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PAN CARIBBEAN PARTNERSHIP ON HIV AND AIDS    Regional Policy and Model Legislation to Address HIV  and AIDS related Stigma and Discrimination 

This  report  was  written  during  the  Desk  Review  Phase  of  the  project  to  develop  regional  model  policies,  guidelines  and  legislation  to  address  stigma  and  discrimination of persons living with HIV and their families between 7th May and  28th May 2010. The Report considers the incidence of stigma and discrimination in  the Caribbean Region and the Legal Response in select countries which conducted  reviews  of  the  legal  frameworks  including,  Dominica,  Grenada,  Guyana,  St.  Christopher  &  Nevis,  Saint  Lucia,  Saint  Vincent  &  the  Grenadines,  Belize  and  Suriname. 

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

May 2010 Š Caribbean Community (CARICOM), Pan Caribbean Partnership on HIV/AIDS CARICOM - PAN CARIBBEAN PARTNERSHIP ON HIV/AIDS Secretariat: Turkeyen, Greater Georgetown, Co-operative Republic of Guyana This report was written during the Desk Review Phase of the project to develop regional model policies, guidelines and legislation to address stigma and discrimination of persons living with HIV and their families between 7th May and 28th May 2010. The principal author is Veronica S. P. Cenac. The findings, interpretations and conclusions in this paper are those of the authors. They do not necessarily represent the views of CARICOM PANCAP, its Secretary General, or the countries that they represent.

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

TABLE OF CONTENTS 1.  BACKGROUND ..............................................................................................................................3  2.  METHODOLOGY AND REPORT STRUCTURE ..................................................................3  3.  SUMMARY OF FINDINGS ..........................................................................................................3  4. INTRODUCTION..................................................................................................................................5  4.1   THE CARIBBEAN - A STUDY IN DIVERSITY .........................................................................................5  4.2  HIV AND AIDS IN THE REGION ............................................................................................................6  5. TACKLING STIGMA AND DISCRIMINATION...............................................................................7  5.1   FINDINGS ON STIGMA AND DISCRIMINATION ...................................................................................7  5.2   DEFINITIONS OF STIGMA AND DISCRIMINATION .............................................................................9  5.3   REINFORCING SOCIAL INEQUALITY .....................................................................................................9  6. THE ROAD TO LEGISLATIVE REFORM...................................................................................... 13  6.1   INTERNATIONAL FRAMEWORK ...........................................................................................................13  6.2   THE REGIONAL CONTEXT ....................................................................................................................16  7. REVIEW OF LEGISLATIVE LANDSCAPE .................................................................................... 20  7.1  ANTI-DISCRIMINATION LEGISLATION IN THE CARIBBEAN REGION........................................20  7.2  CONSTITUTIONAL PROTECTIONS ........................................................................................................22  7.2.1  Categories of Discrimination..........................................................................................................22  7.2.2  Right to Health .....................................................................................................................................22  7.2.3  Right to Work ........................................................................................................................................23  7.2.4  Right to Privacy....................................................................................................................................24  7.3  PUBLIC HEALTH LAW .............................................................................................................................25  7.4  TESTING .......................................................................................................................................................26  7.5  ACCESS TO TREATMENT ........................................................................................................................28  7.6   CONFIDENTIALITY ..................................................................................................................................28  7.7  PARTNER NOTIFICATION ........................................................................................................................31  7.8   REDRESS FOR BREACHES OF CONFIDENTIALITY – REGULATION OF MEDICAL PROFESSIONALS .......................................................................................................................................32  7.9  CRIMINAL LAW....................................................................................................................................32  7.9.1  Willful Transmission ..........................................................................................................................32  7.9.2   Laws relating to Buggary or Sodomy.........................................................................................34  7.9.3  Sex Work .................................................................................................................................................35  7.10  EMPLOYMENT..........................................................................................................................................36  7.11  INSURANCE..............................................................................................................................................37  7.12  IMMIGRATION .........................................................................................................................................38  7.13  EDUCATION ..............................................................................................................................................39  7.14  PRISON .......................................................................................................................................................40  7.15  DRUG USE.................................................................................................................................................41  8. MAIN RECOMMENDATIONS......................................................................................................... 41  9. CONCLUSIONS .................................................................................................................................. 43  BIBLIOGRAPHY .................................................................................................................................... 44 

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

1. Background The CARICOM Secretariat, with a grant from the International Development Association, and in keeping with the Caribbean Regional Strategic Framework 2008 2012 intends to conduct a review of the legal frameworks in targeted countries and develop a regional model policy, drafting guidelines and legislation to help reduce stigma and discrimination against persons living with HIV or affected by HIV and their families. Following a competitive tender process the author of this report was contracted to undertake the assignment. This document is the Desk Review Report, which responds specifically to Task 2 of the terms of reference for this project: ‘conduct a desk review of existing legislative frameworks’. The desk review is a phase of the project during which the team will evaluate National Assessment Reports conducted in Caricom Member States including, Dominica, Grenada, Guyana, St. Christopher & Nevis, Saint Lucia, Saint Vincent & the Grenadines, Jamaica, Belize and Suriname. Countries conducted some of the assessments independently, for example Barbados, Suriname and Jamaica and others were funded through a CIDA grant under Priority Area 1 of the Caribbean Regional Strategic Framework 2002-2006. The assessments were conducted between 2004 and 2008. The report highlights issues of importance as per the findings of the desk review.

2. Methodology and Report Structure A total of eleven (11) countries were included in the study, all of which have prepared either national assessment reports or policies on discrimination. The authors were furnished with copies of the following national assessment reports: Barbados, Belize, Dominica, Grenada, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and Suriname. The following country policies on discrimination were reviewed: Guyana, Turks and Caicos and the Cayman Islands. National assessments were also conducted in Jamaica, Guyana and Trinidad and Tobago, however these reports were unavailable at the time of compiling this desk review. The report considers firstly, the issues of stigma and discrimination and the broader social and economic factors impacting on its prevalence, the historical progress towards legislative reform in the region and a summary of the findings and recommendations from the national assessment reports and country policies on discrimination.

3. Summary of Findings 3.1

Findings on Stigma and Discrimination 3


Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

The levels of stigma and discrimination are still relatively high in the Caribbean. Stigma and discrimination against those infected with and affected by HIV are widespread and are recognised as a major barrier to accessing prevention, testing and treatment1. The assessments of laws and policies related to HIV and AIDS conducted by PANCAP in CARICOM Member States including Barbados, Belize, Dominica, Grenada, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and Suriname (some conducted independently by countries) revealed that the existing legislative framework in the Caribbean encourages stigma and discrimination against PLHIV and other vulnerable groups, largely through omission of protective provisions (for example there is no legislation against discrimination on the basis of HIV status or health status2) and the criminalization of certain behaviours. Many studies and discussions on stigma and discrimination posit that criminalizing behaviour impedes sound, public, health policy. (Aggleton et al, 2006)3, (Royes 2007)4, (O’Connell, T and R. Van Puymbroeck, WB. Once a behaviour is made criminal, people engaging in such activity are less likely to admit it and are far less likely to seek counselling and testing, two fundamental pillars of a country’s prevention policy. Within the context of HIV and AIDS, laws that criminalize buggery, prostitution, and drug use will have this effect5. In contradistinction, legislation which has been passed to address HIV clearly encourages ill will and discrimination against PLHIV. For example see Section 140 of the Criminal Code of Saint Lucia criminalizing the knowing transmission of HIV. A willful transmission statute powerfully discourages testing for HIV: one cannot commit the crime if one does not know one’s serostatus. In one state in Australia, during the month directly following the passage of such a statute, 12,000 fewer people voluntarily tested for HIV than in the previous month6.

3.2

Findings on Legal Framework

Weak Legislative Frameworks 1

Keeping Score II, A Progress Report Towards Universal Access to HIV Prevention, Treatment, Care and Support in the Caribbean, (2008) 2

Although, in Saint Lucia and Grenada under the Equality of Opportunity and Treatment in Employment and Occupation Act and The Employment Act 1999, Grenada, respectively, a person dismissed for the reason of their HIV or perceived HIV status may effectively bring a claim for discrimination under the ground of disability. 3 Aggleton, Peter, R. Parker, M. Maluwa. 2003. Stigma, Discrimination and HIV AND AIDS in Latin America and the Caribbean, Inter- American Development Bank 4 Royes, Heather PHD “PANCAP Survey of HIV AND AIDS Stigma and Discrimination in Six Caribbean Countries” September 2007 5 O’Connell, T and R Van Puymbroeck, HIV AND AIDS in the Caribbean: The Role of Legal Advisory Services. World Bank. http://siteresources.worldbank.org/INTLAWJUSTICE/Resources/HIVAIDsCaribbean.pdf 6 ibid at pg. 3

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

Fear of disclosing status in order to seek protection A major impediment to PLHIV enforcing their rights under the existing law is the requirement that the applicant/complainant must be named in the suit or charge and that upon filing, the documents become public documents. Where one is asserting discrimination on the basis of their HIV status, bringing a claim forces them to disclose that status. Weak Human Rights Framework The Fundamental Rights provisions of Constitutions in the Commonwealth Caribbean are the main source from which human rights protections emanate.7 The Constitutions do not guarantee protection against discrimination on the grounds of one’s health status, nor is there an enforceable right to privacy. Framing the protection against discrimination within the Constitution would require that ordinary legislation be subject to these protections notwithstanding that it is not specifically provided therein. Cost of Legal Redress The cost of filing civil matters or constitutional motions or administrative law remedies is prohibitive. Even where legal service providers are willing to provide pro bono services this is not sustainable.

4. Introduction 4.1

The Caribbean - a study in diversity

The region is multiethnic and culturally diverse, with many languages--Spanish (spoken by more than 60 % of the population), French (20%), English (16%), with the remaining speaking Dutch and Creole. The population of the region is approximately 39 million people, with mainland states (Belize, Guyana and Suriname), and island states that vary in size, ethnicity and religion. Population size in the island states varies from smaller island states such as Anguilla with 8,000 and Cayman Islands with 35,000 to Haiti with 8 million and Cuba with 11 million inhabitants. While the majority of the population is of African descent, there are also people of European and Asian ancestry, as well as indigenous populations such as Carib, Arawak, Garifuna and Taino peoples. The Caribbean peoples are also from diverse religious backgrounds--Christian, Hindu, Muslim and others.8 The diversity also extends to the legal systems of the region. Among the 15 CARICOM Member States and 5 Associated Members only Haiti and Suriname are not part of the English Speaking Commonwealth Caribbean. Notwithstanding, there are divergences 7

8

Sources of Human Rights Law HIV/AIDS in the Caribbean Region: A Multi-Organization Review, DFID, WHO/PAHO, GFATM, UNAIDS Secretariat and the World Bank November 2005

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

even within the Commonwealth Caribbean Countries. The legal systems of Guyana and Saint Lucia are best described as “hybrid”, because Guyana has the influence of the Roman-Dutch tradition, while that of Saint Lucia has a strong influence of the French civil law9 based largely on the Quebec Civil Code. Otherwise, the legal systems of the English-speaking Caribbean countries are based on the English Common Law. Haiti’s legal system is based on Roman civil law and Suriname on the Dutch legal system incorporating French legal theory. Despite differences between countries, the spread of HIV in the Caribbean has taken place against a common background of poverty, gender inequalities and a high degree of HIV-related stigma. Migration between islands and countries is common, contributing to the spread of HIV and blurring the boundaries between different national epidemics. Additionally, poor availability of HIV and AIDS data makes it difficult to gain a clear picture of each country’s situation.10

4.2

HIV and AIDS in the Region

In 2008, an estimated 20,000 people in the Caribbean became infected with HIV and around 12,000 died of AIDS. The Caribbean continues to have the highest prevalence after sub-Saharan Africa. The prevalence rate is estimated to be between 0.7% and 1%, however behavioural data is not readily available and these estimates are not accurate.11 At one extreme, the Bahamas has the highest HIV prevalence in the entire western hemisphere (3%); at the other, Cuba has one of the lowest (0.1%); Trinidad and Tobago (1.5%); and Jamaica (1.6%). The Caribbean has a mixture of generalized and concentrated epidemics. Women account for approximately half of all infections in the Caribbean. HIV prevalence is especially elevated among adolescent and young women, who tend to have infection rates significantly higher than males their own age. Substantial differences in HIV burden are apparent within many Caribbean countries. There is a nearly sevenfold variation in HIV prevalence between the different regions of the Dominican Republic, with HIV prevalence especially elevated in the country’s former sugar plantations (bateyes). In Haiti, HIV prevalence among pregnant women in 2006– 2007 ranged from 0.75% in a sentinel antenatal site in the western part of the country to 11.75% in one urban setting12.

9

Yemisi Dina B.A, M.A, LL.B, MLS is Law Librarian at The College of The Bahamas Law Library, Nassau, The Bahamas 10 HIV/AIDS in the Caribbean Region: A Multi-Organization Review, DFID, WHO/PAHO, GFATM, UNAIDS Secretariat and the World Bank November 2005 11 UNAIDS 2008 Update 12 http://www.avert.org/aids-caribbean.htm

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

5. Tackling Stigma and Discrimination Stigma and Discrimination are considered by many experts to be the greatest barriers in preventing the spread and impact of HIV and AIDS. “HIV and AIDS related stigma may well be the greatest obstacle to action against the HIV and AIDS epidemic. An all out effort against stigma will not only improve the quality of life of persons living with HIV and those vulnerable to infection, but will meet the necessary conditions of a full-scale response to the epidemic.” 13

5.1

Findings on Stigma and Discrimination

The levels of stigma and discrimination are still relatively high in the Caribbean. Stigma and discrimination against those infected with and affected by HIV are widespread and are recognised as a major barrier to accessing prevention, testing and treatment14. A study of HIV Stigma and Discrimination in six (6) Caribbean Countries (Royes, H, 2007)15 found that the main types of abuse experienced was 1) verbal abuse, 2) physical abuse, 3) avoidant behaviour, 4) exclusion from social interaction, employment, church, 5) threats of arrest and harassment. Figure 1: Main Types of Stigma and Discrimination

13

Peter Piot, Former Executive Director, UNAIDS, United Nations Under Secretary General

14

Keeping Score II, A Progress Report Towards Universal Access to HIV Prevention, Treatment, Care and Support in the Caribbean, (2008) 15

Royes, Heather PHD “PANCAP Survey of HIV/AIDS Stigma and Discrimination in Six Caribbean Countries” September 2007

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

The main perpetrators were: 1) 2) 2) 3) 4) 5) 6) 7)

Family; Close community; Someone known to victim; Health care workers; School; Workplace; Youth; General public in that order.

Data from the national assessment reports and other commissioned studies suggest the following range of abuses which occur against PLHIV and other key affected populations on a daily basis: • • • • • • • • • •

Dismissal from employment; Discrimination within the workplace; High levels of discrimination within the health sector – breaches of confidentiality, refusal of services, death resulting from refusal to treat, illtreatment and abuse; Denial of housing; Ostracism from family, community by threats, physical abuse, burning of residence; Stoning of children; Denial of entry into school; Denial of insurance coverage, even in cases of perceived HIV status; Denial of transportation; Refusal of work permits; 8


Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

• •

Denial of registration as a Citizenship even in cases of descent; Victimization and harassment, inter alia.

The Royes (2007) study following a comprehensive literature review and the responses from the six (6) countries found that culture must be used as a key reference in elaborating strategies and planning because culture influences attitudes and behaviours related to the HIV and AIDS epidemic, in taking or not taking the risk of contracting HIV, in accessing treatment and care, in being supportive towards or discriminating against PLHIV.16 Although the two terms are often mentioned in the same phrase, it is useful to distinguish HIV and AIDS-related stigma from HIV and AIDS-related discrimination. The Royes (2007) study found that in the six (6) countries where focus groups and informant interviews were conducted (Trinidad and Tobago, Nevis, Guyana, Grenada, Saint Kitts and Suriname) many persons did not understand the concepts of stigma and discrimination. Stigma in particular was difficult to interpret by many of the respondents to the study.

5.2

Definitions of Stigma and Discrimination

Discrimination typically refers to less favourable treatment, such as the denial of goods or services to a person, based on a real or perceived characteristic of that person. It is accepted, however, that not all aspects of human interaction, even those with legal consequence, can or should be regulated by anti-discrimination law.17 Stigma is defined as ‘a process of devaluation’ of people either living with or associated with HIV and AIDS. 18 "Stigma has been identified as a complex, diverse and deeply rooted phenomenon that is dynamic in different cultural settings. As a collective social process rather than a mere reflection of an individual’s subjective behaviour, it operates by producing and reproducing social structures of power, hierarchy, class and exclusion and by transforming difference (class, race, ethnicity, health status, sexual orientation and gender) into inequality" (POLICY Project, 2003a: 2).

5.3

Reinforcing Social Inequality

In an IDB study on stigma and discrimination in Latin America and the Caribbean19 Aggleton, Parker and Maluwa (2003) drawing on research around stigma from the classical work of social psychologists Goffman (1963) to the more recent work of Link and Phelan (2001) argue that HIV and AIDS related stigma is not something that resides 16 17

UNESCO/UNAIDS – A Cultural Approach to HIV/AIDS Prevention and Care, 1998

For example, the law may prohibit discrimination in the selection of a tenant, but not a boarder. See HIV-Related Stigma, Discrimination and Human Rights Violations: Case studies of successful programmes (UNAIDS, 2005). 19 Aggleton, Peter, R. Parker, M. Maluwa. 2003. Stigma, Discrimination and HIV AND AIDS in Latin America and the Caribbean, Inter- American Development Bank 18

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

in the minds of individuals. Instead, it is a ‘social product’ with deep societal origins. Therefore, tackling stigma and discrimination calls for strong measures, interventions that go to beneath the surface of things to deal with the underlying structures and not the root causes. They argue further, that stigma plays into and reinforces existing social inequalities including20: • • • •

inequalities of wealth; gender inequality; inequalities of nationality, ethnicity; inequalities linked to sexuality and different forms of sexual expression.

Royes (2007) also found that efforts to deal effectively with HIV and AIDS related stigma and discrimination as well as the epidemic itself stumble in the face of the taboos against ‘sex/gender transgressors’ and in some cases against discussing issues of sexuality in general.” Therefore, tackling HIV in isolation does not work. Stigma and discrimination must be addressed in relation to other forms of social inequality and exclusion that disempower those most vulnerable to HIV. The study drew a reference from a project in Brazil trying to develop effective HIV prevention interventions for inner city youth. It was shown that tackling the issue of poverty, economic marginalization, stigma and racism associated with migrant status and gender inequality had to be addressed to deal effectively with HIV. (Paiva 2000). “Vulnerable groups typically experience stigma from multiple sources (e.g., drug use, sexuality, gender, sex work, HIV). Thus, interventions that address only HIV stigma may not improve prospects for these groups or facilitate the response to AIDS.”21 The evidence is telling. The findings of a behaviour surveillance study (BSS) among crack cocaine users and a sero-prevalence study on prison inmates which found prevalence rates of 7.5% and 2% respectively in Saint Lucia22 are consistent with the views of Aggleton, Parker and Maluwa (2003): The following data from UNAIDS Caribbean Regional Support Team (2009) is further evidence of the impact of HIV on some sub-populations. While the lack of behavioural data does not allow conclusions as to the main driver of this disparity in infection rates, it is symptomatic of the failure of isolating strategies to address HIV and HIV related 20

This finding is supported by Royes (2007) DfID, Taking Action Against HIV Stigma and Discrimination, Guidance Document and Supporting Resources, November 2007, page 9 22 Day, M Behaviour Surveillance Study among homeless crack cocaine users in Saint Lucia, 2007 and Sero-Prevalence Study at the Bordelais Correctional Facility, CAREC, 2004 21

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

stigma and discrimination. The data highlights the divergence in the rates of infection among certain sub-populations as compared to national adult prevalence rates. Figure 2: Comparing Adult Prevalence and HIV Prevalence among Caribbean MSM

        

Figure 3: Comparing Adult Prevalence and HIV Prevalence among FSW in the Caribbean

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report Figure 4: Comparing HIV Prevalence among MSM in Caribbean Countries which Criminalize or homosexuality and countries which do not

Aggleton, Parker and Maluwa (2003 suggest that: “HIV/AIDS-related stigma is linked to power and domination throughout society as a whole, and the stigmatization of individuals and groups as a result of HIV/AIDS plays a key role in producing and reproducing relations of power and control. Importantly, it causes some groups to be devalued and others to feel that they are superior in some way. Ultimately, HIV/AIDS related stigma creates, and is reinforced by, social inequality.” In his address for World AIDS Day, Michel Sidibe, Executive Director of UNAIDS under the International theme “Universal Access and Human Rights” expressed concern that “….28 years into the epidemic, the virus continues to make inroads into new populations; stigma and discrimination continue to undermine efforts to turn back the epidemic. The violation of human rights of people living with HIV, women and girls, men who have sex with men, injecting drug users and sex workers must end”23.

23

World AIDS Address 2009 See also ‘Keeping Score II, A Progress Report Towards Universal Access to HIV Prevention, Treatment, Care and Support in the Caribbean, (2008) page 11 – “The Caribbean has to move quickly to confront human rights issues facing most vulnerable populations (for example, the criminalization of sodomy and sex work) and to engage in the meaningful involvement of these populations who do not receive the attention they need, given that they carry the greater burden of the virus.”

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

Notwithstanding, the broader determinants of stigma and discrimination, it is clear that the absence of an appropriate rights framework aggravates and perhaps encourages further discrimination. Therefore, addressing stigma and discrimination requires the creation of an enabling environment, guaranteed by protective laws and policies which recognise the rights of PLHIV and other key affected populations. The creation of this environment must be guided by a set of principles which recognise the basic entitlements or minimum standards of treatment which States and all other interested parties are obligated to observe and maintain. In other words, guaranteeing human rights is an indispensable weapon in the fight against the epidemic. These include not only the rights of PLHIV, their family members and other key affected groups, but also the rights of the general population to have access to information, preventive measures and means, treatment and care, and protection against harassment and discrimination. A focus on discrimination provides a useful entry point to hold accountable those whose actions lead to discrimination and the violation of human rights24. Despite the best efforts of activists, advocates, the regional and international community and some dedicated HIV programme managers at the regional and national level, an enabling environment where persons living with HIV and those for whom marginalization and denial of human rights heightens vulnerability to HIV, can promote or secure protection from rights violations has failed to materialize. The human rights approach to HIV and AIDS as outlined in the International Guidelines on HIV/AIDS and Human Rights, 2003 is the most effective approach both in terms of human rights and public health. Over the history of the epidemic, there has been growing recognition that without impacting upon human rights, programmes cannot successfully impact upon the prevention of HIV and care of people living with HIV and AIDS.25

6. The Road to Legislative Reform 6.1

International Framework

In 1988, the World Health Assembly identified discrimination against people living with HIV and AIDS and vulnerable groups as an obstacle to a sound public health response to the epidemic.26 This approach was reflected in a resolution of the UN General Assembly in 1991,27 and in 1997 the Commission on Human Rights referenced international 24

Aggleton, Parker and Maluwa (2003) ICASO, ‘HIV/AIDS and Human Rights� 2002 26 World Health Assembly resolution WHA 41.24, 13 May 1988. 27 UN General Assembly resolution A/Res/46/203, 20 December 1991. 25

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

guidelines developed by UNAIDS and the Office of the High Commissioner for Human Rights which gave further guidance on the content of anti-discrimination and protective laws.28 In 1998, the 99th Inter-Parliamentary Conference in a unanimous resolution endorsed the International Guidelines on HIV/AIDS and Human Rights and urged governments to adopt legislation ‘ensuring that the human rights of persons infected or affected by HIV and AIDS are respected, banning all forms of discrimination against them, and establishing their right to education, work, housing and social services…’29 In 1999, UNAIDS and the Inter-Parliamentary Union published the Handbook for Legislators on HIV/AIDS, Law and Human Rights. The Legislators’ Handbook gives guidance on the content of laws to address HIV/AIDS-related discrimination, a check list to evaluate legislation, as well as examples from different jurisdictions of the process followed in developing the legislation.30 At the UN General Assembly Special Session on AIDS (UNGASS) in 2001 all of the countries in the Caribbean region endorsed the Assembly’s unanimous Declaration of Commitment on HIV/AIDS and thus committed to introducing laws and other measures to address HIV and AIDS-related discrimination. Paragraph 58 of the Declaration provides: Respect for the rights of people living with HIV/AIDS drives an effective response 58. By 2003, enact, strengthen or enforce as appropriate legislation, regulations and other measures to eliminate all forms of discrimination against, and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV/AIDS and members of vulnerable groups; in particular to ensure their access to, inter alia education, inheritance, employment, health care, social and health services, prevention, support, treatment, information and legal protection, while respecting their privacy and confidentiality; and develop strategies to combat stigma and social exclusion connected with the epidemic…

The declaration focuses on leadership, programme management, resource mobilization, protection of human rights and access to services. 28

E/CN.4/1997/37. In 1998 the guidelines were edited and published as HIV/AIDS and Human Rights – International Guidelines (UNAIDS & OHCHR, 1998) see www.unaids.org. 29 Resolution adopted 10 April 1998, Windhoek, Namibia. As of 11 April 1998, the IPU had 137 members, including Cuba from the Caribbean region. At the 112th IPU Assembly in Manila on 8 April 2005 a further resolution on HIV/AIDS was adopted, which called upon parliamentarians in the IPU's Member Parliaments ‘to promote appropriate legislative measures to tackle discrimination against persons affected by HIV/AIDS and to contribute to the creation of a social environment of tolerance and human solidarity, indispensable for the prevention of this terrible disease and for assisting those affected by it’ and to ‘review and adjust legislation to ensure that it conforms to the International Guidelines on HIV/AIDS and Human Rights’ - see www.ipu.org/conf-e/112/112-3.htm Also in 2005, the IPU decided to create a Committee on AIDS as a specialised body of the IPU. ‘This new body will pave the way for the creation of a global information clearinghouse linking parliaments and their specialised committees and stimulating exchange of good legislative practices. It will also foster the production of parliamentary newsletters and other information tools to be used by parliamentarians around the world’ - see www.ipu.org/un-e/un-issues.htm. 30 Handbook for Legislators on HIV/AIDS, Law and Human Rights (UNAIDS & IPU, 1999) hereinafter ‘Legislators Handbook’ see www.unaids.org.

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

The subject of human rights is a prominent feature of the “Declaration of Commitment on HIV/AIDS” adopted by the United Nations General Assembly and the “International Guidelines on HIV/AIDS and Human Rights” jointly published by UNAIDS and the Office of the United Nations High Commissioner for Human Rights (OHCHR) in 1998 later revised in 2003. These guidelines provide clear benchmarks for implementing and evaluating human rights laws and policies. The international human rights framework includes: • • • • • • • • • • • • • •

The UN Charter The Universal Declaration of Human Rights (UDHR) 1948 The International Covenant on Civil and Political Rights (ICCPR) 1966 The International Covenant on Economic, Social and Cultural Rights (ICESCR) 1967 The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) 1965 The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979 The Convention on The Rights of The Child (CRC) 1989 The Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984 Convention relating to the Status of Refugeees and its Protocol, 1951 and 1967 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families American Convention on Human Rights The International Conference on Population and Development (ICPD) The Millennium Development Goals (MDGs) and The various conventions and recommendations of the International Labour Organisation (ILO)

The monitoring framework for the UNGASS Reports requires that reports are prepared annually for submission to the UN General Assembly. The 2006 reports on the implementation of the Declaration contains the following questions relating to discrimination: •

Does your country have laws and regulations that protect people living with HIV and AIDS against discrimination (such as general non-discrimination provisions or those that specifically mention HIV, that focus on schooling, housing, employment, etc?)

Does your country have non-discrimination laws or regulations that specify protections for certain groups of people identified as being especially vulnerable to HIV and AIDS discrimination (i.e. groups such as injecting drug users, men

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

who have sex with men, sex workers, youth, mobile populations, and prison inmates)?31 The countries of Caribbean have all been very slow to act in addressing stigma and discrimination related to HIV and AIDS. There have however, been many political announcements.

6.2

The Regional Context

The Thirteenth Conference of Ministers Responsible for Health (CMH) held in Barbados in 1992 “agreed to address special attention to the rights of individuals affected by HIV/AIDS and groups and communities affected by the epidemic”. As a result of that mandate, the CARICOM Secretariat convened an AIDS Task Force in February 1993. The Task Force recommended that the Secretariat convene a meeting of knowledgeable persons to consider the legal and ethical issues which impact on HIV and AIDS prevention and control programmes and to make recommendations to CMH on these matters. That meeting was convened in December 1994 and received reports from two consultants who had been engaged by the Secretariat to examine the Ethical and Legal Issues of the HIV and AIDS epidemic. The meeting produced a report in 1996 and made the following recommendations: (1)

Confidentiality, is a central feature of the relationship between health professionals and their patients and should be maintained as far as is humanly possible. Health care professionals should be disciplined for deliberate breaches of confidentiality and regulations should be put in place to better manage patient records.

(2)

Screening for disease is an important tool in public health. However if misapplied in sensitive situations, such as HIV disease, it may only serve to drive infected persons ‘underground’. Voluntary screening is preferred to mandatory screening since compliance with advice is much more likely to occur. The costs and benefits of mass screening for HIV need to be carefully analysed and should only be undertaken if pre and post test counselling are available to all persons tested. Screening should not be used as a basis for discriminatory practises, such as being a bar from employment, when HIV transmission is not an identified risk in the occupation under consideration.

31

Monitoring the Declaration of Commitment on HIV/AIDS: Guidelines on Construction of Core Indicators (UNAIDS, 2005) p.96.

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

(3)

Discrimination only serves to reduce the compliance of affected persons with the desired control measures and to diminish the rights and humanity of the entire community. Discrimination should be tackled through the introduction of specific anti discrimination legislation related to all persons with disabilities and should specifically include persons affected with HIV/AIDS. Such legislation should address the issues of schooling, housing and employment.

(4)

Consent to the examination of one’s body is a fundamental right of privacy. When violated in any examination is an unlawful assault. Consent should be obtained from all persons or their legal guardians for HIV testing. It should be made explicit that it is the duty of the health professional, carrying out testing for HIV, to ensure that the person has access to pre and post test counselling.

(5)

The duty of health professionals to warn third parties of a patient’s HIV status is complicated by the rights of the patient to confidentiality. It should be made clear that health professionals, whilst respecting the confidentiality of patients under their care, have a duty to warn a third party who they know to be at risk for transmission of HIV. Such warnings can only be given when all other measures to protect the third party have been exhausted and the health care professional has ensured that the HIV infected patient • • •

(6)

has been adequately counselled, has been offered assistance in the notification of the third party at risk in the context of confidentiality, and is sure that the third party is being placed at risk through sexual intercourse or the sharing of needles for intravenous use.

Duty to Treat. Health care professionals have a duty to treat all ailments, including persons affected by HIV/AIDS, within the limits of their competence. Where the professional feels that the patients condition falls outside their sphere of competence, the professional has a duty to ensure that the patient is referred to a service which can deal with the condition. Basic, post-basic and continuing education of health professionals about HIV/AIDS need to be assured within countries.

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

Professionals who are accused of infractions of their duty to treat should be examined before professional boards or ethics committees. (7)

HIV infected Health Professionals. It has NOT been shown that there is a significant risk of transmission of HIV to patients from an HIV infected health care professional. However, those workers who have HIV dementia or certain opportunistic infections as a result of AIDS may pose a risk to patients. Mechanisms need to be put in place to ensure the continued physical and mental fitness of health care providers to continue to provide patient services. A medical practitioner who is ill should have their fitness to work determined by another practitioner and not by themselves. The issues of Control of Prostitution need further study in relation to the possibility of regulation of the industry for control of HIV and other STD’s.

(8)

Time did not allow for a meaningful discussion of the ethical issues in regards to resource allocation.

(9)

The consequences of inaccurate testing for HIV are grave. Therefore private and public laboratories and blood banks should be required to comply with established procedures and standards. Mechanisms of quality control of standards should be set with the support of CAREC.

(10)

Although public concern about the willful transmission of HIV is disproportionate to any such occurrence, it was felt that specific statute related to sexual transmission would have a beneficial effect on the general public’s response to HIV/AIDS education efforts. It is felt that deliberate transmission by infection is adequately covered under existing law.

(11)

It was agreed that countries need to review their public health legislation and bring it up to date to deal with modern circumstances.

(12)

Overcrowded prisons are acknowledged to be an environment that is conducive to the spread of HIV amongst inmates and subsequently in the wider community studies should be undertaken to reduce overcrowding in prison, and education and prevention measures should be vigorously promoted amongst prison inmates.

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

Just prior to UNGASS in 2001, The Nassau Declaration of that same year saw the establishment of Pan Caribbean Partnership on HIV/AIDS (PANCAP). In 2002, with funding from CIDA and USAID, CARICOM/PANCAP developed an Action Plan on Law, Ethics and Human Rights to support the implementation of Priority Area 1 of the Caribbean Regional Strategic Framework 2002 -2007. The Plan prioritized the study of National Legal Frameworks in various countries in the region, as the first step toward developing model legislation in the promotion of a rights-based approach in tackling HIV. In June 2004, Caribbean Parliamentarians held a meeting on HIV and AIDS in Port of Spain, Trinidad and Tobago, and reaffirmed the leadership role of parliamentarians in response to the epidemic, as well as the 2001 Declaration of Commitment on HIV and AIDS . In October 2004, a Caribbean Technical Expert Group Meeting on HIV Prevention and Gender was convened in Jamaica to review the status and causes of the epidemic in the region from a gender perspective.32 The draft report of the meeting contains substantial analysis of the legal and policy environment.33 The expert group recommended that (p.56): Anti-discrimination efforts (legislation, registries, awareness campaigns, etc.) must be enacted on national levels. On the regional level, similar efforts will support national action by creating a regional environment that does not tolerate AIDS-related discrimination. In November 2004, the Prime Minister of St Kitts & Nevis, the Honourable Dr Denzil Douglas, addressed a three day forum on the issue. He reminded delegates of the United Nations Declaration of Commitment on HIV and AIDS , and noted that one of the major programmes of the Caribbean Regional Strategic Framework of the Pan Caribbean Partnership Against HIV and AIDS, was to produce model legislation on stigma and discrimination. He added that the challenge was to make the conversion from policy to practice and from rhetoric to reality. He also recalled the pledge in the Pan-Caribbean Partnership Commitment of February 2001 and the Nassau Declaration of the same year to place the reduction of stigma and discrimination high on the list of priorities. The new Caribbean Regional Strategic Framework (CRSF 2008 – 2012) places emphasis on developing an “enabling environment” which focuses on the “development of policies, programmes and legislation that affirm human rights and counter deep underlying social barriers…”. This second version of the Caribbean Regional Strategic Framework on HIV and AIDS (CRSF 2008-2012) embraces all CARICOM Member States as well as Cuba, 32

Strengthening the Caribbean Regional Response to the HIV Epidemic: Report of the Caribbean Technical Expert Group Meeting on HIV Prevention and Gender (UNAIDS, 2004) draft report. 33 See Appendix B. The report was never finalised.

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

the Dominican Republic, the British and Dutch Overseas Territories, the French Departments of the Americas, and the United States Territories in the Caribbean, thus emphasising the Pan Caribbean nature of the regional response.

7. Review of Legislative Landscape 7.1

Anti-Discrimination Legislation in the Caribbean Region

a) Bahamas:34 The Employment Act (2001) prohibits discrimination in public or private employment, except the disciplined forces (armed forces, police & prison services). The Act prohibits discrimination on the grounds of race, creed, sex, marital status, political opinion, age, HIV and AIDS status, or disability (subject to reasonable accommodation). Note that HIV and AIDS status is a ground separate from disability in the Act. The Act defines the acts of prohibited discrimination as refusal to offer employment, not affording access to opportunities for promotion or training or other benefits, dismissal of the employee, subjecting the employee to other detriment. The Act also expressly prohibits the pre-screening of an employee for HIV and AIDS. b) Bermuda:35 The Human Rights Act (1981) was amended in 2000 to revise the definition of ‘disabled person’ to include a person who has any degree of physical disability, infirmity, malformation, or disfigurement that is caused by bodily injury, birth defect or illness, including …acquired immune deficiency syndrome, human immunodeficiency virus…’ The Act prohibits discrimination on the grounds of disability in the areas of housing; goods, facilities and services; employment; membership in organizations; advertising; and contracts. An exception exists if the discrimination was reasonable or excusable in all the circumstances. Employers are required to take reasonable steps to accommodate employees with disabilities. c) Guyana: There is a substantial body of anti-discrimination legislation in Guyana, contained in both the Constitution and in specific statutes that seek to promote equality between the sexes 34 35

See www.lexbahamas.com/Employment%20Act%202001.pdf See http://portalimages.gov.bm/HRC/

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

and prevent discrimination. The Constitution prohibits discrimination on the grounds of race, place of origin, political opinion, colour, creed, age, disability, marital status, sex, gender, language, birth, social class, pregnancy, religion, conscience, belief or culture (s. 149(2)).36 The Constitution also protects free choice of employment, equality before the law, equality of birth status, and equality of women (s. 249A-F). The Equality Rights Act (1990) further decrees equal rights for women. The Prevention of Discrimination Act (1977) prohibits discrimination on grounds including race, sex, religion, colour, ethnic origin, indigenous population, national extraction, social origin, economic status, disability, family responsibilities, pregnancy, marital status and age (s. 4). Under the Act, a ‘disabled person’ is defined as ‘an individual whose prospects of securing, retaining and advancing in suitable employment are substantially reduced as a result of a duly recognised physical or mental impairment.’ (s. 2)37 Prohibited areas of discrimination include recruitment, employment, training and membership of professional bodies.

d) Grenada: The Employment Act, 1999, was passed to set out the legal rights and responsibilities of employees and employers. Prohibited grounds for dismissal are a person’s race, colour, national extraction, social origin, religion, political opinion, sex, marital status, family responsibility or disability. The Act seeks to to prohibit discrimination with respect to recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment relationship. Health status is not a ground but it is arguable as indicated above that HIV can come within the definition of ‘disability’.

e) Saint Lucia: The Equality of Opportunity and Treatment in Employment and Occupation Act, Chapter 16.14 of the Revised Laws of Saint Lucia, 2001 constitutes the sole anti-discrimination legislation in Saint Lucia. It is very progressive in that it aims to promote equal opportunity by eliminating unfair discrimination directly or indirectly, against an employee in any employment policy or practice, including discrimination on the grounds of race, sex, religion, colour, ethnic origin, family responsibilities, pregnancy, marital status, disability. Note again that health status is not a ground of discrimination.

36

Bulkan, supra p.76, notes that ‘(i)in 2000 a bill to amend the Constitution which would have added sexual orientation as a prohibited ground of discrimination, was passed by the Parliament but lapsed after the President failed to sign it into law.’ 37 Note that this definition returns the decision as to what is a ‘duly recognised’ impairment to the courts – other jurisdictions have provided more guidance in this respect by clearly defining disability in the legislation.

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

7.2

Constitutional Protections

7.2.1

Categories of Discrimination

a)

Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Barbados, Grenada, Belize.

The issue of freedom from discrimination restrict the categories for constitutional protection to sex, race, place of origin, political opinions, colour or creed. The Constitutions of Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Barbados, Grenada are very similar. No provision is made for “other status” that may arguably envisage categories including health status, disability or sexual orientation. b)

Suriname:

The Constitution, Article 8 Sub 2, states that no one shall be discriminated against on the basis of birth, sex, race, language, religion, education, political opinion, economic position or any other status. 7.2.2

Right to Health

The arguments around guaranteeing legislative protection of the right to access treatment stems from an acceptance of a right to health as a fundamental human right. The right to health is recognized in developing country Constitutions including Costa Rica (Articles 21 and 70 of the 1949 Constitution), Ghana, (Article 24), Guatemala (Articles 93-95 of the 1985 Constitution), Kenya (Articles 70-85). In Venezuela, the right to health is clearly defined in the 2000 Bolivarian Constitution. It recognizes access to treatment as a component of the right to health and HIV treatment has been included in the Essential Drugs List since 1999. National and Provincial legal provisions to ensure access to HIV and AIDS treatment have been repeatedly upheld through decisions in the courts. Countries in the Caribbean which recognize the right to health include; a)

Cuba:

“Everybody has the right to health protection and care”. The State guarantees this right by providing free medical and hospital care by means of the installations of the rural medical service network, polyclinics, hospitals and preventive and specialist treatment centers; by providing free dental care; by promoting the health publicity campaigns, health education, regular medical examinations, general vaccinations and other measures to prevent the outbreak of disease.” b) The Dominican Republic: 22


Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

“With the aim of strengthening its stability and well-being, its moral, religious, and cultural life, the family shall receive the broadest possible protection from the State. (a) Maternity, regardless of the condition or status of the woman, shall enjoy the protection of the public powers and shall be entitled to official assistance in case of abandonment. The State shall adopt measures of hygiene and other steps designed to prevent infant mortality insofar as possible and to attain the healthy development of children. The establishment of family well-being [bien de familia] is likewise declared to be of high social interest. The State shall encourage family savings and the establishment of credit, production, distribution, and consumer cooperatives or any others that may be useful.” c) Guyana: “Every citizen has the right to free medical attention and also to social care in case of old age and disability.” “Every person in Guyana is entitled to the basic right to a happy, creative and productive life, free from hunger, disease, ignorance and want.” d) Haiti: “Strengthen national unity by eliminating all discrimination between the urban and rural populations, by accepting the community of languages and culture and by recognizing the right to progress, information, education, health, employment and leisure for all citizens.” e) Suriname: Article 36 of the Surinamese Constitution guarantees the right to health to everyone residing in Suriname. It explicitly mentions the following: • Sub 1: Everyone has the right to health; • Sub 2: The State shall promote general health-care by systematic improvement of living and working conditions and shall give information on the protection of health. 7.2.3

Right to Work

a) Suriname: Article 24 of the Constitution gives the State the general obligation to create an environment in which optimal fulfilment of the basic need to work can be achieved, two other Articles provide individual citizens in general and specifically employees infected with or affected by HIV or AIDS, with some protection of their right to work:

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

1. Article 26, which states that anyone has the right to work within his capacities, 2. Article 8 Sub 2, which states that no one shall be discriminated against on the basis of birth, sex, race, language, religion, education, political opinion, economic position or any other status. The ‘other status’ quality implies that no one, including those with a disability, should be discriminated against, which arguably may include someone who is HIV positive. b) Belize: The Constitution protects an individual from being denied the right to gain a living by work that he freely chooses or accepts. However, the Labour Act does not specifically prohibit discrimination on the grounds of HIV and/or AIDS. The right to work is also protected in the Constitutions of Haiti and Guyana. 7.2.4

Right to Privacy

Privacy is a human right, according to Article 12 of the Declaration of Human Rights: “ No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to protection against such interference or attacks” Except for a preambulatory call for “respect for [his] family life, personal privacy, the privacy of his home and other property”, no substantive “right to privacy” exists for the individual in the Constitutions of Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Barbados, Grenada, Belize. Redress for infringement of rights is available only with respect to those rights contained in the enforcement provisions. The absence of a clear provision protecting the right to privacy is a major gap in tackling stigma and discrimination related to HIV and AIDS. a)

Suriname:

Although the right to privacy is protected in Suriname, it was cautioned that human rights can be restricted by law. In Suriname, the Law of 7 December 1953, concerning the regulations to prevent and combat contagious diseases (Bulletin of Acts and Decrees 1953 no.137) is an example of such a legal restriction. This law regulates that a matter of overriding importance will have preference before the oath of confidentiality and thus the right to privacy.

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

7.3

Public Health Law

In many countries, HIV or AIDS is not a notifiable or communicable disease. (Suriname38, Dominica39, Saint Kitts and Nevis). The effect of which is that: • there is no power to authorize the restriction of liberty or the detention of persons living with HIV; • there is no power to quarantine particularly within a prison environment; • there is no restriction on persons entering the State under the Immigration Acts which generally restrict the entry of a person suffering from a communicable disease. a) Belize: S.I. 32/1987 passed under the Public Health Act renders HIV an infections disease and makes the persons infected susceptible to legislation requiring quarantine of persons with infectious diseases. Under the law of Belize as currently enacted, there is no general legal requirement for HIV and/or AIDS to be a notifiable, public health disease. b) Saint Lucia: By SI 21 of 1991 Acquired Immuno Deficiency Syndrome (AIDS) and Human Immuno Deficiency Virus (HIV) were deemed to be Notifiable Diseases. The effect of this is to require the occupier or other person for the time being in charge of premises to consult a medical practitioner or to inform the Medical Officer of Health within 24 hours where there is a suspicion that a person may be suffering from a notifiable disease. As there is no legal requirement to code tests, most reports concluded that making HIV a notifiable disease was not acceptable. In Saint Lucia, however, where HIV is a notifiable disease, coding was instituted almost immediately and is widely practiced. This system has now been officially sanctioned by the National AIDS Programme and is promulgated in the National HIV/AIDS/STI Protocols, March 2006. It appeared from the discussions with medical professionals, Ministry of Health, Laboratories and Pharmacies that there is widespread acceptance and use of the coding system.

38

The Law on Contagious Disease (Bulletin of Acts and Decrees 1953 no. 137) and the Law on Venereal Diseases (Bulletin of Acts and Decrees 1944 no. 31) 39

Environmental Health Services Act 8 of 1997

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

7.4

Testing

a) Suriname: The Report from Suriname indicated that there was mandatory testing of pregnant women. With regard the practice of voluntary testing and informed consent, Surinamese laws governing medical testing require a person’s voluntary and informed consent before one can be tested. This requirement is also based on Article 9 § 1 of the Surinamese Constitution, which provides the right to physical, mental and moral integrity. There is however strong authority from the Supreme Court of Canada and provincial appellate courts suggesting that forced HIV testing by the state or pursuant to the state authority is prima facie illegal (RV Dyment 1988 2SCR 417 at 431 – 432). b) Dominica: Infection Control Nurse at the Princess Margaret Hospital (PMH) Nurse Jn. Baptiste reported that in cases of tuberculosis HIV testing is mandatory and in cases of pelvic inflammatory disease – HIV testing is recommended. From interviews with medical personnel it appears that testing without obtaining specific informed consent is widely practiced. Testing is also required for work permit applicants and residential status applicants. c) Belize: The Laws governing the Belize Defence Force does not prohibit mandatory testing and also laws governing the Police Department does not prohibit mandatory testing. The law makes some exceptions to this right by way of some mandatory medical examinations. None of those examinations includes a HIV/AIDS test, usually because the laws requiring them were made before HIV and AIDS were known. The only information the employer is entitled to is the final advice of the company doctor conducting the exam, declaring the applicant fit or unfit for the job. e) Grenada: Mandatory tests on pregnant women are also conducted. f) Barbados:

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

Notwithstanding Government policies to the contrary, the Police Force conducts pre employment HIV screening of its recruits. The Defence Force also conducts preemployment screening. g) St. Kitts and Nevis: Under the Saint Christopher and Nevis Citizenship Act No.1 of 1984, all applicants for citizenship other than children by descent who are under 12 years of age are required to take an HIV test as part of the application. The rationale for the test, which is not encapsulated in any amendment or regulation to the Citizenship Act is that “the country needs to know so that it can protect its citizens. And it needs to know the impact on the health system”. Where a potential applicant tests positive the application is denied and the person is asked or is required to leave the State. The Immigration and Passport (Amendment) Regulations SI No. 33 of 1991 requires “proof for having passed an HIV test’. Therefore all applicants for work permits entering St. Kitts and Nevis are required to be tested for HIV. Where a potential applicant tests positive the application is denied and the person is asked or is required to leave the State. It appears that with respect work permits Government has reversed their policy, however, amendments to the law have not been made. Defence Force Act No.10 of 1997 recruits for the Defence Force are required to undergo a medical examination in order to ascertain their physical fitness in accordance with section 9 of the Act. In practice an HIV test is one of the required tests and a potential recruit will not be retained if the test is positive. Progressively, Police Service recruits in the Federation are not required to take an HIV test. There is one financial institution which requires new employees to take an HIV test. Prisoners All inmates entering the Prison, whether on remand or a convicted prisoner are required to take an HIV test upon entry into the institution. Prisoners are not informed of their results. The results are received by the Medical Officer responsible for the Prison and not by other Prison Authorities. h) Saint Lucia: Recruitment within the Police Service and Fire Services require the taking of a medical examination to determine fitness. One of the key tests includes a test for HIV. There were reports from the focus groups discussions with these two groups indicating that where a test is positive the prospective officer will not be hired. Of concern as well was the issue

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

of privacy and confidentiality as the test results go directly from the test site (Laboratory, private doctor) to the Police or Fire Service. Prisoners and Persons in Detention Prisoners at the Bordelais Correctional Facility, particularly new inmates are tested for HIV. Although the Prison Authority indicated that the test was voluntary there was evidence from the inmates that they were not aware of being tested for HIV. In breach of confidentiality rules the medical reports are received by Prison Authorities and not by the inmate directly. Insurance There was much evidence with respect to insurance that testing for HIV is required for life insurance and medical insurance. While it may be argued that insurance coverage is a voluntary activity this is negatived by the requirement of many financial institutions to require life insurance for securing a mortgage or loan for residential or business purposes. Pregnant Women There was much debate among nurses and other health professionals on the testing of pregnant women. Notwithstanding the strong views expressed by some nurses of the need to know the patient’s status at the point of delivery, there is a clear practice of voluntary testing. The National HIV/AIDS/STI Protocols, March 2006 sets out appropriate procedures for the testing under the PMTCT Programme40.

7.5

Access to Treatment

Other than the countries which guarantee a right to health, there is no legislative provisions securing the right to access treatment in the countries reviewed.

7.6

Confidentiality

With the exception of Suriname and Belize, it appears that none of the countries under consideration have specific legislation providing protection against breaches of confidentiality. All the countries reported that this was one of the major problems in addressing stigma and discrimination. a)

Suriname:

Confidentiality is statutorily enjoined upon anyone who acquires information on account of his or her job. The concept of statutory confidentiality is found in Article 332 of the Criminal Code and Article 38 of the Civil Service Code (Bulletin of Acts and Decrees 40

See page 28 28


Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

1962 no 195). This law very explicitly states the obligation to confidentiality of civil servants, among whom are also government-employed physicians and other health workers. According to Article 1613 of the Surinamese Civil Code, the relation between health workers and patients can be qualified as an agreement for rendering services. Under Article 332 of the Criminal Code, which governs the general obligation to confidentiality, the health workers are bound to confidentiality. Should a physician use the services of other supportive professionals, then these professionals have an obligation to confidentiality, which is derived from the physician. This was ruled on by the High Court of The Netherlands’s on 30 November 1927 (NJ. 1928 page 265. W.11772). b)

Belize:

There are no laws specifically imposing sanctions for breach of confidentiality. The only two areas of redress for breach of confidentiality are to the Medical Council or the Nurses and Midwives Council for disciplinary action to be taken41. Since there is a right to privacy protected under the Constitution, there is also the option of bring an Administrative Action in the Supreme Court42 to recover damages. However, the cost of securing legal counsel for such proceedings places this option outside the reach of most individuals. The common law principle of doctor patient confidentiality applies in the other countries reviewed. In English common law systems, (in this case Saint Lucia is included) physicians have a duty of confidentiality to their patients. Physicians owe a duty of care to their patients to maintain all information generated in the course of a medical relationship, and the patient has a right to such confidentiality. c) Grenada: Confidentiality is viewed as a major problem. There are no laws to require confidentilality or to protect persons against breaches. d) Dominica: In Dominica, there is a deficiency in laws and policies which regulate the protection of and breach of confidentiality. Health Care personnel have an ethical obligation to maintain patient confidentiality. This duty of confidentiality is not however, absolute and in certain circumstances this confidentiality can be breached. There are many challenges to maintaining confidentiality.

41 42

Supra. Supreme Court of Judicature Rules, Chapter 91 of the Laws of Belize

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

To address this, coding is used in the Laboratory in Dominica. Where the result is positive only the National Epidemiologist has access to information on the patient’s sex, age, status and address. However, the same is not practiced in the hospital where a patient’s status in recorded in the medical file. e) Barbados: It was reported that HIV-infected persons who attend for care see their confidentiality compromised in a number of different ways, from the provision of specially known clinics, to their isolation in wards or special parts of wards, to the whisperings or euphemisms used about their condition, to the special marking of records. While there is no legislation, this practice has largely been abandoned with education and training, in the health sector and workplaces. f) St. Kitts and Nevis: There is the perception of a systemic lack of confidentiality, particularly in the Public Health Care system, at the hospital, pharmacy, lab etc. Health care providers admit that there are instances where confidentiality is unintentionally breached and that there is a lack of privacy on the hospital wards. The configuration of the hospital is not conducive to maintaining confidentiality. There are clear legislative requirements for the protection of confidentiality of patient information by nurses. Notwithstanding, there was much evidence to the contrary. Reasons for this may be that the provisions of the legislation are not enforced or that in the absence of a sufficient penalty there is no incentive to adhere to the Act in that regard. The Nurses and Midwives (Registration) Act No. 18 of 2005. At present, a code is utilized when testing for HIV. However, when an individual presents at a laboratory for testing there is some likelihood that a connection will be made to the identity of the patient, notwithstanding the code due to the small size of the country. g) Saint Lucia: The Report found that breaches of confidentiality in the health service is systematic and deep rooted. There was significant evidence from the focus groups of high levels of breaches of confidentiality. It was considered one of the most significant challenges to tackling stigma and discrimination, in that unlawful disclosure in St. Lucia has led to widespread discrimination as a consequence. Persons have been run out of their

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

communities, fired from jobs, houses have been burnt and one person committed suicide when a talk show host disclosed their status on radio.

7.7

Partner Notification

Most reports recorded that health care workers are conflicted over the issue of partner notification as they are often in a quandary as to whose rights they are to protect; their patient’s or the partner’s. Doctors agree that they cannot disclose to the patient’s partner without the patient’s consent. There is a general view is that the patient should always be responsible for disclosure to a partner. a) Saint Lucia and Suriname: Contact tracing programmes are in place in Saint Lucia and Suriname. In Saint Kitts and Nevis however, there is no contact tracing programme and one was not recommended due to the small size of the community on the basis that the small size of the population would hinder the ability of the contact tracer to operate in a confidential manner. In Suriname, the contact tracing policy is based on the Law on Contagious Disease. It is also used as a method for effectively preventing the spread of sexually transmitted infections, by breaking the chain of STI’s. b) Dominica: There is no legal authorization, practice-guidelines or written policy on partner notification in cases of HIV and AIDS in Dominica. c) Barbados: Barbados recommended in its Health Services Communicable Diseases Regulations [44], the conditions under which confidentiality can be broken, in disease tracing, be codified. These are: • The infected person has been tested, counselled, knows the result of the test, and how the disease is transmitted or can cause harm; •

The counsellor has made all efforts to have the person inform those who are at risk or have been at risk for transmission of the disease, and has offered assistance in doing so, through confidential means;

The counsellor is convinced that a specific third party or parties are being put at risk for transmission of the disease, and has so informed the CMO [or designated

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

public health medical officer/s] and has been instructed by that officer to break confidentiality to the specific third party/ies. Where public health officials determine that a person is deliberately endangering others, they may with the permission of the CMO or the designated public health medical officer [rather than the police] bring the matter before the court. The court in a hearing in camera may impose sanctions which may vary from community service to restrictions in a manner and place designated by the court.

7.8

Redress for Breaches of Confidentiality – Regulation of Medical Professionals

All the countries reported that the various laws regulating the medical and nursing professions, hospital administration, laboratories, pharmacies, etc; •

did not protect PLHIV from being denied treatment on the basis of their HIV status and that there are reports where such discrimination has taken place;

did not impose a positive duty on health care professionals to protect the confidentiality of medical records and information obtained on PLHIV during the course of treatment;

did not impose sanctions for professional breach of conduct of health care professionals.

7.9

CRIMINAL LAW

7.9.1

Willful Transmission

a) Belize: Belize Section 46.01 and 73.01 of the Criminal Code creates a criminal offense of recklessly or wilfully transmitting HIV and/or AIDS. b) Saint Lucia: Section 140 of the Criminal Code provides: Transmission of HIV 140. - (1) Any person who, knowing that he or she suffers form Acquired Immune Deficiency Syndrome commonly known as AIDS intentionally or recklessly infects another person with the human-immuno deficiency virus 32


Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

known as HIV, whether through sexual intercourse or any other means by which the disease may be transmitted to another person commits an offence of aggravated sexual assault and is liable on conviction on indictment to imprisonment for ten years. (2) it is no defense for a person charged with an offence under subsection (1), to prove that the act was committed with the consent of the other person Bahamas Sexual Offences and Domestic Violence Act Chapter 99 Section 8 (2) makes willful transmission an offence. In Bermuda, the Criminal Code (Sexual offences) Amendment Act 1993 states that a sexual assault has been committed, if the person has a sexual disease and does a sexual act with another without informing the other party about the disease. St. Vincent and the Grenadines, Barbados and Suriname do not have offences however: c) Saint Vincent and the Grenadines: By Section 291 of the Criminal Code Cap 124 any person who unlawfully or negligently does any act which he knows, or has reason to believe, to be likely to cause the spread of any infectious or contagious disease is guilty of an offence and liable to imprisonment for one (1) year. It appears that a person who deliberately infects another person with HIV or AIDS knowing that he is living with that disease may be prosecuted under this provision. d) Barbados: Sections 19 and 26 of the Barbados Offences Against the Person Act could be used to prosecute persons who in Section 19 ‘endanger life and safety’ and in Section 26 ‘assaults another occasioning harm’. e)

Suriname:

There are no specific criminal laws in Suriname regarding HIV and AIDS. Based on Surinamese Criminal Law 43, it is virtually impossible to prosecute people who intentionally infect others. One would have to produce lawful evidence to show the intention of the defendant, that the defendant was HIV-positive at the moment of transmission and that the victim could not have been infected with the HIV virus other than through the defendant. 43

Surinamese Penal Code

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

There is no legislation against wilful transmission in Grenada, Saint Kitts and Nevis and Dominica and Saint Vincent. Save for Saint Kitts and Nevis, Saint Lucia and Barbados the legislation was not recommended. 7.9.2

Laws relating to Buggary or Sodomy

While homosexuality is not considered illegal, seven (7) of the independent CARICOM States have laws in place that criminalize consensual sex between adult males. The UK Overseas Territories have introduced laws to effectively decriminalize homosexuality and also Dutch laws relevant to Aruba and the Netherlands Antilles prohibit discrimination against individuals on the basis of their sexual orientation. The Dominican Republic, Cuba, Suriname and Bahamas have no criminal sanction against consensual same sex. All assessments with the exception of Belize calls for decriminalization. a) Belize: Section 53 of the Criminal Code criminlizes unnatural crimes. The section does not specifically state that sodomy is a crime but is used to criminalizes the act of sodomy. In practice, however, the section has only been invoked to bring charges against male adults who sexually assault boys or other men. The police indicate that they treat sexual intercourse between consenting adults, whether male or female as a matter of the privacy of such adults, preferring not to get involved with that and will only bring charges where a minor who cannot consent was involved or where a person claims that they did not consent to such sexual relations. b) Grenada: Section 431 states: “If any two persons are guilty of unnatural connexion…each such person shall be liable to imprisonment for ten years.” c) Dominica: Buggary is an offence under the Sexual offences Act No. 1 of 1998 d) Saint Lucia: Section 133 of the Criminal Code 2004 criminalizes buggery:

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

133. – (1) A person who commits buggery commits an offence and is liable on conviction on indictment to imprisonment for(a) life, if committed with force and without the consent of the other person; (b) ten years, in any other case. (2) Any person who attempts to commit buggery, or commits an assault with intent to commit buggery, commits an offence and is liable to imprisonment for five years. (3) In this section “buggery” means sexual intercourse per anus by a male person with another male person. e) Saint Kitts and Nevis: The Offences Against the Person Ordinance Chapter 56 of the Revised Laws 1961 Section 56 of the Ordinance provides: “Whoever is convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be imprisoned for any term not exceeding ten years, with or without hard labour.”

7.9.3 Sex Work There are no prohibitions against sex work in Suriname. However, prostitution is an offence in all other countries under review. a) Belize: Sections 49 and 50 of the Belize Criminal Code creates the crime of procuring a female to be used as a prostitute; Section 50 –operating a brothel. The Summary Jurisdiction Offences Act Section 4 creates the offence of loitering as a prostitute. b) Grenada: Grenada’s Criminal Code, Chapter. 1 (1994 Continuous revised edition Section 137(29) makes prostitution illegal in certain circumstances. It states that any person who “loiters about or importunes any passenger for the purpose of prostitution … shall be liable on summary conviction to a fine not exceeding twenty-four dollars.” c) Dominica:

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

Prostitution is an offence in Dominica. The hot issue of prostitution in Dominica by visiting non-nationals or those resident in Dominica and the public outcry to investigate and implement laws against prostitution, is an indication that the best practice of regulating prostitution to address health requirements and other restriction for reducing HIV transmission will be heavily opposed in Dominica. d) Barbados: Barbados Sexual Offences Act Sections 18-20 prostitution is an offence. e) Saint Kitts and Nevis: Saint Kitts and Nevis prostitution is an offence under the Small Charges Ordinance Chapter 75 of the Revised Laws 1961. f) Saint Lucia: Section 150 of the Criminal Code 2004 “Any person who loiters about or importunes any passer-by in a public place for the purpose of prostitution is liable on summary conviction to a fine of one thousand dollars”.

7.10 Employment a) Suriname: In Suriname, the employment contract is qualified as a special contract and therefore has its own section in the Civil Code, namely Book 3 Title 7A (Articles 1613 – 1615ij). Every employer in the private sector needs permission from the Ministry of Labour to dismiss someone. Further, there is a basic principle of Surinamese Law governing dismissal. It is, that no one can be dismissed when diagnosed with an illness but who is still able to function adequately. There are, however, violations of this principle with regards to people living with or affected by HIV. An employer who does not apply for dismissal would not get permission and dismissal would therefore be illegitimate. b) Belize: The Law in Belize does not prohibit employers from requiring mandatory screening of employees for HIV; it does not protect employees from discrimination in the workplace on the basis of their HIV status.

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

c) Dominica: There is no prohibition against discrimination in employment in Dominica d) Barbados: Barbados has enacted piecemeal anti-discrimination legislation to deal with women and more recently in employment where in Section 24[c][v] in the draft Employment Rights Act it is considered unfair dismissal, if the reason is ‘that the employee had, or was perceived to have the HIV virus or AIDS’ [16]. This provision has narrow applicability and does not deal with the discrimination that might be practised against those who are seeking employment. e) Saint Kitts and Nevis: There is no specific labour legislation which provides protection from dismissal on the basis of one’s HIV or perceived HIV status or sexual orientation. The Protection of Employment Act No. 6 of 1986 provides for the termination of employment and the requirement for notice in cases of probation, summary dismissal, certified infirmity for periods lasting more than three months, redundancy, death of the employer and bankruptcy. There is no general equal opportunity legislation in the Federation and employers in most cases may dismiss at will.

7.11

Insurance

All countries reported various abuses with respect to securing insurance. a) Belize: Insurance companies require HIV testing for all factory workers although such businesses are only seeking liability insurance or workmen’s compensation plans44. b) Grenada: Testing is required and if positive, applicants are denied coverage. Section 89 of the Insurance Act provides that “nothing in any term or condition of a life policy or in the law relating to insurance shall operate to except an insurance company from liability under the policy or to reduce the liability of the company under the policy on the ground of any matter relating to the state of health of the person whose life is insured, other than the ground of the proposer’s having, when making the proposal or there after and before the making of the contract, either, 44

Consultations with employers and business owners.

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

(a) (b)

made an untrue statement of his knowledge and belief as regards the matter, or failed to disclose to the company something known or believed by him or regards that matter.”

Notwithstanding, there were reports of policies being cancelled where the insured later became infected with HIV. c) Dominica: Some companies limit coverage and require a HIV test for coverage over certain minimums. An HIV infected person is generally denied coverage. In the case of an insured dying from an HIV related illness the policy would be cancelled. d) Saint Kitts and Nevis: The insurance industry has been particularly discriminatory in its practices towards PLHIV. PLHIV are refused coverage outright. Persons who are not themselves HIV+ but the spouse of an HIV+ person have been denied coverage. In an extreme case, the spouse of a deceased PLWHA who has repeatedly tested negative since the death of the spouse was refused coverage on the basis that “she is at high risk of contracting HIV” e) Saint Lucia: The insurance industry has practiced widespread discrimination against persons living with HIV. They have been denied insurance simply on the basis of their status and confidentiality is routinely breached in almost all cases of an application for life insurance or medical insurance. The insurance company directs the applicant to an authorized doctor paid by the company who forwards the result directly to the insurance company. In the event of a positive result, the result is not forwarded and the applicant’s status is impliedly revealed by this omission.

7.12

Immigration

a) Dominica An HIV test is required for a residency application. With reference to Applicants for Registration as a citizen of the Commonwealth of Dominica under the Citizenship Programme, one of the documents to be submitted is a medical certificate to include HIV test status. Applicants for work permits are also given conditions. Section 27 E of the Immigration and Passport (Amendment) Act 19 of 2003 provides:

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

(1)

An application for a work permit shall be addressed to the Minister who may grant the work permit either with or without conditions or may refuse to grant it.

(2)

An application for work permit shall be in such form as may be prescribed.

The same medical form for residence is also used for work permit applicants and it makes mention of an HIV test. Though not explicitly mentioned in any policy document it is reasonable to infer that HIV positive persons will not be granted work or residence permits. b) Barbados: The Immigration Department in Barbados has proposed that the Canadian position on permanent residents be adopted, that is, that an HIV-infected person could become an excessive charge on the health services. The suggestion is that the First Schedule of the Immigration Act [63] which deals with prohibited persons should be used to include HIV as one of the communicable diseases designated within the Health Services Communicable Diseases Regulations [44]. The Report recommendation is similar to the position in the Cayman Islands that: It should be explicit in the Health Service Regulations that on accessing government financed services, only citizens and permanent residents of 5 yrs duration or more are entitled to those services without the payment of fees. c) Saint Kitts and Nevis: The Immigration Act No. 10 of 2002, Schedule 1 of the Act lists at Section 3 persons who are prostitutes or whose behaviour offends morality as prohibited persons subject to removal from the State or from entering the State. As indicated previously, testing for HIV is required for work permits and certain classes of citizenship applications.

7.13 Education a) Grenada: The Education Act, 2002 section 22(3) places on a parent of a child who is under the age of eighteen, the duty to make known to the principal of the school, information of any medical or other condition that the child has. Section 23, imposes on every principal the obligation to establish and maintain a student record for each student. This section also

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

gives to the student, the parent and sponsor of the student, the right to examine the record. b) Dominica: Dominica, the Education Act does not expressly provide for protection of children to enter school. The only reference to children with diseases in schools in the Education Act No. 11 of 1997 is found in Sections 32 and 33 in relation to contagious diseases. Section 32 (1) states: “subject to section 33, a student suffering from or exposed to a contagious disease shall not be admitted to or permitted to remain in any school.” c) Saint Kitts and Nevis and Saint Lucia: The Education Act No. 9 of 2005, Section 14 which is a CARICOM model legislation establishes a right to education. It provides that: “Subject to available resources, all persons are entitled to receive an educational programme appropriate to their needs in accordance with this Act. 28. Prohibition of discrimination Subject to the provisions of this Act, a person who is eligible for admission to a public educational institution or an assisted school as a student shall not be refused admission on any discriminatory grounds including race, place of origin, political opinion, colour, creed, sex, or subject to the provisions of this Act, mental or physical handicap. HIV is not covered as a ground of discrimination.

7.14 Prison a) Belize: Legislation governing the Prison Department though connected to a high risk population makes no provision for prevention, treatment and care of inmates or staff and does not prohibit mandatory testing. b) Grenada, Saint Lucia, Saint Kitts and Nevis: Distribution of condoms to prisoners was felt to be very problematic and considered illegal based on buggary or sodomy laws. The prison authorities believe that the

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

distribution of condoms in the prison would be an admission that homosexuality exists in the prison and that this might also be condoning homosexuality. c) Dominica: Dominica’s Prisons Act Chapter 12:70 - There is no medical examination on reception of prisoners as provided for in section 18. At present some volunteers and Ross University students carry out medical examination of inmates. There is also no mandatory testing of prisoners for HIV. Condoms are not issued to prisoners. d) Saint Vincent and the Grenadines: The Prison Act Chapter 281 pursuant to Section 21 mandates that the prison medical officer, who shall record the state of health of the prisoner, must examine every prisoner entering Her Majesty’s Prisons. This provision subjects the prisoner to compulsory medical treatment. There is no requirement that his medical status will be kept confidential. It is possible that the ordinary prison officer may have access to the prisoner’s health records.

7.15 Drug Use Other than the Saint Lucia and Saint Kitts and Nevis reports there were no recommendations on substance use. In both cases criminal laws provide for the incarceration of substance users. Recommendations were made for alternative sentencing to treatment programmes for substance users in Saint Lucia and Saint Kitts and Nevis.

8.

Main Recommendations

Adoption of a rights based approach which recognizes rights for all. Broad Anti-discrimination Legislation to cover all the issues of discrimination including race, gender, sexual orientation, pregnancy, marital status, ethnic or social origin, age, disability, medical condition, religion, conscience, belief, political opinion, or culture’. Decriminalizing Same Sex and other Sexual Conduct. (with the exception of Belize) De-stigmatising groups such as homosexuals, sex workers and sexually active adolescents, who are at high risk for HIV infection, in order to diagnose them earlier and reduce the prevalence of HIV among them. Anal intercourse like other sexual acts 41


Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

practised between consenting adults in privacy should no longer carry the threat of imprisonment for life but would remain a serious offence in the commission of sexual offences. Provide protection for cases of assault and cases involving male minors. Repeal of provisions criminalizing willful transmission of HIV. In the case of Saint Lucia, Saint Kitts and Nevis and Barbados a public health approach was proposed, as detailed in the Barbados Report. The proposed public health approach was as follows: The regulations in the public health act be amended to give public health officials the authority to bring before the court patients who recklessly endanger others to the spread of HIV or other serious disease, in a process which safeguards the confidentiality of others involved: a) Where a registered medical practitioner or public health official determines that a person is deliberately or recklessly endangering others by committing acts that could transmit a disease, they should: b) report the matter to the CMO or other designated public health officer; c) the CMO or other designated public health officer after further investigation and/or action may bring the matter before a judge of the high court; d) the judge having conducted a hearing in chambers may issue an injunction against the person to desist from the conduct at issue, and/or impose sanctions which vary from community service to restriction for a period not exceeding a year in a place and manner designated by the court. Sex Work: regulation of sex work. This would involve the amendment of laws such as that related to brothels and other related activity to stipulate their registration and compliance with the regulations under public health law. Confidentiality: The creation of the Medical Records Act requiring the confidential treatment of medical records and information disclosing the status of any person and imposing sanctions for breach. Make it a breach of professional conduct to transmit any information on a patient without their consent by signing of a blank or partially blank form or use of a duplicate form for informing an employer which is then transmitted to an employer or insurance agent. A Code of Ethics for Health Care Professionals to specifically provide for negligence or willful misconduct in relation to the provisions of services to PLHIV. A coded system of data entry and laws regulating electronically stored and generated information to address the various issues of confidentiality.

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

Law covering non-health care providers who may be privy to confidential health information for example making it an offence to divulge confidential medical or other information of an employee or a client. Expansion of fundamental rights: to include, right to health, right to privacy, right to work. Extending the grounds of discrimination to include, health status, disability and sexual orientation. Recommendations for advocacy on the protection of fundamental rights and educating PLHIV on available redress to empower them to protect their rights. Protection against Discrimination in the Workplace Absolute Prohibition on mandatory testing

9. Conclusions As indicated in the Reports for Suriname, Saint Lucia and Saint Kitts and Nevis, a very important conclusion that can be drawn, is that people somehow do not feel sufficiently protected by the law against stigmatisation and discrimination to reveal that they are HIV positive. This uncertainty stems from fear and lack of information on HIV and AIDS and legal provisions. As long as people are unwilling to disclose their status, they will not be able to use the legal system. The relationship between theory – legislation – and practice – the actual application of the legislation in the setting of the court – must not be forgotten This author will echo the sentiment of Professor Waldrond,45 when he expressed the view that: “Acts of discrimination are best combated by governmental policy decisions backed by appropriate legislation. As with issues such as abortion one can expect vigorous opposition from religious groups at any suggestion of reform, but once in place such opposition tends to become muted, particularly if the fears of further moral decline are not realised and the benefits of reducing discrimination become apparent. Furthermore, changes in legislation cannot and should not inhibit in any way priests or other religious leaders from influencing the community by expressing their beliefs and enjoining persons to follow their teaching”. An anti-discrimination policy supported by a law to ensure protection of the rights of HIV-positive people is urgently needed. To prevent this policy from having a contrary 45

Barbados Report on the Legal Ethical and Socio-Economic Issues Relevant to HIV/AIDS in Barbados, June 2004

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

affect it must be supported by training and education to raise awareness about HIV and AIDS, its transmission routes, and the legal rights of those affected. Training of judges will be critical. Within all our judicial systems, a single Judge sits at the High Court level where civil claims, constitutional motions and administrative actions (public law) are considered. A ruling may depend on the opinion and understanding of a Judge with regard to the HIV and IDS and the best ways to approach it. Awareness of and sensitisation with regard to HIV and AIDS will help judges to remain objective about the cases they are presented with and not to rely solely on their personal norms and values. This fact also strengthens the case for an integrated approach, which combines making specific legislation with training and education of specific relevant groups. Here is where policy on HIV and AIDS for implementation of existing legislation has an important role to play. Two new developments which should be mentioned are the establishment of a Stigma and Discrimination Unit of PANCAP which is located in Barbados and the establishment of Human Rights Desks in approximately eleven (11) countries of the region under a CRN+ Global Fund Grant to receive and respond to complaints of human rights abuses by PLHIV.

Bibliography

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Regional Policy and Model Legislation to address HIV and AIDS related Discrimination Desk Review Report

Aggleton, Peter, R. Parker, M. Maluwa. 2003. Stigma, Discrimination and HIV AND AIDS in Latin America and the Caribbean, Inter- American Development Bank Augustus, Gloria Review of laws and Policies related to HIV/AIDS in Dominica, …. Castelan M, Report on Advocacy for Change in STI Legislation and Policy and Sensitization, …… Cayman Islands, HIV/AIDS Policy on Discrimination Cenac V et al National Assessment on Laws and Policies Related to HIV/AIDS for Saint Lucia, June 2007 Cenac V et al National Assessment on Laws and Policies Related to HIV/AIDS for Saint Kitts and Nevis, November, 2007 Day, M Behaviour Surveillance Study among homeless crack cocaine users in Saint Lucia, 2007 and Sero-Prevalence Study at the Bordelais Correctional Facility, CAREC, 2004 DfID, Taking Action Against HIV Stigma and Discrimination, Guidance Document and Supporting Resources, November 2007 Friday, H. W. Review of the Laws of Grenada, Carriacou and Petite Martinique for Implications of Discrimination and breach of Human Rights National HIV/AIDS, January 2008 HIV/AIDS in the Caribbean Region: A Multi-Organization Review, DFID, WHO/PAHO, GFATM, UNAIDS Secretariat and the World Bank November 2005 Martin, J Report on a Review of the Laws of Saint Vincent and the Grenadines for Implications of Discrimination and Breach of Human Rights, September 2005 O’Connell, T and R Van Puymbroeck, HIV?AIDS in the Caribbean: The Role of Legal Advisory Services Shaw, D Belize Report- Assessment of Laws, 2008 Strengthening the Caribbean Regional Response to the HIV Epidemic: Report of the Caribbean Technical Expert Group Meeting on HIV Prevention and Gender (UNAIDS, 2004) draft report. Turks and Caicos Islands, Country Position Paper, Reform to HIV and AIDS Related Discrimination

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UNAIDS, Reducing HIV Stigma and Discrimination: a critical part of national AIDS programmes A resource for national stakeholders in the HIV response, December 2007 UNAIDS, Caribbean RST Overview of HIV Infection and AIDS Epidemic in the Caribbean, October 2009 UNAIDS, Keeping Score II 2009, Caribbean RST UNAIDS, Reducing HIV Stigma and Discrimination: a critical part of National AIDS Programmes, A Resource for National Stakeholders in the HIV Response. 2007, Geneva, United Nations Joint Programme on HIV/AIDS Waldrond, E.R. Barbados Report on the Legal Ethical and Socio-Economic Issues Relevant to HIV/AIDS in Barbados, June 2004

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