and ethical question raised by testing is whether it should be
      • Mandatory?
      • or
      • Voluntary?
    • The demand for testing for HIV suggesting a call for mandatory testing is enormous
    •    
  • 27.
    • There are call for testing :-
    • The Entire Population in certain countries
    • For Employment Purposes by prospective employers and as a routine procedure in employment
    • For Entry Into Educational Institutions
    • For Insurance Purposes
  • 28.
    • For Marriage Purposes
    • For Routine medical and Surgical procedures
    • Sentinel Surveillance for purposes of Epidemiology.
  • 29. TESTING – THE LEGAL POSITION
    • The legal basis of consent is the constitutional and universal right to autonomy/self determination.
    • All forms of testing for HIV should be with the informed consent of the person being tested and the person to be tested should be offered pre-test and post-test counseling.
  • 30. TESTING – THE LEGAL POSITION
    • In cases of children, the consent of the parents or guardian must be obtained.
    • In cases where the person to be tested lacks legal capacity the consent of the guardians or next of kin will be required
    • Difficult issues arise when one parent refuses to grant such consent or where children are adolescents who are capable of making rational decisions.
    • In cases of mature minors the law has provided a way out through what is known as the Gillick Competence:- The test of understanding of the minor
  • 31. TESTING – THE LEGAL POSITION
    • Mandatory testing for marriage purposes is a futile exercise as it at the same time offends against the right to marry and found a family and plays no positive role in the prevention of transmission of the virus.
    • No partner/spouse can insist on the other being tested for HIV.
    • An adult employee may only be tested for HIV with his/her informed consent.
    • In certain countries e.g. Kenya exceptions to Voluntary testing has been made in cases of persons charged with Sexual Offences
  • 32. CONFIDENTIALITY
    • Confidentiality and privacy are constitutional and human rights entitlements
    • Confidentiality is as old as medical practice being a cardinal principle in the Hippocratic Oath
    • Dilemmas brought about by HIV and AIDS are justified in the Interest of Public Health
  • 33. CONFIDENTIALITY
    • The following legal questions arise
      • Should the law allow/require partner notification of HIV results to anybody?
      • Is there a right for anybody to know?
    • All those calling for test on others are infact seeking to know the HIV status of those others
  • 34. CONFIDENTIALITY - THE LEGAL POSITION
    • In accordance with the Hippocratic oaths generally medical practitioners are enjoined by law and medical ethics not to divulge the HIV status of their patients to third parties except:
      • With their consent.
      • Under compulsion by judicial process e.g.. Where evidence is required in court.
      • The information is being shared for research purposes.
  • 35. CONFIDENTIALITY - THE LEGAL POSITION
    • In cases of HIV a new exception appears to be emerging in certain parts of the world which is loosely called the rule of shared confidentiality in cases of people at risk of infection.
    • Doctors are not required by law to disclose the HIV-status of one spouse to another without consent of the other spouse.
  • 36. CONFIDENTIALITY - THE LEGAL POSITION
    • Spouses/partners are encouraged to disclose their HIV-serostatus to their spouses/partners.
    • The child’s HIV-status should be notified only to the parent's/guardian.
    • An employer need not know the HIV-status of his/her employee even in the family situation.
  • 37.
    • The following South African case illustrates that breach of confidentiality is actionable in a court of law and that doctors should not disclose the HIV status of their patients without their consent.
  • 38.
    • JANSEN VAN VUUREN and ANOTHER NNO vs. KRUGER 1993 (4) SA 842 (A)
    • The plaintiff wanted to apply for a life assurance policy. His insurance company informed him that he had to do a HIV test. He proceeded to have the test done at the Defendants clinic who informed him that he was HIV positive. The defendant disclosed this information to his colleague while playing golf. The news spread around the community and the plaintiff got wind of the same. He decided to sue the defendant for breach of confidentiality. The Supreme Court of Appeal in South Africa decided that a doctor cannot disclose the HIV status of his patient to other doctors without the consent of the patient unless there is a clear legal duty to do this
  • 39. HUMAN RIGHTS ASPECTS
    • Discrimination and stigmatisation i n t he provision of services.
    • Dismissal from employment – AIDS in the workplace.
    • Travel restrictions - international co-operation.
  • 40.
    • Right to marry and f ound a family.
    • Balance of public health interests -vs.- individual rights.
    • The right to life and to health.
    • Education.
    • Liberty.
  • 41. GENDER AND CULTURAL ISSUES
    • The following gender and cultural issues have not only fuelled the spread they have raised legal and ethical issues with regards to HIV and AIDS. The Gender and cultural issues include:
      • Polygamy and Polyandry.
      • Early Marriages - Protection of the Girl Child.
      • ” Wife Inheritance”.
      • Marriage, Divorce, Separation.
  • 42.
      • “ Marital rape” – legal protection of women.
      • Orphans and children’s homes.
      • Inheritance of property by women and children , and living wills.
  • 43. LEGAL POSITION
    • Grant/denial of marriage licenses should not be based on the HIV-sero status of the parties.
    • Often but not always HIV infection is evidence of adultery which is a ground of divorce or judicial separation in many jurisdictions.
  • 44.
    • Polygamy and polyandry which permit of multiple partners raise complex and unresolved legal and ethical issues particularly as the former is recognized in many African and Muslim marriages for example A married woman in such A union cannot file divorce on grounds of adultery by the husband.
  • 45.
    • Although the law generally allows inheritance by women of immoveable property, certain jurisdiction discriminate against women where their husbands die intestate i.e. Without making a will.
    • Children will generally inherit as beneficiaries under a will or personal laws of the deceased parents but through an executor or administrator.
  • 46.
    • While certain jurisdictions have recognized marital rape most countries in the world have not done so. The effect is to compel A woman who lacks bargaining powers by virtue of her economic sub-jugation to submit to sexual contacts with an HIV infected husband.
    • Many matrimonial law statutes in fact provided for judicial restitution of conjugal rights where the same may have been denied by a vulnerable woman on good grounds. This legal provision actually negates abstinence
  • 47.
    • There are no legal provisions for enforcing the use of barrier methods in HIV infection prevention strategies.
    • HIV-positive spouses have legal rights to have children.
    • Most people do not make wills thus exposing their families to unscrupulous persons upon their death.
  • 48. HIV and AIDS AND CRIMINAL JUSTICE
      • Questions have arisen as to what is the role of the Criminal Law in the Prevention, control and management of HIV and AIDS.
      • The legal and ethical issues raised by HIV and AIDS in the context of Criminal Law include:
  • 49. HIV and AIDS AND CRIMINAL JUSTICE
      • The legal question as to whether or not to Criminalise Deliberate Infection and whether the same can reduce the spread of HIV
      • The legal question as to whether or not to Deport a persons who is HIV+
      • The legal and ethical question as to whether HIV be used as a ground for Abortion or sterilization.
      • The legal and ethical question as to whether HIV can be used as a ground for Euthanasia.
  • 50. HIV and AIDS AND CRIMINAL JUSTICE – THE LEGAL POSITION
    • While many countries in the world have legalised abortion, quite A number have not. In the latter category abortion is A criminal offence unless it is carried out to save the life of the mother.
    • HIV infection therefore is not a ground for termination of pregnancy in certain countries.
  • 51. HIV and AIDS AND CRIMINAL JUSTICE – THE LEGAL POSITION
    • Termination of pregnancy also raises the issue of the right to be born particularly when the foetus is more than 28 weeks old and is regarded as a person.
    • Similarly euthanasia is considered murder in many parts of the world while in a few countries it has been legalized under specified circumstances.
  • 52. BIOMEDICAL RESEARCH
      • The need for advancement of Biomedical research on HIV and AIDS related research is inevitable
      • It does raise legal and ethical questions, as the research involves humans hence the need to protect their fundamental rights becomes necessary
      • Hence, the legal and ethical issues are raised by the fact that there is need for advancement of Biomedical research on the one hand and the importance of protection of the human rights of the human research subject
  • 53. BIOMEDICAL RESEARCH
    • Some of the legal and ethical issues revolve around:
      • The need to establish Ethical Review Committees to approve and monitor on going research
      • The relevance of Vaccine And Drug Trials and whether they will benefit the research subject.
      • Whether Research Protocols comply with the general ethical principles of research
      • Protection Of The Human Rights of the research subjects .
  • 54. BIOMEDICAL RESEARCH- THE LEGAL POSITION
    • All research must conform all ethical requirements and researcher’s must embrace and respects the rights of research subjects as enshrined in International Instruments and guidelines such as the Helsinki Declaration
    • Ethical Research committees should be created to scrutinize the validity of research conducted in a particular country
    • All research protocols must ensure they protect the human rights of the human subjects participating in the study
  • 55. UNIT 3
    • Legal and Ethical issues in ART in special circumstances
  • 56. INTRODUCTION
    • Complex issues in ART arise from special groups including :
    • Health workers.
    • Victims of rape.
    • Expectant mothers.
    • Unborn babies.
    • Street people and minors.
  • 57. LEGAL AND ETHICAL ISSUES WITH REGARD TO HEALTH CARE WORKERS
    • Do they need to know the HIV status of their patients and vice versa?
    • Do they need post exposure prophylaxis?
    • How does one deal with issues of consent and confidentiality of HIV results in these special circumstances?
    • Do health care workers require protective gear at the workplace?
  • 58.
    • Health care workers need not know the HIV status of their patients.
    • They must adopt the safety measures provided by universal standards.
    • No legal justification for the patient to know the HIV status of the Health care provider.
  • 59.
    • Health care workers need post exposure prophylaxis as it would encourage them to care for patients with HIV and AIDS.
    • The employer is under an obligation to provide suitable working conditions and equipment to its employees as required by the law.
  • 60. LEGAL AND ETHICAL ISSUES WITH REGARD TO VICTIMS OF RAPE
    • How does one get to know the HIV status of the rapist?
    • Is there a legal basis for testing the victim
    • Should ARVs be administered as a matter of routine?
  • 61.
    • Victims of rape should benefit from ARV prophylaxis designed to reduce risk of infection.
    • The victim should not be tested without her consent.
  • 62. LEGAL AND ETHICAL ISSUES WITH REGARD TO UNBORN BABY AND MTCT
    • Is there need for routine and administration of ARVs?
    • What is the legal position on the testing of pregnant women.
  • 63.
    • Do we need the consent of the partner for administration of ARVs on pregnant women?
    • How about the partner who is exposed to HIV infection if infected does he need ARV?
    • Do we stop ARV after delivery?
  • 64.
    • There is need to administer ARVs to unborn children as it significantly reduces the rate of transmission from parent to child.
    • A partner needs to be consulted but the final decision to use ARVs should be made by the patient.
    • Spouses who are affected by the virus equally need ART but after the relevant procedures have been complied with.
  • 65. LEGAL AND ETHICAL ISSUES WITH REGARD TO MINORS
    • Whose responsibility is it to provide ARVs to minors and ensure safe administration of the same?
    • Who should give consent for the treatment?
  • 66.
    • Children’s rights to confidentiality and privacy in regard to HIV status should be recognised .
    • In getting consent, legal guardians should pay due regard to the child’s view especially if child is a mature minor.
  • 67. Unit 4
    • THE ROLE OF THE HEALTH CARE PROVIDER
  • 68.
    • To ensure protection of human rights in the process of testing care and treatment by among other things facilitating counselling and maintaining confidentiality of HIV results.
    •  
    • To create awareness both of preventive measures and of human rights of individuals especially by providing information that would enable the grant of informed consent.
    • To refer patients who raise legal issues with regard to the aspects of inheritance of property and succession matters, to legal officers or human rights organizations.
  • 69.
    • To be cognisant of the laws that govern issues concerning Human Rights and HIV and AIDS in Kenya
    • To observe the ethics of medical practice and abide by the laws of his/her country that advocate for the protection of Human Rights.
    • To be cognisant of the legal and ethical procedures expected of them in ART including referral of rape victims to the police.
  • 70. THANK YOU THANK YOU THANK YOU FOR YOUR ATTENTION

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