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KNOW YOUR RIGHTS:
Public Health and HIV
Anand Grover
International AIDS Conference
Mexico, 2008
Right to health under International law

United Nations Charter, 1945
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Universal Declaration of Human Rights,
1948 (General Assembly Resolution)
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Articles 55 & 56: UN to promote higher standards of
living, social progress and development and solutions
of international health
Article 25(1): Right to standard of living adequate for
the health including medical services and right to
security in the event of sickness, disability
Article 27 (1): Right to share in scientific
advancements and its benefits
International Covenant on Civil and
Political Rights, 1966

Article 6: Right to life (Positive obligations)
Right to health under IL

International Convention on Economic, Social
and Cultural Rights
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Art. 12 (1): Right to highest attainable standard of health
Art 12 (2): Steps to be taken by States include (c) to assure
to all medical services and attention in the event of sickness
General Comment No. 14, 2000
 Health is a fundamental human right.
 Obligation to respect: States to refrain from interfering
with enjoyment of right to health.
 Obligation to protect: States to make measures that
prevent third parties from interfering with the right to
health, includes duties of States to adopt legislation or take
measures to ensure equal access to health-care services
provided by third parties.
 Obligation to fulfill: State to adopt measures towards full
realization of the right to health.
Right to health under IL

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Other international instruments such as
CEDAW, CRC, Charter of Economic Rights
and Duties
Regional instruments: African Charter
(Article 12: Right to enjoy the best attainable
standard of health; States parties to ensure
that people receive medical attention)
Resolutions of diverse international
conferences: UNGASS, June 2001: Para 55
(Strengthen health care sector and address
factors which affect the provision of drugs
including ARVs)
Therefore, right to health is a part of
Customary IL and treaty law and
peremptory norm (norm recognized by the
international community as a whole from
which no derogation is permitted)
Application of IL in national courts

International Customary Law
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Does not require to be domesticated
Applied by national courts unless there is domestic
(municipal) law to the contrary
International Treaties
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Monism: IL and municipal law part of the same
system, no need of legislation
Dualism: IL and municipal law are two distinct legal
systems, IL can be enforced only when incorporated
or transformed into municipal law
Domestic laws to be interpreted in conformity
with treaties, unless domestic law is clearly
contrary.
Treaty can be used to interpret rights and
fundamental rights.
PUBLIC HEALTH VALUE OF
RIGHTS WITHIN HIV/AIDS
WHY ARE RIGHTS IMPORTANT?
 In the USA at the start of the epidemic the vast majority
HIV+ persons were WHITE, MALE, HOMOSEXUALS
 NOW the vast majority are BLACK, HISPANIC,
HETEROSEXUAL, WOMEN
 REASON: Black and Hispanic persons and women are
DISCRIMINATED & ARE AT SOCIAL, ECONOMIC &
LEGAL DISADVANTAGE -- vulnerability
HUMAN RIGHTS AND HIV/AIDS –
AN INEXTRICABLE LINK
“ Paradoxically enough, the only way in
which we will deal effectively with the
rapid spread of HIV/AIDS is by
respecting and protecting the rights of
those already exposed to it and those
most at risk.”
Justice Michael Kirby
High Court of Australia
SONAGACHI: A BEST
PRACTICE MODEL
Intervention
 STD/HIV/AIDS project
introduced in 1992
 Components: STD
treatment, IEC &
Condom promotion
 Strategies:
Participatory, Peer
oriented & Rights
based
Impact
 Condom use: Up from
3% in 1992 to 90% in
1998
 STD rates: Fell from
from 25.4% in 1992 to
11.5% in 1998
 HIV prevalence: Only
marginally increased
Lancet Report: Evidence of success
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Fall in HIV prevalence rates in the south States of
Karnataka, Maharashtra, Andhra Pradesh and Tamil
Nadu. Reasons were attributed to increased condom
use or increased abstinence.
In 2004,about 70–80% of female sex workers in
Maharashtra and Tamil Nadu reported condom use
with their last client
Indirect evidence from surveys of female sex workers
in Tamil Nadu in 1996–2004 has shown increases in
condom use, but no change in the number of clients
per day.
Prevalence in women aged 15-24 yrs, tested
nationally at ante-natal clinics shows a decrease of
54% between 2000-2007.
(Lancet Report, 26 July 2008)
LEGAL RESPONSES TO
HIV/AIDS
Isolationist
mandatory testing
 confidentiality
breached
 discrimination of
PLHAs
…..leading to
isolation and drives
the HIV epidemic
underground

Integrationist
voluntary
testing
 confidentiality
maintained
 non-discrimination
of PLHAs
….leading to
integration
SOURCES OF LAW
Constitutional Law
Statutory Law
Common Law
Customary Law
Personal Law
LEGAL RIGHTS IN
HIV/AIDS

INFORMED CONSENT for HIV testing

CONFIDENTIALITY of HIV status
NON DISCRIMINATION based on HIV
status (in healthcare, employment, insurance,
education & other services)

CONSENT: Meaning

Consent is required as : “Every human being of
adult years and sound mind has a right to
determine what should be done with his body.”
Part of Common Law, Criminal Law and Constitutional Law

“Consent is taken when two or more persons
agree upon the same thing in the same sense.”
 Consent is not free when caused by



Coercion
 Mistake
Undue Influence

Misrepresentati
Fraud
on Act)
(Section 13 Indian Contract
RIGHT TO CONSENT
Every touching of the body is potentially
battery or assault, unless consented to.

Touching without consent amounts to Battery
 Battery is the intentional application of harmful physical

contact to a person.
 Assault is the threat to commit battery
e.g. : Medical examination of a patient
his/her wishes is battery.
against
Exceptions to Consent

EXCEPTIONS TO CONSENT

proxy consent
*relatives accompanying an unconscious patient
(necessity not convenience)
*lawful vesting of authority (parent or guardian
for child or minor’s consent)


unconscious patient brought to hospital
Doctrine of necessity will permit doctor to interfere with
bodily integrity
 Necessity not convenience

Acting out of necessity legitimizes an otherwise
unlawful act
CONSENT

DOCTOR - PATIENT RELATIONSHIP:
 relationship between unequals as doctors have
better knowledge
 larger experience
 trust

Therefore the duty of the physician to provide
honest information
Varying approaches in the US, Canada and
England as to how much information should be
given

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INFORMED CONSENT

Why is informed Consent for HIV testing and
treatment required:
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HIV infection is not curable
other diagnostic tests do not have life-threatening
implications
HIV test has life threatening implications
Knowledge of HIV-positive status itself may lead a
person to untold trauma like taking one’s life
Adherence/side effects of ARVs
WHAT IS CONFIDENTIALITY ?
Privacy: right of a person vis-à-vis world
at large
 Confidentiality:
 right of a person vis-à-vis another
person
 Arises when there is:

A
confidential relationship, the nature of
which may be dependent on factors of
trust, knowledge and skill
 Confidential information
CONFIDENTIALITY IN
MEDICAL SETTINGS
Objective: Community health
Maintaining
confidentiality
Not Maintaining
confidentiality
Allow patients to disclose true
information and seek proper
medical treatment
Prevents patients from
disclosing all information;
hinders proper treatment
Community benefits
Community suffers
LAW AND ETHICS
-
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Constitution of India, Article 21:
Right to life and personal liberty
Common law
Statutory laws such as Evidence
Act
Indian Medical Council
(Professional conduct, Etiquette and
Ethics) Regulations, 2002
Hippocratic Oath
CONFIDENTIALITY
“Maintaining confidentiality of
individual patients is a matter of
public interest.”
Common law position, held in:
 X v Y [1988] 2 All ER 648, QBD
 Jansen Van Vuuren & anr v. Kruger 1993
(4) SA 342
IS DISCLOSURE PERMISSIBLE?

WEIGHING COMPETING PUBLIC
INTERESTS

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Interest of the PLWHA to keep HIV-positive
status confidential
versus
Interest of the community, society, to have
knowledge of the individual’s HIV-positive
status
In certain circumstances, disclosure of
confidential information may be allowed if:
 public interest to disclose
outweighs
 public interest to maintain
confidentiality
EXCEPTIONS TO
CONFIDENTIALITY
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Judicial Standard:
Disclosure is permissible when the public
interest to disclose outweighs public
interest to maintain confidentiality.
Courts have permitted
following situations:
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disclosure
in
the
Required by law (Hunter v. Mann)
Administration of justice
For treatment and in the best interest of the
patient (W v. Edgell)
To protect another person
Necessary in public interest (W v. Edgell)
DUTY TO THIRD PERSON

Duty to patient:
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Diagnose and counsel patient about HIV
and advise an HIV test (BT v. Oei)
to disclose HIV status (Reisner)
Duty to non-identifiable third
persons/sexual partners: Disclose HIV
status to patient, warn him of its risk to
others and how to prevent transmission.


Reisner v. Regents of the University of
California, 37 Cal. Rptr. 2d 518 (1995) and
BT v. Oei, [1999] NSWSC 1082
DUTY TO THIRD PERSON

At a joint couple HIV counseling, doctor ought to
address issues relating to consent to disclose results to
the other partner, how disclosure of results would be
made and how they might handle discordant results.
 Harvey


v. PD, [2004] NSWCA 97
Duty to warn wife or prospective wife arises as the
fundamental right of wife to lead a healthy life
outweighs the fundamental right of PLHA to
confidentiality and privacy.
Right to marry suspended. Subsequently restored vide
X. v. Hospital Z, (2003) 1 SCC 500.
X
v. Hospital Z, (1998) 8 SCC 296
DISCLOSURE TO PARTNER
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Can be disclosed
 Special relationship between parties
 ‘Identifiable’ person
 at ‘imminent’ risk
Tarasoff v. Regents of the University of
California, 17 Cal 3d 425
Counsel patient to inform partner [BT v. OEI, 1999]
Because fundamental right to life of spouse/prospective
spouse > fundamental right of PLHA to confidentiality Discretion vested with HCW to inform spouse/
prospective spouse
Mr.X v. Hospital Z, (1998) 8 SCC 296
SUPPRESSION OF IDENITY
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Suppression of identity, whereby a person can
litigate under a pseudonym, is a beneficent
litigation strategy, long established in the area
of family law
In the context of HIV/AIDS, using suppression
of identity PLWHA can now seek justice
without the fear of their HIV status becoming
public knowledge
e.g.: MX v. ZY, AIR 1997 Bombay 406
REDRESSAL
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Civil suits - (fora : civil courts)
claim for damages
injunctions
Consumer complaints - (fora : consumer forum
- National or State )
deficiency in service giving rise to action for
damages/compensation
Writ petitions (fora : High Court / Supreme
Court)
in respect of violation of right to life & liberty (Art.
21) or other fundamental rights recognising the
right to privacy & confidentiality giving rise to
action for costs/compensation
DISCRIMINATION
...there should be no discrimination in the
areas of
 medical care
 employment
 travel & immigration
 services
 Insurance
on the basis of a person’s HIV
status...
Discrimination under the
Indian Constitution
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
Articles 14, 15 and 16 of the Constitution are
part of the fundamental rights chapter [Part III of
the Constitution]
Fundamental rights are available only against
the State (Article 12). Therefore, Articles 14, 15
and 16 are not available against private parties
State includes government, municipal bodies,
state controlled corporations
Discrimination under the Indian
Constitution
However, the Supreme Court of India
has held that if a private body carries
out a public function (e.g.
educational institutions), Article 14
would apply (Unnikrishnan’s case re
capitation fee colleges)
 But not expanded to include
healthcare institutions

DISCRIMINATION
A group can be divided into two classes if
differentiation is based on:
intelligible differentia (objective
criteria)
 rational nexus (purpose of
classification)

DISCRIMINATION

HIV status is certainly an intelligible
differentia to classify individuals into
HIV+ and HIV-

Whether it meets the test of rational
nexus depends on the facts of each
case
DISCRIMINATION IN
HEALTHCARE
Examples:
refusal to treat
 inappropriate treatment
 physical isolation in wards
 early discharge
 delays in treatment
 conditional treatment
 prejudicial comments & behaviour

DUTY TO TREAT
The fundamental right to life and liberty
includes the right to health
 State is obliged to provide medical
treatment to all persons in emergency and
non-emergency situations without
discrimination
 Private medicare institutions are not
obliged to treat persons except in an
emergency situations and till the patient
can get other medical help
[Parmanand Kataria v. Union of India, AIR
1989 SC 2039]

EMPLOYMENT
Non-recruitment and Termination
Most employers require medical
fitness certificates
 Medical fitness is the one required for
the job to be performed - not general
fitness but specific fitness for the job
(an individualised inquiry is
necessary)
 Whether an HIV positive person is
medically fit will depend on his/her
specific fitness for the job

EMPLOYMENT

An HIV-positive person cannot be
terminated

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If the HIV person is medically fit for the job
S/he also is otherwise qualified
S/he does not pose substantial risk to the other
persons in employment or the property of the
employer
(MX v. ZY, AIR 1997 Bombay 406)
 Though this is applicable to public
employment the principles are also
applicable to private employment
 Reasonable accommodation
REMEDIES AVAILABLE


Against the State – Writ Petition in
the HC/SC
Against private entity –

Complaint / dispute under relevant labour
laws seeking reinstatement, etc
Right of Access to Treatment
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International Instruments
ICESCR
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General Comment 14 under Art. 12:
Duty of States to adopt laws / take measures to ensure
equal access to healthcare services, full realisation of
right to health, refrain from interfering with right to
health.
Right to health includes essential elements affordability,
accessibility, acceptability, quality of health services and
goods.
TRIPS Agreement
Providing access to treatment is in keeping with
international commitment of GoI, recognised
right to health
Right of Access to Treatment

How threatened?
 Patent on frivolous drugs
 Restricting compulsory licenses
 TRIPS Plus provisions: By US and
European Union through FTAs
 Data
exclusivity
 Patent Linkages
Risk Reduction and the law: violation of
rights

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National AIDS Control Programme supports
targeted interventions (TIs) with sex workers,
MSM and IDUs. Programmes include STI
treatment, safe sex info, condom distribution &
provision of clean injection equipment
Technically, these measures can be considered
“criminal”.
A criminalised environment affects TIs by:
 Making it difficult to initiate interventions
 Hampering and disrupting ongoing
programmes (E.g.: Surat, Naz/Bharosa)
 Eroding negotiation ability and fuelling
unsafe practices
Violation of Rights
Violation of fundamental rights (Right to health)
 Resulting in further targeting of already
marginalised populations like sex workers, drug
users and men who have sex with men
