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Legal Responses to HIV and AIDS

By: James P Chalmers
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Published: 31-10-2008
Format: PDF eBook (?)
Edition: 1st
Extent: 194
ISBN: 9781847314666
Imprint: Hart Publishing
RRP: £53.98
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About Legal Responses to HIV and AIDS

Since the 1980s legislators and courts have responded in a variety of ways to the onset of the AIDS pandemic. Some responses have been sensitive to the needs of those with HIV, seeking to guarantee heightened levels of confidentiality or freedom from discrimination. Others have sought to use the law as a tool to limit the spread of HIV, for example by imposing liability for its transmission or restricting the freedoms of those who are HIV-positive. Elsewhere, doctors and researchers have grappled with the legal and ethical problems surrounding testing for a condition which many people may not want to be aware of, and with the conflicts which can arise between respect for individual autonomy and the promotion of public health. More recently, treatments for HIV have developed to the extent that for many HIV is a chronic disease rather than an inevitably fatal condition. Such treatments, however, pose new challenges: they are expensive and as such are not widely available in those parts of the globe where HIV infection is most widespread. This has caused tensions over issues such as asylum, immigration and deportation, and the protection of intellectual property rights which may bar such treatments from being available where the need is most acute. This book examines and evaluate these issues in comparative perspective. It draws on legal responses to other sexually transmitted infections (and contagious diseases) but concentrates on HIV and AIDS.

Table Of Contents

1 Introduction and Overview
I. Legal Rather Than Legislative Responses
II. Law and the Public Health Rather than Public Health Law
III. Recurring Themes
A. Mainstreaming and Exceptionalism
B. Path Dependence
C. The Importance of Avoiding Discrimination
D. The Immanence of Human Rights Standards
IV. Exploring Legal Responses in a Variety of Contexts
2 Testing for HIV: Legal and Ethical Problems
I. Consensual Testing for HIV: Is Specific Knowledge Required?
A. The Legal Framework
B. Specific Consent and Opt-Out Testing
C. A Practical Caveat
II. Testing Without Consent: Unlinked Anonymous Testing
III. Antenatal Testing
A. Informed Consent in Antenatal Screening: A Loose and Elusive Concept
B. Applying Informed Consent to Antenatal Testing Practice
IV. Premarital Testing
V. Compulsory Testing Following Alleged Criminal Activity
A. The Scottish 'Mandatory Testing' Proposals
B. Evaluating the Legality of Mandatory Testing
C. The Response to the Proposals
VI. Testing Existing Samples Without Consent Following Accidental Exposure
A. The Legal Framework
B. Testing Without Consent: An Ethical Analysis
3 Confidentiality and Duties to Warn
I. Medical Confidentiality and Duties to Warn: Some Early Views
A. Dr Pritchard, Dr Paterson and Dr Playfair
B. Embryonic Legal Restraints on Breach of Confidence
C. Legal Compulsion to Breach Confidence
II. The Development of Remedies for Breach of Confidence
III. Modern Practice: Can a Breach of Confidence be Justified?
A. When Can a Breach of Confidence be Ethically Justified?
B. When Can a Breach of Confidence be Legally Justified?
IV. A Step Further: Can a Breach of Confidence be Legally Required?
A. Liability in Negligence for the Onward Transmission of HIV
V. From Principle to Practice (Almost): Health Protection Agency v X
VI. The National Health Service (Venereal Diseases) Regulations 1974
A. The History and Purpose of the Regulations
B. Does the History and Purpose Matter?
VII. Conclusion
4 Harm Minimisation and the Law
I. Community Needle Exchange
A. The Background to the Problem
B. Moving Towards Needle Exchange
C. The Lord Advocate's Guidelines
D. The Efficacy of Needle Exchange
II. Harm Reduction Measures In Prisons
A. Can Harm Reduction Measures in Prison be Compelled by Law?
B. Harm Reduction: The English Litigation
C. An Alternative ECHR-based Approach?
III. Conclusion
5 HIV and Deportation from the United Kingdom
I. Resisting Deportation under Article 3 of the European Convention on Human Rights
A. D v United Kingdom
B. The Practical Impact of Davoren's Case
C. N v Secretary of State for the Home Department
D. Evaluating the Decision in N
II. An Alternative Approach: Asylum Claims Based on Fear of Persecution
III. Access to HIV Treatment Following Refusal of a Claim for Asylum
IV. Conclusion
6 The Criminalisation of HIV Transmission
I. Criminal Liability for the Sexual Transmission of Disease: False Starts and an Entrenched Lacuna
A. Disapplying General Criminal Offences: R v Clarence
B. Rejecting Specific Criminal Legislation: The Contagious Diseases Acts
C. The Legacy of the Contagious Diseases Acts: Entrenching a Lacuna
II. Attacking the Lacuna: The Law Commission's Proposals
III. Closing the Lacuna: Judicial Reform
A. R v Ireland; R v Burstow
B. R v Dica
IV. The Scope of the Current Law
A. Can Prosecutions be Brought in Respect of Other Sexually Transmitted Infections?
B. Can Prosecutions only be Brought for the Transmission of Disease?
C. Does the Mens Rea Requirement Necessitate a Positive HIV Test?
D. What is Required for Consent to Operate as a Defence?
E. What is the Effect of Refraining from 'High Risk' Activities?
V. Evidential Issues
VI. Countervailing Considerations: The Case Against Criminalisation
A. Does Criminalisation Deter People from Seeking HIV Tests?
B. Might Criminalisation Encourage Unsafe Sexual Behaviour?
C. Are Prosecutions Discriminatory?
VII. Seeking the Middle Ground: Prosecutorial Guidelines
7 Access to Treatment: A Brief Note on Patent Law
I. Patents: Nature and Justification
II. The International Framework: TRIPS
III. The Doha Declaration
IV. Canada's Jean Chrétien Pledge to Africa Act
V. Conclusion


“...a book such as this is important, addressing legal issues in the United Kingdom and the ethical questions at stake…” –  Michael J. Bosia, Law & Politics Book Review, Vol.19, No.7

“This relatively short text ... offers an overview of the UK-wide legal approach to HIV/AIDS and does so in such a way to make the material not only of use to a UK audience, but also to a wider international readership ... it also goes some way towards being a short, introductory textbook.
In summary, Chalmer's book is a clear, solid text in an area of legal scholarship in need of just such a contribution. To that extent, it is certain to be a welcome addition.
” –  Chris Ashford, SCOLAG Legal Journal

Legal Reponses to HIV and AIDS is a long overdue and much welcome addition to the relatively scarce academic writing in this controversial, and often morally charged, area of law.
Legal Reponses is an illuminating addition to the current academic literature on the criminal law and sexually transmitted infections, posing as many questions as it answers ... Given the complexity of the legal, moral and ethical issues involved in this important area of public policy, Legal Reponses is a useful reference tool for academics, legal practitioners and medical professionals alike, providing a much-needed and accessible overview of the current legal responses to HIV and AIDS.
” –  Legal Studies, Volume 30, No 2

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