The basic rule and the AIDS paradox

So here stands our problem. In little more than a decade an extraordinary challenge to our species has struck the world. It has spread like wildfire. No continent is more at risk than over-populated Asia. We have photographed the virus that causes our affliction. We know the main modes of transmission. We have palliatives which will arrest some of its debilitating manifestations. But we have no cure.

The AIDS paradox arises from the fact that one of the most effective laws we can offer to combat the spread of HIV is the protection ofpersons living with AIDS and those about them from discrimination. We must protect the infected because of reasons of basic human rights.

This is a terrifying condition. There is no point mincing words. Like many of you I have sat at the bedside of precious friends. AIDS makes us angry.

But in law we must be rational. We must recognise the limitations of our discipline. We must acknowledge that law has only a partial success in achieving behaviour modification: particularly where sexual, drug-use or other human pleasures are involved. We must look for effective and just laws which slow the spread of AIDS.

I now want to assert a fundamental rule and a paradox. Such laws must be based on a thorough understanding of the target. In the case of HIV/AIDS this requires a detailed knowledge of the virus and its mode of transmission. AIDS laws must not be based on ignorance, fear, political expediency and pandering to the demand of the citizenry for ‘tough’ measures. Good laws, like good ethics, will be founded in good data. One of the real dangers of AIDS is that it will produce a new virus – HIL – highly inefficient laws.

The AIDS paradox arises from the fact that one of the most effective laws we can offer to combat the spread of HIV is the protection of persons living with AIDS and those about them from discrimination. We must protect the infected because of reasons of basic human rights.

Our only vaccine in these circumstances is knowledge. The only sure cure is prevention, by behaviour modification, of decisions made at moments immediately prior to sexual or drug-use activities.

Getting into the minds of people in such a way that they have the will to change their behaviour and reduce the risk of infection is not easy. But it is next to impossible unless the educational messages can be effectively spread. That will not happen if we do not win the confidence of the people most at risk. Such people include the young involved in sexual activity, homosexual and bisexual men, sex workers, unempowered women, spouses of men who are infected and injecting drug users. All of these groups have been the subject of centuries of prejudice and discriminatory laws. In their various ways they all feel alienated and remote from the messages of society.

The paradox is: if we are serious about the containment of the AIDS epidemic, we must enter their individual minds and get them to change behaviour which seems central to them to the definition of their being.

Australia, like India, is a federation. The strategy in Australia has been generally addressed towards containment. Even the single-minded policy against illegal drug use gave way to a national scheme for syringe exchange at local pharmacies. There is now widespread public and school education about HIV/AIDS. There is much more open discussion about sexuality and drug use. In most prisons, without change in prison regulations, condoms are discreetly provided and even cleaning bleach is left available to sterilise illicit syringes.

Legal responses to the epidemic

If human rights arguments are unpersuasive, it is much more likely that politicians and bureaucrats will come to appreciate the ineffectiveness and costs of laws imposing obligations of general or widespread screening. The screening can only be partly effective. Those in the ‘window period’ will slip through. False positives and false negatives will give misleading results. Repeated testing will be needed. And then the problem would have to be faced as to what dould be done with people found positive. Even in Australia there would not be barbed wire enough. no institutions strong enough to contain all of the infected

Yet the infected are in many causes highly productive to the economy, to themselves and their family for more than a decade. As such they are of no risk to their fellow citizens. Only certain intimate conduct is risky. AIDS is not contagious. The arguments quarantine of HIV patients are therefore contpletely unpersuasive.

Laws and policies to do with AIDS must be efficient and cost-effective. Mass-screening – even screening of particular groups – is not an eficicnt strategy. If it does not lead to quarantine. it certainly does not lead to treatment.

AIDS laws and strategies national and international must be achieved in conformity with international human rights norms. The right to life is primary and must be protected. But so must other rights: such as the right to privacy, the right to liberty and security, the right to freedom of movement. the right to marry and found a family, the right to work and to be educated and the right to freedom front inhuman or degrading treatment or punishment.

Criminal and public health law

Since exposure to HIV infection may lead to AIDS which is plainly life-threatening. it is the legitimate purpose of law to endeavour to protect individuals. communities and nations front the spread of the virus.

The focus of the Australian proposals is upon high risk activities. It is not upon individuals and groups. It does not seek to stigmatise or reinforce prejudice against homosexuals, the promiscuous young, sex workers or drug users.

In Victoria there is an innovative protocol. Where it is thought that a person with an infectious disease is likely to transmit it. there is the provision for the Head of the Health Department to require the person to be tested for HIV. If the test is positive the person may be ordered to undergo counselling where appropriate. only if the counselling is ineffective may the person’s behaviour or movements restricted.

Anti-discrimination law

It is impossible, by law. to prevent people having their own private prejudices and attitudes. Yet, as we have found in Australia. the law can have a supportive role in promoting education and informed attitudes based on fact, not prejudice. To exhibit prejudice because a person is sick. though that person presents no risk, is irrational and morally wrong. It adds to the heavy burden of illness. Anti-discrimination laws can help to rectify such wrongs and to set the standards of proper social conduct. In many countries such as my own, such laws began with useful work on racial and religious prejudice. They then moved into prejudice on the ground of gender.

Now they are tackling other causes of prejudice such as age. handicap, disability and sesual orientation. There is a common enemy here. It is stereotyping.

Confidentiality

There have been a number of cases in Australia as in other countries where confidentiality of persons with HIV has been breached. It is imperative that confidentiality is assured in healthcare services especially about a condition such as HIV/AIDS. If it is suspected that confidentiality cannot be assured, some people will not seek services. Others will keep secret facts which should be revealed for good treatment.

In making decisions on issues concerning confidentiality, courts and other bodies must keep their eye on their utility to society as a whole and of preserving the general assurance of medical confidentiality. They should resist the breakdown of the duty of confidentiality, even in hard individual cases.

Conclusion – the big AIDS test

In the face of AIDS – this new, unheralded global crisis we should all be humble. But we should be resolute. We should think of the many who this day will become infected and those who will learn of their infection. We should think of their families, parents, lovers, friends.

We should spare thoughts for the healthworkers who will toil courageously over them – often with no drugs, always with no cure. Learning from past errors of cruel and inefficient laws we should resolve, this time, to do better. Stigma should have no dominion.