HIV: Consent, Testing and Treatment

In one line

The Act treats a diagnosis as something that happens to a person's legal position as much as to their body, and it protects both.

In the wording a student can write in an exam: the HIV and AIDS (Prevention and Control) Act 2017 prohibits discrimination against a protected person under section 3 and certain acts of vilification under section 4; requires informed consent, including pre-test and post-test counselling, for any HIV test, treatment, intervention or research under section 5, with four exceptions in section 6; requires testing centres to follow the guidelines under section 7; and imposes on the Central and State Governments obligations as to treatment, welfare, education and the position of women and children under sections 13 to 18.

Why the law has this at all

The harms of this diagnosis were never principally clinical. A person who learned they were HIV positive lost employment, housing, marriage, education and the company of their family, and the loss came from the disclosure rather than from the illness.

That produced a feedback loop the statute is designed to break. If a test result destroys a life, people do not get tested; if people do not get tested, they are not treated and transmission continues. So the public health case and the rights case point the same way, and this is one of the few areas in this module where they do.

The facts of Mr 'X' v. Hospital 'Z', worked in [Medical Confidentiality and Its Limits], are the illustration: the appellant's marriage was called off, his family and community learned his status, he was ostracised, and he left his home State. That case was decided in 1998 and this Act was passed in 2017, and much of what it contains is a legislative answer to what that case exposed.

Sections 1 to 4: application, discrimination and vilification

Section 1 gives the short title, extent and commencement. Section 2 contains the definitions, and the central one is protected person, meaning a person who is HIV-positive, or who is ordinarily living with, or is in a shared household with, or is associated with, an HIV-positive person.

That definition is the Act's first significant choice. Protection extends beyond the person with the virus to those living with or associated with them, because the discrimination did.

Section 3: no person shall discriminate against the protected person on any of the listed grounds, which cover the denial of, or termination from, employment or occupation; unfair treatment in healthcare services; unfair treatment in educational establishments; unfair treatment in residing or renting property; restriction of movement; denial of standing for public or private office; denial of access to insurance unless supported by actuarial studies; and the requirement of an HIV test as a pre-requisite for obtaining employment, healthcare, education, or for the continuance of any of them, or for access to a public facility.