By Avnish Jolly, 4th December, 2011 : World AIDS Day – 2011 theme is Getting to Zero. It was observed around the globe to make people aware about the life-threateningdisease and to raise concern for those afflicted with it. Functions were held at all levels to mark World AIDS Day on 1st December, 2011 to spread awareness against the HIV/AIDS. In the context of discrimination in employment on the basis of HIV status, there have been several progressive judicial pronouncements upholding the right of PLHIV to work.
Many PLHIVs in India unnecessarily experience excruciating pain, because of restrictive drug regulations, lack of planning and poorly integrated care result in needless suffering for patients because they cannot get respectable livelihood inexpensive and effective medications. It felt as if someone was pricking me when I find PLHIV feels death is the only solution. We believe that State has an obligation to ensure that essential care and support must available to PLHIV.
I find total failure by the State to fulfill this obligation violates the Right to Health and Life. As a result, most of State Health organ in India simply do not know how to take care of the Rights of PLHIV. I focus specifically on the availability of treatment of patients and supportprovided by the State. Health system consistently ignoring problems of People Living with HIV (PLHIV) besides FSW, it was the judiciary which gave hope to them. The High Court’s of various states as well as the apex court took initiative and have passed some important orders that are helping make things better for this ignored lot of society to some extent. The Apex Court in September last year had given directions to make second-line HIV/AIDS treatment available free of cost to all those who need it. To implement the directive, the apex court had asked the National AIDS Control Organization (NACO), under the Union Ministry of Health and Family Welfare to take necessary steps. In the month of September this year also PLHIV are being denied treatment by hospitals in the Kerala, points out a petition before the Kerala High Court. The case will be heard by Chief Justice J Chelameswar and Justice PR Ramachandra Menon .
Doctrine of Privacy and Confidentiality are incorporated in Constitution of India (Article 21) which states that confidence entrusted by a patient to a physician and defects/dispositions in character of a patient observed during medical attendance should never be revealed unless required by laws of the state.
According to Goa Public Health (amendment) act 1986, Indians including Foreigners can be forced to submit for testing for HIV at the discretion of health officer. Once tested, Section 51 of Goa public health act and local municipal laws provide for the notification of HIV/AIDS cases. Confidentiality is very important in ICTC because of the stigma attached to the epidemic.
HIV-positive persons can suppress their identity and use pseudonyms in the course of court proceedings in order to protect themselves from further discrimination. Hospitals can disclose identity In 1998, the Supreme Court in a case had held that a hospital can disclose a patient’s HIV status to a prospective spouse (partner), and in fact, since acts that are likely to spread communicable diseases are a crime under the Indian Penal Code, the failure of the hospital to inform the spouse of the disease would make them liable in crime.
Better living for sex workers Strongly advocating for rehabilitation and better living conditions for sex workers, the Supreme Court in August this year had directed that the central and the state governments through social welfare boards should prepare schemes for the rehabilitation of physically and sexually abused women all across the country. These people have to deal with the mental trauma of having contacted the life-threatening condition and the stigma that society attaches to it and we understand having regular earnings is necessary for these PLHIV is meaningful to live healthy life.
“We are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution since they are also human beings and their problems also need to be addressed,” held the court. The SC had also constituted a panel comprising senior advocates Pradeep Ghosh, Jayant Bhushan and office bearers of certain NGOs for the said purpose.
The most notable among these is the Bombay High Court’s decision that an otherwise qualified person cannot be terminated from service unless he is medically unfit to perform the job functions or poses a significant risk to others at work. In this direction it was in 1997 that the Bombay high court had confirmed the rights of PLHIV in the workplace. In this case, a casual labourer was tested for HIV by his employer, a public sector corporation, prior to being regularized. The labourer tested positive for HIV, and though otherwise fit, was not regularized and his contract was terminated. He filed a petition before the Bombay high court, challenging his dismissal on the grounds of it being a violation of Articles 14 (Equality before law), 16 (Equality of opportunity) and 21 (Right to life and personal liberty) of the Constitution. Hearing his petition, the court ruled:
Another significant judgment was that, such a person should be accommodated in another job commensurate with his skills so long as that does not pose undue
financial or administrative hardship to the employer. However, there is no model in India till date. This situation has brought out a number of legal, ethical and Human Rights issues to the forefront as HIV/AIDS is more of a social problem rather than a medical problem. Its Human Rights violations with PLHIVs and they have beendiscriminated.
HIV/ AIDS has highlighted the inequalities, wide spread stigma, discrimination and denial of fundamental human rights. On the other hand, it is the denial of
Human Rights that makes certain sub populations, more vulnerable to HIV than other High Risk Groups (HRGs) i.e. Sex workers (SWs), Men having Sex with Men(MSM) and Intravenous drug users (IVDUs).
Knowledge of HIV positive status itself may lead a person to untold trauma including suicide and revenge. So, counseling is needed which is a confidential
interaction between a client and a counselor / Health Care Provider (HCP) aimed at enabling the client to cope with stress/ strain and make a personal decision
related to HIV/ AIDS testing as well as cope the consiquences. Here, principle of honesty permits HCP to interfere with bodily integrity of the patient.
In others, proxy consent could be taken where client is incapacitated (physically ill /mentally unsound /pediatric patient) and is unable to give consent. After testing, a reactive test result is confirmed by two more tests based on different principle/antigen.
If the test result is negative and person is practicing high risk behavior he/she may be in the window period. He/she should be re-tested after 3 to 6 months according to National Testing Policy.
The test result is given only after post test counseling. This explains the need for counseling and testing center where adequate voluntary testing facilities, pre and post test counseling are available. Because of danger of vertical transmission to infants born to HIV positive mothers, prevention of parent to child transmission (PPTCT) centers are opened where pregnant women are counseled and made to realize the importance of test but are not tested without informed and voluntary consent.
UNAIDS issued a guidance in May 2000, the document regarding HIV preventive vaccine research it contains 18 specific guidance points regarding the conduct
of research. Research regarding Drugs & Vaccine against HIV/AIDS involving human rights should also address legal and ethical issues.
Highest ethical standards must be upheld when collecting behavioral or biological data on HIV/AIDS because of the stigma and human rights issues as study participants may experience emotional, psychological, social, physical and economical harm. When even survival is difficult, having something that makes life a little easier helps. Measures intended to protect the individual also protect society. There is also a need in society to develop a behavior change towards PLHIV and accept them what they are rather than what they do. In the face of AIDS this new community crisis, we should all be humble and determined. Accepting certain recommendations of the panel, the SC bench comprising Justice Markandeya Katju and Justice Gyan Sudha Mishra, in September this year had also directed the centre and states to consider the idea of providing ration cards and voter identity cards to sex workers without insisting on strict verification like seeking their professional status.
Maintaining the confidentiality of individual is crucial for protecting public health. People, particularly those at high risk, will access these services (including prevention, testing, care and support) only if they are sure of the confidentiality. It is stressed not only in medical and national ethics but has even been recognized in common law.
Supreme Court of India has ruled on issue of the right of confidentiality of subjects with HIV infection and the breach of confidentiality in order to protect the health of third parties. In the opinion of the court, the right to privacy and confidentiality is not absolute. This right may be lawfully restricted in situations where third parties are at risk.
With respect to discrimination in Health services, Article 21 of the Constitution of India guarantees the right to life and liberty to all persons, including the right to health. State health care institutions are appreciative to provide medical treatment to all persons without discrimination and abuse. Some other areas where PLHIV face discrimination include education, insurance, and travel.
So, there is a need to institute an antidiscrimination legislation that will cover government, public and private settings. No statute exists which requires the HIV testing of employees in work place or prisoners. Only, defense forces’ personnel are being routinely tested for HIV. There are no specific criminal offences made out for transmitting HIV which need to be addressed under IPC and CrPC.
There is also need to reform laws which marginalize women, children and eunuchs the most vulnerable group in the HIV/AIDS pandemic. We must think of their families, parents and friends. We should have law with effective implementation at all levels which should end discrimination and stigma to achieve our theme – Getting to Zero.