HIV criminalization: do service providers have a responsibility to protect sexual third parties or public health?

It is a criminal offence in the UK (as in some other countries) to transmit HIV “intentionally” or “recklessly”.  Community advocates claim there have been over 200 investigations in the UK regarding HIV transmission on grounds of recklessness, leading to 20 prosecutions (http://www.hivandthelaw.com/information/fast-facts).  (Canada & the US lead the world for HIV criminalization with a combined total over 300 convictions).  How does the threat of prosecution impact on sexual health services and the relations between sexual health providers and users?

A report of the qualitative research study Keeping Confidence (Dodds, Weatherburn et al.) considers how the criminalization of HIV transmission in the UK is perceived by clinical and voluntary service workers on the basis of evidence provided by seven focus groups (http://sigmaresearch.org.uk/projects/policy/project55/).  Sections of the report deal with: how well staff understand the UK law (1); in what circumstances the topic of criminalization arises in their dealings with service users (2); how they perceive the responsibilities both of service users and of themselves in respect to “criminal” HIV transmission (3); what access they have to information and guidance (4).

Not surprisingly, participants see their primary function as meeting the needs of their patients, rather than those of their patients’ partners (2).   The issue that elicited the liveliest debate among participants concerned whether they saw themselves as having, in addition, some measure of responsibility for protecting third parties – i.e. patients’ partners or the health of the public more generally (3).  Participants sometimes spoke in general terms of using the threat of the law to alter behaviour – which would suggest the recognition of some such wider responsibility.  But this may seem hard to reconcile with the widespread negative perception of the impact of criminalization on health care, with no positive benefit being anticipated from prosecutions, either for the individuals concerned or for public health generally.  The authors comment on the disagreement between those clear about where they placed responsibility, and those who were more inclined to problematize situations – or, in the rather unsympathetic terms of the authors (and maybe of those taking the former position?) “having unresolved personal dilemmas”.  Interestingly, the latter position tended to be occupied by those in junior and non-managerial roles.

The least satisfactory section of this report is the first.  It seems doubtful whether it is possible to conclude that participants “get the law wrong” or “elide their own subjective understanding …. with the technical legal definition of recklessness”, as the authors claim, on the basis of the kind of statements cited in the report.  So we remain largely in the dark, therefore, about the true state of the participants understanding of the law.  Why not assess participants’ knowledge by an individual written test, using multiple choice questions?  Surely this would work better than seeking indications of knowledge in the statements that were clearly meant to communicate a perception or express a view in the context of a lively discussion with fellow participants?

STI readers and (potential) contributors may be interested to hear that STI will be publishing a Special Issue on HIV criminalization, guest-edited by David Gurnham, later in the year, in collaboration with two other BMJ specialist journals – The Journal of Medical Humanities and The Journal of Medical Ethics.