Johanna Westeson - The ICHRP

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Case law: ensuring non-discriminatory health services for HIV-positive individuals The Disability Discrimination Act was recently used to challenge discrimination against an HIV-positive person by a National Health Service trust in Northern Ireland. According to news reports, the staff at a Northern Irish hospital refused to perform an endoscopy on a HIV-positive man even though the hospital had the facilities and appropriate procedures in place to do so. The NHS trust informed the claimant in a letter that the treatment had been denied him on the basis of his HIV-status. The claimant had to wait four months for an alternative form of examination and suffered substantial anxiety and distress because of the delay. 791 Thought to be the first case in which the Disabiliy Discrimination Act has been invoked to challenge discrimination against an HIV-positive person accessing health care services, the Equality Commission for Northern Ireland supported the patient’s case challenging the discriminatory treatment he received from the hospital. The NHS trust settled the case in April 2009, giving the claimant £4,000 and issuing an apology for denying him the care to which he was entitled and the distress he experienced as a result. The trust also agreed to review policies related to the provision of services for HIV patients. 792 The Moldovan Law on Prevention and Control of HIV/AIDS (2007) 793 addresses the issue of right to prevention of and treatment for HIV/AIDS and has incorporated a clear rightsapproach. Citizens, foreign citizens, and stateless persons who live or temporarily reside in Moldova have the right to a free, anonymous medical test to determine HIV-status (Art 11). The law allows “immigrants, emigrants, refugees and asylum seekers [the] benefit of [anti-retroviral treatment] and treatment of opportunistic infections according to the legislation in force” (Art 10(3)). The law does not identify the laws that govern these categories of non-nationals or specify whether undocumented migrants are included in this group. According to Article 19(1), “the state shall ensure universal access of all [persons living with HIV] to [anti-retroviral] treatment and treatment of opportunistic infections . . . free of charge through the National Programme on Prevention and Control of HIV/AIDS and STIs.” The law also prohibits discrimination of HIV-positive persons in the health care setting, namely: “each individual shall have access to medical services, regardless of perceived or actual HIV status” (Art 25 (1)), and no health institutions “shall deny access to health care services to [persons living with HIV] or those perceived or suspected to be HIV-infected, nor charge the said persons higher fee” (Art 25 (2)). All HIV tests require written voluntary and informed consent, and mandatory testing is prohibited; for minors, both the child and parents or legal guardians must provide written informed consent (Art 13). All HIV tests and diagnoses are confidential (Art 14), although HIV-infected individuals are required to disclose their status to spouses or sexual partners. 791 See the Equality Commission for Northern Ireland,, “Disability Cases Highlight Need for Change,” 29 April 2009, at http://www.equalityni.org/sections/Default.asp?cms=News_News&cmsid=1_2&id=173&secid=1_1, and the Guardian, “HIV-positive man wins damages against Northern Ireland hospital,” 29 April 2009, at http://www.guardian.co.uk/uk/2009/apr/29/northern-ireland-hospital-hiv-damages. Both sites last visited on 31 March, 2010. 792 Ibid. 793 Nr. 23-XVI of 16.02.2007. Translation to English is probably unofficial. 248
5. Concluding remarks It is difficult to draw any general conclusions about European approaches to HIV/STI treatment for the reasons noted above (lack of specific regulations, policy- rather than lawregulated, etc). Suffice to conclude here that the jurisprudence of the European Court of Human Rights, as well as the Dutch and British regimes, indicate that the application of human rights norms to the treatment of sexually transmitted infections, including HIV/AIDS, is an approach that is gaining recognition in the region. The European Court concluded both in Yakovenko and in D. that failure to provide treatment for HIV/AIDS can amount to inhuman treatment under the Convention; thus placing the positive duties of the state to protect and promote the right to health on par with the fundamental obligation not to subject a person to maltreatment. In the United Kingdom, both the Disability Discrimination Act and the NHS Constitution have clear rights-based approaches to state responses to ill-health. This is particularly important in regard to sexually transmitted infections and HIV/AIDS, given the social stigma that tends to accompany such conditions precisely due to their (perceived) relation to sexuality and non-conforming sexual behavior. The Northern Irish case shows that the British regulations also have teeth – that the guarantees to non-discriminatory treatment can be enforced and, when violated, can lead both to sanctions against the wrongdoer and to a revision of practices. In Moldova, the universal right to treatment for persons living with HIV and AIDS has been guaranteed in law, which, in combination with the same law’s prohibition of discrimination against HIVpositive persons, provides significant legal protection for members of this group. As pointed out above, undocumented migrants are particularly vulnerable to violations of their rights to sexual health services in Europe due to their illegal status and lack of health insurance and/or difficulties in practical opportunities to access care. The Netherlands, Moldova, and to some extent the United Kingdom attempt to tackle the rights-related problems that arise when this group suffers from serious health conditions, such as from HIV/AIDS. The Netherlands appears to have established a regime where migrants can access health services regardless of their legal status, at least theoretically with the guarantee that coming forward for (sexual) health reasons will not attract the attention of immigration authorities or the police. The Moldovan law acknowledges the specific need of treatment for migrants and refugees, while not clearly stating what services and protection they can expect in practice. However, it should be reiterated that regardless of legal guarantees, the practice can be very different, and the very fear of being subjected to deportation may impede undocumented migrants from seeking treatment, regardless of whether medical confidentiality will in fact be respected by the health provider. One big obstacle to real access to qualitative and non-discriminatory care is also lack of trustworthy information. By the very nature of living ‘underground,’ it is difficult for undocumented migrants to access information in relevant languages about services and treatment. Needless to say, these problems must be tackled by a wider approach than by legal means alone. 249
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SEXUAL HEALTH AND HUMAN RIGHTS: EUR
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ACKNOWLEDGMENTS This report was wri
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In choosing these eight topics, and
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amputation, or arbitrary imprisonme
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headquarters situated in Strasbourg
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unfounded applications: the applica
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margin. 18 This standard has been k
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financial, and democratic supervisi
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EU and the Euro as its currency. Th
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3. Domestic legal systems As mentio
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METHODOLOGY The WHO project on sexu
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Because this report, and the projec
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grounds for discrimination. Gender
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assume large parts of her household
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In Lustig-Prean and Beckett v. the
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asis of family responsibilities (Ar
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promote social justice and protecti
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ground that the scheme did not cove
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ut also to discrimination arising f
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Many constitutions call for equalit
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The three criminal provisions inclu
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eassignment is defined broadly, ref
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iv.4. Gender identity discriminatio
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harassed workers out of their emplo
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epealed accordingly, but the conten
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and reactive) steps to protect the
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features of sexual harassment have
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harassment to make a claim against
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4. Regional non-binding material Th
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he or she he has “no disease caus
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In other European countries, calls
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Article 10 addresses reasons for pe
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her country of origin and cannot re
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compromised medical privacy or doub
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whether or not the participants wer
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uns contrary to EU non-discriminato
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provision criminalizing sexual rela
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2B. CRIMINALIZATION OF HIV TRANSMIS
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Swedish courts had determined that
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infected the women. In the lower co
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Several prosecutions of cases of HI
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unprotected sex), and can prohibit
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The case, when reaching the Court,
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material on the internet blurring,
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a balancing act on behalf of the le
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4. Domestic legislation, case law,
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5. Concluding remarks Given the sca
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2. Council of Europe Jurisprudence
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leaves room for forced examinations
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3A. SAME-SEX MARRIAGE, PARTNERSHIP,
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The Court made clear that there is
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extend the scope of this Convention
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violating the principle of non-disc
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held that the law was introducing a
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In France, registered partnership i
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eform. Thus, allowing for same-sex
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woman have the right to marry accor
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The law makes clear that the two pa
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opposite sex. While the Hungarian,
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In the European region, divorce is
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5. Concluding remarks In Johnson, t
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concern that such legislation could
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exceptions: countries that have cho
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3E. POLYGAMY/POLYGYNY 1. Introducti
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4. Domestic legislation In France,
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In relation to the above, it is rel
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In the European region, there are f
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United Kingdom, 414 the Court consi
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(2) Whoever completes an act of sex
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characteristics are important featu
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discrimination, whereas laws agains
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2. Council of Europe Jurisprudence
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It is possible but not certain that
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When an application has been grante
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Case law: partnership rights for pr
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investigation and the provision of
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In a couple of decisions, the Europ
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very practical aspect of gender ide
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Case law: the right to respect for
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pathologizing the issue of transsex
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gender. Specific legal issues invol
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concerning their young child. Howev
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world, with work, health services,
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on repeated occasions from her husb
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Similarly, the European Commission
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a person who has been acquitted of
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[w]hoever, on repeated occasions or
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International human rights standard
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In M.C. v. Bulgaria, 523 the applic
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With regard to the failure to effec
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Italy offers another example in the
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In Russia, the Supreme Court has pr
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testimony of the victim in rape tri
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number and passport details within
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condemnation of immunity for marita
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some regions have exempted from pen
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The 2007 Council of Europe Conventi
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European Social Charter and the Eur
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Page 203 and 204: 6. Concluding remarks European laws
Page 205 and 206: event of police abuse, on the other
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Page 221 and 222: purpose of exploitation) (Art. 4a).
Page 223 and 224: victims will be granted “standard
Page 225 and 226: e guilty of an offence, if the traf
Page 227 and 228: expanded. For example, a victim can
Page 229 and 230: last decade, on regional as well as
Page 231 and 232: sexual health services interacts wi
Page 233 and 234: provide abortion services at a mini
Page 235 and 236: Convention. These procedures, the C
Page 237 and 238: 5. Domestic legislation and case la
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Page 241 and 242: document the patient’s opportunit
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Page 245 and 246: 2. to provide advisory and educatio
Page 247: not anonymous) treatment even thoug
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Page 255 and 256: a democratic society, the Court rei
Page 257 and 258: 3. European Union The issues of sex
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Page 261 and 262: 5. Concluding remarks The European
Page 263 and 264: conveyed via texts, images, and spe
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Page 267 and 268: considered necessary in a democrati
Page 269 and 270: 3. European Union The Council of th
Page 271 and 272: In 2008, the Criminal Justice and I
Page 273 and 274: By contrast, in Baczkowski, the Cou
Page 275 and 276: however, the dominance of criminali
Page 277 and 278: Other legal regimes are more rights
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Page 293 and 294: DOMESTIC Albania - Law no. 9669 of
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Page 297 and 298: APPENDIX II: TABLE OF CASES Within
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- Gabrielle Defrenne v Société An
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APPENDIX IV: SELECT BIBLIOGRAPHY Ha
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STI AIDS Netherlands, “A Delicate
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Johanna Westeson - The ICHRP

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