Lawyers Collective on 29th July, 2017, conducted a workshop on the Human Immunodeficiency Virus & Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, which was attended by several members of the community, as well as civil society members working closely with HIV and AIDS related issues. Through the course of the workshop, a detailed discussion of the provisions of the Act took place, focusing on the both the good and the bad in the Act which was passed by the Lok Sabha in April 2017. The Workshop was conducted by co-founder Anand Grover; Executive Director, Tripti Tandon; Senior Legal and Advocacy Officer, Lorraine Misquith; Legal Officer, Suraj Sanap; Legal Officer, Priyam Lizmary Cherian; Legal Officer Shrinidhi Rao and Legal Officer, Vijayant Singh.
At the outset, the discussion began with the preamble to the Act which lays down the objective to provide for the prevention and control of the spread of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome and for the protection of human rights of Persons Living with Human Immunodeficiency Virus(PLHIV). The Act identifies persons affected by the said virus and syndrome as a vulnerable community prone to discrimination due to the stigma is society associated with it.
‘Protected person’ is defined under Section 2(s) as person being an HIV-positive person, or ordinarily living or residing or cohabiting with an HIV-positive person or ordinarily lived, resided or cohabited with a person who was HIV-positive. However, it fails to identify vulnerable communities prone to the disease including sex workers and LGBT community who may not disclose their HIV status due to fear of persecution.
Discrimination
Discrimination is defined in Section 2 (d) of the Act, to means any act or omission which directly or indirectly imposes a burden, obligation, liability, disability or disadvantage on any person or category of persons, based on one or more HIV-related grounds. It includes denial or withholding of any benefit, opportunity or advantage from any person or category of persons, based on one or more HIV-related grounds. HIV related grounds are defined as a person being an HIV-positive person, or someone living with a person who is HIV-positive person or who once lived with a person who was HIV-positive.
The explanation to Section 2(d) provides that medically advised safeguards and precautions cannot amount to discrimination. If a medical professional is exercising reasonable care by wearing gloves and a face mask while operating on an infected person, it cannot be seen as discrimination. However, confining the patient to a room in solitary, when there is no reason to do so, solely because of his HIV related status will be considered discrimination.
Section 3 specifies certain situations which are prohibited as acts of discrimination towards PLHIV, including termination of employment of a PHLIV who is otherwise qualified to do the job, denial of healthcare services, unfair treatment in educational institutions, denial access to public places, segregation of a PLHIV etc.
PLHIV often face discrimination in the realm of employment, therefore the exceptions provided under Section 3(a) pose a risk of misuse. It permits termination of employment where a copy of written assessment is provided, of a qualified and independent healthcare provider says protected person poses a significant risk of transmission of HIV to other person in the workplace, or is unfit to perform the duties of the job.
‘Significant risk’ has been defined under Section 2(v) of the Act as the presence of significant risk body substances;a circumstance which constitutes significant-risk for transmitting or contracting HIV infection; or the presence of an infectious source and an uninfected person.
Section 3(a)(ii) allows an exception where a copy of the written statement is provided, by the employer stating the extent of administrative or financial hardship for not providing him reasonable accommodation. ‘Reasonable accommodation’ given under Section 2(t) means minor adjustments to a job or work that enables a PLHIV who otherwise qualifies to enjoy benefits or to perform the essential functions of the job or work as the case may be.
A concern was raised of misusing of the “reasonable accommodation” provision on frivolous grounds to target PLHIV. Arbitrary reasons should not be justified as grounds of reasonable accommodation to deprive PLHIV of employment opportunities.
Informed Consent
Chapter 3 of the Act deals with informed consent which is an essential right accorded to PLHIV. Section 5 provides that no HIV test shall be undertaken or performed upon any person except with the informed consent of such person, and no ‘protected person’ shall be subject to medical treatment, medical intervention or research except with the informed consent of such person. The informed consent for HIV test shall include pre-test and post-test counselling to the person being tested or such person’s representative in the manner as may be specified in the guidelines, according to the Act.
A participant at the workshop gave an example of where some pregnant women who were PLHIV were on Antiretroviral Therapy had stopped treatment post-pregnancy because no one counselled them properly on the dangers of HIV resistance and transfer to kids. They were under the misconception that taking pills while pregnant would negatively affect the child in the womb and thus, stopped once the baby was born. Therefore, informed consent is an integral part of the rights of a PLHIV.
Pre-testing counselling entails the full disclosure of the nature of the HIV disease, the proposed test, implications of a positive and a negative test result, and the consequences of treatment. While Post-testing counselling helps a PLHIV to look after their health, take precautions against risk and take precautions to prevent transmission.
Remedies for contravention of the law
Chapter 10 of the Act deals with remedies available for contravention of the Act. Section 23 deals with the appointment of the Ombudsperson by the State Government. Section 24(2) provides the obligation to inquire into violation of the provisions of this Act, with regard to acts of discrimination mentioned in Section 3 and providing healthcare services shall be on the Ombudsman. However, the manner in which this is to be done is yet to be prescribed by the state government. The Rules of the Act must specify how this Ombudsman will be appointed, since the Act does not prescribe such provisions.
Special Procedures
Chapter 12 of the Act deals with special procedure to be adopted by Courts with regard to proceedings which any protected person is a party or an applicant. Section 36 dictates that with regard to any order passed by the Courts concerning sentencing of a HIV-positive persons, the same would have to be passed in consideration of the HIV-positive status of the person. Suppression of identity is an important provision under Section 34, which includes pseudonym and in camera proceedings. The Act now allows a PLHIV to claim these. It is significant that these provisions are limited to the Court and not the Ombudsman and the complaints officer and, therefore, raises concerns about the proceedings before them.
Confidentiality
The Act places emphasis on confidentiality of the HIV status of the PLHIV. Section 8 of the Act provides that no person is compelled to disclose their HIV status except by order of the Court; no person shall disclose or be compelled to disclose the HIV status or any other private information of other person imparted information in confidence or as a part of fiduciary relationship, except with the informed consent of that other person. However, this does not include health care providers imparting information to other healthcare providers involved in care, treatment or counselling of such person when it is necessary for treatment; or during the course of suits or legal proceedings where disclosure of such information is necessary for instructing their counsel; or when disclosure is made to Central or State Government AIDS control Society for monitoring, evaluation or supervision; or when disclosure cannot lead to identification of the person. Section 9 provides that a physician or counsellor may disclose the status of an HIV positive person to their partner when they believe the partner is at significant risk of transmission. However, where the woman is person living with HIV the partner shall not be informed where there is threat or reasonable apprehension that disclosure would cause violence or abandonment.
Additionally, Section 11 imposes an obligation on establishments keeping records of HIV related information to protect data and ensure such information is protected from disclosure. Another compelling concern that was sounded during the workshop was the effect Aadhar would have on confidentiality of PLHIV.
Government responsibility
Section 13 provides Central and State Government shall take all measures as it deems necessary and expedientfor the prevention of the spread of HIV or AIDS, in accordance with guidelines. This is linked to Section 14 which states measures to be taken by the Central Government or the State Government under section 13 shall include the measures for providing, ‘as far as possible’, diagnostic facilities relating to HIV or AIDS, Anti-retroviral Therapy and Opportunistic Infection Management to people living with HIV or AIDS.
“This has been a matter of contention within the community. The implications of the use of ‘as far as possible’ may be adverse and counter-productive, since it provides an escape route for the government. However, when read with Preamble of the Act, the new Test and Treat policy adopted, the right to health under Article 21 & under Article 12 International Covenant on Economic, Social and Cultural Rights(ICESCR), along with India’s commitments under political declarations, it would be difficult for the government to discontinue Antiretroviral Therapy(ART) treatment.”
Another issue that was discussed was the lack of coordination between state and ART treatment centres. There have been instances where the state has medicines while the ART centres are short, but it’s not been made available to the ART centres. Therefore, it was said that what needs to be addressed is the accountability on officers who fail to ensure implementation of the provisions of the Act. Accountability with regard to improper fund utilisation, cancellation of tenders and shortage of funds also needs addressing.
