by Kevin Hague
Okay, I think I have something to add to this debate. And can I preface my remarks by saying I’m pretty uncomfortable by the “HIV Predator” term. Certainly the sexual behaviour alleged sounds pretty predatory, but the term carries a risk of association, suggesting that people living with HIV are more likely to be seen as predators. But maybe I’m being overly sensitive.
To recap: a middle-aged, HIV positive man is currently in custody and awaiting trial on allegations that he had unsafe sex with a number of young guys in Auckland and Wellington, after using ‘grooming’ seduction methods and reassuring them that he did not have HIV. The message emerging on blogs and elsewhere is that various people took concerns about this man’s behaviour to various sources, but that it was only when gaynz.com approached Police directly that any effective action occurred. Both Auckland District Health Board and the NZ AIDS Foundation are quoted as saying new privacy laws are required.
Now I’m acutely aware that this story may not accurately or fairly reflect what actually occurred. There may be legal strictures that impede free comment from some of the agencies concerned, so all the facts aren’t necessarily known. Gossip and speculation may have distorted what facts are on the table. Now that this man is before the Court, different rules apply, etc. So I thought it might be useful for me to comment on the issue of whether privacy rules prevent health agencies from taking action.
New Zealand’s privacy law generally requires that private information (including health information) cannot be used for reasons it wasn’t being gathered and kept for, or disclosed to anyone else, without a person’s explicit permission. However, the law also provides for a number of exceptions.
There is a specific exception that permits disclosure of health information to avert a “serious and imminent threat”. HIV infection certainly meets the test for “serious”, so if a health service provider believes on reasonable grounds that there is an imminent risk of someone being infected with HIV, then normally confidential health information can be disclosed. This is not a licence for rumour or general broadcasting: the information can only be disclosed to a person or agency who is in a position to prevent harm – in this case possibly the Police, but more likely the Medical Officer of Health – and the information must be necessary to enable them to do so. And, of course, the agency has to actually have the information.
So the agency holding the information can disclose it. Should they?
One of the pillars of our response to the HIV/AIDS epidemic has been an insistence on universal adherence to safe sex. This insistence is necessary because otherwise some people will use an assumption that safe sex is only necessary if their partner tells them that they have HIV. As we should all know by now, many people who have HIV don’t know that they do, and a number that do know lack the necessary confidence or skill to be able to disclose. And then there’s the one person who chooses not to.
One of the other pillars of our response has been a very high standard of confidentiality (and anonymity) from the Foundation’s services, to give people confidence that it is safe to use them. Disclosing anyone’s personal information risks undermining that reputation. One of the reasons this is important is that we would surely prefer people living with HIV who are struggling to maintain safe sex to be in contact with appropriate counselling and support. How likely is this if they fear that disclosure of unsafe sex will result in a call to the Police?
So the stakes are high, reminding us once again that HIV has caused virtually every society in the world to confront some of its most difficult and intractable problems (to quote Dr. Jonathan Mann, first director of the WHO Global AIDS Programme). But it seems to me clear that if a health agency has a reasonable belief that a middle-aged man it knows to be HIV positive is repeatedly placing vulnerable and naieve young men at risk of infection, then there is an ethical duty to disclose these facts to the Medical Officer of Health and possibly the Police (difficult without a complainant). The Medical Officer of Health has sweeping powers under the Health Act, and while these are a bit clunky, they can be used to detain the person concerned.
I know what a weighty responsibility this is. I had to use it when I was at the helm of the New Zealand AIDS Foundation. It caused me many sleepless nights, because of the potential consequences of the action and because of the difficulty in persuading some others to do their jobs, but not because of any doubt that it was the right thing to do.
Reform of the Public Health legislation to give the medical Officer of Health a more finely graded set of responses will be very welcome if and when it finally occurs, but I can’t see any case for a change to privacy law. We just need to use the law we have.
Published in Health & Wellbeing by Kevin Hague on Thu, June 4th, 2009
Tags: aids foundation, HIV predator, Kevin Hague
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on the trolls and those who are unable to keep on topic
How about a registry of people with HIV which is private until a person caused one case in which case their name is on line (it would have to be proven or it could be malicious) or HIV +ve people have to carry a document and must show it to potential partners (with a signature). HIV Protocal Card ?
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Wow JH. Why not make them wear a scarlet ‘H’ on their clothes? Wouldn’t that be cheaper and easier, without violating their privacy and dignity any more than your plan would?
It scares me that we don’t seem to learn from history, even when it is within living memory.
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I agree with Kevin that we don’t need any new draconian powers for the government; I think we have too many already (the minister already has the power to declare a pandemic emergency and change almost any law they want in whatever way they want without upfront parliamentary oversight – if they do this for HIV it is likely this would amount to a complete and undemocratic takeover of the country).
NZ laws don’t allow for infecting someone with HIV to be considered homicide; death must be within a year from the last event causing the death, but it does have laws against deliberately shortening someone’s life. I think the appropriate solution is to use these existing laws to develop a strong deterrent against deliberate or reckless infection of third parties with HIV.
In terms of identifying sources of HIV to help establish this deterrent, I think we perhaps do need some sort of system (built using the current laws) where people who are infected with HIV, and don’t know why, and volunteer to have information on the phylogenetics of their virus, and past sexual partners on a database for epidemiological purposes.
The spread of drug-resistant forms is of particular concern, so perhaps it would be fair to require some sort of additional conditions in exchange for access to chemotherapy.
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This is not a licence for rumour or general broadcasting: the information can only be disclosed to a person or agency who is in a position to prevent harm – in this case possibly the Police, but more likely the Medical Officer of Health – and the information must be necessary to enable them to do so. And, of course, the agency has to actually have the information.
doesn’t that apply to a potential partner, except that disclosure is voluntary (to protect the carriers privacy)….. and that’s the rub, there needs to be some way to check… as i said after one infection while knowingly an HIV sufferer or a voluntary checking system administered by the gay community… info about the last test? You can’t have your cake and eat it..
“Wow JH. Why not make them wear a scarlet ‘H’ on their clothes? Wouldn’t that be cheaper and easier, without violating their privacy and dignity any more than your plan would?
It scares me that we don’t seem to learn from history, even when it is within living memory.”
Typical slippery slope dismissal Frog. People have been around people for a long time and have learnt to manage community behaviour without (necessarily) cutting limbs off or scewering on stakes.
So the question is how to keep a persons condition private except when they are interacting with a partner who needs to know? At that point it is no longer their own business and in the subject of this post the man is unreliable and selfish…… so why not a bracelet or surgically implanted diode that flashes red if aroused?
It cost the state $300,000 / year to manage —–Timothy Truscot(?) who used to race off to have liasons in the toilets in Hagley Park in a house with staff in attendance.
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JH,
The thing with the card is that they would have to show it to their partner for it to be effective, same goes for them having to tell their partner. It would make no gains in saftey over the present approach and relies equally on a trust of the other to be honest. Considering that the biggest means of HIV transmission is through intravenous drug use, luckily not so much a problem here as the US, that trusting may be fallable.
I do agree in principle with the whole bracelent, diode, or (my favorate) tattoo. The thing is though that if that is enforced then it prevents people from coming foward to get tested for fear of that mark and it creates a false sense of security in the community “they dont have the mark therefore they are clean”. Its even worse if it is optional. Though tattoos that are visable and identafyable could probally do a fair bit of good if optional as it would act to raise awareness and makes it easier for one person with HIV to find another with HIV and as such results in less effort spent going after people without it and ultimatly less transmission, thought then there would be the “they dont have the mark therefore they are clean” again.
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This is a sort of human product labeling issue.
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We cannot discriminate a HIV suffering person. it is against the humanity. If a person wants to haved sex then he or she should get tested before having any type of physical sex. No one can put a sticker on their head that they are suffering from HIV disease.
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I suspect most of the people who have contracted HIV in New Zealand didn’t get it off people who knew they had it. Most people who know they have it are careful not to pass it on, and there are probably more cases of infection from people who don’t know they have it.
Identifying known HIV carriers will just create a false sense of security, leading to more people being infected through sex with people who have HIV but haven’t been diagnosed yet.
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