• Acquired Immunodeficiency Syndrome (AIDS): The unexpected appearance of opportunistic infections and an aggressive form of Kaposi’s sarcoma amongst apparently healthy homosexual men and intravenous drug abusers, heralded in 1981.

• Immunodeficiency is the hallmark of AIDS.

8.1: English Law

• The British Medical Council has passed a resolution in 1991 that no physician shall undertake mandatory testing of blood unless expressed consent has been given by the patient.

  • If the physician does so, he/she is liable for disciplinary proceedings, where he/ she should justify his action.

• Almost all corporations in England insist on HIV test certificates being given by in-house doctors.

• The British Medical Council (BMC) sought to reinforce the view held earlier by medical experts in the UK that there is little justification in law for disclosing to an employer that an employee has AIDS or is HIV positive.

8.2: US Position

• Medical confidentiality has been statutorily recognized in several US federal laws. They offer privacy protections to public health records containing HIV-related information.

• A proposal which would bring all medical records containing HIV-related data under protection, has received significant attention in Congress.

• Health professionals and public health officials have endorsed this. This proposal was incorporated into the public health and welfare code, which talks about AIDS, where strict confidentiality has to be maintained concerning all information connected with HIV-related diseases and patients.

• The Florida Supreme Court has recognized the damaging effect of such disclosure of confidential information on public health policy by deterrence.

• The court held that as the populations of HIV-infected individuals grow large, the importance of confidentiality both in and out of the courtroom increases.

8.3: Indian Position

The existing AIDS law in India consists of State Amendments and a proposed Central Bill. In August 1989 a bill was proposed in the Parliament called the AIDS (prevention) Bill.

• Section 4 of the said bill mandates every registered physician to report each case of an HIV-positive patient to the health authorities, but does not provide a confidentiality clause.

• Section 7 requires health authorities to undertake counseling, health education, and specialized treatment. But this is of no avail if confidentiality is not guaranteed.

• Section 5, talks of precautionary measures to curb the spread of disease.

• Section 5(c), suggests removing the patient to a hospital or such other place “for special care”, all at the direction of the health authority. Therefore, isolation is a proposed alternative.

8.4: Issues Raised

• With AIDS, there are three basic issues raised, and they are as follows:

  • AIDS being a disease with no cure/no remedy, what is the status quo of confidentiality with it?

  • AIDS is considered contagious and dangerous, then why is it not a notifiable condition?

  • AIDS, if not considered statutorily notifiable, is it constitutionally valid to deal with it under the Epidemic Diseases Act?

• To begin with, one must identify whether AIDS is a contagious condition or not. It is not appropriate to use the term contagious.

  • AIDS is a disease communicable from one person to another in a specific context only.

  • HIV is a communicable disease.

• The logical deduction to this would be that AIDS is not an epidemic disease, neither it is contagious, nor it can be cured or restrained from further spread by isolation and such measures.

Isolationist Response

• The isolationist response is adopted by Cuba and Romania and includes two specific features:

  • Mandatory testing.

  • Isolation of infected victims.

• Though both of these policies adopted are encouraging, the inevitable defects observed with these are:

  • The approach of mandatory testing is neither feasible nor economically viable in a country with a population of more than 900 million.

  • This means that such mandatory testing will be confined to high-risk groups.

  • This will lead to the entire high-risk group going underground.

  • There will be a failure in disclosing the ailment for the fear of discrimination. This will defeat the object of the approach.

Integrationist Response

• Integrationist response is proposed by WHO, and adopted by the USA and UK and includes three specific features:

  1. No compulsory testing

  2. Protecting through confidentiality

  3. Ensuring nondiscrimination against them.

• These policies are considered to be more encouraging for the merits prevalent in them, which are:

  • Right to information about HIV tests being conducted and its implication.

  • Right to refuse to undergo HIV test.

  • Confidentiality about the HIV status of the person who has undergone the test.

  • Right against discrimination in employment.

• On the other hand, protecting confidential information serves two interests:

  1. The interest of the person (his/her privacy) is protected.

  2. The public interest is also served by not disclosing such information. If it is disclosed, people will stop taking such tests, for the fear of social stigma, loss of employment, etc.