Urgent need for NACO policy guidelines on custodial seroconversions

[Guest guest]

Dear forum members,

[Ref: Posting on 'Stamp paper scam' hit by HIV virus]

Continuing with Dr Nagendras observation " Does it mean all need to be

tested at the time imprisonment (by accused to prove or by police to

disprove)? " I want to put forward another very important set of

questions on custodial seroconversions, its possibility, incidence,

Prevention, implications and more significantly the human rights

issues involved.

It may not be very important from a progamme planner's perspective

whether Mr X or Y was seroconverted inside the prison by omission or

commission, but the mere fact that, such thing, if it has happened,

opens a very serious area of action immediately.

India has a substantially large prison network with the total number

of 1213 and a capacity of 95225 inmates .The total inmate population

against this is 212408 + - 10% at a given point In time, undertrials

constitute 70 to 90 % in various settings and a total turnover rate

is around 3% amounting to 6372 prisoners released per day .

Generally these prisoners present a wide spectrum of marginalized

population including Petty criminals, commercial sex workers drug

users, migrant labors, slum inhabitants, beggar's, misdirected youth,

and undereducated, increasing their vulnerability to the virus. MSM

activity, drug abuse inside prisons, poor access to sterilized

injectable equipment, absence of condoms, poor psychological support

and ill managed health set up complements the loop of infection.

Indian Studies at surat district prison, where Partnership in sexual

health programme is running and in UP prisons, where Jail awareness

intervention is on, have clearly underlined the extreme vulnerability

of prisoners for HIV during internment.

Historically also, In The US, Castro reported in 1991 that 0.3% of

the 2300 initially negative male Illinois inmates had seroconverted

after spending one year in prison. Brewer also reported in 1988 that

around 60 seroconversions take place annually in land prisons

after two-year stay. In the US federal bureau of prisons, 52 cases of

seroconversions were detected in 1992. In a survey conducted by

Deutsche AIDS Hilfe, about 17% positive participants stated that they

believe they got the infection while in prison and in a case report a

Louisiana inmate who tested positive in 1989 reported that he was

infected through sexual intercourse and needle/syringe sharing with a

cellmate and inside prison they did " every unsafe thing you could do " .

Since the publication of ECAPs in March 1994 several evidences of

transmission in Scotland, The US, Australia, France and Thailand and

other countries have been put forward providing compelling reasons

for serious action.

Punishment to a person cannot exceed the sentence awarded to him. If

a person Develops an incurable disease like AIDS during internment,

it may amount to exceeding the punishment or even inflicting capital

punishment on him. It may lead to disastrous consequences for the

individual, his family and the society and the social good for which

the individual's liberty was seized stands defeated.

Health is an absolute right of any citizen and during internment the

total responsibility of this passes to the state. It is mandatory on

the part of state that the individual, during his detention enjoys

the same state of health, if not better, in which he was taken into

custody. Any disease or lack of health due to inept policies or poor

handling of health issues amounts to absolute breach of duty on the

part of state and total breach of fundamental rights of an

individual.

The committee of ministers of the council of Europe at its 81st

session on 26th November 1987 adopted certain guidelines for drawing

up a public health policy to fight against AIDS which inter alia

states that no public health programmes should be initiated unless

backed by secondary facilities (i.e. preventive tools, counseling,

voluntary testing, treatment and psychosocial services).

On 18 Oct.1993 the committee made recommendations to the member

states on criminological aspects of the control of transmissible

diseases including AIDS in prisons and suggested voluntary testing of

HIV together with counseling before and after test.

But the compelling evidences of in prison transmission opened the new

debate on mandatory Vs voluntary testing.

Article 26 of the international covenant on civil rights and

political rights prohibits discrimination on the grounds of race,

color, sex, language, religion, political opinion, national or social

origin, property or OTHER STATUS. The word other status has a very

wide remit as it also includes status of prisoners or individuals HIV

status. Thus these prisoners cant be treated differently from those

who are outside prison implying thereby that the state cannot compel

them to undergo any type of screening without informed consent.

Concerned at the threat of AIDS epidemic Vs. moral concerns, law in

various countries, took its own course. In Queen Vs Dyment case

Supreme Court of Canada ruled that since the blood was taken from the

accused without his consent or knowledge, the act of blood testing

was unlawful .In Queen Vs Pohorestky the Supreme court of Canada

ruled that a violation of the sanctity of a persons body is more

serious than that of his office or even his home. In The U.S.A.

approach was relatively flexible. If a useful purpose could be

identified for mandatory testing it was likely to be upheld by

courts. In Skinner Vs Railway labor executives union and Treasury

Employees Vs Ronne Ralle cases, United States Supreme court

considered the issue of mandatory blood testing for the presence of

alcohol and drugs and held that when compelling safety and national

security interests are present, the interventions are valid.

In other pronouncements the courts ruled that Mandatory AIDS testing can be

held valid only if the group involved is at high risk of contacting

and/or transmitting AIDS to people. In people Vs CS the appellate

court of Illinois held that " we accept the states general perception

that the testing of individuals belonging to a high risk group for

contacting AIDS virus in the midst of AIDS epidemic is a reasonable

exercise of states police powers " . The Spanish law also permits non-

consensual medical interventions. Article 10 of Spanish law of health

interalia allows interventions if non-interventions jeopardize public

health (read as no absolute bar on non-consensual HIV testing)

In light of the above rules and rulings states started evolving their

own strategies suitable to their conditions. In Australia the

scenario is mixed. In the states of Queensland, Tasmania, South

Australia and Northern Territories there is compulsory HIV testing of

all prisoners at the time of entrance, in South Australia and

Tasmania a repeat test is performed to rule out Window Period. In

Queensland retesting is done at 12 monthly intervals. In other states

like , Western Australia and New South Wales, voluntary

programs are offered. In a very high rate of success (98%)

has been achieved in voluntary testing underlining the value of a

good counseling unit, if made available to prisoners.

WHO in September 1992 after consultations in Geneva issued elaborate

guidelines to all the member states expecting that each country will

further draw a set of policies for the prevention of HIV/AIDS in

prisons and for the care of interned AIDS cases. These policies and

the strategies applied in the prisons should be developed through

close collaboration among national health authorities, prison

administrations, and relevant community representatives.

Some of the relevant guidelines are-

1.It categorically prohibits compulsory testing BUT provides for

voluntary testing inside prisons with pre and post counseling when

such is available in the community. Unlinked anonymous testing for

epidemiological surveillance should be considered if it is being used

in general population of that country.

2.Prisoners and prison staff should be educated on HIV/AIDS with

special reference to likely risk of transmission in prison

environment.

3.Clear information should be made available on type of sexual

behavior that can lead to HIV transmission. Since penetrative sexual

intercourse occurs in prisons, even when prohibited, condoms should

be made available to them….

4.Prison health services must have adequate material and resources to

ensure that HIV transmission through use of non-sterile material does

not take place.

5.Bleach for drug users to be made available… etc, etc

Given the increasing dangers posed by HIV transmission in prisons

brought into greater focus by reported custodial seroconversions,

there arises a big possibility of legal action against state.

Logically also, if weighed against evidence, there is more reason

than ever to proceed legally to achieve substantive change in

correctional policy. Prisoners may be able to state need for change

in prison authorities and governments behavior by instituting an

action in criminal negligence.

The Tort of negligence will always succeed if the aggrieved is able

to make a case that he/she /they have suffered harm or damage that

was caused by wrongful, careless, or unreasonable act or omission of

other person, entity or institution [read state]. Another way of

putting it would be the plaintiff simply has to prove that

he/she/they were owed a duty of care by defendant and that the

standard of care was not met/being met, and the breach caused/will

cause actual harm.

In prisoners A to XX inclusive Vs State of NSW at the Supreme Court

of Ausralia when fifty prisoners launched a case against the state

for non provision of condoms, the court observed..

" His honor sees no reason why in an appropriate case……..If the

appellants were to establish by evidence that the failure by

department to permit their use of condoms constituted a breach of

care owed to them, they might be entitled to injunctive relief "

Even if the state defends itself by saying that transmission was

because of activities not condoned by law such as MSM Activity or

injecting drugs with unclean instruments their case will not stand as

Jugens in Canadian HIV/AIDS policy 1995 rightly Comments " The fact

that prisoners put themselves at risk of contacting HIV by engaging

in sexual activity and drug use, both prohibited inside prisons, is

not an excuse for not acting. "

This sheds sufficient evidence on states vulnerability in such a

legal tangle.

This dilemma will continue unless the Government and prison

department, in Consultation with Civil society representatives and

the judiciary, who actually are really aware of the dynamics of

correctional system, bring out a clear policy on HIV/AIDS and prisons

and apply it on ground. Also, epidemiological surveillance added in

prisons to bring the real picture to fore and plan the quantum of

action required.

Till then simple questions like " testing… to do or not/how to do or

whether providing condoms amount to condoning homosexuality inside

prisons or not providing amounts to breach of duty and whether

providing needles amount to condoning injecting drug use inside

prisons or not providing amounts to breach of duty " will keep on

haunting all the Prison programme planners in our country.

Dr Manoj Agarwal, MD, DPH, MIPHA

E-mail: dr_manojagarwal@...