Thursday, January 9, 2014

 

Clause by Clause Analysis of Uganda's HIV/AIDS Control Bill from a Sexual and Gender Minorities Perspective

Parliament of Uganda in session. Uhspa has submitted the analysis below to parliament in respect to the hiv bill making its way through the house Clause by Clause Analysis of Uganda's HIV/AIDS Control Bill from a Sexual and Gender Minorities Perspective
By Uganda Health and Science Press Association (UHSPA) to Uganda’s 9th Parliament TABLE OF CONTENTS TABLE OF CONTENTS 2 1.0 INTRODUCTORY SECTIONS OF THE BILL 5 1.1 Title of the Bill 5 2.0 Objectives of the Bill 5 1.3 Commencement Section (Section 1) 5 1.4 Interpretation Section (Section 2) 5 2.0 PREVENTION OF HIV AND AIDS 6 2.1 Reasonable care to be taken to avoid transmission of HIV and AIDS (Section 3) 6 3.0 HIV AND AIDS COUNSELLING AND TESTING 7 3.1 Pre-test and post-test HIV Counselling (Section 4) 7 3.2 Counselling to be conducted by professional counselors (Section 5) 7 3.3 Nature of pre-test counselling (Section 6) 7 3.4 Nature of post-test Counselling (Section 7) 7 3.5 Continuous counselling (Section 8) 7 3.6 HIV testing services (Section 9) 7 3.7 Voluntary HIV Testing (Section 10) 7 3.8 Persons incapable of giving informed consent to HIV testing (Section 11) 8 3.9 Consent to test for HIV may be dispensed with (Section 12) 9 3.10 HIV testing for purposes of criminal proceedings (Section 13) 9 3.11 Routine HIV testing (Section 14) 11 3.12 HIV testing under a court order (Section 15) 11 3.13 Provision of appropriate treatment to HIV positive woman (Section 16) 12 3.14 Testing of the new born child exposed to HIV (Section 17) 12 3.15 Efficiency to be ensured in testing (Section 18) 12 3.16 Disclosure or release of HIV test results (Section 19) 13 3.17 Confidentiality of test results and counselling information (Section 20) 13 3.18 Exceptions to confidentiality (Section 21) 14 3.19 Person tested to be notified on disclosure (Section 22) 15 3.20 Partner notification (Section 23) 15 3.21 Organ, tissue, body fluid or part of the body to be identified with test Results (Section 24) 16 3.22 Testing of donated blood (Section 25) 17 3.23 Testing centres to maintain health standards (Section 26) 17 4.0 STATE RESPONSIBILITY IN HIV CONTROL 17 4.1 State obligations (Section 27) 17 5.0 HIV AND AIDS RELATED HUMAN BIOMEDICAL RESEARCH 18 5.1 Requirements for research (Section 28) 18 5.2 Consent to research (Section 29) 18 5.3 Anonymous testing (Section 30) 18 6.0 DISCRIMINATION ON GROUNDS OF HIV STATUS 18 6.1 Discrimination in the workplace (Section 31) 18 6.2 Discrimination in schools (Section 32) 18 6.4 Restriction on travel and habitation (Section 33) 18 6.7 Discrimination in health institutions (Section 36) 20 6.8 Access to healthcare services (Section 37) 20 6.9 Liability for discriminatory acts and practices (Section 38) 20 7.0 OFFENCES AND PENALITIES 20 7.1 Attempted transmission of HIV (Section 39) 20 7.2 Offences relating to breach of confidentiality (Section 40) 21 7.3 Intentional Transmission of HIV (Section 41) 21 7.4 Offences relating to breach of safe practices HIV (Section 42) 22 7.6 Penalty for offence relating to obstruction (Section 43) 22 7.7 Misleading information or statement (Section 44) 22 7.8 General penalty (Section 45) 22 7.9 Exemption to creation of risk (Section 46) 22 8.0 MISCELLANEOUS PROVISIONS 22 8.1 Laboratory analysis (Section 47) 22 8.2 Regulations (Section 48) 23 8.3 Minister to issue technical guidelines on surgical, dental and other procedures or treatments (Section 49) 23 1.0 INTRODUCTORY SECTIONS OF THE BILL 1.1 Title of the Bill HIV and AIDS Prevention and Control Bill The title of the Bill is unduly coercive and reflects the lack of a truly human rights based approach to the HIV and AIDS response contemplated by the terms of the bill. Recommendation: The title of the Bill should be changed to ‘The HIV and AIDS Management Bill’. 2.0 Objectives of the Bill AN ACT to provide for the prevention and control of HIV and AIDS, protection, counselling, testing, care of persons infected with and affected by HIV and AIDS, rights and obligations of persons infected and affected and for other related matters. The objectives of the Bill are laudable in so far as they recognize the need to promote and protect the rights of persons living with HIV. However, it is noteworthy that references to ‘infection’ have negative connotations that may promote stigma and discrimination against Persons Living with HIV (PLHIV),some of whom are our members. Recommendation: The phrase ‘Persons Living with HIV’ should be used instead of ‘persons infected’. 1.3 Commencement Section (Section 1) No pertinent observations. The section appears to be in order. 1.4 Interpretation Section (Section 2) No pertinent observations. The section appears to be in order. 2.0 PREVENTION OF HIV AND AIDS 2.1 Reasonable care to be taken to avoid transmission of HIV and AIDS (Section 3) 3. Reasonable care to be taken to avoid transmission of HIV (1) A person shall take reasonable steps and precaution to protect him or herself and others from HIV infection. (2) A person shall use protective measures to protect him or herself and others from infection with HIV during sexual intercourse. This provision appears to impose a broad obligation that may not pass constitutional muster nor be entirely practical. In the first place, it goes without saying that persons will ordinarily take all reasonable steps and precautions to protect themselves from HIV infection. It is difficult to see what value is added by a legal stipulation to this effect. Secondly, it is difficult to see how a duty to protect the general public from HIV infection can be legally placed upon private individuals. As regards the particular case of sexual intercourse, even in this regard, it appears that the primary responsibility to protect oneself from infection should be upon the individual, as opposed to a requirement that requires an individual to protect other persons. Moreover, as previously observed, since individuals would ordinarily take such precautions, it appears unnecessary to have a legal stipulation to this effect. Recommendation: This section should be deleted. 3.0 HIV AND AIDS COUNSELLING AND TESTING 3.1 Pre-test and post-test HIV Counselling (Section 4) No pertinent observations. The section appears to be in order. 3.2 Counselling to be conducted by professional counselors (Section 5) No pertinent observations. The section appears to be in order. 3.3 Nature of pre-test counselling (Section 6) No pertinent observations. The section appears to be in order. 3.4 Nature of post-test Counselling (Section 7) No pertinent observations. The section appears to be in order. 3.5 Continuous counselling (Section 8) No pertinent observations. The section appears to be in order. 3.6 HIV testing services (Section 9) No pertinent observations. The section appears to be in order. 3.7 Voluntary HIV Testing (Section 10) No pertinent observations. The section appears to be in order. 3.8 Persons incapable of giving informed consent to HIV testing (Section 11) 11. Persons incapable of giving informed consent to HIV testing (1) A person incapable of giving informed consent under section 10 may be tested for HlV if his or her parent, guardian, caretaker or agent gives informed consent. (2) For purposes of subsection (1) a person is incapable of giving informed consent if he or she is: (a) unconscious; (b) of unsound mind; (c) a minor; (d) suffering from any impairment rendering him or her incapable of giving his or her informed consent. (3) The informed consent shall be in the form specified in form A of the Schedule to this Act. This Section gives too much power to parents, guardians, caretakers and agents and is capable of abuse. It is difficult to conceive of a situation where the need to test for HIV would be so urgent so as to outweigh the right to privacy and personal integrity of the person in question. Moreover, the reference to persons of ‘unsound mind’ is derogatory and not in keeping with the autonomy and dignity of persons with mental illnesses. It is also too broad and capable of abuse. Recommendation: (i) Any testing of persons incapable of giving consent should be sanctioned by a judicial officer. (ii) The reference to persons of ‘unsound mind’ should be changed to ‘persons with mental illnesses’. 3.9 Consent to test for HIV may be dispensed with (Section 12) 12. Consent to test for HIV may be dispensed with Consent to HIV test under section 10 and 11 may be dispensed with where; a) It is unreasonably withheld; or (b) in an emergency due to grave medical or psychiatric condition and the medical practitioner reasonably believes that such a test is clinically necessary or desirable in the interest of that person. This is an unreasonably broad provision. What is the meaning of ‘unreasonably withheld’ for instance? It is also difficult to conceive of any situations where HIV testing would be required as a matter of an ‘emergency due to grave medical or psychiatric condition’. Recommendation: This Section should be deleted. 3.10 HIV testing for purposes of criminal proceedings (Section 13) 13. HIV testing for purposes of criminal proceedings The following persons shall be subjected to HIV lest for purposes of criminal investigation where- (a) a person is convicted of drug abuse or possession of hypodermic instrument associated with drug abuse; (b) a person is charged with a sexual offence; (c) a person is convicted of an offence involving prostitution; This provision would be both unconstitutional and counterproductive from a public health perspective. In the first place, the provision is overbroad and is not a proportional restriction of rights necessary for the achievement of a legitimate public interest. It is unclear what state interest would be served by subjecting persons convicted of drug use or possession of hypodermic instruments associated with drug abuse to HIV testing. It is similarly difficult to understand why persons convicted of offences involving prostitution should similarly be subjected to HIV testing. It also bears pointing out that ‘sexual offences’ include a number of offences many of which do not involve sexual contact, such as, conceivably public indecency or associated offences. Similarly, ‘offences involving prostitution’ may include letting out one’s house knowing it will be used for such purposes, which also does not involve sexual contact. As such, in both of these cases, the provision is exposed as being too broad and thus an unreasonable restriction on the rights to privacy and bodily integrity. In addition, such a provision would be counterproductive from a public health perspective, given that it would serve to marginalize and stigmatize key Most at Risk Populations (MARPS),including Lesbians Gays,Bisexuals,Transgenders and Intersex who are already under the radar in terms of the country’s HIV response, and whose populations already reflect HIV prevalence levels that are far above the national average. An effective HIV response would be one that includes these groups as opposed to stigmatizing and marginalizing them. Particularly, LGBTI community should be part and parcel of preventing a bridging population of new infections. It may also be pointed out that, if the public health purpose behind the provision, especially that relating to sexual offences, is to protect the health of victims of sexual offences, this objective is better served by the provision of Post-Exposure Prophylaxis to all victims of such offences. This is because, if the provision of such emergency treatment is only on the basis of an HIV positive result from a testing of suspected offenders, this life-saving medication may be unduly withheld, such as where such a test is a false negative, as happens where the HIV test is administered within a ‘window period’. This may also be the case where the offence is perpetrated by a group, and only one person is apprehended and tested, or where the wrong person is apprehended and tested. Recommendation: This Section should be deleted. 3.11 Routine HIV testing (Section 14) 14. Routine HIV testing The following persons shall be subjected to routine HIV test for purposes of prevention of HIV transmission- (a) the victim of a sexual offence; (b) a pregnant woman; (c) a partner of a pregnant woman; As previously observed, such mandatory testing is both unconstitutional and counterproductive from a public health perspective. It violates the rights to privacy and dignity of the persons identified and may also amount to degrading treatment. More problematically, it may lead people to shun public health centres in favour of informal and usually unqualified establishments and thus seriously impede the public health response to HIV that has been so successful in the past, largely based on voluntary counselling and testing. Recommendation: This Section should be deleted. 3.12 HIV testing under a court order (Section 15) No pertinent observations. The section appears to be in order. 3.13 Provision of appropriate treatment to HIV positive woman (Section 16) 16. Provision of appropriate treatment to HIV positive woman (1) A pregnant woman who is tested and found to be HIV positive under section 14 shall be entitled to appropriate treatment, care and support, and routine medication to prevent transmission of HIV to the child. (2) Appropriate treatment, care and support and routine medication shall be given to the partner of a pregnant woman. (3) A child who is born to an HIV positive mother shall be given immediate appropriate treatment, care and support and routine medication. The problem with this section is that it is expressly linked to Section 14, which provides for mandatory testing of pregnant women. All HIV testing should be voluntary if the HIV response in the country is to be effective. Recommendation: This provision should not be linked to Section 14, which provides for mandatory testing. Instead, it should allow for the provision of appropriate treatment, care and support to pregnant women (as well as their partners) who are found to be HIV positive through HIV testing based on their informed consent. 3.14 Testing of the new born child exposed to HIV (Section 17) No pertinent observations. The section appears to be in order. 3.15 Efficiency to be ensured in testing (Section 18) No pertinent observations. The section appears to be in order. 3.16 Disclosure or release of HIV test results (Section 19) 19. Disclosure or release of HIV test results (1) The results of an HIV test shall be confidential and shall only be disclosed or released to the tested person. (2) Notwithstanding sub-section (1), the results of an HIV test may be disclosed or released to; (a) a parent or a guardian of a minor; (b) legal guardian of a person of unsound mind; (c) a person authorized by this Act or any other law; (d) any other person as may be authorized by a court . (3) the parent or guardian of a minor who tests positive for HIV should inform the minor of their HIV positive status as soon as it is practical. These provisions for mandatory disclosure of HIV results are problematic from a constitutional law perspective as well as from a public health perspective. In particular, Section 19 (2) (c) is vague and may be liable to abuse. Recommendation Section 19 (2) (c) should be deleted. 3.17 Confidentiality of test results and counselling information (Section 20) No pertinent observations. The section appears to be in order. 3.18 Exceptions to confidentiality (Section 21) 21. Exceptions to confidentiality (I) Notwithstanding section I9 a person may disclose information concerning the result of an HIV test or related medical assessments of a person tested, under the following circumstances;- (a) with the written consent of that person, or his or her legal administrator or legal guardian; (b) to a medical practitioner, nursing officer, paramedical staff who is directly involved in the treatment or counseling of that person, where the HIV status is clinically relevant; (d) upon an order of a court where the information is directly relevant to the proceedings before the court; or (e) if authorized by any other law; (f) any other person with whom an HIV infected person is in close or continuous contact including but not limited to a sexual partner, if the nature of contact, in the opinion of the medial practitioner, poses a clear and present danger of HIV transmission to that person; or (g) any person exposed to blood or body fluid of a person tested; (2) Nothing in this section shall prevent disclosure of statistical or other information that could reasonably be expected to lead to the identification of the person to whom it relates. Mandatory testing is problematic from a wide range of perspectives, ranging from constitutional to practical and public health considerations. In the first place, it has direct implications for the right to privacy and to dignity in so far as it removes the autonomy of the person tested to determine who is informed of their results and under what circumstances, if any this disclosure should be made. Secondly, it will serve to drive a number of people away from getting tested for fear of their results being disclosed to third parties without their knowledge. This will be a significant impediment to the ability of the state to have accurate data upon which to rely in crafting effective public health responses. Although there may be limited instances where HIV results may be justifiably disclosed to third parties, these should be strictly circumscribed, and should mainly be subjected to judicial control, and should in all cases be sensitive to the concerns of the Person Living with HIV (PLHIV) and offer such person all opportunities in the first case to make such disclosure themselves. Recommendations (i) The reference to ‘or counselling’ under Section 21 (1) (b) should be deleted. (ii) Section 21 (1) (f) should be deleted. (iii) Section 21 (1) (g) should be deleted. (iv) Section 21 (2) should be deleted. 3.19 Person tested to be notified on disclosure (Section 22) No pertinent observations. The section appears to be in order. 3.20 Partner notification (Section 23) 23. Partner notification (1) A medical practitioner or other qualified officer who carries out an HIV test may notify the sexual partner of the person tested where he or she reasonably believes that the HIV positive person poses a risk of HIV transmission to the partner and the person has been given reasonable opportunity to inform their partner(s) of their HIV positive status and has failed to do so. (2) Subject to subsection (1) before notifying the partner of the HIV positive person a medical practitioner or other qualified officer shall;- ( a) counsel the HIV positive person and his or her partner; (b) inform the person in advance of the intended notification (c) ensure that follow-up is provided to ensure support to those involved as necessary. While this provision seems to have a number of safeguards to balance the legitimate public health interest and the imperative of protecting the confidentiality of the PLHIV, it does not into adequate consideration the dangers faced by women and girls in particular in such situations. Recommendation The Section should provide for the protection, through safe houses or like mechanisms, of women and girls who are placed in danger of death or serious bodily harm by such partner notification. 3.21 Organ, tissue, body fluid or part of the body to be identified with test Results (Section 24) 24. Organ, tissue, body fluid or part of the body to be identified with test results. Any person donating any organ, tissue, body fluid or part of his or her body for the treatment of another person or insemination of sperm, shall be subjected to HIV testing. This provision might have the impact of discouraging persons from donating organs, tissues, body fluid or parts of bodies, especially in the context of a Bill containing provisions for mandatory disclosure. Recommendations Where possible, testing should be of the body tissues or other donated parts or fluids, as opposed to testing on the person. Where this is not possible, any testing of the donor should be with their informed consent. Where they refuse, they may be excluded from such donation. In any case, the information obtained under these circumstances, including any inferences drawn from the refusal to test, should be treated with utmost confidentiality. 3.22 Testing of donated blood (Section 25) No pertinent observations. The section appears to be in order. 3.23 Testing centres to maintain health standards (Section 26) No pertinent observations. The section appears to be in order. 4.0 STATE RESPONSIBILITY IN HIV CONTROL 4.1 State obligations (Section 27) 27. State obligations The government shall devise measures to; (a) ensure the right of access to equitable distribution of health facilities, goods and services including essential medicines on a nondiscriminatory basis; (b) provide universal HIV treatment to all persons on a non-discriminatory basis; (c) process, adopt and implement a national public health strategy and plan of action for HIV; (d) prevent and control HIV transmission; (e) take measures to develop and promote awareness rights and duties imposed on persons under this Act; (f) take measures to develop and implement programmes in order to promote the rights of persons; (g) promote and ensure involvement of people living with HIV m participating in government programmes; (h) mainstream HIV programmes in all government sectors; and (i) Provide care and support to persons living with HIV. This is an important provision especially in terms of ensuring a human rights based approach to the response to HIV in Uganda. However, the language used in the introductory clause of this section is extremely non-committal and may weaken the obligations thereby imposed. Recommendations The clause ‘devise measures’ in the introduction of this section should be amended to ‘ensure’ and such similarly mandatory language used throughout the section. 5.0 HIV AND AIDS RELATED HUMAN BIOMEDICAL RESEARCH 5.1 Requirements for research (Section 28) No pertinent observations. The section appears to be in order. 5.2 Consent to research (Section 29) No pertinent observations. The section appears to be in order. 5.3 Anonymous testing (Section 30) No pertinent observations. The section appears to be in order. 6.0 DISCRIMINATION ON GROUNDS OF HIV STATUS 6.1 Discrimination in the workplace (Section 31) No pertinent observations. The section appears to be in order. 6.2 Discrimination in schools (Section 32) No pertinent observations. The section appears to be in order. 6.4 Restriction on travel and habitation (Section 33) No pertinent observations. The section appears to be in order. 6.5 Inhibition from public service (Section 34) No pertinent observations. The section appears to be in order. 6.6 Exclusion from credit and insurance services (Section 35) 34. Exclusion from credit and insurance services (1) Subject to this Act, no person shall be compelled to undergo an HIV test or to disclose his or her HIV status for the purpose of gaining access to any credit or loan services, medical, accident or life insurance or the extension or continuation of any such services. (2) Notwithstanding the provisions of subsection (1 ), an insurer, re-insurer or health maintenance organization shall, in the case of life and healthcare •service insurance cover, devise a reasonable limit of cover for which shall not be required to disclose his or her HIV status. (3) Where one seeks a cover exceeding the no test limit prescribed under subsection (2) the insurer, reinsurer or health maintenance organization may, subject to this Act, require the applicant to undergo an HIV test. ( 4) Where an applicant elects to undergo an HIV test pursuant to subsection (3) and the results thereof are positive- ( a) The applicant shall, at his or her own expense, enter into such agreed treatment programme with the insurer as may be prescribed by the Minister in consultation with Commissioner for Insurance; or (b) The insurer may impose a reasonable additional premium or lien to the benefits ordinarily purchased; or (c) The insurer may decline granting the cover being sought. ( 5) A person aggrieved by a determination as to what is reasonable for the purposes of this section may appeal to the Commissioner of Insurance in accordance with such procedure as may be prescribed in regulations and the Commissioner of Insurance shall make a determination on the basis of statistical and actuarial principles and other relevant considerations. (6) A person aggrieved by a determination made under subsection (5) may apply within thirty days to court for review of the decision. The provision, under Section 34 (4) (c) for refusal of medical insurance on grounds of HIV status is unconscionable and unreasonable given the public health impact of the pandemic in Uganda. Recommendations Section 34 (4) (c) should be deleted. 6.7 Discrimination in health institutions (Section 36) No pertinent observations. The section appears to be in order. 6.8 Access to healthcare services (Section 37) No pertinent observations. The section appears to be in order. 6.9 Liability for discriminatory acts and practices (Section 38) No pertinent observations. The section appears to be in order. 7.0 OFFENCES AND PENALITIES 7.1 Attempted transmission of HIV (Section 39) 39. Attempted transmission of HIV (1) A person who attempts to transmit HIV to another person commits a felony. Any punitive provisions in a public health law, moreover one with the expressed intention of promoting human rights, are counterproductive. This is not to mention the difficulties of proof and related matters that would be involved in prosecuting such a crime, as well as the stigmatization of PLHIV that it would generate. The offence also carries with it the dangers of misuse for blackmail and extortion. Additionally, it will likely discourage testing, given that it can only be committed by persons who actually know their HIV status. Recommendation This Section should be deleted. 7.2 Offences relating to breach of confidentiality (Section 40) No pertinent observations. The section appears to be in order. 7.3 Intentional Transmission of HIV (Section 41) 41. Intentional Transmission of HIV (1) Any person who wilfully and intentionally transmits HIV to another person commits an offence, and upon conviction shall be liable to life imprisonment. (2) A person shall not be convicted of an offence under subsection (1) if- ( a) the other person was aware of the HIV status of the accused and the risk of infection and he or she voluntarily accepted the risk; (b) the alleged transmission was through sexual intercourse and protective measures were used during penetration. For the same reasons advanced in relation to the proposed offence of attempted transmission of HIV (Section 39), the offence of intentional transmission of HIV is similarly misconceived. Recommendation This Section should be deleted. 7.4 Offences relating to breach of safe practices HIV (Section 42) No pertinent observations. The section appears to be in order. 7.6 Penalty for offence relating to obstruction (Section 43) 43. Penalty for offence relating to obstruction (1) A person who obstructs or prevents any activity related to implementation of provisions of this Act in any manner commits an offence and shall be liable on conviction to a fine of not less than four currency points or to imprisonment for a term not exceeding two months or both. It is not clear what this Section means, or what conduct it is intended to prohibit. As it is, it is overly broad, and would be liable to abuse. Recommendation This section should be deleted. 7.7 Misleading information or statement (Section 44) No pertinent observations. The section appears to be in order. 7.8 General penalty (Section 45) No pertinent observations. The section appears to be in order. 7.9 Exemption to creation of risk (Section 46) No pertinent observations. The section appears to be in order. 8.0 MISCELLANEOUS PROVISIONS 8.1 Laboratory analysis (Section 47) No pertinent observations. The section appears to be in order. 8.2 Regulations (Section 48) No pertinent observations. The section appears to be in order. 8.3 Minister to issue technical guidelines on surgical, dental and other procedures or treatments (Section 49) No pertinent observations. The section appears to be in order.

Comments:
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