Clause by Clause Analysis of Uganda's HIV/AIDS Control Bill from a Sexual and Gender Minorities Perspective
REASONED ANALYSIS OF HIV PREVENTION AND CONTROL BILL, 2010
By
Uganda Health and Science Press Association (UHSPA) to
Uganda’s 9th Parliament
TABLE
OF CONTENTS
1.0
INTRODUCTORY SECTIONS OF THE BILL
1.3
Commencement Section (Section 1)
1.4
Interpretation Section (Section 2)
2.0 PREVENTION
OF HIV AND AIDS
2.1 Reasonable
care to be taken to avoid transmission of HIV and AIDS (Section 3)
3.0 HIV AND
AIDS COUNSELLING AND TESTING
3.1 Pre-test
and post-test HIV Counselling (Section 4)
3.2 Counselling
to be conducted by professional counselors (Section 5)
3.3 Nature of
pre-test counselling (Section 6)
3.4 Nature of
post-test Counselling (Section 7)
3.5 Continuous
counselling (Section 8)
3.6 HIV
testing services (Section 9)
3.7 Voluntary
HIV Testing (Section 10)
3.8 Persons
incapable of giving informed consent to HIV testing (Section 11)
3.9 Consent to test for HIV may be dispensed with
(Section 12)
3.10 HIV
testing for purposes of criminal proceedings (Section 13)
3.11 Routine
HIV testing (Section 14)
3.12 HIV
testing under a court order (Section 15)
3.13 Provision
of appropriate treatment to HIV positive woman (Section 16)
3.14 Testing
of the new born child exposed to HIV (Section 17)
3.15
Efficiency to be ensured in testing (Section 18)
3.16
Disclosure or release of HIV test results (Section 19)
3.17
Confidentiality of test results and counselling information (Section 20)
3.18
Exceptions to confidentiality (Section 21)
3.19 Person
tested to be notified on disclosure (Section 22)
3.20 Partner
notification (Section 23)
3.21 Organ,
tissue, body fluid or part of the body to be identified with test Results
(Section 24)
3.22 Testing
of donated blood (Section 25)
3.23 Testing centres to maintain health standards
(Section 26)
4.0 STATE
RESPONSIBILITY IN HIV CONTROL
4.1 State
obligations (Section 27)
5.0 HIV AND
AIDS RELATED HUMAN BIOMEDICAL RESEARCH
5.1
Requirements for research (Section 28)
5.2 Consent to
research (Section 29)
5.3 Anonymous
testing (Section 30)
6.0
DISCRIMINATION ON GROUNDS OF HIV STATUS
6.1
Discrimination in the workplace (Section 31)
6.2
Discrimination in schools (Section 32)
6.4
Restriction on travel and habitation (Section 33)
6.7
Discrimination in health institutions (Section 36)
6.8 Access to
healthcare services (Section 37)
6.9 Liability
for discriminatory acts and practices (Section 38)
7.1 Attempted
transmission of HIV (Section 39)
7.2 Offences
relating to breach of confidentiality (Section 40)
7.3
Intentional Transmission of HIV (Section 41)
7.4 Offences
relating to breach of safe practices HIV (Section 42)
7.6 Penalty
for offence relating to obstruction (Section 43)
7.7 Misleading
information or statement (Section 44)
7.8 General
penalty (Section 45)
7.9 Exemption
to creation of risk (Section 46)
8.1 Laboratory
analysis (Section 47)
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.
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