In this presentation various legal and ethical aspects of HIV and AIDS have been discussed. Content also has been taken from HIV Act, India.

1. HIV and AIDS
Legal & Ethical Implications
Presenter Moderator
Dr. Sandeep Kumar Giri Dr. Vijay Pal
Resident Professor

2. HIV (HUMAN IMMUNODEFICIENCY VIRUS)
• RNA virus
• Family - human retroviruses (Retroviridae)
• Subfamily - lentiviruses
• Hallmark is the reverse transcription of its genomic RNA to DNA by
the enzyme reverse transcriptase
• The most common cause of HIV disease throughout the world, and
certainly in the United States, is HIV-1.

3. Routes of HIV transmission
1. Penetrative sexual intercourse:
• Heterosexual
• Homosexual
• Bisexual
• Oral sex
2. Inoculation of blood
• Inoculation of infected blood and blood products
• Needle sharing among drug users
• Injection with unsterile needles
• Needle stick injury

4. 3. Perinatal (1:3)
• Intra uterine transmission from mother to foetus (50 to 65%)
• Peripartum i.e. through breast feeding (15 to 20%)
Routes not shown to be involved with HIV transmission
• Close personal contacts
• Ordinary social kissing
• Household contacts
• Using swimming pool
• Professional contact with health care workers including doctors and
dentists
• Insect bites

5. • HIV-affected person: An individual who is HIV-positive or whose
partner (with whom such individual normally resides) is HIV-positive
or has lost a partner (with whom such individual resided) due to AIDS.
• HIV-positive person: A person whose HIV test has been confirmed
positive.

6. • Acquired Immune Deficiency Syndrome {AIDS}:
A condition characterised by a combination of signs and symptoms,
caused by Human Immunodeficiency Virus, which attacks and weakens
the body’s immune system making the HIV-positive person susceptible
to life threatening conditions or other conditions, as may be specified
from time to time.

7. • AIDS is a disease caused by the retrovirus human immunodeficiency
virus (HIV) and characterized by profound immunosuppression that
leads to opportunistic infections, secondary neoplasms, and neurologic
manifestations. (Robbins)
• Any HIV infected individual with a CD4+ T-cell count of <200/µL has
AIDS by definition, regardless of the presence of symptoms or
opportunistic diseases. (Harrison)

8. • Child affected by HIV: A person below the age of eighteen years,
who is HIV-positive or whose parent or guardian (with whom such
child normally resides) is HIV-positive or has lost a parent or guardian
(with whom such child resided) due to AIDS or lives in a household
fostering children orphaned by AIDS.

9. • Healthcare provider: Any individual whose vocation or profession is
directly or indirectly related to the maintenance of the health of
another individual and includes any physician, nurse, paramedic,
psychologist, counsellor or other individual providing medical,
nursing, psychological or other healthcare services including HIV
prevention and treatment services.
• CDC estimates that 5.5% of all HIV positive persons are employed in
the health care field.

10. Protected person: A person who is—
I. HIV-Positive; or
II. ordinarily living, residing or cohabiting with a person who is HIV-
positive person; or
III. ordinarily lived, resided or cohabited with a person who was HIV-
positive;

11. Legal and Ethical Aspects
• Doctors duty to care: The principal objective of the medical profession
is to render service to humanity with full respect for human dignity.
• It is unethical for a medical practitioner to refuse treatment or
investigation for which there are appropriate facilities on the ground
that the patient suffers, or may suffer, from a condition, which could
expose the doctor to personal risk.

12. • A doctor can not withhold treatment from any patient based on a moral
judgement that the patient’s activities or lifestyle might have
contributed to the condition for which treatment was being sought.
• Unethical behaviour of this kind may raise a question of serious
professional misconduct.

13. Notification
• The physician should notify the constituted public health authorities
od every case of communicable disease under his care, in accordance
with the laws, rules and regulations of the health authorities.

14. HIV-related information
Any information relating to the HIV status of a person and includes—
I. Information relating to the undertaking performing the HIV test or
result of an HIV test;
II. Information relating to the care, support or treatment of that person;
III. Information which may identify that person; and
IV. Any other information concerning that person, which is collected,
received, accessed or recorded in connection with an HIV test, HIV
treatment or HIV-related research or the HIV status of that person;

15. Confidentiality
• Confidences concerning individual or domestic life entrusted by
patients physician and defects in the disposition or character of
patients observed during attendance should never be revealed unless
their revelation is required by the laws of the State.
• The status of HIV should not be disclosed to blood donor.
• HIV positivity should not be revealed to unauthorised persons.

16. Informing spouse or other sexual partner
• When a doctor decides to inform a third party other than health care
professional consent of the patient is must.
• If the patient refuses to consent for such disclosure, the doctor may
consider informing the partner in order to safeguard such persons from
infection.

17. Disclosure of HIV-positive status to partner of
HIV-positive person.
1. No healthcare provider, except a physician or a counsellor, shall
disclose the HIV-positive status of a person to his or her partner.
2. A healthcare provider, who is a physician or counsellor, may
disclose the HIV positive status of a person under his direct care to
his or her partner, if such healthcare provider—

18. a) reasonably believes that the partner is at the significant risk of
transmission of HIV from such person; and
b) such HIV-positive person has been counselled to inform such
partner; and
c) is satisfied that the HIV-positive person will not inform such partner;
and

19. d) has informed the HIV-positive person of the intention to disclose the
HIV positive status to such partner:
• Provided that disclosure under this sub-section to the partner shall be
made in person after counselling.
• Provided further that such healthcare provider shall have no obligation
to identify or locate the partner of an HIV-positive person.

20. Provided also that such healthcare provider shall not inform the partner
of a woman where there is a reasonable apprehension that such
information may result in violence, abandonment or actions which may
have a severe negative effect on the physical or mental health or safety
of such woman, her children, her relatives or someone who is close to
her.
3. The healthcare provider shall not be liable for any criminal or civil
action for any disclosure or non-disclosure of confidential HIV-
related information made to a partner.

21. Informing other health care professionals
• When HIV or AIDS is diagnosed in a patient and a general practitioner
is involved in that patients care & even after proper counselling the
patient refuses to allow the general practitioner to be informed, the
patient’s request for privacy prevails.
• The only exception to this general principle is when the doctor judges
that the failure to disclose would put the health of any member of the
health care team at serious risk.

22. • The treating doctor has the duty to inform the medical or paramedical
staff involved in the treatment of such patients, the mortuary staff,
pathologist and the staff of crematorium so that due precaution can be
taken.

23. Disclosure of HIV status
1. Notwithstanding anything contained in any other law for the time
being in force —
I. No person shall be compelled to disclose his HIV status except by
an order of the Court that the disclosure of such information is
necessary in the interest of justice for the determination of issues in
the matter before it;

24. II. No person shall disclose or be compelled to disclose the HIV status
or any other private information of other person imparted in
confidence or in a relationship of a fiduciary nature, except with the
informed consent of that other person or a representative of such
another person obtained, as the case may be, and the fact of such
consent has been recorded in writing by the person making such
disclosure:

25. The informed consent for disclosure of HIV-related information is not
required where the disclosure is made—
a) by a healthcare provider to another healthcare provider who is
involved in the care, treatment or counselling of such person, when
such disclosure is necessary to provide care or treatment to that
person;

26. b) by an order of a court that the disclosure of such information is
necessary in the interest of justice for the determination of issues and
in the matter before it;
c) in suits or legal proceedings between persons, where the disclosure
of such information is necessary in filing suits or legal proceedings
or for instructing their counsel;

27. d) as required under the provisions of section 9 (Disclosure to partner);
e) if it relates to statistical or other information of a person that could
not reasonably be expected to lead to the identification of that
person;
f) to the officers of the Central Government or the State Government
or State AIDS Control Society of the concerned State Government,
as the case may be, for the purposes of monitoring, evaluation or
supervision.

28. Right to marry
• The person’s right to get married is suspended during the period when
a person is HIV positive and if a person who suffers from HIV positive
were to marry, he or she may be guilty of an offence punishable U/s
269 & 270 of IPC.
• In Sunil Lakhotia v. Pratima Lakhotia, a Division Bench of the
Bombay High Court granted a decree for divorce to a wife on the
ground that the husband was suffering from AIDS and found the
disease was sexually transmissible as contemplated U/s 13 (1) (v) of
the Hindu Marriage Act.

29. • Divorce- (1) Any marriage solemnized, whether before or after the
commencement of the Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground
that the other party-
• (v) has been suffering from veneral disease in a communicable form.

30. Medical records
• When patients have undergone tests for HIV, their doctors must
maintain separate records to prevent test results from being
inadvertently disclosed along with other records.
• Once blood sample drawn, the register of patient identities should be
kept quite separate and sample identified only with a code number.

31. Consent for testing for HIV infection
• Capacity to consent: Ability of an individual, determined on an
objective basis, to understand and appreciate the nature and
consequences of a proposed action and to make an informed decision
concerning such action.
• In HIV testing, written consent should be obtained.
• The testing should only be performed on clinical grounds.

32. - The antibodies to HIV take 3 weeks to 3 months from infection to
show up in the blood – known as ‘window period’.
- P24 Antigen detection and PCR are available which reduce the
window period to 7 days and 1 day respectively.
• Post- test counselling should be done.

33. • Pre-test counselling is essential and to be confidential and must
explain the following points:
- ELISA (Enzyme Linked Immuno-Sorbent Assay) test indicates the
presence of antibodies against HIV and it does not register the presence
of virus itself.
- There is possibility of false positive/negative result and a positive
result should be confirmed by Western Blot method.

34. The informed consent for conducting an HIV test shall not be
required—
a) where a court determines, by an order that the carrying out of the
HIV test of any person either as part of a medical examination or
otherwise, is necessary for the determination of issues in the matter
before it;
b) for procuring, processing, distribution or use of a human body or
any part thereof including tissues, blood, semen or other body fluids
for use in medical research or therapy:

35. Provided that where the test results are requested by a donor prior to
donation, the donor shall be referred to counselling and testing centre
and such donor shall not be entitled to the results of the test unless he
has received post-test counselling from such centre;
c) for epidemiological or surveillance purposes where the HIV test is
anonymous and is not for the purpose of determining the HIV status
of a person:

36. Provided that persons who are subjects of such epidemiological or
surveillance studies shall be informed of the purposes of such studies;
and
d) for screening purposes in any licensed blood bank.

37. • In the case of child where tests of HIV infection is must, consent of
parents or guardian is normally sought.
• If parent’s withhold the consent to protect their own position, the
doctor should see if the child is competent to give consent, and if so,
obtain consent from child.

38. • The doctor should decide whether the interest of the child should
override the wishes of the parent.
• It is not unethical if a doctor perform such a test without parent
consent provided always that the doctor is able to justify that the
action was in the best interests of the patient.

39. Right to treatment without discrimination
Discrimination: Any act or omission which directly or indirectly, expressly
or by effect, immediately or over a period of time,—
i. imposes any burden, obligation, liability, disability or disadvantage on
any person or category of persons, based on one or more HIV-related
grounds; or
ii. denies or withholds any benefit, opportunity or advantage from any
person or category of persons, based on one or more HIV-related
grounds, and the expression “discriminate” to be construed accordingly.

40. Explanation 1.—For the purposes of this clause, HIV-related grounds
include—
i. being an HIV-positive person;
ii. ordinarily living, residing or cohabiting with a person who is HIV-
positive person;
iii. ordinarily lived, resided or cohabited with a person who was HIV-
positive.
Explanation 2.—For the removal of doubts, it is hereby clarified that
adoption of medically advised safeguards and precautions to minimise the
risk of infection shall not amount to discrimination;

41. • The Supreme Court of India in X v/s Hospital Z, states that people
with HIV/AIDS deserve full sympathy and are entitled to all respects
as human beings.
• Their society can not, and should not be avoided, which otherwise
would have bad psychological impact upon them. They have to have
their avocation and government jobs or service can not be denied to
them.

42. • WHO guidelines hold that AIDS patient or those who test positive for
HIV cannot be refused treatment. The State should establish adequate
infrastructure to tackle the special needs of HIV positive
persons/AIDS patients without segregation them from mainstream
society.

43. Guidelines for testing centres
• No HIV test shall be conducted or performed by any testing or
diagnostic centre or pathology laboratory or blood bank, unless such
centre or laboratory or blood bank follows the guidelines laid down for
such test.

44. Duties and Rights of health workers with HIV
• HIV positive health workers may endanger their patients.
• Health workers who think they may have been infected with HIV seek
appropriate diagnostic testing and counselling.

45. • If a health worker is infected with HIV and not taking specialist advice
to modify his/her professional life, appropriate regulatory body should
be informed.
• Confidentiality should be similar to other patient and disclosed only if
the protection of patients is at peril.
• Transmission of HBV is similar to that of HIV.

46. In September 1994, a Dr. Mesh Gaud, who had been working in
hospitals in the UK assisting heart and chest operations, was sent to
prison for 12 months. He was convicted by Justice Blofield on the
criminal charge of causing a public nuisance - in that he had knowingly
put patients at risk over a period of some three years by working when
he knew he was infected with Hepatitis B.

47. • The Court also directed the state government to provide adequate
infrastructure facilities to resident doctors working in hospitals dealing
with Hepatitis B and HIV, and to provide adequate preventive
measures such as disposable gloves, syringes, needles, etc.

48. Iatrogenic HIV infection
• People who are infected with HIV through medical treatment can seek
claims under tort law either in a Civil Court or in a Consumer Disputes
Redressed Forum.
1. Woman who was transfused with HIV contaminated blood when she
was admitted to a naval hospital in 1992 for childbirth was found to be
HIV positive six days later. Her husband and newborn child were free
from HIV. This clearly showed that she contracted the HIV through the
blood transfusion.

49. • When the case was taken to the court, she obtained a ‘suppression of
identity’ order because of her HIV status. It is the first such case in
India to get such an order.
2. HBV Infected blood was transfused to a woman, which further
communicated by her to her husband, the complainant.
• The State commission held the blood bank guilty of supply
contaminated blood and awarded sum of Rs. 20000 as damage to
complainant.

50. • The S.C. held that the doctor was not responsible, since there is no
procedure for testing the blood at the time of transfusion.
3. HIV infected blood was transfused to the pt. when she was operated
for atrial septal defect and mitral stenosis, leading to the
transmission of the virus to the pt., her husband and to the new born
child.
• Hospital made a clean breast of the lapse and offered free future
medical treatment and employment to her husband.

51. • The complainant however insisted on the compensation.
• The State Commission held that since the complainant paid no charges
to the Charitable Hospital for the cardiac surgery, the complaint was
not maintainable under the Consumer Protection Act.

52. IPC related to HIV transmission
IPC 269
Negligent act likely to spread infection of disease dangerous to life
Whoever unlawfully or negligently does any act which is, and which he
knows or has reason to believe to be, likely to spread the infection of
any disease dangerous to life.
Punishment: Imprisonment of either description for a term which may
extend to six months, or with fine, or with both.

53. IPC 270
Malignant act likely to spread infection of disease dangerous to life
Whoever malignantly does any act which is, and which he knows or has
reason to believe to be, likely to spread the infection of any disease
dangerous to life.
Punishment : Imprisonment of either description for a term which may
extend to two years, or with fine, or with both.

54. Suppression of identity
1. In any legal proceeding in which a protected person is a party or
such person is an applicant, the court, on an application by such
person or any other person on his behalf may pass, in the interest of
justice, any or all of the following orders, namely:—
a) that the proceeding or any part thereof be conducted by suppressing
the identity of the applicant by substituting the name of such person
with a pseudonym in the records of the proceedings in such manner
as may be prescribed;

55. b) that the proceeding or any part thereof may be conducted in camera;
c) restraining any person from publishing in any manner any matter
leading to the disclosure of the name or status or identity of the
applicant.
2. In any legal proceeding concerning or relating to an HIV-positive
person, the court shall take up and dispose of the proceeding on
priority basis.

56. Penalty for breach of confidentiality in legal
proceedings
• Notwithstanding any action that may be taken under any law for the
time being in force, whoever discloses information regarding the HIV
status of a protected person which is obtained by him in the course of,
or in relation to, any proceedings before any court, shall be punishable
with fine which may extend to one lakh rupees unless such disclosure
is pursuant to any order or direction of a court.