Criminalisation of HIV transmission: implications for public health in Scotland

A human rights-based approach to coercive public health interventions: lessons from the HIV and COVID-19 pandemics

The SARS-CoV-2 outbreak and its impact on countries across the globe has been unprecedented. The lack of pharmaceutical interventions to prevent or treat infection have left States with limited avenues to control the spread of the virus. Many countries have introduced stringent lockdowns along with regulatory regimes that give governments new powers to compel compliance with these regulations and to punish non-compliance. This article investigates the use of compelled public health interventions during both the HIV and COVID-19 pandemics and how these can be aligned to human rights. This includes discussion on the use of interventions such as mandatory quarantine and isolation, compelled testing, criminalisation of HIV and SARS-CoV-2 transmission in Africa. This article also outlines what State obligations are in relation to pandemic responses, both in terms of mandating an effective response and which human rights principles should underscore these responses.Using South Africa as a case study, this article analyses whether the use of these interventions complies with international human rights law. We assess the use of compelled public health interventions in both the HIV and COVID-19 pandemics against established human rights principles applicable to pandemic responses. This article discusses lessons to be learnt about the relationship between human rights and public health interventions across both pandemics so as to guide human rights-based approaches to future pandemics as well as subsequent stages of the SARS-CoV-2 pandemic.

Medical research, data sharing, and properly informed consent

When Sheila M. Bird agreed to participate in a Covid surveillance study, she did not realise her negative test result and personal details would be passed to NHS Test and Trace. Here, she calls for closer scrutiny of privacy policies by research ethics committees, and clearer communication with study participants

When Sheila M. Bird agreed to participate in a Covid surveillance study, she did not realise her negative test result and personal details would be passed to NHS Test and Trace. Here, she calls for closer scrutiny of privacy policies by research ethics committees, and clearer communication with study participants.

Accessing medical biobanks to solve crimes: ethical considerations

Millions of human biological samples are stored worldwide for medical research or treatment purposes. These biospecimens are of enormous potential value to law enforcement as DNA profiles can be obtained from these samples. However, forensic use of such biospecimens raises a number of ethical questions. This article aims to explore ethical issues of using human bodily material in medical biobanks for crime investigation and prosecution purposes. Concerns about confidentiality, trust, autonomy and justice will be discussed. We explore how to balance these concerns against the importance of crime solving. Relevant case examples of forensic use of medical biobanks show that requests by law enforcement to access biobanks are handled in disparate ways. We identify some core ethical issues and conclude that further research on these issues is needed to provide ethical guidance.

Phylogenetic analysis as a forensic tool in HIV transmission investigations

: Because HIV is a fast-evolving virus, HIV genomic sequences of several individuals can be used to investigate whether they belong to a transmission network. Since the infamous 'Florida dentist case' in the beginning of the 1990s, phylogenetic analyses has been recurrently used in court settings as a forensic tool in HIV transmission investigations, for example cases where one or more complainants allege that a defendant has unlawfully infected them with HIV. Such cases can arise both in the context of HIV-specific criminal laws - in countries where transmission of HIV infection is specifically criminalized - or in the context of general laws, for example, by applying physical or sexual assault laws to HIV-related cases. Although phylogenetic analysis as a forensic technique for HIV transmission investigations has become common in several countries, the methodologies have not yet been standardized, sometimes giving rise to unwarranted conclusions. In this literature review, we revisit HIV court case investigations published in the scientific literature, as well as the methodological aspects important for the application and standardization of phylogenetic analyses methods as a forensic tool. Phylogenetic methodologies are improving quickly, such that more recently, phylogenetic relatedness, directionality of transmission and timing of nodes in the tree are used to assess whether the phylogenetic transmission analysis is consistent with or contradicting the charges. We find that there has been a lack of consistency between methods used in court case investigations and that it is essential to define guidelines to be used by phylogenetic forensic experts in HIV transmission cases in court.

Multiple Systems Estimation (or Capture-Recapture Estimation) to Inform Public Policy

Estimating population sizes has long been of interest, from the estimation of the human or ecological population size within regions or countries to the hidden number of civilian casualties in a war. Total enumeration of the population, for example, via a census, is often infeasible or simply impractical. However, a series of partial enumerations or observations of the population is often possible. This has led to the ideas of capture-recapture methods, which have been extensively used within ecology to estimate the size of wildlife populations, with an associated measure of uncertainty, and are most effectively applied when there are multiple capture occasions. Capture-recapture ideology can be more widely applied to multiple data-sources, by the linkage of individuals across the multiple lists. This is often referred to as Multiple Systems Estimation (MSE). The MSE approach has been preferred when estimating "capture-shy" or hard-to-reach populations, including those caught up in the criminal justice system; or homeless; or trafficked; or civilian casualties of war. Motivated by a range of public policy applications of MSE, each briefly introduced, we discuss practical problems with potentially substantial methodological implications. They include: "period" definition; "case" definition; when an observed count is not a true count of the population of interest but an upper bound due to mismatched definitions; exact or probabilistic matching of "cases" across different lists; demographic or other information about the "case" which may influence capture-propensities; required permissions to access extant-lists; list-creation by research-teams or interested parties; referrals (if presence on list A results - almost surely - in presence on list B); different mathematical models leading to widely different estimated population sizes; uncertainty in estimation; computational efficiency; external validation; hypothesis-generation; and additional independent external information. Returning to our motivational applications, we focus on whether the uncertainty which qualified their estimates was sufficiently narrow to orient public policy; and, if not, what options were available and/or taken to reduce the uncertainty or to seek external validation. We also consider whether MSE was hypothesis-generating: in the sense of having spawned new lines of inquiry.

Love and HIV serodiscordance in gay men's accounts of life with their regular partners

This paper examines discourse on serodiscordant relationships in interviews with 16 HIV-positive and 3 HIV-negative gay men living in Scotland. Drawing on critiques concerning love, reason and HIV serostatus normativity, this paper supplies a much-needed insight into how gay men in serodiscordant relationships negotiate HIV prevention. Among other matters, some HIV-negative men were said to knowingly request risky sex with their HIV-positive partners as an expression of love. In some situations, the person without HIV claimed a normative serostatus that implied they could 'invest' more in the relationship by offering to have sexual intercourse that may expose them to HIV. Such dynamics expressed devotion on the part of the HIV-negative man, but implied obligation for the HIV-positive man. Based on these and other perspectives we argue for closer attention to gay men's subjectivity in the present circumstances of proliferating biomedical forms of HIV prevention; more thoroughly reflexive public health engagements with gay men's sexual cultures; and a research agenda for gay men that challenges HIV-serostatus normativity.

Dilemma of concepts and strategies for the prevention of spread of HIV in relation to human behavior, law and human rights

The new prevalence data regarding the estimated global number of human immunodeficiency virus positive (HIV+) cases, i.e., including people who are either aware or unaware of their HIV infection in 2010, lead many to wonder why the increase in incidence has reached today's unprecedented level and escalated within such a short time. This, in spite of prevention campaigns in countries affected by HIV/acquired immune deficiency syndrome (AIDS) with their urgent messages aimed at preventing HIV transmission by promoting changes in individual's behavior. This article analyzes the background of the prevention strategies, in particular their political, social and legal concepts in terms of human rights, and reveals traits of human behavior not considered thus far. A radical reappraisal is necessary, at social and legislative levels, as well as options additional to current concepts. When ethical issues come up, they become blamed for outmoded moralistic positions. However, ignoring the reality has led to dire consequences from prioritizing individual human rights over society's collective need to prevent the spread of HIV.

Source identification in two criminal cases using phylogenetic analysis of HIV-1 DNA sequences

Phylogenetic analysis has been widely used to test the a priori hypothesis of epidemiological clustering in suspected transmission chains of HIV-1. Among studies showing strong support for relatedness between HIV samples obtained from infected individuals, evidence for the direction of transmission between epidemiologically related pairs has been lacking. During transmission of HIV, a genetic bottleneck occurs, resulting in the paraphyly of source viruses with respect to those of the recipient. This paraphyly establishes the direction of transmission, from which the source can then be inferred. Here, we present methods and results from two criminal cases, State of Washington v Anthony Eugene Whitfield, case number 04-1-0617-5 (Superior Court of the State of Washington, Thurston County, 2004) and State of Texas v Philippe Padieu, case numbers 219-82276-07, 219-82277-07, 219-82278-07, 219-82279-07, 219-82280-07, and 219-82705-07 (219th Judicial District Court, Collin County, TX, 2009), which provided evidence that direction can be established from blinded case samples. The observed paraphyly from each case study led to the identification of an inferred source (i.e., index case), whose identity was revealed at trial to be that of the defendant.

Developing and evaluating comprehensive HIV infection control strategies: issues and challenges

As described elsewhere in this supplement, development of effective methods for prevention of human immunodeficiency virus (HIV) infection has proven to be more challenging than development of effective treatment for the disease. New strategies to control the HIV epidemic are urgently needed; this urgency creates interest in investigation of the possibility of using antiretroviral treatment in combination with other modalities to control the epidemic. This article summarizes current knowledge concerning prevention modalities in the context of the drivers of the HIV epidemic in specific communities, describes challenges in investigating test-and-treat strategies, and proposes research directions for addressing these challenges to investigate the impact of prevention strategies on mitigation of epidemics.

Comparison of Bayesian and maximum-likelihood phylogenetic approaches in two legal cases involving accusations of transmission of HIV

We investigated two cases of alleged criminal transmission of HIV-1 using Bayesian and maximum-likelihood phylogenetic approaches to determine whether the inference method used influenced the outcome in these cases. In the first case, Bayesian methods were used to reexamine gag and env sequences from an earlier investigation in which the HIV-1 strains infecting one of several contacts could not be linked phylogenetically to that of the accused despite strongly suggestive epidemiological evidence. In the second case, maximum-likelihood and Bayesian inference methods were used to investigate the relatedness of gag and env sequences from HIV-1 strains infecting a man accused of intentionally transmitting the virus to several contacts. Bayesian analysis of HIV-1 strains from the first case confirmed earlier results obtained by maximum-likelihood analysis. A monophyletic cluster linking viruses from the accused and three of his direct and indirect contacts was supported, but a linkage between these viruses and a fourth epidemiologically linked contact could not be demonstrated. In the second case, a strong virological link between the accused and two of his contacts, and the absence of links with four other contacts, was confirmed by both maximum-likelihood and Bayesian inference methods. It is important that phylogenetic programs applied in a legal setting are conservative in their outcome. Although Bayesian methods offer computational tractability for large data sets and complex evolutionary models, this study demonstrates they do not assist when clear linkages between viruses are demonstrated using maximum-likelihood methods.

Public health law and tuberculosis control in Europe

BACKGROUND

Tuberculosis control is an important public health challenge in many European countries. Law is an important tool that policy-makers can draw upon to support control efforts and, according to the World Health Organization, represents a tangible expression of political commitment and will. Despite this, little national research, and even less cross-national comparative research, has been conducted to describe and analyse legislative approaches to tuberculosis control.

METHODS

We conducted a survey of 14 European countries to identify, describe, map and analyse legislative tools used to support tuberculosis control.

RESULTS

We found a wide range of legislative models. Legal measures available to nation states, such as compulsory examination, compulsory screening, compulsory detention, compulsory treatment and compulsory vaccination, vary widely in both scope and number. We identified a typology of legal frameworks, from the most authoritarian to the least restrictive. It seems likely that the application of some laws might not withstand scrutiny under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

CONCLUSIONS

Harmonization of legislative response to infectious diseases, based upon sound evidence, may be necessary if collaborative efforts in support of infectious disease control, as envisaged in the new International Health Regulations, are to be most effective and are to reflect more appropriately a globalized 21st century world.

Pharmacotherapy, vaccines and malaria advice for HIV-infected travellers

Since the introduction of effective antiretroviral therapy (ART), HIV-infected individuals are travelling more frequently and international travel has become much safer. Specific concerns include the safety of ART during travel, drug adherence and interaction considerations, and effects of immunosuppression. This review describes potentially important infections, vaccine effectiveness, safety and special approaches for their use, and HIV-related issues regarding predeparture counselling. With advanced immunosuppression (CD4+ T-cell count < 200/microl or < 14%), the immunogenicity of several vaccines is reduced, complications could occur after live attenuated vaccines and certain infections acquired during travel may be more frequent or severe. Challenges include the best options for malaria chemoprophylaxis, standby treatment and medical follow-up of the increasing number of HIV-infected long-term travellers.

The intentions of gay men in taking an HIV test

The objective of this study was to determine the contributions of a range of psychosocial, demographic and behavioural variables to gay men's intentions to take an HIV test. A cross-sectional self-report survey was undertaken. Researchers approached patrons of all known gay bars in Glasgow and Edinburgh during May 2000. Questionnaires were completed by 803 men (response rate of 78%). Those with a stronger intention to test had previously tested, and they were younger, with two or more recent unprotected anal sex partners. They perceived their HIV status to be unknown, had less fear of a positive test result, and perceived more benefits of testing. Intention to test in those with two or more recent unprotected anal sex partners was attenuated if accompanied by increased fear of a positive test result. Results are considered in the context of the theories of reasoned action and planned behaviour. Intention to test is far from a unitary phenomenon, and the existence of various sub-groups within the gay population demands a new approach to both research and health promotion.

“Typhoid Mary” and “HIV Jane”: Responsibility, Agency and Disease Prevention

The construction of disease risks as knowable, calculable and preventable in dominant social science and public health discourses has fostered a certain kind of logic about individual risk and the responsibility for infection. Disease control measures that have developed out of this logic typically fail to recognise the socio-structural roots of many high-risk behaviours that are linked to the spread of infection. Instead, they hold the disease carrier responsible for managing his/her own risk of infection of others, and rely on constraining the agency of the carrier (e.g. by constraining movement, contact or occupation). In occupations associated with a high risk of infection, the idea of responsibility of the actor implicitly raises issues of "professional responsibility". Using the case of "Typhoid Mary" and a hypothetical case of "HIV Jane", this paper explores some of the problems with making sex workers responsible for the prevention of HIV transmission. It argues that for the notion of "responsibility" to make any sense, the HIV-positive person must be in a position to exercise responsibility, and for this they must have agency.

The criminalization of HIV transmission

Since Bennett, Draper, and Frith published a paper in the Journal of Medical Ethics in 2000 considering the possible criminalization of HIV transmission, an important legal development has taken place. February 2001 saw the first successful United Kingdom prosecution for the sexual transmission of disease for over a century, when Stephen Kelly was convicted in Glasgow of recklessly injuring his former girlfriend by infecting her with HIV. Whether English criminal law (as opposed to Scots law) can apply criminal penalties in such a case, however, still remains uncertain. This paper, in addition to providing some background to the Kelly case, briefly explores the current possibilities for prosecution under English law. It then proceeds to outline and comment on the issues relevant to criminalization, responding in part to points made by Bennett, Draper, and Frith and also by Bird and Leigh Brown in a recent article in the BMJ.

The criminalisation of HIV transmission

Since Bennett, Draper, and Frith published a paper in this journal in 2000 considering the possible criminalisation of HIV transmission, an important legal development has taken place. February 2001 saw the first successful United Kingdom prosecution for the sexual transmission of disease for over a century, when Stephen Kelly was convicted in Glasgow of recklessly injuring his former girlfriend by infecting her with HIV. Whether English criminal law (as opposed to Scots law) can apply criminal penalties in such a case, however, still remains uncertain. This paper, in addition to providing some background to the Kelly case, briefly explores the current possibilities for prosecution under English law. It then proceeds to outline and comment on the issues relevant to criminalisation, responding in part to points made by Bennett, Draper, and Frith and also by Bird and Leigh Brown in a recent article in the British Medical Journal.