By James Chalmers
Because the Nineteen Eighties, legislators and courts have spoke back in numerous how you can the onset of the AIDS pandemic. a few responses were delicate to the wishes of these with HIV, looking to warrantly heightened degrees of confidentiality or freedom from discrimination. Others have sought to take advantage of the legislations as a device to restrict the unfold of HIV, for instance by means of implementing legal responsibility for its transmission or limiting the freedoms of these who're HIV-positive. in different places, medical professionals and researchers have grappled with the felony and moral difficulties surrounding checking out for a which many of us won't are looking to concentrate on, and with the conflicts that can come up among appreciate for person autonomy and the promoting of public future health. extra lately, remedies for HIV have constructed to the level that, for plenty of, HIV is a protracted affliction instead of an unavoidably deadly situation. Such remedies, besides the fact that, pose new demanding situations: they're dear and as such aren't commonly on hand in these elements of the globe the place HIV an infection is such a lot common. This has brought on tensions over matters comparable to asylum, immigration, and deportation. also, the security of highbrow estate rights may well bar such remedies from being made on hand the place the necessity is such a lot acute. In a comparative standpoint, this e-book examines and evaluates those concerns within the united kingdom and, to some degree, different jurisdictions. whereas focusing on HIV and AIDS, it additionally attracts on criminal responses to different sexually transmitted infections and contagious illnesses.
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Extra info for Legal Responses to HIV and AIDS
It is not suggested that reliance on human rights has caused that policy change—and there are good reasons to think that it would have happened anyway—but it highlights the limitations of human rights arguments in this context. Chapter six discusses the criminalisation of HIV transmission. Consistent with the theme of path dependence, it argues that the process of criminalisation in the UK is a direct consequence of decisions taken as far back as the nineteenth century in respect of the Contagious Diseases Acts.
Kennedy and Grubb argue that it does: For instance, it is clear that a woman who consents to sexual intercourse, knowing it is sexual intercourse but believing that it is being done as a surgical operation, has not given a valid consent. She is unaware of the underlying quality of the touching [here, the authors cite R v Flattery as explained by Dunn LJ in Sidaway v Bethlem Royal Hospital]. Is it the insertion of a needle in the patient’s vein which is the relevant touching or procedure, or is it testing for evidence of a condition which may lead to a fatal illness and is one which carries grave adverse personal and social consequences?
Indeed, testing for HIV may only be a subsidiary or ancillary purpose of the venepuncture, and the patient may have expressly or impliedly consented to ‘testing’ without any discussion of the specific tests involved. 6 Thirdly, a decision to 3 The professional bodies were the Central Committee for Hospital Medical Services and the Association of Anaesthetists (jointly) and the Medical Defence Union. The various opinions, along with the arguments presented in I Kennedy and A Grubb, ‘Testing for HIV Infection: The Legal Framework’  Law Society’s Gazette 15 February 30, are adeptly summarised and critiqued in J Keown, ‘The Ashes of AIDS and the Phoenix of Informed Consent’ (1989) 52 MLR 790.