> Legal Cell

Tamil Nadu State AIDS Control Society

Why Legal Cell?

  • 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

  • Those want to disclose: whom to disclose, where to disclose and how to disclose

  • Those disclosing their status will face different psychosocial and economical and legal issues

  • The degree of social stigma and degree of discrimination also differ individuals to individuals

  • 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:

  • To provide counseling for those infected and affected in order to access and avail legal remedies

  • 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

  • To mobilize lawmakers to adopt effective laws - and to take legal and establish committees to address legal and ethical issues

  • To establish effective liaison with PLWHA, NGOs - Academic Institutions Corporate Sectors and Government Institutions

  • 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

    • 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.

  • Epidemic Corporation Act?

  • Contagious Diseases Rules 1990 - the carriage of passengers suffering from infections/contagious diseases rules 190 (VIII) - 1996?

  • Madras Municipal Corporation - to prevent contagious diseases??

  • Drug and Cosmetic Rules 1993 - every license of blood bank should get samples of blood unit tested - results of testing shall be recorded

  • 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

  • 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

  • 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

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