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Tamil
Nadu State AIDS Control Society |
Why
Legal Cell?
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Many
people living with HIV/AIDS without knowing that they are infected
and also indulging in multi-partner sex without perceiving the risk -
As testing is voluntary many people not testing their blood. Not all
those tested their blood and found positive disclose their status -
Voluntary disclosure confidentiality even disclosure will happen
without their concern
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Those
want to disclose: whom to disclose, where to disclose and how to disclose
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Those
disclosing their status will face different psychosocial and
economical and legal issues
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The
degree of social stigma and degree of discrimination also differ
individuals to individuals
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The
legal issues of women living with HIV/AIDS differ from other
-
The
access and availability of legal remedies - Lack of institutional
support - lack of expertise of individuals and lack of follow up and
regular meetings and deliberations on legal and ethical issues. So
that HIV/AIDS is no longer only medical and social issues but also a
legal issue
Objectives:
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To
provide counseling for those infected and affected in order to
access and avail legal remedies
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To
protect and promote Human Rights of those living with HIV/AIDS v To
create a greater sense of urgency about HIV/AIDS epidemic among
legislature elected members, executives and judicial officers
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To
mobilize lawmakers to adopt effective laws - and to take legal and
establish committees to address legal and ethical issues
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To
establish effective liaison with PLWHA, NGOs - Academic Institutions
Corporate Sectors and Government Institutions
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To
publish concept papers on issues - Examine Best policy and creating
largest awareness of the challenges
Legal
Issues:
Testing:
Existing Situation - Part III of Constitution - Obtaining consent -
informed consent. Professional obligations of the Doctor in ensuring consent
Case
Surveillance:
Unlinked Anonymous HIV/STD Testing - Privacy. Right to Information
Employment:
Testing - Counselling - Denial - Dismissal etc
Confidentiality:
Suppression of identity for litigation
- Medical
Records - Results of testing - Treatment etc. Need for coding -
limited access
- Suppression
if the identity in court related matters - Duty of confidentiality
- Whether
any requirements of mandatory reporting to health authorities or
perhaps to the marriage partners of PLWHA
- Legal
consequences of disclosure - Legal proceedings - remedies
Health
Care:
- Voluntary
Treatment of life of dignity
- Duties
of Health Care practitioners
- Duty
of due awareness
- Duty
to diagnose
- Duty
to treat
- Duty
to Counsel
- Rights
of Health Care workers
Against
Discrimination:
- PLWHA
cannot be denied employment in public sector/state
- Education
- Housing
- Health
Care settings
- Obtaining
insurance coverage
- Violent
attacks and Social obstracism
- Need
for anti-discrimination (constitution and other statutes)
Intervention:
(Eg.) CSWS condom distributed and immoral traffic Act IVDU -
Distribution of Syringes and Narcotic Act - Right to information
- Social
Security: To obtain medical care
- Pay
one's debts after death
- Provision
for spouses and children
- Developing
insurance schemes and legal resume
Counseling:
- Preventive
Counseling
- Test
related Counseling
- Supportive
Counseling
- Special
Case Counseling
Women
and children in relation to HIV/AIDS.
Issues of inequality and discrimination
- Limited
access to resources
- Information
Education
Ethics
in Research
Human
trials - Size of the trial
- Consent
- Rights
of compensation
Willful
Transmission:
Patients point of view. Societal point of view
- Whether
there is a role for criminal law in relation to HIV/AIDS and
- Whether
any form of criminalisation is warranted in relation to the public
policy arguments
- Whether
existing criminal law provisions are adequate to cases of willful
transmission
Rights
and Remedies:
Under
Article 21 of Constitution of India - Protection of Life and
Personal Liberty
Article
47 of the directive principles of state policy - Primary Duty -
Public Health
WHO
- Guidelines - Denial of treatment for PLWHA should be avoided
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Professional
misconduct
- Claim
for compensation
- Panjim
High Court response to Goa public Health Act - 5.53 of Goa Public
Health Act (repealed in 1996) compulsory collection of blood
isolation precaution etc.
- Madras
High Court response
- Writ
in the high court of Delhi for prevention of AIDS in prisons
Existing
legal provisions
Upto
1985 no country had adopted comprehensive laws on AIDS. During 1985
to 1987 large no. of countries adopted AIDS Legislations.
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Epidemic
Corporation Act
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Contagious
Diseases Rules 1990 - the carriage of passengers suffering from
infections/contagious diseases rules 190 (VIII) - 1996
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Madras
Municipal Corporation - to prevent contagious diseases
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Drug
and Cosmetic Rules 1993 - every license of blood bank should get
samples of blood unit tested - results of testing shall be recorded
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Delhi
Artificial Insemination Human Act, 1995 - 8:10 (1) - semen bank -
before donating - test. (II) Collected semen should be stored -
window period - confirmation before performing Artificial
Insemination Test
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Existing
Criminal laws applicable to the prosecution of HIV infected persons IPC-269-Seet
270-304-A-IPC - Blood Bank - Negligent Act likely to spread -
Imprisonment / fine unlawfully negligently etc., -270-willful
transmission - imprisonment/fine - 304 A-killing of a person by
negligent Act
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Right
to privacy
Article
12 - Universal Declaration of Human Rights
Article
17 - of International Convention on civil and political rights
Article
21 - of the constitution of India - right to life - protection of
life and personal liberty |
