Thursday, 9 February 2012
HIV disclosure before the Supreme Court - What are the implications for public health?
The supreme court has begun hearing arguments in a couple of cases where the fundamental question is whether persons with HIV infection are required to inform others who might think they are at risk?
Not an easy question, and the deliberations and decisions will probably be spilt in some fashion.
At the extremes of the debate, there is sufficient case law that knowingly and intentionally infected someone with HIV is a form of assault. What is unclear is where the definition of assault no longer applies.
At the other extreme is the right to confidentiality that rightly protects privacy in circumstances where no threat exists. There is reasonable precedent on issues such as the reasonableness to inform the public of persons known to be an imminent threat to the danger to the public or specific persons.
That leaves a very broad grey zone between the extremes that is open to interpretation.
Central to the HIV debate will be the question of what is a reasonable threat to others? Switzerland was the first country to openly determine that persons infected with HIV but for which undetectable levels of HIV are documented are not considered capable of infecting others.
There is a correlation between serum virological loads and risk for transmission. Adequately treated persons with undectable viral loads who cease medication will have recurrence of detectable virus indicative that they were never “disease free”. Persons on treatment may also develop resistance and require monitoring of viral loads – so duration from last viral load test becomes a variable of interest in the discussion. It is not definitively proven that "undetectable" levels are not associated with any transmission.
What about the expectation that persons who engage in sexual relations undertake appropriate precautions to protect against being infected with a variety of sexually transmitted illnesses? or bloodborne transmissible illness? We know that 20% or so of HIV infected individuals do not themselves know they are positive so taking reasonable precautions may be perceived as an expectation as well.
Despite the decades of messaging on the importance of barrier protection, 30% of MSM acknowledge that their last sexual relations occurred without protection. 55% did not know the HIV status of the person with whom they were having sex. A small proportion of HIV positives drug users admit to not discussing their HIV positive status with potential sex partners.
So the courts will be weighing issues of intention, privacy, duty to protect others, risk, and reasonableness. Thankfully the Supreme Court is constituted of the most learned jurists in the country and diversity of opinions is expected in contributing to these important decisions which will provide some guidance to public health practice and the expectations on what HIV positive clients will be expected to disclose. The legal definition is not based solely upon the consistent application of public health ethic principles which might have better informed this debate.