Download Court of Appeal acquits HIV exposure case Oct 13

Sweden: Court of Appeal acquits ‘HIV exposure’ case, recognises National Board of
Health and Welfare endorsement of ‘Swiss statement’, Minister for Social Affairs will
consider reviewing application of law. October 29, 2013
Today, the Court of Appeal for Skåne and Blekinge has acquitted a man from Malmö
previously convicted of exposing four women to HIV on the grounds that since he had a
stable undetectable viral load on antiretrovirall treatment with no other STIs he could not
cause danger to another person.
He had previously been sentenced to a year in prison and and fined 150,000 kronor
(€17,000) by the lower court, but was released last week pending the appeal after the Court
consulted experts from the Swedish Institute for Communicable Disease Control (SMI).
A press release from the Swedish Courts notes the following (unofficial translation)
The Court of Appeal, for its assessment of the probability of transmission by sexual
intercourse, had access to information other than that which existed at the district court. The
Court of Appeal has obtained an expert opinion from the Swedish Institute for Infectious
Disease Control (SMI) regarding the risk of transmission of HIV through unprotected sexual
intercourse. Furthermore, Professor Jan Albert of the Karolinska Institute, was consulted as
an expert.
For expert opinion and data Jan Albert has said it can be clearly concluded that the risk of
transmission of HIV in vaginal intercourse without a condom is very low, provided that the
HIV-infected party is on stable HIV treatment. For an HIV-positive patient to be considered to
be on stable HIV treatment, as is apparent from the opinion, it requires that the patient has a
consistently high adherence to their medication, that at least two consecutive viral
measurements with 3-6 month intervals show that patient’s virus levels in the blood were
below the lowest detectable levels in routine testing, and the patient does not carry any other
sexually transmitted infection .
The Court of Appeal noted in its judgment that the investigation did not show anything other
than the accused was on stable HIV treatment during the time that the charges related to,
and based on what the SMI and Jan Albert have said about risk of infection, assessing the
likelihood that sexual intercourse to which the charges relate means that the risk of HIV
transmission was so small that no real danger could be presupposed. Since this does not
meet the required elements of the crime of creating danger to another, the indictment was
dismissed.
Major policy shift
The ruling reflects a major shift in policy announced last week by the National Board of
Health and Welfare (Socialstyrelsen).
In a press release entitled, ‘Effective treatment reduces the risk of infection by HIV’, the
agency, which is part of the Swedish Ministry of Health and Social Affairs, clarified the
treating physician and the individual’s responsibility under the Communicable Diseases Act –
which creates a ‘disclosure obligation’ for anyone with an infectious disease.
The criteria to not be legally bound to disclose are very similar to those set out in January
2008 by the Swiss Federal AIDS Commission’s ‘Swiss statement’. They are, as follows:
For treatment of HIV infection to be considered well-functioning, patients must be highly
adherent to antiretroviral treatment. Virus levels in the blood should be tested regularly,
verified by two measurements between three to six months apart and the result should be
virus levels below 50 copies per milliliter.
Follow-up tests should be performed two to four times a year. No other ongoing sexually
transmitted disease should be suspected, as this could increase the risk of infection. When
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these criteria are met, the SMI estimates that infectivity is minimized in a person infected with
HIV similar to wearing a condom during sexual intercourse.
HIV infection is one of the dangerous diseases included under the Communicable Diseases
Act. The law states that the attending physician has the responsibility to advise people with
dangerous diseases of appropriate conduct. It also says that if the person knows, or has
reason to suspect, that he or she is carrying a contagious disease that person is obliged to
protect others from infection.
The attending physician, when he or she takes a position on the conduct that the individual
should have, should consider that a person with HIV infection who is on well functioning
treatment is not required to inform their sexual partners about their infection…
People who have HIV infection, however, must act on their own initiative if there is a
significant risk, for example if he or she also gets another sexually transmitted infection. This
is true no matter what advice the person has previously received by their treating physician.
A significant risk includes situations when someone risks coming into contact with his or her
body fluids, for example during blood tests, at the dentists, or during sex with a risk of
bleeding.
Coaltion of HIV experts
The National Board of Health and Welfare was itself influenced by a coalition of HIV experts.
An editorial by Johan Carlson (Director of SMI), Anders Tegnell (State epidemiologist, SMI),
Jan Albert (Professor of Communicable Diseases, Karolinska Institute and Senior Physician
at Karolinska University Hospital) and Anders Sönnerborg (Professor of Clinical
Virology,Karolinska Institut and Senior Physician at Karolinska University Hospital) entitled
‘HIV is no longer a life-threatening disease’, also published last week, heralded this new (for
Sweden) paradigm.
Today, 21 October, SMI publishes along with Reference Group for Antiviral Therapy (RAV) a
report summarising the state of knowledge with regard to the significant reduction in
infectivity in treated HIV infection.
SMI and RAV estimates that the infectivity of a patient living with HIV and who have been
stabilized on treatment is very low by sexual contact and minimal if a condom is used in
vaginal and anal intercourse. This applies provided that there is no other sexually transmitted
infections that can affect the risk of HIV transmission. It is therefore important to always use
a condom, especially to protect against other sexually transmitted infections, but also to
minimize any residual infectious risk for HIV.
This knowledge provides two important conclusions. Firstly, we improve the chances of early
diagnosis and initiate treatment as early as possible…
The second conclusion is that current knowledge about HIV will have to influence society’s
attitudes to and treatment of people living with HIV. Knowledge about HIV, how the virus is
transmitted and what it means to live with HIV, need to be improved in the whole society.
Especially within the health care and disease control work, but it is equally important in other
areas of society, such as education and social services, the media and the judiciary.
Minister for Social Affairs will consider reviewing application of law.
Göran Hägglund, Sweden’s Minister for Social Affairs reacted to the report by telling
Sweden’s public broadcaster, SVT, that he will consider reviewing the application of law as it
relates to HIV non-disclosure, exposure and transmission.
“If you have an illness that has the potential to infect, it is reasonable to disclose,” he said. “I
just think that one would like to know in this situation. But the application of law is another
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question. Where it is possible to discuss how the law looks and applied, it may be time to
consider a change.”
This policy shift is a major victory for the advocates who have been working tirelessly to
change Sweden’s draconian attitude towards people living with HIV, notably the partnership
of RFSU (the Swedish Association for Sexuality Education), HIV-Sweden and RFSL (the
Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) who have been
lobbying and campaigning to raise awareness and advocate against Sweden’s over-punitive
HIV-related policies.
Hägglund also reacted to a recently-published editorial by Marielle Nakunzi, a lawyer at
RFSU, which argued that the justice system has such an outdated view of HIV that it still
lives in the 1980s.
“It is a matter of making sure that we always have laws that are in tune with the state of
knowledge available,” he told SVT. “Therefore, we should always consider the knowledge we
have. It’s about educating the justice system.”
Source: http://www.hivjustice.net/news/sweden-court-of-appeal-acquits-hiv-exposure-caserecognises-national-board-of-health-and-welfare-endorsement-of-swissstatement/#sthash.DxqMu1BE.dpuf
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