30 Understanding Judiciary’s Response to HIV/AIDS

Ms. Neenu Suresh

1. Learning Outcome

2. Introduction

3. Public Health

3.1. Lucy R. D’Souza v. State of Goa [Bombay High Court (AIR 1990 Bom. 355)]

3.2. Sankalp Rehabilitation Trust v. Union of India [Supreme Court of India W.P. (C) No.512 of 1999].

3.3. Voluntary Health Association of Punjab (VHAP) v. The Union of India and Ors. [Supreme Court of India W.P (Civil) No. 311 of 2003].

3.4. Subodh Sharma & Anr. v. State of Assam & Ors. – Guwahati High Court (2000).

4. Consent for Testing and Treatment

4.1. State v. Wallace 2005, Ohio App. LEXIS 1808

5. Confidentiality

5.1. Jeffrey v. Imai, Tadlock & Keeney et al. (2000) 85 Cal.App.4th 345

5.2. X v. Y [1984] 2 All ER 414 QBD England

5.3. Mr. X v. Hospital Z, AIR 1998 SCW 3662.

5.4. Mr X v. Hospital, AIR 2003 SCC 664

6. Discrimination

6.1. Bragdon v. Abbot 524 U.S. 624 (1998).

6.2. Chalk v. United States District Court Central District (1987) F 2d 701.

6.3. Hoffman v. South African Airways CCT 17/00

6.4. Mx of Bombay Indian Inhabitant v. M/s. Zy and Anr. [AIR 1997 Bom 406]

7. Summary

1. Learning Outcome

By the end of this chapter, the reader shall be able to:

• Understand the challenges confronting the people living with HIV and those vulnerable to HIV;
• Analyze the role of judiciary in protecting the rights of people living with HIV.

2. Introduction

Courts in India and abroad have passed numerous judgments relating to human rights of people living with or affected by HIV. Case laws in the context of HIV deal with certain specific issues like discrimination, consent, public health and confidentiality, affecting the people living with HIV. As there is no specific statue to address the issues arising in the context of HIV in India, courts had to look into variety of sources of law to make their decisions. Some of the prominent judgments pertaining to certain identified critical issues facing persons infected with HIV are discussed below.

3. Public Health

HIV and AIDS pose a major public health challenge. People living with HIV face numerous hurdles in accessing prevention, treatment and care services. While the major constraint continue to be stigma and discrimination, States need to also scale up its efforts to provide affordable treatment to its people.

3.1. Lucy R. D’Souza v. State of Goa [Bombay High Court (AIR 1990 Bom. 355)]

The first HIV litigation arose in the country when Dominic D’ Souza, an HIV- positive activist, was incarcerated on being found HIV positive. A blood test was conducted on him, without his knowledge or consent, when he donated blood, and his HIV- positive status was revealed to the police and not him. The Police subsequently arrested under the Goa, Daman and Diu Public Health Act, 1985 and put him in an unused TB sanctorum. An amendment to this Act had authorized the State to mandatorily test any person for HIV and isolate them on being tested HIV-positive. Dominic’s mother approached the Bombay High Court challenging the said provision as violative of her son’s fundamental rights. While recognizing that isolation has several serious consequences, the Court held that individual rights have to balance public interest and if there is a conflict between the right of an individual and public interest, the former must yield to the latter.

3.2. Sankalp Rehabilitation Trust v. Union of India [Supreme Court of India W.P. (C) No.512 of 1999].

In 1999, a public interest litigation was filed in the Supreme Court of India, by Lawyers Collective though the Sankalp Rehabilitation Trust, Mumbai to address the barriers faced by People living with HIV in accessing the healthcare services, especially the discrimination they face in hospitals. With the passing of significant orders, this PIL was until recently used as an oversight mechanism for the National Antiretro Viral (ARV) Roll out Programme and a number of issues pertaining to access to treatment has been addressed through this. Major orders included ensuring second line of ARV treatment to all the people living with HIV, who need it, irrespective of other criteria, thereby ensuring universal access to treatment; ensuring adequate infrastructure in Antiretroviral Therapy (ART) centres; creation of a grievance redressal mechanism; rapid upscale of ART centers and Link ART centers; requiring all private doctors to follow NACO’s protocol while prescribing ARVs etc. 

3.3.   Voluntary Health Association of Punjab (VHAP) v. The Union of India and Ors. [Supreme Court of India W.P (Civil) No. 311 of 2003].

In 2003, Human Rights Law network, an NGO filed a petition in the Supreme Court of India through Voluntary Health Association of Punjab, seeking provision of free ARV drugs to HIV positive people. The petitioner sought recognition and implementation of the right to health and treatment of HIV positive persons as a part of their Right to Life under Art. 21 of the Indian Constitution. As a part response to this petition, the Government announced free ARV drugs for 100,000 people in six high prevalence States and committed to provide treatment to an additional 15-20 percent of AIDS cases each year, thereafter, for a period of five years.

However ground realities demonstrated that these commitments were not fulfilled. In 2006, Court asked the Central Government to explain its position and to explain why it had failed on its commitment. Numerous directions for ensuring access to ARV drugs to HIV positive people were issued in this case.

3.4. Subodh Sharma & Anr. v. State of Assam & Ors. – Guwahati High Court (2000).

In this case, the petitioners raised the grievance of non-utilization of funds allocated for the HIV/AIDS project. They contended that an AIDS Control Society was yet to be set up in the state and there also needs to be a check on whether there has been proper utilization of funds in Phase I and Phase II of the project. Further contentions included –Constitution of a monitoring committee with substantial representation from NGOs; there be no delay in release of the funds and the funds so released be not diverted to other Heads of Account.; appointing persons having adequate experience in the field of healthcare and control of diseases in the State AIDS Control Society, instead of IAS officers; and ensuring proper facilities for HIV testing. The respondents submitted that all possible steps prescribed by medical science were being undertaken by the State AIDS Cell and there were only few stray incidences of isolation of HIV- positive patients. But the Cell did not have administrative control and therefore, could not make any direct intervention in the matter. The funds released, although at a belated stage, have been properly utilized and audited.

The Court, however, found that despite being aware of the urgent necessity to deal with the problem, the State of Assam have not been able to gear up its machineries to the extent necessary and most of the contentions of the petitioner were found to be true. Due to the drawbacks in implementation of the programmes, Court passed several directions including ensuring proper implementation of guidelines and strategies formulated by NACO by the state, assuring non diversion of funds provided by Government of India, making proper enquiry into the irregularities in funding affairs and take appropriate action by the state, closing of unlicensed blood banks, evolving of effective monitoring systems, opening of AIDS counseling centres and appropriate orders/directives to be issued to ensure that persons suspected to be suffering from AIDS or HIV positive shall not be refused treatment in the hospitals.

Also See

• Ram @ Ramdas R. Ubale v. State of Maharashtra – Bombay High Court (Criminal Application 371 of 2008 in Appeal No. 706 of 2006).
• M. Vijaya v. Chairman & MD, Singareni Collieries Co. Ltd, Hyd., & Ors. 2001 (5) ALD 522

4. Consent for Testing and Treatment

Often violated in the context of HIV, is the informed consent of people living with HIV and vulnerable to HIV, for testing and treatment. Mandatory testing of individuals is detrimental to effectively combat HIV. Patients have a right to have knowledge and information of the options available, along with benefits and risks involved in treatment and medical practitioners have a duty to take informed consent from the patients.

There are only few cases dealing with consent for testing and treatment in HIV. The concept of informed consent is not fully developed in India. Generally, it has been recognized in England, United States, Canada and Australia, that doctor, as part of duty of care, has a duty to take informed consent for treatment. However, the standards on the specificities of informed consent i.e., how much information and what kind of risks should be disclosed to the patient vary slightly across these jurisdictions. In England, doctor has the duty to warn of risks of such misfortune inherent in procedure, however, well it is carried out. However this duty does not extend to unforeseeable risks-Chatterton v. Gerson [1981] 1 All ER 257. In United States, doctor must disclose all material risks. A risk is material ‘when a reasonable person, in what the physician knows to be the patient’s position, would attach significance to the risk’- Canterbury v Spence (1972) 464 f 2d 772. Law in Canada protects the rights and duties of both doctors and patients and requires them to consider both objective and subjective factors. Objective factors are those ‘which a reasonable patient would complain of’ and subjective factors are the ‘particular concerns’ and special consideration affecting a particular patient’. The latter would help decide if the patient would have refused treatment had he/she been informed of the possible risks- Margaret Smith v. Carole Arndt and Dennis Jackson [1997] 2 SCR 539. In spite of these standards in place, the regressive policy of mandatory screening is upheld by courts in many instances. One such case is given below.

4.1.   State v. Wallace 2005, Ohio App. LEXIS 1808

Wallace was indicted on counts of solicitation [R.C. 2907.24] and loitering to engage in solicitation [R.C. 2907.241] after a positive HIV test. The Montgomery County Court of Common Pleas ordered him to undergo testing for sexually transmitted diseases, pursuant to R.C. 2907.27. He went on appeal contending that that the statute is unconstitutional because the testing constitutes an invasion of his privacy and also a violation of due process. The Court of Appeals of Ohio, Second Appellate district, Montgomery County held that R.C. 2907.27, which permits the warrantless testing of persons charged with violations of R.C. R.C. 2907.24 and R.C. 2907.241, with required treatment for persons who test positive, does not violate the protections against unreasonable searches as set forth in the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution, because it is reasonably related to a special governmental need to protect the public from the spread of sexually transmitted diseases.

5. Confidentiality

Human rights norms of autonomy and respect for privacy demand that a person should be given right to keep his/her HIV status confidential. It is also crucial for encouraging those at the risk of HIV, to come forward and access prevention, care and treatment services. Courts have upheld the right to confidentiality of persons living with HIV, by maintaining a balance between the interests to maintain confidentiality and disclosure.

5.1.  Jeffrey v. Imai, Tadlock & Keeney et al. (2000) 85 Cal.App.4th 345

In this case, the petitioner sued a law firm for disclosure of his medical records relating to HIV status as violation of his right to privacy. The court found that documents disclosing appellant’s HIV status had been improperly copied from medical records of the hospital and disclosed by the law firm, even after knowing its legally protected confidentiality status. It also noted an earlier judgment where it was held that the unauthorized disclosure of HIV-positive test results undermines the “public interest” in encouraging patients to submit to HIV testing and to make needed disclosures of HIV-positive status during medical treatment.

5.2.   X v. Y [1984] 2 All ER 414 QBD England

A newspaper came to know about the HIV status of two practicing doctors of a hospital. Though the hospital obtained an injunction order restraining the newspaper from using the confidential information, the newspaper went ahead and published an article titled ‘Scandal of docs with AIDS’. It also noted that in a further article the names of the doctors would be revealed. Hospital approached the court claiming contempt and requested further injunction from disclosure of the names of doctors and also information regarding the source of information. Granting injunction, the Court said that disclosure of names was not necessary for any informed debate on the issue. It also convicted the newspaper for contempt, as it has published the article despite the injunction being in place. However, the court declined the request for disclosure of source.

5.3.  Mr. X v. Hospital Z, AIR 1998 SCW 3662.

In this case, X, a doctor whose HIV- positive status was disclosed by hospital authorities to a third person approached the Supreme Court of India. X had called of his marriage on knowing that he was HIV positive, but the disclosure of information had resulted in him being severely ostracized by his community. The Supreme Court held that though confidentiality is an important part of medical ethics, public interest would override confidentiality, particularly when there is an immediate or future health risk to others. It also held that failure of the hospital authorities to disclose this information would have made them participant criminis. However, what became controversial was its ruling that, right to marry was a suspended right for a person living with HIV.

5.4. Mr X v. Hospital, AIR 2003 SCC 664

Right to Marry a “SUSPENDED RIGHT”

In a shocking ruling in Mr. X v. Hospital Z, AIR 1998 SCW 3662, Supreme Court of India held that as Indian matrimonial laws provided venereal diseases as a ground for divorce, so long as the person is not cured of the communicable venereal disease the RIGHT to marry cannot be enforced through a court of law and shall be treated to be a “SUSPENDED RIGHT”. This case dealt with confidentiality of a person living with HIV. This controversial ruling was subsequently challenged by Lawyers Collective HIV/AIDS Unit, when the Supreme Court finally held that the earlier judgment to the extent it suspended the right of people living with HIV/AIDS to marry was uncalled for. However, a person who is aware of his HIV positive status should reveal this to his prospective spouse and obtain consent to marry. See Mr. X v. Hospital, AIR 2003 SCC 664.

6. Discrimination

Persons infected/ affected by HIV are subjected to discrimination on multiple grounds. These include discrimination in the fields of employment, education, healthcare, subjecting to mandatory testing etc.

Source: Churcher S. Stigma related to HIV and AIDS as a barrier to accessing health care in Thailand: a review of recent literature. WHO South-East Asia J Public Health 2013;2:12-22

Following are some landmark cases pertaining to discrimination of people living with HIV.

6.1.  Bragdon v. Abbot 524 U.S. 624 (1998)

Abbot, an HIV- positive person was denied treatment by Bragdon, a private dentist at his office. Aggrieved by this, Abbot filed a suit in the Federal trial court, under the Americans with Disabilities Act, 1990 (ADA), which he won. On appeal, the United States Supreme Court held that HIV was an impairment which substantially limits reproduction, and reproduction is a major life activity under ADA. A healthcare professional could refuse treatment only in cases of the patient posing a significant risk to the health and safety of others, that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services; and this has to be determined from the standpoint of the person who refuses the treatment or accommodation on the basis of medical or other objective evidence and not on the belief of risk.

6.2. Chalk v. United States District Court Central District (1987) F 2d 701

In this case, a school teacher was barred from class room and reassigned to an administrative position, when she was found to be HIV- positive. The Court here relied on U.S. Supreme Court’s decision in School Board of Nassau County v. Airline, 480 U.S. 273 (1987), wherein it was held that a handicapped person, as per the Rehabilitation Act, if otherwise qualified i.e. fit to perform his/ her job and posing no substantial risk of transmission after reasonable accommodation, cannot be discriminated against in the matters of employment. The Court, after applying the four- prong test provided in the Arline case, and weighing the hardships faced by the employer and employee held that Chalk need not disprove any theoretical possibility of harm. Chalk was at a risk of irreparable injury to his livelihood and the injury to Chalk would outweigh any harm to school.

6.3. Hoffman v. South African Airways CCT 17/00

Whether the practice of South African Airways to refuse employing people living with HIV as cabin attendants was constitutionally valid, was the question facing the Constitutional Court of South Africa in this case. While the High Court had earlier dismissed the petition stating that the Airways’ practice was based on medical necessity, safety and operational procedure, the Constitutional Court held that denial of employment to the appellant on the ground that he was living with HIV amounted to unfair discrimination under Section 9 of the South African Constitution. The legitimate commercial interests of the respondent, although important, cannot be allowed to justify unwarranted prejudice and stereotyping. Stating that people living with HIV are a vulnerable minority, treated with intense prejudice by the society, and subjected to disadvantage, stigmatization and marginalization, and that impact especially in the field of employment can be devastating, since it denies them a right to a living and condemns them to ‘economic death’, the Court directed instatement of the appellant from the day of Court order.

6.4. Mx of Bombay Indian Inhabitant v. M/s. Zy and Anr. [AIR 1997 Bom 406]

In this landmark case, the Bombay High Court considered the question whether a person who has been tested positive for HIV can lawfully and justifiably be rendered “medically unfit” solely on that ground so as to deny him the employment. Mx, a casual labourer, was tested for HIV, prior to his regularization of job by his employer Zy, a public sector corporation. Though otherwise fit, he was found to be HIV positive and therefore rejected from regularization and his contract was terminated. Mx challenged his termination and also the circulars issued by the corporation making HIV test mandatory for pre- confirmation. He argued that these violated Article 14 (right to equality), Article16 (right to nondiscrimination in state employment) and Article 21 (right to life) of the Indian Constitution.

In this case the Court held that no person can be deprived of his right to livelihood except according to the procedure established by law and such procedure has to be just fair and reasonable. Accordingly, it held that a person, who though has some ailment, cannot be denied employment, if he is otherwise qualified, capable of performing normal job functions, and does not pose a substantial risk to others at the workplace during his normal activities. Determining whether a person is unfit or incapable of performing the job is a question of fact, which should be determined not merely on the basis of a medical test but also by a competent medical expert. Court found Mx’s dismissal to be arbitrary, unjust and unlawful and also held that a public sector employer cannot deny a person employment solely because a person is HIV positive.

Also see:

• RR v. Superintendent of Police & others (Unreported [2005] Karnataka Administrative Tribunal).
• X v. State Bank of India [Bombay High Court, Writ Petition No. 1856 of 2002].
• X v. The Chairman, State Level Police Recruitment Board & Ors., 2006 ALT 82.

7. Summary

There is evidence signifying that litigation, when done in a coordinated, structured, and repeated fashion, has the potential for creating a culture of rights-consciousness within a society. From the above discussion, we have seen that most of the complex situations which arose in the context of HIV/AIDS has been dealt by the judiciary. People infected and affected by HIV, as well as, human rights advocates have knocked the doors of judiciary, whenever there has been a violation of rights. While it is encouraging that the judiciary has taken a pre-eminent role in defining the HIV jurisprudence, the concern remains that judicial interpretations finally depend on the individual predilections of the judges. The ‘Right to marry’ case is a telling example of the uncertainty binding the situation. Adding on to the inconsistencies in judicial pronouncements, are the delays entrenching the judicial process. Needless to say, without effective legislative mechanisms in place, there are only limited options available to the aggrieved persons.

Reference

1. Blacksher, Erika Yeast, John Waxse, Case Study: A Request for ICSI, The Hastings Center Report
2. Jessica Ogden Simel Esim Caren Grown, Expanding the care continuum for HIV/AIDS: bringing carers into focus, Health Policy and Planning, Volume 21, Issue 5, 1 September 2006, Available at: https://doi.org/10.1093/heapol/czl025
3. C.M. Osborne, Siegfried van Praag, & H. Jackson (1997), Models of care for patients with HIV/AIDS. AIDS (11B)
4. Sian Churcher, Stigma related to HIV and AIDS as a barrier to accessing health care in Thailand: a review of recent literature, WHO South-East Asia J Public Health, January – March 2013.