Re: HIV-AIDS Bill draft to be discussed afresh

[Guest guest]

Dear Forum,

Better late than never!

With a massive scale up of Care,Support and Treatment(CST) componen of the 

NACP and roll out of ART through ARTCs and link ARTCs,such an incorporation

would perhaps be necessary.

We all are keeping our fingers crossed (and thumbs pressed as Germans say)as to

when the finalized bill/Act will see the light of the day.

Let us  mobilize support from all quarters for an early finalization of the

same.

Best wishes,

Dr.Rajesh Gopal.

Dr. Rajesh Gopal,MD

Gujarat State AIDS Control Society (GSACS),

Gujarat State Council for Blood Transfusion(GSCBT),

Block O/1 Block,New Mental Hospital (NMH) Complex,

Opposite National Institute of Occupational Health (NIOH),

Meghaninagar,  Ahmedabad,   Gujarat,  India.    PIN   380016

Phone(O)91-79-22680211--12--13,22685210 Facsimile 91-79-22680214

[Guest guest]

NGOs seek Moily's intervention to reinstate deleted provisions in HIV/AIDS Bill

Saturday, October 24, 2009 08:00 IST

Ramesh Shankar, Mumbai

A host of NGOs active in the health sector has demanded to the Union Law

Ministry to reinstate several provisions in the proposed HIB/AIDS Bill to

effectively fight the dreaded disease in the country. Earlier, the Law Ministry

had deleted several key provisions in the proposed Bill which has irked the NGOs

and other interest groups as they think these provisions are key to fight the

disease.

The NGOs have sought law minister Veerappa Moily's interference in the matter to

reinstate these provisions in the Bill to make it more comprehensive and also to

make it an effective tool in fighting the disease.

The Bill was finalized by the union health ministry in August 2006.

In September 2007, it was sent to ministry of law for its comments. The law

ministry in October 2008 sent its version of the Bill back to the ministry of

health. However, several important provisions were compromised in this version.

Following this, there were countrywide protests, and in February 2009, the Law

Ministry sent a revised version of the Bill. Once again, several essential

provisions were missing from this draft.

The NGOs have asked the minister to change the following provisions in the Bill.

Different provisions should come into force on the same date: The Health

Ministry version states that the entire Bill would come into force on the same

day. However, the Law Ministry has changed this such that different provisions

may come into force on different dates. This change could result in a delay in

the implementation of several important provisions. The original version must be

reinstated.

Definition of 'informed consent'- The definition as proposed by the Law Ministry

has replaced the word `and' with `or'. This implies that informed consent would

be considered to have been taken if it is taken without any coercion, undue

influence, fraud, mistake or misrepresentation or if it taken after giving

complete information to the person giving consent. Informed consent should

include both the conditions and thus it is important that the term `and' be

reinstated.

Definition of 'institution': By replacing the words 'between two or more

persons' with 'any organisation, body corporate or cooperative society', the

definition is being restricted. The original term must be reinstated.

Proxy consent for HIV test, treatment or research: The Law Ministry version

provides that proxy consent for a person who is unconscious or not in the

capacity to give consent, consent must be taken from the person's partner,

administrator, executor or relative. However, an administrator or executor can

only do so after the person has died, not while s/he is still alive. Instead,

consent, in these two situations, must be taken from the person's partner or

relative or legal or de facto guardian. The Law Ministry has also deleted

provision for the proxy consent from the dead person. This also needs to be

restored.

Informed Consent for HIV related research: While the Health Ministry version

states that certain information such as the aim, funding, anticipated benefits

and potential risks of the study etc should be told to the subject, the Law

Ministry has changed this in a manner that all the above information would need

to be told only to the National Authority. The original version must be

reinstated.

Informed consent for Anonymous testing: The Health Ministry version of the Bill

states that informed consent for anonymous testing will be taken using a code

which doesn't link the result of the test to the identity of the person giving

consent. However, the Law Ministry has deleted the words `in writing', thus

implying that written informed consent is not required for anonymous testing.

The original provision needs to be reinstated to ensure that consent is taken

after proper pre and post test counseling, even in the case of anonymous

testing.

Disclosure of Information: The Law Ministry version states that no person shall

disclose or be compelled to disclose HIV related information without the

informed consent of the `person making such disclosure'. The Law Ministry

version of this provision does not make sense since it requires informed consent

to be taken from the person making the disclosure instead of from the person

about whom information is being disclosed.

Disclosure to partner: While the Health Ministry leaves it to the discretion of

the healthcare provider to disclose the HIV status of his/her client to the

partner, the Law Ministry has, by replacing `may' with `shall' changed this to

make this disclosure mandatory. It is vital that the original version be

restored.

Access to testing, treatment and conselling: The Health Ministry version of the

Bill puts the responsibility of providing HIV related prevention, care and

support facilities free of cost on the government. However, the Law Ministry, by

deleting the term `prevention' has absolved the government of the responsibility

of providing prevention services, such as condoms and clean needles, free of

cost.

Protocols for HIV related treatment: The Health Ministry Version states that the

National Authority would notify all protocols for HIV related testing and

treatment through a consultative process. The Law Ministry has deleted the term

`consultative process'. It is important to reinstate the term to ensure the

Greater Involvement of People Living with HIV in the implementation of the

policies which impact them.

Drug pricing: The Health Ministry version provides for pricing of medication,

diagnostics or related technologies to be in an open and transparent manner. The

Law Ministry, by deleting the words `in a manner that is transparent,

accountable and open to public scrutiny' has compromised this accountability.

Right to Safe Working Environment: The Bill puts the responsibility of providing

Universal Precautions and Post Exposure Prophylaxis on all healthcare

institutions, to its employees. The Health Ministry version states that if the

institution fails to provide Universal Precautions and Post Exposure Prophylaxis

to its staff, and an employee claims that s/he has been occupationally exposed

to HIV, it will be presumed that s/he has been occupationally exposed and will

be provided compensation and treatment free of cost. The Law Ministry version

does away with this presumption.

Definition of Significant Risk: The definition of significant risk, originally

in the Definitions chapter, has been transferred to the chapter on `Safe Working

Environment' by the Law Ministry. In doing so, the Law Ministry has restricted

the use of this definition only to this chapter, even though the term appears in

the chapters of `discrimination' and `disclosure of information'. This

definition should be reinstated back in the `definitions' chapter.

Appointment of Health Ombud: The Health Ministry has laid down certain criteria

and qualification for the appointment a Health Ombud. This included that s/he

could be a healthcare provider or a person working in an NGO, who has working

experience in the field of public health and who is independent and sensitive.

The Law Ministry has deleted all the above defining criteria of a health ombud.

As the Health Ombud is a quasi judicial body, he will be giving important orders

and thus, it is important that the abovementioned criteria for the appointment

of Health Ombud should be retained.

Rank of Health Ombud: The Health Ministry version clearly specified the rank of

the Health Ombud. This has been deleted by the Law Ministry. The Health Ombud is

required to pass orders and directions to authorities. Thus, the rank of this

adjudicatory position is very important to ensure that the Health Ombud is a

person of senior rank. It is necessary that this provision be restored.

Powers and Procedure of the Health Ombud: The Health Ministry version states

that a person, not below the rank of a Gazetted officer, should be authorized to

conduct search and seizure operations. The Law Ministry, by deleting the term

`Gazetted Officer', has removed the rank of the person who should be authorized

to conduct search and seizure. It is important that only a senior person is

authorized to conduct search and seizure. Thus, it is necessary that the

original version be restored.

Functions of Health Ombud: According to the Health Ministry version, the Health

Ombud must give orders within 24 hours in case of an emergency. This emergency

clause has been deleted by the Law Ministry. This is an extremely important

provision as we constantly hear of cases where HIV positive people are denied

treatment in emergency situations.

Consequence of Breach of Health Ombudsman Orders: The Health Ministry version

provides for civil penalties in case of breach of Health Ombudsman orders. This

section is vital to ensure that the position of the Health Ombudsman has some

teeth and his/her orders are followed. However, the Law Ministry has deleted

this provision.

HIV/AIDS authority to be body corporate: The Law Ministry has removed the term

'perpetual succession and common seal with power'. In the absence of this, the

National Authority will not have its separate legal entity. It is important that

the original provision be reinstated.

Grievance Redressal Mechanism: The provision should clearly state that the

welfare officer should be of senior rank, working full time with full

administrative powers to ensure that s/he provides objective, transparent and

speedy redressal. There terms have been deleted by the Law Ministry and must be

reinstated.

Grievance Redressal mechanism in institutions: The Health Ministry version

provides for a complaints officer in every institution which would have to pass

orders with one day during an emergency situation. The Law Ministry has deleted

the emergency clause.

HIV/AIDS policy for institutions: The Health Ministry version provides for

HIV/AIDS policies for institutions to be formulated after consultation with

different stakeholders including people living with HIV/AIDS and people working

in the field of HIV/AIDS. The Law Ministry has, once again, compromised on the

involvement of HIV positive people in the framing of policies, which impact them

and has further restricted the policies only for prevention policies. The

original version must be reinstated.

State Obligations: The Health Ministry's version states that it is important

that the State shall take all measures to develop and implement programmes to

protect the rights of protected persons under this act including the greater

involvement of HIV positive people in decision making and policy formulation.

The Law Ministry, has, once again, done away with the greater involvement of

people living with HIV in policy formulation and implementation, decision making

etc. It is extremely important that there be ongoing and meaningful involvement

of people living with HIV/AIDS in framing and implementing of policies and

decisions that affect them.

Registration of marriages: The provision requiring all marriages to be

registered, using it as an entry point for couples to receive counseling on HIV

and sexual health. This has been deleted by the Law Ministry and should be

reinstated.

Sexual Assault protocol: It is important that this provision, which provides for

PEP and counseling to be provided to all sexual assault victims, irrespective of

whether they have filed an FIR and whether the sexual assault is within marriage

or not. The provision needs to be reinstated to protect the sexual assault

victims from HIV.

Persons in the care and custody of the state: The provision stating that all

persons in the care and custody of the state should receive, on their release,

their complete medical records should be reinstated. It is vital that persons

receive their medical records on release, since it is required for them to

continue their treatment.

Protection of property of children affected by HIV/AIDS: This provision which

seeks to protect the property of children affected by HIV/AIDS is of utmost

importance since one of the major threats faced by HIV orphans is that of

dispossession or loss of property.

Guardianship of older sibling: Keeping in mind the increasing number of HIV

orphans, the Health Ministry draft had a provision which allowed the older

sibling who is the managing member of the family, to act as guardian to the

other siblings. This would hold good even if the older sibling was a minor. This

provision is vital to the welfare of children living with HIV and must be

reinstated.

De facto guardian: This section addresses instances where people, who are not

legal guardians of children affected by HIV, but are taking care of them without

rights or responsibilities, by making such person the de facto guardian of the

child. This becomes especially important in cases of NGOs and care homes whose

guardianship is not recognized under Indian law, making it difficult for them to

take care of the children. This provision is essential not only to allow such

guardians to take the best possible care for children but also to ensure

accountability in protecting the children from harm and ensuring their

well-being. It is important that this provision be reinstated.

Living Wills, stand by guardianship and testamentary guardianship: The Health

Ministry version provides legal options to parents or guardians who can nominate

a guardian to their children, during extended periods of ill health. This

guardianship would transfer back to the parent/guardian once they feel capable

again to take up their responsibility.

Suppression of Identity: The Health Ministry version provides for the

suppression of identity of an HIV positive person in legal proceedings. However,

the Law Ministry has deleted it. This is extremely important due to the stigma

surrounding HIV/AIDS. Suppression of identity would encourage positive people to

access the legal system.

Sentencing: The Health Ministry version requires the court to consider the HIV

positive status of a convict as a relevant factor while sentencing. The Law

ministry has made it such that the court needs to `record' the status of the

person convicted before sentencing. The Law Ministry version could lead to

routine testing of all people convicted of any crime and thus the original

version should be reinstated.

Powers of Court: This section seeks to encourage creative relief to aid in the

proper implementation of this Act. When a statute does not establish a separate

machinery, such as commissions or special courts, to redress violations of the

statute, power is expressly conferred on courts, wither civil or criminal, to

deal with specific contingencies that may arise during the enforcement of the

statute. It is important that this provision be reinstated.

Power of court to order systemic audits: This section allows for a systemic

audit, ordered by the court, of an institution, which continuously violates the

provisions of this Bill. The aim to reach to the root cause of the continuous

violations and address them. It is important that this provision be reinstated.

Presumption as to Discrimination: This section shifts the burden of proof, in

cases of alleged discrimination, onto the accused. Here, in case the person

alleging discrimination is a protected person, the burden of proof will not be

on him but on the respondent. The person alleging discrimination would not have

to prove that s/he was discriminated against, rather the accused would have to

prove that the discrimination did not take place, or the behaviour was not on

any discriminatory grounds. This section is extremely important as it is always

very difficult for an HIV positive person to prove that h/she has been

discriminated against.

Penalty for hate and discriminatory propaganda: The Law Ministry has deleted the

penalty for hate and discriminatory propaganda and in place introduced a

provision which penalizes violation of any provision of the act. Such a

provision would change the civil nature of the Bill and will have far reaching

consequences. It is important that this penalty be restricted to hate and

discriminatory propaganda.

Penalty for breech of confidentiality in legal proceedings: This section

provides for penalty in case the order for suppression of identity is violated.

It is important that the HIV status of a person is kept confidential in the

legal proceedings to ensure that the people infected and affected by HIV access

legal services. Hence, it is important that anyone who breeches the

confidentiality of a person in legal proceedings be punished. Hence, it must be

reinstated.

Prohibition of Victimization: This provision is aimed at creating an enabling

environment for people infected and affected by HIV to take recourse to this Act

without fear of any reprisals. It protects the person living with HIV from being

victimized if s/he takes action under this Bill. Therefore, this provision

should be restored as it is.

Action Aid; Alternative Law Forum, Bangalore; Aneka, Bangalore; APSA-

Association for the Promotion of Social Action, Bangalore; Bengal Network for

People living with HIV/AIDS; Bihar Network for People living with HIV/AIDS

Society; CCDT- Committed Communities Development Trust, Mumbai; Chandigarh

Network of People Living with HIV/AIDS; Council of People living with HIV/AIDS,

Kerala; CREA, Delhi; Delhi Network of Positive People; Freedom Foundation;

Gujarat State Network For People Living with HIV/AIDS; INP+, Orissa; Indian

network for People Living with HIV/AIDS; INSA- INDIA; Jharkhand Network of

Positive People; Karnataka Network of Positive People; Karnataka Sexual

Minorities Forum; Karnataka Sex Workers Union; Lawyers Collective HIV/AIDS Unit;

M-PLAS, Mizoram; Madhya Pradesh Network of People Living with HIV/AIDS; Manas

Bangla, Kolkata; Manipur Network of Positive People; Milana, Bangalore; Network

of Maharashtra by People Living with HIV/AIDS; Network of Positive People,

Haryana; etc.

http://www.pharmabiz.com/article/detnews.asp?articleid=52264 & sectionid=