Aids: Society, Ethics and Law 0754621030, 9780754621034

Table of contents :
Cover
Half Title
Title Page
Copyright Page
Table of Contents
Acknowledgements
Series Preface
Introduction
Part I The Physician-Patient Relationship
Duty to Treat
1 George J. Annas (1988), ‘Legal Risks and Responsibilities of Physicians in the AIDS Epidemic’, Hastings Center Report, April/May, pp. 26-32
2 Norman Daniels (1991), ‘Duty to Treat or Right to Refuse?’, Hastings Center Report, March/April, pp. 36-46
3 Doran Smolkin (1997), ‘HIV Infection, Risk Taking, and the Duty to Treat’, Journal of Medicine and Philosophy, 22, pp. 55-74
Confidentiality/Privacy
4 Gary B. Melton (1988), ‘Ethical and Legal Issues in AIDS-Related Practice’, American Psychologist, 43, pp. 941-47
5 Kenneth M. Boyd (1992), ‘HIV Infection and AIDS: The Ethics of Medical Confidentiality’, Journal of Medical Ethics, 18, pp. 173-79
Infected Health Care Workers
6 Patti Miller Tereskerz, Richard D. Pearson and Janine Jagger (1999), ‘Infected Physicians and Invasive Procedures: National Policy and Legal Reality’, The Milbank Quarterly, 77, pp. 511-29
7 Karen C. Lieberman and Arthur R. Derse (1992), ‘HIV-Positive Health Care Workers and the Obligation to Disclose: Do Patients Have a Right to Know?’, Journal of Legal Medicine, 13, pp. 333-56
Part II Aids and the Law
8 Larry Gostin (1989), ‘The Politics of AIDS: Compulsory State Powers, Public Health, and Civil Liberties’, Ohio State Law Journal, 49, pp. 1017-58
9 Richard D. Mohr (1987), ‘AIDS, Gays, and State Coercion’, Bioethics, 1, pp. 35-50
10 Alistair Orr (1989), ‘Legal AIDS: Implications of AIDS and HIV for British and American Law’, Journal of Medical Ethics, 15, pp. 61-67
11 Helen Power (1997), ‘HIV/AIDS, Sex and the Criminal Law’, Journal of Social Welfare and Family Law, 19, pp. 343-51
12 Editor (1998), ‘Second International Consultation on HIV/AIDS and Human Rights Adopts International Guidelines’, International Digest of Health Legislation, 49, pp. 703-6
Part III HIV Testing
General
13 G.R. McLean and T. Jenkins (1994), ‘HIV Testing and Informed Consent - Ethical Considerations’, South African Medical Journal (SAMJ), 84, pp. 669-74
14 Martin Gunderson, David Mayo and Frank Rhame (1996), ‘Routine HIV Testing of Hospital Patients and Pregnant Women: Informed Consent in the Real World’, Kennedy Institute of Ethics Journal, 6, pp. 161-82
Pregnant Women
15 Quarraisha Abdool Karim, Salim S. Abdool Karim, Hoosen M. Coovadia and Mervyn Susser (1998), ‘Informed Consent for HIV Testing in a South African Hospital: Is It Truly Informed and Truly Voluntary?’, American Journal of Public Health, 88, pp. 637-40
16 Theresa M. McGovern (1997), ‘Mandatory HIV Testing and Treating of Child-Bearing Women: An Unnatural, Illegal, and Unsound Approach’, Columbia Human Rights Law Review, 28, pp. 469-99
Part IV Clinical Research
General
17 Joni N. Gray and Gary B. Melton (1985), ‘The Law and Ethics of Psychosocial Research on AIDS’, Nebraska Law Review, 64, pp. 637-88
18 Wendy K. Mariner (1990), ‘The Ethical Conduct of Clinical Trials of HIV Vaccines’, Evaluation Review, 14, pp. 538-64
19 Nancy E. Kass, Holly A. Taylor and Patricia A. King (1996), ‘Harms of Excluding Pregnant Women from Clinical Research: The Case of HIV-Infected Pregnant Women’, Journal of Law, Medicine & Ethics, 24, pp. 36-46
20 John D. Arras (1990), ‘Noncompliance in AIDS Research’, Hastings Center Report, September/October, pp. 24-32
Community Consultation
21 Gary B. Melton, Robert J. Levine, Gerald P. Koocher, Robert Rosenthal and William C. Thompson (1988), ‘Community Consultation in Socially Sensitive Research: Lessons from Clinical Trials of Treatments for AIDS’, American Psychologist, 43, pp. 573-81
22 Herbert R. Spiers (1991), ‘Community Consultation and AIDS Clinical Trials, Parts 1-3’, IRB: A Review of Human Subjects Research, 13, May-June, pp. 7-10, July-August, pp. 1-6, September-October, pp. 3-7
23 Joan E. Sieber and James L. Sorensen (1992), ‘Conducting Social and Behavioral AIDS Research in Drug Treatment Clinics’, IRB: A Review of Human Subjects Research, 14, September-October, pp. 1-5
Developing Countries
24 Peter Lurie and Sidney M. Wolfe (1997), ‘Unethical Trials of Interventions to Reduce Perinatal Transmission of the Human Immunodeficiency Virus in Developing Countries’, New England Journal of Medicine, 337, pp. 853-56
25 Harold Varmus and David Satcher (1997), ‘Ethical Complexities of Conducting Research in Developing Countries’, New England Journal of Medicine, 337, pp. 1003-5
26 George J. Annas and Michael A. Grodin (1998), ‘Human Rights and Maternal-Fetal HIV Transmission Prevention Trials in Africa’, American Journal of Public Health, 88, pp. 560-63
27 Robert J. Levine (1998), ‘The “Best Proven Therapeutic Method” Standard in Clinical Trials in Technologically Developing Countries’, IRB: A Review of Human Subjects Research, 20, January-February, pp. 5-9
28 Peter Lurie, Makonnen Bishaw, Margaret A. Chesney, Molly Cooke, Maria Eugenia Lemos Fernandes, Norman Hearst, Edward Katongole-Mbidde, Suporn Koetsawang, Christina P. Lindan, Jeffrey Mandel, Marvellous Mhloyi and Thomas J. Coates (1994), ‘Ethical, Behavioral, and Social Aspects of HIV Vaccine Trials in Developing Countries’, JAMA, 271, pp. 295-301
Part V Access to (Experimental) Drugs
29 Ellen C. Cooper (1989), ‘Controlled Clinical Trials of AIDS Drugs: The Best Hope’, JAMA, 261, p. 2445
30 Martin Delaney (1989), ‘The Case for Patient Access to Experimental Therapy’, The Journal of Infectious Diseases, 159, pp. 416-19
31 Udo Schtiklenk and Carlton Hogan (1996), ‘Patient Access to Experimental Drugs and AIDS Clinical Trial Designs: Ethical Issues’, Cambridge Quarterly of Healthcare Ethics, 5, pp. 400-409
32 Harold Edgar and David J. Rothman (1990), ‘New Rules for New Drugs: The Challenge of AIDS to the Regulatory Process’, The Milbank Quarterly, 68, (Supplement 1), pp. 111-42
33 David A. Salisbury and Martin T. Schechter (1990), ‘AIDS Trials, Civil Liberties and the Social Control of Therapy: Should we Embrace New Drugs with Open Arms?’, Canadian Medical Association Journal, 142, pp. 1057-62
34 Andrew F. Shorr (1992), ‘AIDS and the FDA: An Ethical Case for Limiting Patient Access to New Medical Therapies’, IRB: A Review of Human Subjects Research, 14, July-August, pp. 1-5
35 David B. Resnik (2001), ‘Developing Drugs for the Developing World: An Economic, Legal, Moral, and Political Dilemma’, Developing World Bioethics, 1, pp. 11-32
36 Dan W. Brock (2001), ‘Some Questions About the Moral Responsibilities of Drug Companies in Developing Countries’, Developing World Bioethics, 1, pp. 33-37
37 Norman Daniels (2001), ‘Social Responsibility and Global Pharmaceutical Companies’, Developing World Bioethics, 1, pp. 38-41
Part VI Dying with Dignity
38 Sophia Vinogradov, Joe T. Thornton, A-J. Rock Levinson and Michael L. Callen (1984), ‘If I Have AIDS, Then Let Me Die Now!’, Hastings Center Report, 14, pp. 24-26
39 Margaret P. Battin (1994), ‘Going Early, Going Late: The Rationality of Decisions about Suicide in AIDS’, Journal of Medicine and Philosophy, 19, pp. 571—94
Name Index

Citation preview

AIDS: Society, Ethics and Law

The International Library of Medicine, Ethics and Law Series Editor: Michael D. Freeman

Titles in the Series Death, Dying and the Ending of Life Margaret P. Battin, Leslie Francis and Bruce Landesman Abortion Belinda Bennett Ethics and Medical Decision-Making Michael D. Freeman Children, Medicine and the Law Michael D. Freeman

The Genome Project and Gene Therapy Sheila A.M. McLean Rights and Resources Frances H. Miller AIDS: Society, Ethics and Law Udo Schiiklenk Women, Medicine, Ethics and the Law Susan Sherwin and Barbara Parish

Health and Human Rights Lawrence O. Gostin and James G. Hodge Jr.

Legal and Ethical Issues in Human Reproduction Bonnie Steinbock

Mental Illness, Medicine and Law Martin Lyon Levine

Medical Practice and Malpractice Harvey Teff

The Elderly Martin Lyon Levine

Human Experimentation and Research David N. Weisstub and George F. Tomossy

AIDS: Society, Ethics and Law

Edited by

Udo Schiiklenk University of the Witwatersrand, South Africa

First published 200 I by Dartmouth Publishing Company and Ashgate Publishing Published 2017 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA

Routledge is an imprint of the Taylor & Francis Group, an iriforma business Copyright © Udo Schiiklenk 2001. For copyright of individual articles please refer to the Acknowledgements. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data AIDS : society, ethics and law. - (The international library of medicine, ethics and law) 1. AIDS (Disease) - Social aspects 2. AIDS (Disease) - Moral and ethical aspects 3. AIDS (Disease) - Law and legislation I. Schiiklenk, Udo 362.1 '969792 Library of Congress Cataloging-in-Publication Data AIDS, society, ethics and law / edited by Udo Schiiklenk. p. crn. Includes bibliographical references and index. ISBN 0-7546-2103-0 1. AIDS (Disease)-Social aspects. 2. AIDS (Disease)-Moral and ethical aspects. 3. AIDS (Disease)-Law and legislation. I. Schiiklenk, Udo.

RC607 .A26 A3566 2000 362.1 '969792--dc2 l

ISBN 13: 978-0-7546-2103-4 (hbk)

00-032268

Contents Acknowledgements Series Preface Introduction

PART I

ix xiii XV

THE PHYSICIAN-PATIENT RELATIONSHIP

Duty to Treat 1 George J. Annas (1988), ‘Legal Risks and Responsibilities of Physicians in the AIDS Epidemic’, Hastings Center Report, April/May, pp. 26-32. 2 Norman Daniels (1991), ‘Duty to Treat or Right to Refuse?’, Hastings Center Report, March/April, pp. 36-46. 3 Doran Smolkin (1997), ‘HIV Infection, Risk Taking, and the Duty to Treat’, Journal o f Medicine and Philosophy, 22, pp. 55-74.

5 13 25

Confidentiality/Privacy 4 Gary B. Melton (1988), ‘Ethical and Legal Issues in AIDS-Related Practice’, American Psychologist, 43, pp. 941-47 5 Kenneth M. Boyd (1992), ‘HIV Infection and AIDS: The Ethics of Medical Confidentiality’, Journal o f Medical Ethics, 18, pp. 173-79.

47

Infected Health Care Workers 6 Patti Miller Tereskerz, Richard D. Pearson and Janine Jagger (1999), ‘Infected Physicians and Invasive Procedures: National Policy and Legal Reality’, The Milbank Quarterly, 77, pp. 511-29. 7 Karen C. Lieberman and Arthur R. Derse (1992), ‘HIV-Positive Health Care Workers and the Obligation to Disclose: Do Patients Have a Right to Know?’, Journal o f Legal Medicine, 13, pp. 333-56.

65

PART II

55

85

AIDS AND THE LAW

8 Larry Gostin (1989), ‘The Politics of AIDS: Compulsory State Powers, Public Health, and Civil Liberties’, Ohio State Law Journal, 49, pp. 1017-58. 9 Richard D. Mohr (1987), ‘AIDS, Gays, and State Coercion’, Bioethics, 1, pp. 35-50. 10 Alistair Orr (1989), ‘Legal AIDS: Implications of AIDS and HIV for British and American Law’, Journal o f Medical Ethics, 15, pp. 61-67. 11 Helen Power (1997), ‘HIV/AIDS, Sex and the Criminal Law’, Journal o f Social Welfare and Family Law, 19, pp. 343-51.

111 153 169 177

AIDS: Society, Ethics and Law

vi

12 Editor (1998), ‘Second International Consultation on HIV/AIDS and Human Rights Adopts International Guidelines’, International Digest o f Health Legislation, 49, pp. 703-6.

PART III

HIV TESTING

General 13 G.R. McLean and T. Jenkins (1994), ‘HIV Testing and Informed Consent Ethical Considerations’, South African Medical Journal (SAMJ), 84, pp. 669-74. 14 Martin Gunderson, David Mayo and Frank Rhame (1996), ‘Routine HIV Testing of Hospital Patients and Pregnant Women: Informed Consent in the Real World’, Kennedy Institute o f Ethics Journal, 6, pp. 161-82. Pregnant Women 15 Quarraisha Abdool Karim, Salim S. Abdool Karim, Hoosen M. Coovadia and Mervyn Susser (1998), ‘Informed Consent for HIV Testing in a South African Hospital: Is It Truly Informed and Truly Voluntary?’, American Journal o f Public Health, 88, pp. 637-40. 16 Theresa M. McGovern (1997), ‘Mandatory HIV Testing and Treating of ChildBearing Women: An Unnatural, Illegal, and Unsound Approach’, Columbia Human Rights Law Review, 28, pp. 469-99.

PART IV

187

195

201

225

229

CLINICAL RESEARCH

General 17 Joni N. Gray and Gary B. Melton (1985), ‘The Law and Ethics of Psychosocial Research on AIDS’, Nebraska Law Review, 64, pp. 637-88. 18 Wendy K. Mariner (1990), ‘The Ethical Conduct of Clinical Trials of HIV Vaccines’, Evaluation Review, 14, pp. 538-64. 19 Nancy E. Kass, Holly A. Taylor and Patricia A. King (1996), ‘Harms of Excluding Pregnant Women from Clinical Research: The Case of HIV-Infected Pregnant Women’, Journal o f Law, Medicine & Ethics, 24, pp. 36-46. 20 John D. Arras (1990), ‘Noncompliance in AIDS Research’, Hastings Center Report, September/October, pp. 24-32. Community Consultation 21 Gary B. Melton, Robert J. Levine, Gerald P. Koocher, Robert Rosenthal and William C. Thompson (1988), ‘Community Consultation in Socially Sensitive Research: Lessons from Clinical Trials of Treatments for AIDS’, American Psychologist, 43, pp. 573-81. 22 Herbert R. Spiers (1991), ‘Community Consultation and AIDS Clinical Trials, Parts 1-3’, IRB: A Review o f Human Subjects Research, 13, May-June, pp. 7-10, July-August, pp. 1-6, September-October, pp. 3-7.

265 317

345 357

369

379

AIDS: Society, Ethics and Law 23

Joan E. Sieber and James L. Sorensen (1992), ‘Conducting Social and Behavioral AIDS Research in Drug Treatment Clinics’, IRB: A Review o f Human Subjects Research, 14, September-October, pp. 1-5.

Developing Countries 24 Peter Lurie and Sidney M. Wolfe (1997), ‘Unethical Trials of Interventions to Reduce Perinatal Transmission of the Human Immunodeficiency Virus in Developing Countries’, New England Journal o f Medicine, 337, pp. 853-56. 25 Harold Varmus and David Satcher (1997), ‘Ethical Complexities of Conducting Research in Developing Countries’, New England Journal o f Medicine, 337, pp. 1003-5. 26 George J. Annas and Michael A. Grodin (1998), ‘Human Rights and MaternalFetal HIV Transmission Prevention Trials in Africa’, American Journal o f Public Health, 88, pp. 560-63. 27 Robert J. Levine (1998), ‘The “Best Proven Therapeutic Method” Standard in Clinical Trials in Technologically Developing Countries’, IRB: A Review o f Human Subjects Research, 20, January-February, pp. 5-9. 28 Peter Lurie, Makonnen Bishaw, Margaret A. Chesney, Molly Cooke, Maria Eugenia Lemos Fernandes, Norman Hearst, Edward Katongole-Mbidde, Supom Koetsawang, Christina P. Lindan, Jeffrey Mandel, Marvellous Mhloyi and Thomas J. Coates (1994), ‘Ethical, Behavioral, and Social Aspects of HIV Vaccine Trials in Developing Countries’, JAMA, 271, pp. 295-301.

PART V

vii

395

403

407

411

415

421

ACCESS TO (EXPERIMENTAL) DRUGS

29 Ellen C. Cooper (1989), ‘Controlled Clinical Trials of AIDS Drugs: The Best Hope’, JAMA, 261, p. 2445. 30 Martin Delaney (1989), ‘The Case for Patient Access to Experimental Therapy’, The Journal o f Infectious Diseases, 159, pp. 416-19. 31 Udo Schtiklenk and Carlton Hogan (1996), ‘Patient Access to Experimental Drugs and AIDS Clinical Trial Designs: Ethical Issues’, Cambridge Quarterly o f Healthcare Ethics, 5, pp. 400-409. 32 Harold Edgar and David J. Rothman (1990), ‘New Rules for New Drugs: The Challenge of AIDS to the Regulatory Process’, The Milbank Quarterly, 68, (Supplement 1), pp. 111-42. 33 David A. Salisbury and Martin T. Schechter (1990), ‘AIDS Trials, Civil Liberties and the Social Control of Therapy: Should we Embrace New Drugs with Open Arms?’, Canadian Medical Association Journal, 142, pp. 1057-62. 34 Andrew F. Shorr (1992), ‘AIDS and the FDA: An Ethical Case for Limiting Patient Access to New Medical Therapies’, IRB: A Review o f Human Subjects Research, 14, July-August, pp. 1-5. 35 David B. Resnik (2001), ‘Developing Drugs for the Developing World: An Economic, Legal, Moral, and Political Dilemma’, Developing World Bioethics, 1, pp. 11-32.

431 433

437

447

479

485

491

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AIDS: Society, Ethics and Law

36 Dan W. Brock (2001), ‘Some Questions About the Moral Responsibilities of Drug Companies in Developing Countries’, Developing World Bioethics, 1, pp. 33-37. 37 Norman Daniels (2001), ‘Social Responsibility and Global Pharmaceutical Companies’, Developing World Bioethics, 1, pp. 38-41.

PART VI

513 519

DYING WITH DIGNITY

Sophia Vinogradov, Joe T. Thornton, A-J. Rock Levinson and Michael L. Callen (1984), ‘If I Have AIDS, Then Let Me Die Now!’, Hastings Center Report, 14, pp. 24-26. 39 Margaret P. Battin (1994), ‘Going Early, Going Late: The Rationality of Decisions about Suicide in AIDS’, Journal o f Medicine and Philosophy, 19, pp. 571—94.

525

Name Index

553

38

529

Acknowledgements The editor and publishers wish to thank the following for permission to use copyright material. American Public Health Association for the essays : Quarraisha Abdool Karim, Salim S. Abdool Karim, Hoosen M. Coovadia and Mervyn Susser (1998), ‘Informed Consent for HIV Testing in a South African Hospital: Is It Truly Informed and Truly Voluntary?’, American Journal o f Public Health, 88, pp. 637-40; George J. Annas and Michael A. Grodin (1998), ‘Human Rights and Maternal-Fetal HIV Transmission Prevention Trials in Africa’, American Journal o f Public Health, 88, pp. 560-63. American Psychological Association for the essays: Gary B. Melton, Robert J. Levine, Gerald P. Koocher, Robert Rosenthal and William C. Thompson (1988), ‘Community Consultation in Socially Sensitive Research: Lessons from Clinical Trials of Treatments for AIDS’, American Psychologist, 43, pp. 573-81. Copyright © 1988 American Psychological Association. Reprinted with permission; Gary B. Melton (1988), ‘Ethical and Legal Issues in AIDS-Related Practice’, American Psychologist, 43, pp. 941-47. Copyright © 1988 American Psychological Association. Reprinted with permission. American Society of Law, Medicine & Ethics for the essay: Nancy E. Kass, Holly A. Taylor and Patricia A. King (1996), ‘Harms of Excluding Pregnant Women from Clinical Research: The Case of HIV-Infected Pregnant Women’, Journal o f Law, Medicine & Ethics, 24, pp. 3646. Copyright © 1996. Reprinted with the permission of the American Society of Law, Medicine & Ethics. All rights reserved. Blackwell Publishers, Inc. for the essay: Harold Edgar and David J. Rothman (1990), ‘New Rules for New Drugs: The Challenge of AIDS to the Regulatory Process’, The Milbank Quarterly, 68, pp. 111-42. Copyright © 1990 Milbank Memorial Fund. Blackwell Publishers Limited for the essays: Richard D. Mohr (1987), ‘AIDS, Gays, and State Coercion’, Bioethics, 1, pp. 35-50. Copyright © 1987 Richard D. Mohr; Patti Miller Tereskerz, Richard D. Pearson and Janine Jagger (1999), ‘Infected Physicians and Invasive Procedures: National Policy and Legal Reality’, The Milbank Quarterly, 77, pp. 511-29. Copyright © 1999 Milbank Quarterly; David B. Resnik (2001), ‘Developing Drugs for the Developing World: An Economic, Legal, Moral, and Political Dilemma’, Developing World Bioethics, 1, pp. 11-32. Copyright © 1993 Blackwell Publishers Ltd; Dan W. Brock (2001), ‘Some Questions About the Moral Responsibilities of Drug Companies in Developing Countries’, Developing World Bioethics, 1, pp. 33-37. Copyright © 1993 Blackwell Publishers Ltd; Norman Daniels (2001), ‘Social Responsibility and Global Pharmaceutical Companies’, Developing World Bioethics, 1, pp. 38—41. Copyright © 1993 Blackwell Publishers Ltd.

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AIDS: Society, Ethics and Law

BMJ Publishing Group for the essays: Kenneth M. Boyd (1992), ‘HIV Infection and AIDS: The Ethics of Medical Confidentiality’, Journal o f Medical Ethics, 18, pp. 173-79; Alistair Orr (1989), ‘Legal AIDS: Implications of AIDS and HIV for British and American Law’, Journal o f Medical Ethics, 15, pp. 61-67. Copyright © 1998 Alistair Orr. The author wishes to assert his moral rights to be identified as the author of this work under the Copyright, Designs and Patents Act 1988, and his other rights under the Act are expressly reserved. Cambridge University Press for the essay: Udo Schiiklenk and Carlton Hogan (1996), ‘Patient Access to Experimental Drugs and AIDS Clinical Trial Designs: Ethical Issues’, Cambridge Quarterly o f Healthcare Ethics, 5, pp. 400-409. Copyright © 1996 Cambridge University Press. Canadian Medical Association for the essay: David A. Salisbury and Martin T. Schechter (1990), ‘AIDS Trials, Civil Liberties and the Social Control of Therapy: Should we Embrace New Drugs with Open Arms?’, Canadian Medical Association Journal, 142, pp. 1057-62. Columbia Human Rights Law Review for the essay: Theresa M. McGovern ( 1997), ‘Mandatory HIV Testing and Treating of Child-Bearing Women: An Unnatural, Illegal, and Unsound Approach’, Columbia Human Rights Law Review, 28, pp. 469-99. Reprinted by permission of the Columbia Human Rights Law Review. Originally published as Theresa M. McGovern, ‘Mandatory HIV Testing and Treating of Child-Bearing Women: An Unnatural, Illegal, and Unsound Approach’, 28 Columbia Human Rights Law Review (1997), 469. Hastings Center for the essays: George J. Annas (1988), ‘Legal Risks and Responsibilities of Physicians in the AIDS Epidemic’, Hastings Center Report, April/May, pp. 26-32; Norman Daniels (1991), ‘Duty to Treat or Right to Refuse?’, Hastings Center Report, March/April, pp. 36- 46; John D. Arras (1990), ‘Noncompliance in AIDS Research’, Hastings Center Report, September/October, pp. 24-32; Sophia Vinogradov, Joe T. Thornton, A-J. Rock Levinson and Michael L. Callen (1984), ‘If I Have AIDS, Then Let Me Die Now!’, Hastings Center Report, 14, pp. 24-26; Herbert R. Spiers (1991), ‘Community Consultation and AIDS Clinical Trials, Parts 1-3’, IRB: A Review o f Human Subjects Research, 13, May-June, pp. 7-10, July-August, pp. 1-6, September-October, pp. 3-7 ; Joan E. Sieber and James L. Sorensen (1992), ‘Conducting Social and Behavioral AIDS Research in Drug Treatment Clinics’, IRB: A Review o f Human Subjects Research, 14, September-October, pp. 1-5 ; Robert J. Levine (1998), ‘The “Best Proven Therapeutic Method” Standard in Clinical Trials in Technologically Developing Countries’, IRB: A Review o f Human Subjects Research, 20, January-February, pp. 5-9. Copyright © Hastings Center; Andrew F. Shorr (1992), ‘AIDS and the FDA: An Ethical Case for Limiting Patient Access to New Medical Therapies’, IRB: A Review o f Human Subjects Research, 14, July-August, pp. 1-5. Johns Hopkins University Press for the essay: Martin Gunderson, David Mayo and Frank Rhame (1996), ‘Routine HIV Testing of Hospital Patients and Pregnant Women: Informed Consent in the Real World’, Kennedy Institute o f Ethics Journal,6, pp. 161-82. Copyright © 1996 The Johns Hopkins University Press.

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Massachusetts Medical Society for the essays: Peter Lurie and Sidney M. Wolfe (1997), ‘Unethical Trials of Interventions to Reduce Perinatal Transmission of the Human Immunodeficiency Virus in Developing Countries’, New England Journal o f Medicine, 337, pp. 853-56. Copyright © 1997 Massachusetts Medical Society. All rights reserved; Harold Varmus and David Satcher (1997), ‘Ethical Complexities of Conducting Research in Developing Countries’, New England Journal o f Medicine, 337, pp. 1003-5. Copyright © 1997 Massachusetts Medical Society. All rights reserved; Ellen C. Cooper (1989), ‘Controlled Clinical Trials of AIDS Drugs: The Best Hope’, JAMA, 261, p. 2445. Copyright © 1989 Massachusetts Medical Society. All rights reserved. Nebraska Law Review for the essay: Joni N. Gray and Gary B. Melton (1985), ‘The Law and Ethics of Psychosocial Research on AIDS’, Nebraska Law Review, 64, pp. 637-88. Copyright © 1985 University of Nebraska. The Ohio State University for the essay: Larry Gostin (1989), ‘The Politics of AIDS: Compulsory State Powers, Public Health, and Civil Liberties’, Ohio State Law Journal, 49, pp. 1017-58. Originally published in 49 Ohio State Law Journal (1989), 107. Sage Publications, Inc. for the essay: Wendy K. Mariner (1990), ‘The Ethical Conduct of Clinical Trials of HIV Vaccines’, Evaluation Review, 14, pp. 538-64. Copyright © 1990 Sage Publications, Inc. Reprinted by permission of Sage Publications, Inc. South African Medical Association for the essay: G.R. McLean and T. Jenkins (1994), ‘HIV Testing and Informed Consent - Ethical Considerations’, South African Medical Journal (SAMJ), 84, pp. 669-74. Swets & Zeitlinger Publishers for the essays: Doran Smolkin (1997), ‘HIV Infection, Risk Taking, and the Duty to Treat’, Journal o f Medicine and Philosophy, 22, pp. $5-74. Copyright © 1997 Swets & Zeitlinger. Used with permission; Margaret P. Battin (1994), ‘Going Early, Going Late: The Rationality of Decisions about Suicide in AIDS’, The Journal o f Medicine and Philosophy, 19, pp. 571-94. Copyright © 1994 Swets & Zeitlinger. Used with permission. Taylor & Francis Inc. for the essay: Karen C. Lieberman and Arthur R. Derse (1992), ‘HIVPositive Health Care Workers and the Obligation to Disclose’, Journal o f Legal Medicine, 13, pp. 333-56. Copyright © 1992 Hemisphere Publishing Corporation. Taylor & Francis Limited for the essay: Helen Power (1997), ‘HIV/AIDS, Sex and the Criminal Law’, Journal o f Social Welfare and Family Law, 19, pp. 343-51. University of Chicago Press for the essay: Martin Delaney ( 1989), ‘The Case for Patient Access to Experimental Therapy’, The Journal o f Infectious Diseases, 159, pp. 416-19. Copyright © 1989 University of Chicago Press.

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World Health Organization for the essay: Editor (1998), ‘Second International Consultation on HIV/AIDS and Human Rights Adopts International Guidelines’, International Digest o f Health Legislation, 49, pp. 703-6. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Series Preface Few academic disciplines have developed with such pace in recent years as bioethics. And because the subject crosses so many disciplines important writing is to be found in a range of books and journals, access to the whole of which is likely to elude all but the most committed of scholars. The International Library of Medicine, Ethics and Law is designed to assist the scholarly endeavour by providing in accessible volumes a compendium o f basic materials drawn from the most significant periodical literature. Each volume contains essays of central theoretical importance in its subject area, and each throws light on important bioethical questions in the world today. The series as a whole - there will be fifteen volumes - makes available an extensive range of valuable material (the standard ‘classics’ and the not-sostandard) and should prove of inestimable value to those involved in the research, teaching and study o f medicine, ethics and law. The fifteen volumes together - each with introductions and bibliographies - are a library in themselves - an indispensable resource in a world in which even the best-stocked library is unlikely to cover the range of materials contained within these volumes. It remains for me to thank the editors who have pursued their task with commitment, insight and enthusiasm, to thank also the hard-working staff at Ashgate - theirs is a mammoth enterprise - and to thank my secretary, Anita Garfoot for the enormous assistance she has given me in bringing the series from idea to reality. MICHAEL FREEMAN Series Editor Faculty o f Laws University College London

Introduction This volume contains a selection of the best English-language essays on the social, ethical and legal implications of a variety of issues pertaining to AIDS. Of course, thousands and thousands of articles have been published on this subject in professional journals, daily newspapers and news magazines. The essays have been chosen on the basis of the following criteria: • • •

theoretical depth and coherence, impact on the subsequent public and academic debate, social and ethical relevance of the problems addressed.

AIDS is an acquired immunodeficiency syndrome, and the first cases were reported in the USA by the Centers for Disease Control and Prevention (CDC) in 1981. People suffering from this disease experience a functionally progressively declining immune system and, consequently, a greater likelihood of developing opportunistic infections. Patients eventually succumb to one or more of these infections. This new disease provoked a great deal of interest from the media, scientists, health care professionals and also bioethicists. The reasons for the public interest were multiple. One of them had certainly to do with the fact that HIV is sexually transmissible and has the potential to kill an infected person many years after infection. The fascination surrounding AIDS can certainly also be attributed to the fact that the majority of people infected in developed countries are gay men and IV drug users. However, the vast majority of people infected with HIV live in developing countries. In recognition of this fact, this volume includes quite a number of essays addressing specifically ethical and social problems caused by the economic realities that constrain the lives and choices of people in such countries. The short bibliography at the end of this Introduction gives further useful references not only on the topics already covered in the essays, but also on topics excluded due to a lack of space. The bibliography makes no claim to be comprehensive, simply because so many essays have been published since the early 1980s that even an incomplete listing would have filled all the pages of this book. Some of the essays chosen for inclusion in this anthology were written as early as 1985 and, inevitably, some of their empirical premises have changed in the years that have followed. Most notably the development of sophisticated treatment regimens now keeps people with AIDS alive - at least in those Western countries that can afford the necessary drugs. The reader would benefit most by ignoring such empirical changes and concentrating on the analyses provided on the basis of the empirical realities at the time of writing, as the insight such ethical analyses provide, irrespective of the validity of the empirical premises, justify their inclusion. In many ways such essays are also historically most interesting documents, as they tell us a good deal about the psychological state of their writers at the time. This is particularly true of the many essays written on the assumption that a major heterosexual AIDS

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epidemic was about to be unleashed in Western countries. In the event, this epidemic never actually materialized where it was predicted to occur first - that is, in the industrialized developed nations. The reasons for this were known at the time of writing, but they were ignored by most writers in the field (Chapman, 1992; Mertz et al., 1996). Unfortunately, many developing countries on the African continent and in Asia were less lucky. The AIDS epidemic had, and will continue to have, disastrous consequences for decades to come. Alert observers of publications in this field will appreciate the irony of authors from developing countries trying to reinvent the proverbial wheel in order to cope with ethical issues of AIDS. Nearly two decades later, many of the themes addressed in some of the older essays reprinted in this volume reincarnate, with slight variations, in medical journals published in developing countries.

The Physician-Patient Relationship A major concern in the debate on AIDS is the question of whether physicians and other health care professionals actually have a moral obligation to treat infected patients, given the perceived and actual risk of contracting an HIV infection while carrying out professional medical duties. The majority of writers came firmly down on the patients’ side, ultimately agreeing with most national medical associations which have taken the stance that health care professionals, and physicians in particular, have a moral obligation to treat HIV-infected individuals. Not surprisingly, this topic has gained greater prominence in developing countries where the stakes for medical professionals are higher than in Western countries. An HIV infection there can justifiably be considered a death penalty, while in the developed world recent advances in clinical research allow many infected people to regain a high quality of life, and even to rejoin the workforce. Some bioethicists have suggested that the duty to treat is a consequence of the special status that comes with being a member of the medical profession. On the other hand, it is inevitable that some health care professionals will themselves be HIV-infected. One of the questions discussed in the essays reprinted in this volume is whether patients are entitled to know about the health care provider’s HIV status, and whether restrictions ought to be placed on the types of professional work such medical practitioners are allowed to undertake.

AIDS and the Law Much of the debate over an appropriate legal response to AIDS focused on the question of discrimination (that is, legal protections for infected people and their ethical justifications), and the question of whether HIV infection that is the result of consensual unsafe sexual encounters among adults should be considered an act of self-harm or an act of harm to others. Some philosophers have suggested that consent to unsafe sex is consent to the risk of contracting AIDS as a consequence of this encounter (see Mohr, Chapter 9, this volume). Naturally, this view was not shared by all writers in the field. The purported harm to what has been described as the ‘public health’ is usually utilized to defend the position that even infections that are the result of consensual acts of unsafe sex constitute harm to others (Bayer, 1991). Other issues of concern had to do with human rights-related claims of people with HIV/AIDS - that is, claims such persons made with regard to, for instance, work-related entitlements. Is discrimination on

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the basis of occupational health reasons acceptable at all? If so, in what cases? Should people with an HIV infection be allowed to get married? An Indian court ruling prohibited a couple from getting married, because one of the prospective partners was HIV-infected. The court ruled that one of the purposes of marriage is reproduction. If people are unable to reproduce, because of the risk of contracting HIV during unsafe sexual intercourse, the court argued, it is warranted to prevent such marriages from going ahead. In 1998 the United Nations High Commissioner for Human Rights and UNAIDS published Guidelines on HIV/AIDS and Human Rights which demand unequivocally that HIV-infected people are not prevented from marrying (Office of the High Commissioner, 1998). Philosophers and legal theorists would certainly question the suggestion that marriage is not acceptable in the case of a couple unable to reproduce. It is not the norm for infertile couples to be required to divorce each other, and gay people campaign vigorously for what they perceive to be their right to marry a person of the same sex.

HIV Testing The issue of HIV testing has preoccupied contributors to the AIDS and ethics debate for a long time. However, the themes and concerns at the heart of the ethical analyses have shifted. At the beginning of the epidemic, the discussion focused on the issue of whether mandatory HIV testing ought to be introduced. Some authors argued that unless there was a substantial public health benefit involved, given the invasion of privacy, mandatory testing was out of the question. Others argued that mandatory testing might be justifiable in a situation where successful treatment of AIDS would depend on knowledge of the HIV status. A refusal to be tested could then be interpreted as a reason for intervention, in order to prevent harm to the self. In other words, intervention would be a patemalistically motivated action. In or around 1994 the issue of mandatory testing for selected groups resurfaced with a new urgency as a result of a study, ACTG 076, which found that the chances of an HIV-infected pregnant woman passing on HIV to her foetus and newborn child can be substantially reduced if the drug Zidovudine is administered during pregnancy. The question arose whether all pregnant women ought to be mandatorily tested for HIV, in order to achieve the best possible treatment for her foetus. Of course, the implication was that no HIV-infected woman could possibly refuse to take Zidovudine for the sake of her foetus, leading to the further question whether women who refuse to be tested should be compelled to do so. A 1999 court decision in the UK demands no less (The Times, 4 September 1999). This is worth noting, because it demonstrates that the issues bioethicists have analysed over nearly two decades reflect problems occurring in the real world.

Clinical Research: Developed Countries Clinical research has been one of the most contested battlegrounds with regard to the ethical and political issues of AIDS. During the early years of the epidemic no sucessful treatments existed. Hundreds and thousands of patients in Western countries demanded access to experimental drugs, literally at all costs. Legally, for a long time, the only avenue to such drugs was through participation in placebo-controlled clinical trials designed to test these experimental

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agents. AIDS activist groups challenged this status quo on a number of fronts, arguing for immediate access to experimental drugs. Their rationale was that, in the case of terminal illness, no government has a moral right to prevent patients from taking their chances with experimental agents of their liking. Terminally ill patients tried, for the first time, to take charge of their own lives in the sense that they attempted actively to change the drug approval systems employed by governments world-wide in order to achieve what they believed was in their best survival interests. Paternalistic arguments put forward against these activist demands were that access to ineffective or even harmful chemicals (often euphemistically described as ‘experimental therapies’) is not in the objective survival interests of people suffering a catastrophic illness. In addition, the ‘public interest’ argument was wheeled out in order to bolster the case against access even further - namely, that access to experimental agents would eliminate the possibility of running adequately controlled research clinical trials. Desperate patients went to great lengths to subvert selection criteria for clinical trials in order to gain access to experimental agents in which they placed high hopes. This, in turn, gave rise to another debate among bioethicists. They analysed the issue of whether terminally ill patients who, in the absence of access to experimental agents, only joined a clinical trial in order to access those agents, are bound to keep to the promises they have given to the trial’s principal investigators. Brendan Minogue and his associates (1995) argued that, in this situation, we are faced with desperate participants who feel that they are being coerced into a given trial by the regulatory agencies’ refusal to allow other avenues of access to the desired agent. They reject categorically the idea that such trial participants are actually volunteers. This, in turn, brings us full-circle back to the question of whether we can expect people who become research subjects under such circumstances to adhere to a trial protocol. The subjects themselves clearly don’t think so. Breaches of AIDS trial protocols in the USA have reportedly reached staggering proportions, threatening the validity of many trials (Schliklenk, 1998). Some bioethicists have argued that this patient survival strategy is unethical. They believe that patients have a moral obligation towards the principal investigator to keep their part of the bargain that is, to adhere to the trial protocol. Of course, this view rests again on the contestable assumption that such patients are true volunteers. A terminally ill patient who has been robbed of the option to access the drugs he believes might save his life is not acting voluntarily if he joins a clinical trial which offers him only a fifty-fifty chance to get his drug (or an even smaller chance in trials with multiple arms, multiple agents, dosages and so on). John Arras (Chapter 20) quite pragmatically holds the view that patients have to keep promises given even under the circumstances I have described. However, he also argues vigorously for the necessity of providing patients with wider options of access to the desired agents in order to eliminate the counterproductive patient behaviour we can witness in many of today’s clinical trials. Increasing levels of community consultation has been proposed as one way of improving this situation. Among the essays reproduced in this volume are some of the most perceptive dicussions of the theoretical justification of increased community consultation, and also of ways of facilitating increased community consultation.

Clinical Research and Access to Essential Drugs: Developing Countries A high-profile controversy over research ethics standards of AIDS clinical trials in developing

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countries began with the publication of an unusually strongly worded essay in the New England Journal o f Medicine (see Chapter 24, this volume). Public Citizen’s medical researchers, Sidney Wolfe and Peter Lurie, reported what they considered to be a scandalous breach of research ethics guidelines in collaborative international AIDS clinical trials in developing countries. At the core of the debate is the question of whether the currently required highest proven diagnostic and therapeutic standard of care is a prudent requirement for trials taking place in developing countries. In 1994 officials of the WHO, UNAIDS, the US NIH, and the US CDC designed placebocontrolled studies to determine whether a dose of the drug Zidovudine, when given to HIVinfected pregnant women, is more effective in preventing HIV infections of newborns than doing nothing. Earlier in the same year, a collaborative trial, undertaken in developed countries, discovered that 25 per cent of HIV-positive pregnant women who did not use Zidovudine gave birth to an infected baby as opposed to under 8 per cent of those using the drug. This trial protocol, known as ACTG 076, led to Zidovudine becoming the standard of care in Western countries. However, the implementation of the ACTG 076 protocol costs about US$ 800 per pregnancy, which is far in excess of the per capita health care allocation in many developing nations. The trials criticized by Lurie and Wolfe in the New England Journal o f Medicine sought to test whether it is possible to develop a drug regimen that is substantially cheaper yet still efficient in terms of reducing the mother-child transmission of HIV. The contested studies required that all research subjects gave first-person voluntary informed consent, thereby fulfilling an important ethical standard requirement of any clinical trial involving competent subjects. The HIV-infected pregnant women were informed that they would be randomly assigned to receive either a placebo or Zidovudine. Critics of the trials charged that the trial design was unethical because it involved a placebo control even though historical controls would have sufficed and would also have reduced the number of women knowingly subjected to an inferior form of treatment. Lurie et a l (see Chapter 28) argued that the results of ACTG 076 should have led to a research design asking whether a shorter (and therefore cheaper) regimen of AZT is just as effective as the ACTG 076 regimen. In their view, a placebo-controlled study was not required to answer this question and equivalency studies should be implemented instead. Those who undertook the trials in question countered that placebo-controlled trials lead more quickly to statistically predictive results, and that, equally as important, no woman participating in these studies was any worse off than she would have been had she not participated. The rationale here is that the standard of care locally was such that women would not have been able to afford an AZT intervention in any case; hence those in the placebo arm were no worse off, while those in the AZT arm were better off. This argument is difficult to accept, because in the real world there is no such thing as a fixed local standard of care (Schüklenk, 2000). Rather, the local standard of care in, for example, India, is one determined by the prices set by Western pharmaceutical multinationals. The reasons why the trials criticized by Lurie et al. took place at all had to do with the unacceptably high prices set by the manufacturer of that drug. The patent holder therefore, more than anything else, determines what is described by some bioethicists and clinical researchers as the ‘local standard of care’. Universal ethical standards are ultimately undermined if they receive a context-specific interpretation (Kerin, 1998). The debate is far from over. While the October 2000 version of

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the Declaration of Helsinki once more rejects the notion of local standards of care, the US National Bioethics Advisory Commission, in its 2001 report, came out in favour of differential standards. Only the future will tell what this means for international research ethics standards. It is quite conceivable that sponsors will be able to pick those guidelines they find most suitable for their needs. Other ethical issues concerning AIDS in developing countries have to do with the question of providing patients in developing countries with access to affordable AIDS medication. Are developing countries morally entitled to ignore the patent rights of international pharmaceutical multinationals? Should they be given permission to compulsorily license, and to produce essential drugs locally? The debate on these issues continues as I write. This volume reproduces some of the first bioethical analyses of this pressing issue; undoubtedly the future will bring further discussion.

Dying with Dignity Inevitably, catastrophic illness raises the question of how to die with dignity. In many ways, AIDS is little different from other catastrophic illnesses such as life-threatening types of cancer, for instance. However, there are differences that make it worthwhile to revisit the issues of voluntary euthanasia and physician-assisted suicide. The reasons for this have much to do with the fact that people with AIDS - at least in Western countries - belong mostly to highly sophisticated, politically active minority groups, such as gay men. These people have spent much of their adult life struggling to defend freedom spaces within society that would allow them to live their own lives, rather than the lives that religious organizations have envisaged for them. They have, consequently, often demanded that their considered wishes with regard to how they wish to end their lives should be respected. In the final Part of this volume, Sophia Yinogradov et al. and Margaret Battin discuss these issues. Udo Schiiklenk References Bayer, Ronald (1991), Private Acts and Social Consequences: AIDS and the Politics of Public Health, New Brunswick, NJ: Rutgers University Press. Chapman, Simon (1992), ‘Dogma Disputed: Potential Endemic Heterosexual Transmission of HIV in Australia’, Australian Journal of Public Health, 16, pp. 128-41. Kerin, Jacinta (1998), ‘Double Standards: Principled or Arbitrary?’, Bioethics, 12(4), pp. iii-vii. Mertz, David, Sushinsky, Mary Ann and Schiiklenk, Udo (1996), ‘Women and AIDS: The Ethics of Exaggerated Harm’, Bioethics, 10, pp. 93-103. Minogue, Brendan P., Palmer-Femandez, G., Udell, L. and Waller, B.N. (1995), ‘Individual Autonomy and the Double-Blind Controlled Experiment: The Case of Desperate Volunteers’, Journal of Medicine and Philosophy, 20, pp. 43-55. Office of the High Commissioner for Human Rights and UNAIDS (1998), Guidelines on HIV/AIDS and Human Rights, Geneva: United Nations. Schiiklenk, Udo (1998), Access to Experimental Drugs in Terminal Illness: Ethical Issues, New York and London: Pharmaceutical Products Press. Schiiklenk, Udo (2000), ‘Protecting the Vulnerable: Testing Times for Clinical Research Ethics’, Social Science and Medicine, 51, pp. 969-77.

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Select Bibliography Access to Experimental Drugs Delaney, Martin, (1989), ‘Patient Access to Experimental Therapy’, JAMA, 261, pp. 2444-45. Freedman, Benjamin and the McGill/Boston Research Group (1989), ‘Nonvalidated Therapies and HIV Disease’, Hastings Center Report, May/June, pp. 14—20. Landsdale, Bret L. (1991), ‘A Procedural Due Process Attack on FDA Regulations: Getting New Drugs to People with AIDS’, Hastings Constitutional Law Quarterly, 18, pp. 417-40. Minogue, Brendan P., Palmer-Femandez, G., Udell, L. and Waller, B.N. (1995), ‘Individual Autonomy and the Double-Blind Controlled Experiment: The Case of Desperate Volunteers’, Journal of Medicine and Philosophy, 20, pp. 43-55. Salbu, Steven (1994), ‘Regulation of Drug Treatments for HIV and AIDS: a Contractarian Model of Access’, Yale Journal on Regulation, 11(2), pp. 402-53. AIDS and the Law Field, Martha A. (1987), ‘AIDS and the Criminal Law’, Law, Medicine & Health Care, 15(1-2), pp. 4760. Gostin, Larry and Curran, William (1986), ‘The Limits of Compulsion in Controlling AIDS’, Hastings Center Report, 16(6), pp. 24-29. Jayasuriya, D.C. (1990), ‘AIDS-Related Legislation in the Context of the Third AIDS Pandemic’, Law, Medicine and Health Care, 18, pp. 41-47. Kirby, M.D. (1986), ‘AIDS Legislation - Turning up the Heat?’, Journal of Medical Ethics, 12, pp. 187— 94. Stoddard, Thomas B. and Rieman, Walter (1990), ‘AIDS and the Rights of the Individual: Toward a More Sophisticated Understanding of Discrimination’, The Milbank Quarterly, 68, pp. 143-74. Working Group of 17 UK AIDS Organisations (1991), The UK Declaration of the Rights of People with HIV and AIDS, London. Discrimination: Employment and Insurance Berman, Judith A. (1989), ‘AIDS Antibody Testing and Health Insurance Underwriting: A Paradigmatic Inquiry’, Ohio State Law Journal, 49, pp. 1059-76. Leonhard, Arthur S. (1989), ‘AIDS, Employment and Unemployment’, Ohio State Law Journal, 49, pp. 929-64. Morrell, Judith Jean (1990), ‘AIDS and Cancer: Critical Employment Discrimination Issues’, The Journal of Corporation Law, Summer, pp. 849-92. O’Brien, Rev. Raymond C. (1990), ‘Discrimination: the Difference with AIDS’, Journal of Contemporary Health Law and Policy, 6, pp. 93-125. Oppenheimer, Gerald M. and Padgug, Robert A. (1986), ‘AIDS: The Risks to Insurers, the Threat to Equity’, Hastings Center Report, 16(5), pp. 18-22. Vogel, Kenneth (1989), ‘Discrimination on the Basis of HIV Infection: An Economic Analysis’, Ohio State Law Journal, 49, pp. 965-98. Clinical Research General Arras, John D. (1990), ‘Noncompliance in AIDS Research’, Hastings Center Report, 20(5), pp. 24-32. Enel, P., Charrel, J., Larher, M.P., Reviron, D., Manuel, C. and San Marco, J.L. (1991), ‘Ethical Problems Raised by Anti-HIV Vaccination’, European Journal of Epidemiology, 7, pp. 147-53.

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Kopelman, Loretta M. (1994), ‘Informed Consent and Anonymous Samples: The Case of HIV Seroprevalence Studies’, The Journal of Medicine and Philosophy, 19, pp. 525-52. Levine, Carol, Neveloff Dubler, Nancy and Levine, Robert J. (1991), ‘Building a New Consensus: Ethical Principles and Policies for Clinical Research on HIV/AIDS’, IRB: A Review of Human Subjects Research, 13(1-2), pp. 1-17. Melton, Gary B. and Gray, Joni N. (1988), ‘Ethical Dilemmas in AIDS Research’, American Psychologist, 43, pp. 60Í-64. Weitz, Rose (1987), ‘The Interview as Legacy: A Social Scientist Confronts AIDS’, Hastings Center Report, 17(3), pp. 21-23. Developing Countries de Zoysa, Isabelle, Elias, Christopher J. and Bentley, Margaret E. (1998), ‘Ethical Challenges in Efficacy Trials of Vaginal Microbicides for HIV Prevention’, American Journal of Public Health, 88(4), pp. 571— 75. Glantz, Leonard H., Annas, George J., Grodin, Michael A. and Mariner, Wendy K. (1998), ‘Research in Developing Countries: Taking “Benefit” Seriously’, Hastings Center Report, 28(6), pp. 38-42. Grundfest-Schoepf, Brooke (1991), ‘Ethical, Methodological and Political Issues of AIDS Research in Central Africa’, Social Science and Medicine, 33, pp. 749-63. Karim, Salim S. Abdoo (1998), ‘Placebo Controls in HIV Perinatal HIV Transmission Trials: A South African’s Viewpoint’, American Journal of Public Health, 88, pp. 564-66. Phanuphak, Praphan (1998), ‘Trials in Developing Countries’, Asian Pacific Journal of Allergy and Immunology, 16, pp. 137-39. Loue, Sana, Okello, David and Kawuma, Medi (1996), ‘Bioethics in the Ugandan Context: A Program Summary’, Journal of Law, Medicine and Ethics, 24, pp. 47-53. The Physician-Patient Relationship Duty to treat Arras, John D. (1988), ‘The Fragile Web of Responsibility: AIDS and the Duty to Treat’, Hastings Center Report, 18(2), pp. 10-20. Fox, Renee C., Aiken, Linda H. and Messikomer, Carla M. (1990), ‘The Culture of Caring: AIDS and the Nursing Profession’, The Milbank Quarterly, 68, pp. 226-56. Murphy, Jane E. and Famolare, Nancy E. (1994), ‘Caring for Pediatric Patients with HIV: Personal Concerns and Ethical Dilemmas’, Pedriatric Nursing, 20, pp. 171-79. Schechter, William P. (1992), ‘Surgical Care of the HIV-Infected Patient: A Moral Imperative’, Cambridge Quarterly of Healthcare Ethics, 3, pp. 223-28. Silver, Mitchell (1998), ‘The Morality of Refusing to Treat HIV-Positive Patients’, Journal of Applied Philosophy, 6(2), pp. 149-57. Confidentiality/privacy McLean, G.R. (1996), ‘HIV Infection and a Limit to Confidentiality’, South African Journal on Human Rights, 12(3), pp. 452-66. Smith, Martin L. and Martin, Kevin P. (1993), ‘Confidentiality in the Age of AIDS: A Case Study in Clinical Ethics’, The Journal of Clinical Ethics, 4(3), pp. 236-41. Infected health care workers Tomlinson, Diane A. (1991), ‘Physicians with AIDS and their Duty to Patients’, Florida Law Review, 43, pp. 561-81. Wright, Moira (1997), ‘Health-care Workers and HIV Screening: Pragmatism or Public Interest?’, Journal of Social Welfare and Family Law, 19(1), pp. 17-33.

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HIV Testing General Burris, Scott (1998), ‘Law and the Social Risk of Health Care: Lessons from HIV Testing’, Albany Law Review, 61(3), pp. 831-95. Pregnant women Almond, Brenda and Ulanowsky, Carole (1990), ‘HIV and Pregnancy’, Hastings Center Report, March/ April, pp. 16-21. Anonymous (1997), ‘At What Cost? An Argument Against Mandatory AZT Treatment of HIV-Positive Pregnant Women’, Harvard Civil Rights-Civil Liberties Law Review, 32, pp. 491-528. Bayer, Ronald (1990), ‘AIDS and the Future of Reproductive Freedom’, The Milbank Quarterly, 68 (Supplement 2), pp. 179-204. Sinton, Jennifer (1997), ‘Rights Discourse and Mandatory HIV Testing of Pregnant Women and Newborns’, Journal of Law and Policy, 6(1), pp. 187-245.

Parti The Physician-Patient Relationship

Duty to Treat

[1] Hastings Center Report April/nay 1986

the existing law relating to physicians’ obligations to care for AIDS, ARC, and HIV-infected patients. Secondarily, it identifies ways that current law can be strengthened to define more sharply physicians’ obligations, so that this population of patients will be assured of continued access to the medical care they need and have a right to obtain. Although this analysis deals with physicians’ responsibilities, it is likely that similar legal principles will be used to judge the conduct o f dentists, optometrists, nurses, physician assistants, an d o th e r allied health professionals.

Legal Risks and Responsibilities of Physicians in the AIDS Epidemic

Legal Obligations to Treat American common law is firmly grounded on notions o f individual liberty and economic freedom that support the proposition that absent some special relationship, no citizen owes any other citizen anything. As applied to the practice of medicine, the general rule, sometimes denoted the “no duty rule,” is that a physician is not obligated to treat any particular patient in the absence of a consensual doctor-patient relationship.5In the absence of a prior agreement or a statutory or regulatory prohibition, physicians (like other citizens) can, in deciding whether to accept patients, discriminate among them on the basis of all sorts o f irrelevant and invidious criteria; from race to religion, to personal appear­ ance and wealth, or by specific disease, like AIDS. Over the years, there has been some erosion in the “no duty rule” in both common law and statutory law. Courts have affirmed both a duty to treat in limited emergency situations, and the continuing obligation of physicians once a consensual doctorpatient relationship is established. Statutes have been primarily directed toward articulating antidiscrimi­ nation principles. In addition, physicians may accept certain obligations to whole groups o f patients by contract, such as em ploym ent contracts with hospitals and prepaid health plans (HMOs, for example) and agreements related to reimbursement by Medicare and Medicaid.

by George J. Annas

T

JL he refusal of some physicians to care for AIDS patients has been met with general condemnation. Surgeon General C. Everett Koop, for example, has labeled them a “fearful and irrational minority” who are guilty o f “u npro fessio n al co n d u ct” th at “threatens the very fabric of health care in this country.”1 And a pointed editorial in the New York Times insisted that physicians who think their responsibility to themselves is greater than to their patients “need a new profession.”2 But it is one thing verbally to label such behavior inappropriate, reprehensible, or unprofessional; it is quite another to do something about it The issue of proper treatment for AIDS and HIV-infected patients should be primarily addressed by the ethics of the medical profession. It is, after all, medical practitioners who have the primary right and obligation to define the standards of their profession. However, should the profession fail to respond adequately to the needs o f patients in an unprece­ dented epidemic, the law will rightfully continue to set a standard o f minimum conduct below which no physician may fall without confronting the possibility of losing a malpractice or discrimination suit or even his license to practice. This article’s primary concern is to summarize

The Emergency Treatment Rule Physicians working in emergency rooms must treat all patients who arrive with a medical emergency. Virtually every m odem court has repudiated the ancient doctrine that an emergency room physician need treat only those patients the physician or hospital chooses. The relevant issue is not whether the person can pay, what color the person’s skin is, or even if the person has reached the age o f consent; the only legally relevant issue is whether the person is experiencing a medical emergency. If so, the individual has a legal right to be treated,

George J. Armas is Utley Professor of Health Law, and Chief, Health Law Section, Boston U. Schools of Mediane and Public Health

26

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AIDS: Society, Ethics and Law Hastings Center Report April/May 1988

and physicians, nurses, and others working in the emergency room have a legal obligation to provide this treatment In case law, there is no suggestion of exceptions based on any specific virus (like HIV) the patient might also be harboring, or any specific disease (like AIDS) the patient may be suffering.4 Courts have reached this conclusion for a variety of reasons, including that citizens have a right to rely upon the expectation that care will be extended implicit in having an “emergency room”; that public hospitals have an obligation to treat all who apply for treatment; and that particular state statutes and regulations require emergency rooms to treat all emergency patients. Whatever the basis, this rule is essentially universal and noncontroversial. O f course, emergency ward personnel have the right to take reasonable precautions to p rotea themselves from harm, and their employers should comply with Centers for Disease Control (CDC) recommenda­ tions regarding appropriate protective procedures and clothing.5 But protection does not include acts that would amount to refusing treatment, or would compromise good patient care. Physicians are not expected by the law to be heroes, but are obligated to act as other qualified physicians would act in the same o r similar circumstances. Thus, if a patient threatened an emergency room physician with a gun or a knife, the substantial risk to health and life would provide legal warrant for the physician to refuse to treat such a patient Likewise, if the patient’s medical condition exposed a physician to great risk, and if it was the accepted practice of qualified physicians not to treat the person under the same or similar circumstances, the physician would be legally justified in refusing to treat the patient Although AIDS is a fatal, infectious disease if acquired, it is not the currently accepted medical practice to refuse to treat HIV-infected patients because o f the risk they pose to providers. Still, the emergency treatment rule may have very limited application in requiring physicians to treat AIDS or HIV-infected patients. Only a minority of these individuals are likely to require urgent treatment in emergency rooms. And even then, the obligation to treat ends with the emergency. If the person can be treated better elsewhere, transfer to another facility is permitted (even encouraged), at least with the consent of the patient and the other facility.8 The obligation to treat in an emergency does not usually apply outside of the emergency room setting. Only one state, Massachusetts, has adopted licensing regulations that require its physicians to render emergency care to any person with a medical emergency, no matter where that emergency occurs.7

Even under this rule, however, physicians who are not competent to treat in an emergency are required only to try to find another physician who can. Thus, in the absence o f some contractual or statutory right, AIDS and HrV-infected patients, like all other persons, have a legal right under common law to access to medical services in the United States only if they are suffering a medical emergency and are able to obtain emergency medical attention. That this situation is still tolerated in the United States is a national disgrace; but by refusing to grant universal access to health care and medical services to AIDS and HIV-infected patients, we are treating them no differently than anyone else. Duty to Continue Treatment A patient’s right to treatment is greatly enhanced after the establishment of a voluntary relationship with a particular physician, for then the doctor has a duty not to abandon the patient The general rule is th at once a doctor-patient relationship is established, it continues until: 1. it is terminated by mutual consent; 2. it is terminated by the patient; 3. the physician’s services are no longer needed; or 4. the physician withdraws after reasonable notice to the patient8 The creation of a doctor-patient relationship, therefore, may be critical to the legal obligation of a physician to care for a particular patient Such a relationship is always formed when the physician agrees to examine or treat the patient, which usually involves a face-to-face meeting. But at least one court has held that a doctor-patient relationship can be created when the physician accepts an appointment with the patient for an office visit, at least where the appointment relates to a specific condition mentioned by the patient over the telephone when seeking the appointment9 The physician cannot abandon or refuse to treat a patient already under his or her care simply because that person is infected with HIV or has AIDS, at least not without reasonable notice. The distinction between an HIV-infected patient and one with AIDS or ARC should be underlined here. Treating an individual with AIDS or ARC involves the knowledge and skill needed to treat a specific disease; treating an HIV-infected patient involves knowing what precautions to take to avoid infection while treating a different, usually unrelated, condition. If the physician is unqualified to treat the patient, he or she usually has an obligation to refer the patient to a specialist or someone who is qualified to treat the patient’s condition. Thus, a physician maybe able (or even required) to transfer

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_7

Hastings Center Report April/Nay 1988

the care o f the patient to an o th er provider. Nonetheless, as long as the patient requires treatment for the condition that the physician is treating or attending (e.g., pregnancy), the physician cannot terminate the relationship without ensuring that the patient is able to obtain alternative care. As with the emergency rule, the strength of the duty of nonabandonment is limited if there are alternative treatm ent sources available in the community. However, if alternatives do not exist, this principle may protect the individual from being left without a caregiver, albeit one who may be treating only because compelled by legal duty.

observed, “courts normally should defer to the reasonable medical judgments of public health officials.” Thus, as long as public health officials reasonably continue to conclude that AIDS is not easily transmissible in specific settings and circum­ stances, those with AIDS and HIV infection should be protected from discrimination in federally assisted programs for which they are “otherwise qualified.” Most states have enacted laws, modeled after the federal civil rights legislation, that prohibit “public accom m odations” from discrim inating against individuals on the basis of handicap. These laws, of course, will provide the broadest protection for individuals if they are construed (as I believe they should be) to include HIV-infected individuals. The question of whether a physician or hospital can refuse to treat a patient solely because the patient is infected with HIV is very complex. This discrim­ ination issue would be equivalent to refusing to treat a patient because the patient is black or gay, if there were no risk of transmission of the infection. The question, of course, is how great the risk to the physician should be before he or she could legitimately discriminate against HIV-infected individuals by denying them nonemergency treatment There is no easy answer, but a point of reference seems relevant The risk of hepatitis B infection is real, and the disease is sometimes fatal, but this risk has never been seen as sufficiently high to justify discrimination against either infected patients or surgeons. Thus at least as long as scientific estimates place the chance of becoming infected with HIV and dying at less than the probability of becoming infected with hepatitis B and dying, there is no objective data to warrant discriminating against an HIV-infected individual. A related point is that often the risks to patient and physician are similar (e.g., blood-to-blood contact during surgery). Accordingly, should we decide that it is reasonable for patients to be tested for HIV-infection prior to surgery (and this might make sense so long as the information could be kept confidential and would not affect the decision to operate, only the precautions taken during the operation), the same logic suggests routine testing of surgeons for HIV-infection as well, and informing prospective patients of the surgeon’s HIV status. Even under the most rigorously fair antidiscrimi­ nation law that could be devised, the extent of physicians’ legal obligations would be limited to referring patients they are unqualified to care for to physicians and facilities qualified to provide care. In no case would an unqualified physician actually have a legal duty to render treatment (indeed, in the absence of medical emergency, it could be malpractice to attempt to treat a condition that a physician

Antidiscrimination Statutes Since private citizens can discriminate against their fellow citizens in the absence of prohibitory or antidiscrimination legislation, both the federal and state governments have enacted statutes to protect against some of the most offensive forms of discrimination. The most noteworthy federal effort is the Civil Rights Act of 1964. Among other things, the Act prohibits places o f public accommo­ dation involved in interstate commerce (such as transportation, food, and lodging establishments) from discriminating on the basis o f race, religion or national origin. Subsequently, Congress passed the Rehabilitation Act of 1973, which prohibits discrimination in federally assisted programs on the basis of handicap when the individual is “otherwise qualified” T he U.S. Supreme Court recently applied this law and the concept of “handicapped individual” to a person with tuberculosis, a potentially contagious disease.10 The ruling mandated that such a person cannot be discriminated against in employment covered by the act if he or she is “otherwise qualified” for the position. The same logic almost certainly applies to an individual with AIDS, but the court specifically declined to rule whether an individual who is infected with HIV is handicapped. Nevertheless, the ruling in the tuberculosis case supports the conclusion that an HIV-infected individual is handicapped.11 Specifically, the Court noted that the purpose of the Rehabilitation Act was to protect “handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of the grantees [recipients of federal funds] as avoiding exposing others to significant health and safety risks.” Whether an exposure is “significant” in the context of a contagious or infectious disease will be decided in the courts, but as the Supreme Court

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is unqualified to treat if alternate care is available). It will also be difficult to define private doctors’ offices as places of “public accommodation” for the purposes of antidiscrimination laws. Private physi­ cian offices are generally not open to the public without appointment; and even then access is generally limited to certain diseases or categories of patients that the physician is capable of treating and agrees to treat in advance. Thus, the duty of continuing treatment is likely to be much more helpful to AIDS or HIV-infected patients than antidiscrimination legislation.

not be construed as violating a no-strike or collective bargaining agreem ent Ultimately, however, without some “ascertainable, objective evidence” of an abnormally dangerous condition, the employee must follow the policy or he or she can be lawfully fired.14 Current evidence o f the danger of HIV infection to physicians and surgeons does not meet this risk standard. In the case of a medical student, the remedy is expulsion; interns and residents could be terminated from their training programs.

Contractual Agreements

Organized medicine has traditionally defended the right o f individual practitioners to treat whomever they wish, except in an emergency. Ethical standards set by professional associations do not carry any formal sanctions other than loss of membership in the association. However, courts can use these standards as evidence of a duty of care, since a physician’s legal duty is primarily defined by medical custom. Thus specific professional ethical standards can be used as evidence in a malpractice suit brought by a patient denied care by a physician, if the patient were harmed by the refiisal. Perhaps more importantly, an ethical standard can help define the character of the profession, and if it is seen as reasonable most practitioners will adhere to it In late 1987, the Council on Ethical and Judicial Affairs of the American Medical Association issued a report to the AMA House of Delegates, which affirmed that a physician “may not ethically refuse to treat a patient whose condition is within the physician’s current realm o f competence” solely because the patient has AIDS or is infected with HIV:

Standards Set by Medical Associations

Duties can also be created by contract, and private contracts between physicians and health care institutions or insurance plans (like health main­ tenance organizations) may be one of the most effective protections for access to care. The em ploym ent contract will generally require employed physicians to render medical care to any patient in the plan who applies for care, or (in the case of medical students, interns and residents) to any patient on their service or to whom they are assigned. As employees, they have the right to work together to change employment conditions under standard collective bargaining procedures and laws. Unless it is the private employer’s policy for nonemergency care, they do not, however, have the right to discriminate arbitrarily against any particular class or category of patient12 As employees, physicians also have a right to protect themselves from dangerous exposures and to insist that their employers take steps to provide them with a healthful work environment The Occupational Safety and Health Administration (OSHA) is in the process of developing guidelines to protect workers from HIV infection. Pending the announcement of these guidelines, OSHA has provisionally adopted the August, 1987 CDC guidelines to protect workers.13 Employees can claim protection under these guidelines, and can refuse to work if their employers fail to comply. In addition, federal OSHA legislation protects workers who com plain of an OSHA violation, prohibiting retaliation by the employer. The right not to work, however, may be constrained by a collective bargaining agreement that contains a no-strike clause prohibiting refusals to work for health or safety matters, o r th a t contains a grievance mechanism as the exclusive method to present complaints. The only legally recognized exception to such restrictions is the general rule that both individual and concerted actions taken in “good faith because of abnormally dangerous conditions” will

A person who is afflicted with AIDS needs competent, compassionate treatment Neither those who have the disease nor those who have been infected with the virus should be subjected to discrimination based on fear or prejudice, least of all by members of the health care community. Physicians should respond to the best of their ability in cases of emergency where first aid treatment h essential, and physicians should not abandon patients whose care they have undertaken.15 The report, which was accepted by the House of Delegates, stops short of saying that physicians must care for AIDS patients, but does make refusal to do so unethical if such care is within the physician’s competence and refusal is based solely on the patient’s disease status. Russell Patterson, the vice-chairman of the Council, explained the report with reference to Principle VI o f the AMA’s 1980 Principles of Medical Ethics: “A physician shall, in

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the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate and the environment in which to provide medical services.” Patterson maintained: We never took that to mean that a physician could illegally or unethically discriminate against any group of patients, such as blacks, members of a religious group, or patients with AIDS. A physician doesn’t have to care for AIDS if the disease process is out of his spectrum of knowledge but, for example, a surgeon should not refuse to operate because a patient has AIDS.16 Since the AMA has repeatedly supported the rights of its members to treat whomever they wanted (except in an emergency), this explanation seemed to indicate an astonishing reversal o f position. The problem is that the AMA’s top officials have made it clear they have no plans to enforce the Council’s report; if doctors don’t want to take care of AIDS and HIV-infected patients, the AMA will consider them “incompetent” to treat and excuse them.17 According to AMA Executive Vice-president James Sammons, this exemption would include a physician with a “psychological hang-up” that interferes with his or her ability to treat AIDS patients.18 In effect, this reduces the AMA’s position to a statement that a doctor must treat an AIDS patient if the doctor wants to treat an AIDS patient Few state medical associations have addressed this issue, and at least in states with large HIV-infected populations, like New York, Massachusetts, Illinois, California and Florida, they should. The Texas Medical Association has adopted a standard that actively invites discrimination by giving the physician the option to treat or refer the patient, regardless o f the physician’s ability to treat the disease. Explaining this decision, James Mann, the chairman o f TMA’s Board o f Counselors said:

treated by someone who doesn’t want to treat us.” Strong and unequivocal statements on ethical standards from organized medicine can help patients obtain access to needed services. However, statements like that issued by the Texas Medical Association, an d the “clarifying” rem arks o f Sammons on the AMA standards, perpetuate fear and prejudice and set up restrictions on access to care. Physicians should set their own ethical standards. But if they fail, or if the standards are too low, the law must operate to protect the public. Medical Licensing Boards Agencies in each state license physicians to practice medicine, a procedure that grants the profession a monopoly and makes the practice of medicine without a license a crime. Medical licensing boards have statutory authority to issue regulations that govern the practice of medicine and to define “unprofessional conduct” Unlike private medical organizations, like the AMA and the state medical associations, the regulations promulgated by these agencies have the force of law, and violation can lead to license suspension or revocation.20 These potential sanctions make such standards much more powerful agents in affecting physician behavior. Thus far, state licensing boards have displayed two different approaches to physician refusals to treat AIDS or HIV-infected patients. The Board of Medical Examiners in New lersey, for example, issued an “AIDS Policy,” on November 18, 1987: A licensee of this Board may not categorically refuse to treat a patient who has AIDS or AIDS related complex, or an HIV positive blood test, when he or she possesses the skill and experience to treat the condition presented.... In cases where the physician is unable to render care, “the licensee retains the responsibility to make alternative arrangements for the proper care of a patient”21 An opposite stance has been established by the Arizona Board of Medical Examiners. This Board stated that their licensees have the right to refuse continued treatment to AIDS patients. T he licensing boards o f states that have a significant number o f AIDS patients have a legal and ethical responsibility to clarify the legal obligation of their licensees to render care in a nondiscriminatory manner. They should do so now, before any “movement” develops to deny treatment or to adopt either the “Texas Solution” or the “Arizona Avoidance Strategy.”

We didn’t agree that a physician who diagnoses AIDS is mandated to treat the patient. I don’t think it can be called discrimination when it’s a matter of a guy laying his health and career on the line. A young man may spend 15 years of his life getting medical training and risk his life treating disease. You must think of the potential dangers and risks — All it takes is a slip of a needle or a splash of secretions.19 David Vanderpool, president of the Texas Medical Association, argued that physicians should continue to do business as usual in the face of the AIDS crisis, and that the “traditional freedom” physicians have to choose whom to serve should be maintained. He also implied this arrangement works to the benefit of patients: “You and I don’t want to be

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subject at Boston City Hospital, “The law cannot make people courageous or virtuous.” The law does, however, symbolically embody the minimal ethics of society, and thus helps both form and articulate society’s basic values and expectations o f its physicians. Physicians can relatively easily “beat” an antidiscrimination charge by developing a modus operandi that includes withdrawal from practicing in those specialities or training programs in which they might encounter AIDS patients, limiting their practice to certain types of diseases and disorders unlikely to include AIDS patients, or developing an efficient referral system to avoid direct contact with AIDS patients. There is little that can effectively counter such patterns of physician behavior short of actually lodging a charge o f discriminatory conduct. But the fact that only a handful of physicians openly admit that they discriminate against AIDS and HIV-infected patients indicates that these practices are already viewed as unaccep­ table. Strong action on the part o f organized medicine, state licensing boards, and others can ensure that discrimination against AIDS and HIV infected patients is acknowledged as unethical. This analysis suggests that individual physicians have no legal duty to treat except in specific situations. Broad statem ents o f ethical responsibility by organized medicine, state licensing boards, hospitals, and medical schools, however, can transform the “no-duty rule” into a “professional-duty-to-treat or lorate-and-refer-for-appropriate-treatment rule.” When such rules are promulgated, they should be followed by intense educational programs based in hospitals so that all physicians and health care workers can be kept fiilly informed regarding the m eaning o f AIDS, ARC an d HIV infection, realistically assess the risk of transmission, and understand the steps that can reasonably be taken to minimize that risk. Hospitals and prepaid health plans also need responsive employee grievance mechanisms, competent safety personnel, available safety clothes and equipment, safe methods of dealing with blood and bodily fluids, and adequate disability coverage. Antidiscrimination standards should also be adopted. But there is no quick legal fix to guarantee access to medical care to AIDS and HIV-infected patients, because the basic problems of health care access in the United States are economic rather than legal in nature. Physicians do have special legal obligations because they have been granted special privileges by society. Their continued practice of medicine is voluntary; and their conduct is properly judged by standards higher than those to which we hold others, even higher than those to which we hold firemen and policemen. Society could not tolerate firemen

State Antidiscrimination Statutes and Private Employment Contracts AIDS and HIV-infected individuals would have a more compelling legal claim of access to care if antidiscrimination statutes in each state clearly included them in the category of handicapped individuals who could not be discriminated against in regard to employment, housing, and access to “public accommodations,” including hospitals, clinics and physician and dental offices. Yet, AIDS cônfronts us with a phenomenon much more complex than simple discrimination on the basis of disease, albeit an infectious, potentially lethal disease. As others have correctly noted, even if fear of contracting AIDS is given as the reason for discrimination, the underlying motivation may be much more complex. Additional reasons for discrimination may include homophobia or an aversion to IV drug users; an age similarity between providers and sufferers who are terminally ill because of the lack of an effective treatment; and that AIDS patients require intensive, expensive, and exhausting care.22 One of the most powerful ensurers of nondiscriminatory patient care can be the provisions in employment contracts and hospital staff by-laws. These documents can bind physicians who are employees and physicians who have staff privileges to specific nondiscriminatory behavior regarding AIDS patients. The sanctions for noncompliance can also be spelled out, whether it be dismissal from employment, loss of staff privileges, dismissal of an intern or resident from a training program, or expulsion from school. O f course, those accused of discriminatory behavior must be given a fair hearing, including representation by legal counsel, prior to any punitive action against them.23 The Associated Medical Schools of New York, which represents the state’s 13 medical schools, recently adopted a policy worthy of emulation. The Association decreed that physicians had a “most fundamental responsibility” to treat AIDS patients, and that any faculty member, hospital resident or medical student who refused to treat an AIDS patient would be dismissed Although there have been no reponed cases of such refusal in the medical school system, Dr. Richard Schwartz, the president of the Association, said he “felt it important to take a tough leadership position at a time of national crisis.”24 Laws, Symbols, and Minimal Ethics Discrimination and prejudice based on fear are difficult for the law to prevent As Leonard Glantz put it when he and I did Pediatric Rounds on this

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and policemen who refused ever to risk their lives in doing their jobs. Nor should it tolerate physicians who refuse to take risks in their practice. Nonethe­ less, if we want to be effective in motivating physicians to care for AIDS and HIV-infected patients, we must also take reasonable steps at the broader, societal level. Universal health insurance coverage for all patients seems critical. Monetary and licensure suspension penalties for discrimina­ tion seem useful. And realistic methods to deal with prevention o f HIV infection seem essential. Ultimately, only such a multifaceted approach is likely to prove effective in assuring access to medical care for patients with AIDS or HIV infection.

References

1P.M. Boffey, “Doctors Who Shun AIDS Patients are Assailed by Surgeon General,” New York Times (Sept 10,1987), 1. “When Doctors Refuse to Treat AIDS,” New York Times (August 3,1987), A16.

2Editorial

3T.L Banks, “The Right to Medical Treatment,” in H. Dalton,

infection because she brought her seeing-eye dog with her). School Board o f Nassau Co. v. Arline, 107 Sup. Cl 1123 (1987).

11Wendy

E. Parmet, “AIDS and the Limits o f Discrimination Law,” Law Medicine and Health Care 15 (1987), 61. T he statute defines as handicapped o n e who: “(i) has a physical or mental impairment which substantially limits on e or more o f such person’s major life activities, (ii) has a record o f such im pairm ent, o r (iii) is regard ed as h avin g su ch an impairment.”

M See A S . Leonard, “AIDS in the Workplace,” in Dalton, et a l eds., AIDS and the Law, Yale University Press, 1987.

13Occupational

Safety and Health Administration, “Occupa­ tional Exposure to Hepatitis B Virus and Human Immunode­ ficiency Virus; Advance Notice o f Proposed Rulemaking,” 52 Fed. Reg. 45438 et seq., Nov. 27,1987. 14 Gateway Coal Co. v. United M ine Workers o f America, 414 U.S. 368 (1974). 15Council o n Ethical and Judicial Affairs, “Ethical Issues Involved in the Growing AIDS C r i s i Journal o f the American M edical Association, 259 (March 4,1988), 1360-61. 1# “Unethical to Refuse to Treat HIV-Infected Patients, AMA says” American M edical News, Nov. 20,1987 43. 17"Refusing Care o f AIDS Patients: New Policies and Admissions Emerge,” H ospital Ethics (January/February 1988), 5. 11“AMA Delegates Vote on AIDS Care Ethics,” M edical World News (December 28,1987), 16.

S. Burris, and the Yale AIDS Project, eds., AIDS and the Law (New Haven: Yale University Press, 1987), 176. 4George J. Annas, “Your Money or Your Life: ‘Dumping’ Uninsured Patients from Hospital Emergency Wards,” American Journal o f Public Health 76:1 (1986), 74-77. 5C enters for D isease C ontrol, “R ecom m en d ation s for Prevention o f HIV Transmission in Health-Care Settings,” M orbidity and M ortality Weekly Report, 36:2S (August 21,1987), 3S-18S. 6Annas, “Your Money or Your Life.” 7Mass. Bd. o f Registration in Medicine, 243 CMR 2.06 (10). ' George J. Annas, The Bights o f H ospital Patients (New York: Avon Books, 1975), 95.

New York Times (January 3,1988), E7. M Abigail Zuger, “AIDS on the Wards: A Residency in Medical Ethics,” Hastings Center Report 17:3 (June 1987), 16-20. “ See Annas, et al., The Rights o f Doctors, Nurses, & Allied Health Professionals.

9 Lyons v. Gretker, 239 S.E.2d 103 (Virginia 1977). (Patient abandoned when doctor revised to see her for vaginal

u R. Sullivan, “13 Medical Colleges say Staffs Must Treat AIDS," New York Times (December 9,1987), B3.

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19‘T M A

policy lets MDs refuse AIDS patients if they refer,” American M edical News 30:45 (December 4,1987), 3. *° George J. Annas, Leonard H. Glantz, and B.F. Katz, The Rights o f Doctors, Nurses & Allied Health Professionals (Cambridge, MA: Ballinger, 1981), 3-15.

81See R. F'ear, “What would Hippocrates have said about AIDS?,”

[2] Hastings Center Report, March-Aprtt 1991

incidence o f HIV and believed that his cumulative risk of infection was high even if the risk in one operation was not. He said, “Lots of surgeons carry antibodies for hepatitis B. T h at’s a risk we all have taken, but I won’t take the chance of bringing AIDS into my bed and killing my wife. Would you?” I confessed that I neither knew what the risks were nor how I would behave. I asked him if he would feel differently about the risks if AIDS were a disease of children; he did not know. In the end, another surgeon in the same hospital took the case. Did my friend have a moral duty to treat that patient? If so, from what does it derive: a profes­ sional code? medical tradition? the im portance of avoiding discriminatory behavior? a social obliga­ tion to guarantee access to care? Can we guarantee that people receive medical treatment if physicians deny they have, or fail to carry out, a duty to treat?

Duty to Treat or Right to Refuse? by Norman Daniels

By entering the medical profession, physicians have consented to accept a standard level of risk of infection. In most Instances, the risk of con­ tracting HIV does not exceed this level.

A lthough AIDS is novel, one o f the m oral problems it poses is not: Do physicians and other health care workers have a moral duty to treat HIV patients despite the risks of contagion? This question was thrust into public consciousness in the late 1980s. A world-famous heart surgeon proclaimed that he would not operate on HIV-positive patients; and Dr. Lorraine Day, an orthopedic surgeon in San Francisco, loudly protested in the newspapers and on TV the high risks she faced.1The question became real for me when a dinner I was enjoying with Peter, a surgeon, was interrupted by a phone call asking him to operate on a patient with a fractured cheek. Peter asked w hether the patient, a transvestite who had been assaulted after a pickup in a bar, would take an HIV test, and was told “no.” He then refused to operate and suggested that the patient be sent to a nearby public hospital if no one else would take the case. I asked Peter what would happen to the patient. He replied that a plastic surgery resident would get some practice that he probably needed. When I asked why the resident should have to take risks that he would not face, Peter said, “Because he can’t get out of it and I can.” H e insisted that surgery of this sort, where bone chips and wiring are frequendy involved, often produces cuts, and that there is no way to avoid them. He worked in an area with a high

Norman Daniels is professor of philosophy, Tufts University, Medford, Mass.

36

Professional Disagreements about Duties______ Answers to these questions rem ain controversial am ong physicians. Peter, for example, was not sure he had a duty to accept patients who put him at personal risk, claiming that he could refuse to treat for less im portant reasons, including inability to pay. Nevertheless, he was defensive about his refusal. Nor is Peter’s attitude unusual. Recently, the National Commission on AIDS complained that “a shocking num ber o f physicians are reluctant to take care o f people living withHIV infection and AIDS.” Only “ 10 percent o f internal medicine residents have a strong com m itm ent to the care of HIVinfected people and are likely to include them in their post-training practice,” whereas “25 to 30 percent have a definite aversion to HIV work and are planning in their professional lives to avoid contact with these patients.” The number of dentists who will treat people with HIV infection is “grossly inadequate and unacceptable.”2 Factors other than fear o f contagion contribute to this reluctance to treat. Some physicians and dentists express concern that non-HIV patients will shun their practices if they treat AIDS patients. Others insist they do not know enough about HIV infection and are too busy to learn. This excuse drew rebuke from the National Commission, which insisted that—with m ore than one million HIV patients across the country—physicians “simply must acquire the expertise.” O ther providers have antipathies to the groups at highest risk. But, unlike fear of contagion, these other reasons for refusal to treat seem to be expressions of bias or capitulations to it rath er than respectable grounds for denying that one has a duty to treat. State professional organizations and medical boards disagree about a duty to treat. In 1987 the

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AIDS: Society, Ethics and Law Hastings Center Report, March-Aprll 1991

B oard o f M edical Exam iners in New Jersey proclaimed that “a licensee of this Board may not categorically refuse to treat a patient who has AIDS or AIDS related complex, or an HIV positive blood test, when he or she possesses the skill and experience to treat the condition presented.” An opposite position was taken by the Arizona Board of Medical Examiners. Medical boards specify the legal duties of physicians; these rulings probably reflect a difference in underlying beliefs about moral duties. Jam es Mann, chairman of the Texas M edical A ssociation’s B oard o f C ounselors, defended its decision that there is no moral or professional duty to treat: “We d idn’t agree that a physician who diagnoses AIDS is m andated to treat th e p a tie n t. I d o n ’t thin k it can be called discrimination when it’s a m atter of a guy [sic!] laying his health and career on the line.”3 Disagreement exists at the national as well as the state level. The 1986 national AMA statement on the issue left a door wide open to refusals to treat, allowing physicians who were “emotionally” unable to care for AIDS patients to refer them to others. In late 1987, the AMA issued a stronger statement closing that door. A physician may not ethically refuse to treat a patient w hose condition is within the physician’s current realm o f com petence solely because the patient is seropositive. T h e tradition o f the A m erican Medical Association, since its organization in 1847, is that: “when an ep id em ic prevails, a physician must continue h is la b o rs w ith o u t re g a rd to th e risk to h is ow n health.”...Physicians should respond to the best o f their abilities in cases o f em ergency where first aid treatm ent is essential, and physicians should not abandon patients w hose care they have undertaken.4

Unlike the AMA, but like some other professional surgical organizations, the American Academy of O rthopedic Surgeons (AAOS) has not insisted that surgeons have a specific duty to treat HIV patients, despite affirm ing in general term s an ethical responsibility to provide care to all patients. In offthe-record conversations with those involved with the AAOS Task Force on AIDS, I was told that the leadership feared adopting a stronger position that much of the membership would not follow. Nursing codes, not surprisingly, take a strong stand in favor of a duty to treat: “In most instances, it would be considered morally obligatory for a nurse to give care to an AIDS patient. If the nurse is im m unosuppressed , however, it could be reasonably argued that the nurse is not morally obligated to care for that patient [and the nurse must then] choose whether or not to go beyond the requirem ent of duty.”5 The distinction between normal and immunosuppressed nurses is important, as well as the inference that the level of risk to the

individual determines w hether treatm ent is within or above the call of duty (I return to the point later). Problems with the AMA Position If we examine the AMA position, the sources of controversy become apparent. T he 1987 statem ent makes the following argum ent: Principle VI o f the 1980 Principle o f M edical Ethics states that “A physician shall in the provision o f ap propriate patient care, excep t in em ergen cies, be free to ch oose w hom to serve, with w hom to associate and the environm ent in which to provide medical services.” T he Council has always interpreted th is P r in cip le as n o t s u p p o r tin g ille g a l or in v id io u s discrim ination....T hus, it is the view o f the C ouncil that Principle VI does not perm it categorical discrim ination against a patient solely on his or her seropositivity.

This argum ent is open to an obvious reply: refusal to treat HIV patients (or those at high risk for HIV) is not invidious discrimination but merely self-protection. Even if the burden o f such choices falls most heavily on certain groups, such as gays, who are often the object of invidious discrimination, the intent here is not to discriminate, but to protect oneself. Exactly this line of argum ent appears in an article titled “My Brother, the Doctor, Is in Danger.”6 Indeed, as Peter argued, if physicians can protect themselves against economic loss by refusing to take Medicaid patients or the uninsured, then why not against risks to health? T he AMA statem ent simply implies, without argum ent, that categorically refusing to treat HIV-positive patients is invidious discrimination. But surely, intending to avoid risks is distinct from intending to discriminate. To save the AMA position, we m ight flesh out its argum ent as follows: Refusing to treat HIV-positive patients is discriminatory because physicians have a duty to face some standard level o f risk associated with their profession. T he risks of HIV infection and its consequences do not exceed that level and are comparable to other risks physicians are willing to take. Consequently, appealing to self-protection in the case of patients with high risk for HIV is discriminatory. Two challenges face this modified AMA position. Even if there is a duty to treat in the face of some level of personal risk, the risks o f HIV infection might exceed that level for some or all practitioners. T hen it would be supererogatory for such physicians to treat HIV patients. To face this challenge, we must consider the evidence about HIV risks to health care workers. The other objection is that physicians might in fact have no duty to treat in the face of any significant levels of personal risk. Before facing these challenges, I want to make a m ore basic point.

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Consent and the Distribution of Risks_________ T he general mechanism for distributing the benefits and burdens of risk-taking is, and should be, consent. Consequently, if physicians have a duty or obligation to take certain risks, it must be the result of their agreeing to do so. This is my provisional hypothesis about the foundations for any duty to treat despite risks of contagion. The centrality of consent to risk-taking should be obvious to medical providers, who face penalties if they fail to obtain informed consent to risks from patients, even when clear benefits accompany the risks. But the reliance on consent is really quite gen­ eral. For example, we generally believe that workers may sell their daring in the face of workplace hazards, provided they are informed of the risks and their choices are truly voluntaiy? Often it is not the level of the risks we take that matters to us, so much as the opportunity to control them through consent: people who do not want a farmer to use a pesticide that imposes minute risks may still smoke, refuse to buckle seatbelts, scuba dive, or live in Washington, D.C. Consent is crucial where obligations to take risks exist in various occupations or professions. For example, we assume that in choosing their careers, undergoing the training involved, and agreeing to follow the codes and practices regulating their work, firefighters and police have given consent to facing the significant risks they are obliged to take. They are aware in a general way of the kinds of risks they will typically face and can contrast those risks with situations that impose exceptional risks, even if they cannot state the risks with statistical precision. Thus firefighters are obliged to face some standard level of elevated risk, higher when the lives of people are at issue than when property preservation is the only issue. But undertaking exceptional risks is still viewed as supererogatory, and the firefighter who truly risks life and limb is rewarded as a hero and not merely a com petent worker. We seem to believe th a t p eo p le in risky occupations are self-selected for their daring. This presupposes that the risks are widely perceived and that people have real alternatives. Moreover, those who stay in risky occupations often surround themselves with a subculture that supports their willingness to take risks. Sometimes the subculture has a “m acho” tone, but more generally social support and rewards are given in recognition o f the daring involved. T here are strong parallels to medicine. People who enter medical fields clearly had alternatives. T here is a general understanding that physicians face an increased risk of contagion from disease (remem ber Peter’s rem ark about HBV infection

38

am ong surgeons), an understanding refined d u r­ ing schooling and training. For example, it is com­ mon to screen new house staff and nurses in medical centers to determ ine w hether any individuals face special risks o f contagion, such as im m unosuppres­ sion or pregnancy. Those at high risk may then be asked to avoid certain treatm ent situations, m ateri­ als, or hospital areas. Similarly, some OSHA regu­ lations aim at protecting “hypersensitive” workers who cannot tolerate the standard level of risk.8 Protecting im munosuppressed providers is reason­ able “risk managem ent, ” a measure taken to reduce bad outcomes. But such special protection supports the claim that only standard risks are included in the duty to treat. As the ANA code makes explicit, some nosocomial risks clearly take us beyond what duty requires. Despite these parallels, one dissimilarity between medicine and other risky occupations is w'orth noting. In recent years, no subculture o f heroism surrounds health care workers, perhaps because of confidence in antibiotics. During the period from 1850 to 1950, when physicians standardly cared for patients with infectious diseases, their risk-taking was compensated for by the power, self-esteem, and a d m ira tio n they d e riv e d fro m “p erv asiv e paternalism .” Since these supports have eroded, “the first step in making physicians heroes again is unequivocal support, emotional and financial, for any one who seroconverts in the line of duty.”9 Consent and the Modified AMA Statement_____ T he AMA’s 1847 claim, reaffirmed in 1987, is that a physician is expected to treat ‘without regard to the risk to his own health” (emphasis added). This claim cannot be taken at face value. It implies that physicians have consented, simply by agreeing to become medical professionals, to facing any level of risk, however high, including that of certain death. No one believes that. Indeed, we ask soldiers to volunteer for especially risky missions and treat their willingness to face certain death as heroic and above the call of duty. Similarly, we must believe that there are some limits, however vaguely specified, to the risks physicians have agreed to face. Daniel Fox suggests there is historical p recedent for this conclusion in the special contracts societies have negotiated with certain physicians to act as “plague doctors.”10 Since risk-taking must involve consent, the best way to construe the AMA position is what I will call the modified AMA position. Physicians consented to face some standard level of risks when they agreed to enter the profession and trained for it, and the risks of nosocomial HIV infection are not so

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h ig h th a t they re q u ire a d d itio n a l co n sen t. Consequently, refusing to treat HIV patients is invidious discrimination. This modified position may need further qualification, depending on information about nosocomial risks. Specifically, further refinement may suggest a middle ground between the extreme positions that characterize this controversy—the blanket affirm ation and blanket denial of a duty to treat.

Low Aggregate Risks of HIV Transmission Ar e the facts about the risks to health care workers, including physicians, consistent with the modified AMA position? The combined data from more than half a dozen studies suggest there are generally low risks of HIV transmission to health care workers. Jam es R. Allen, summarizing combined studies of almost 1400 health care workers and 1300 dental personnel, concludes that “the risk of HIV infection even a fte r m ucous m em b ran e ex p o su re or parenteral inoculation of infected blood, fluids, or secretions is extremely low—probably less than one per 200 incidents.”1'A Centers for Disease Control summary of 1107 health care workers tested after exposure, mostly to needlesticks, showed 4 HIV positive, for a conversion rate o f0.0041. All of these were needlesticks, one had an HIV-positive sexual partner, three had no risk factors, and two of them w ere em ergency technicians in ju red d u rin g resu scitatio n attem p ts by co-w orkers.12 T his estimated rate of conversion is probably a maximum or we would see a much higher proportion of health care workers who are HIV-positive. Three im portant observations can be made about the level and distribution of risk to health care workers. ( 1) Health care workers seem to be at no greater risk than the public as a whole, since the percentage of health care workers with AIDS m atches the percentage of AIDS expected in the population as a whole. (2) Health care workers who have AIDS fall into the same proportion o f high-risk groups as the population as a whole. (3) Health care workers with AIDS who fall into the “no-known-risk” category were distributed among all categories of health care workers, irrespective of their contact with blood and body fluids. Surgical specialties were not o v e r-re p re s e n te d ; only h o u se k e e p in g an d maintenance workers were more likely not to have an identified risk.13 A study of military reservists employed in health care showed that the only category ofworkers with a prevalence of HIV higher than that among reservists who were not health care workers were single white and black males employed as RNs or medical technicians.14

Disaggregating the Nosocomial Risks In general, the risk a particular physician faces will be the result of (1) the risk of seroconverting p er incident of exposure (e.g., per needlestick); (2) the frequency o f exposure incidents, such as needlesticks; and (3) the proportion of patients who are HIV-positive. Michael D. Hagen and col­ leagues estimate the frequency of needlesticks at about one in forty cases.15Taking high estimates of HIV seroconversion rates and high estimates of HIV prevalence among patients, they still conclude that the “surgeon’s risk of HIV infection when oper­ ating on an infected patient appears to fall between 1/130,000 and 1/4,500.” They are confident that this is a plausible estimate, since there is no evidence of a high rate of HIV infection among surgeons operating in high risk areas.16 Ezekiel Emanuel disaggregates the statistics with somewhat different conclusions. Assuming a rate of forty sticks per year (which implies 1600 operations a year), a 1 percent risk of seroconversion p er HIVinfected needlestick (which is more than twice what the CDC figures imply), and a patient prevalence of 4.6 percent, Emanuel concludes that emergency departm ent surgeons face a 2 percent annual risk of infection. If 33 percent of Dr. Day’s patients are HIV-positive, as she claimed, then she faces a 12 percent per year risk of HIV infection, or 49 percent for five years, a very high level of risk indeed. For comparison, Emanuel claims that medical house staff face an annual risk of death comparable to that of Boston firefighters. Dr. Day’s annual risk of death, he concludes, is higher than the risk faced by military personnel in Vietnam .17 Emanuel’s estimates face a serious problem. They seem much higher than observed rates of HIV infec­ tion among health care workers; nor does the distri­ bution of HIV infection among health care workers show a pattem resembling what these estimates imply. Even acknowledging that HIV has a long latency, we would probably have seen some effects on health care workers if nosocomial risks conformed to Emanuel’s estimates. Still, these estimates are honest extrapola­ tions, not an attempt to inflame opposition against a duty to treat. Indeed, Emanuel firmly believes in such a duty, basing it on “the concept of medicine as a profession and on the physician’s particular profes­ sional role” (p. 1686), and he concludes that only excessive risks, like those estimated for Dr. Day, are beyond the call of duty. Despite this problem, Emanuel’s estimates raise questions about the risks a minority of physicians face. Given these questions, it is not unreasonable for some physicians to believe they face risks higher than the standard level to which all physicians

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presumably consented. Since consent to risks is essential, we should (1) attem pt to get better estimates of these risks; (2) do what we can to reduce the exposure of these physicians, both by improving efforts at preventing exposures and by increasing the access of HIV patients to other physicians; and (3) provide conditions under which consent to these special risks can be obtained. Hepatitis B vs. HIV__________________________ We still need a positive characterization of the standard level of risks to which physicians have presumably consented on the modified AMA view. The risks of hepatitis B seem to be a useful reference point: physicians, like my friend Peter, are aware of the risks yet do not refuse to treat those at risk for HVB. If the risks of HIV do not exceed those of HVB, can we infer consent to the form er from co n sen t to th e latte r? In fact, th e risk o f seroconverting to HIV and then dying is lower than (but the same order of m agnitude as) the risk of seroconverting to HVB and then dying. (Hepatitis B is m ore prevalent in the patient population by a factor of ten, and is more highly contagious than HIV by a factor of about forty; though a serious disease, it is less likely to kill than HIV.)18Annas concludes that “as long as scientific estimates place the chance of becoming infected with HIV and dying at less than the probability of becoming infected with hepatitis B and dying, there is no objective data to w arrant discriminating against an HIV-infected individual.”19 This point seems to support the AMA contention that refusal to treat HIV patients is invidious discrimination. T he quick comparison of the risks of hepatitis B and HIV ignores some relevant differences. These differences count against the claim that consent to HIV is included in consent to HBV. First, people ju d g e the risk to be worse when there is near certainty of death upon infection (as in HIV), even though there is less risk of infection, than they do when there is higher risk of infection but lower risk of death following infection (as in HBV). Second, th ere is less sexual transm ission of HBV to heterosexual partners; thus HVB risks conflict less with obligations to protect family members from harm . T hird, there is less stigma attached to having HBV than to having HIV. Fourth, there is a vaccine for HBV infection, which is more than 90 percent effective;20 the risk of infection followed by death is reduced by a factor of almost twenty for vaccinated health care workers. In view of these differences, some physicians insist they consented to the risks of hepatitis B but not HIV (Peter claimed this). Still, I do not believe that the differences here are sufficient to show that

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physicians typically have consented to one kind of risk but not the other. For example, the hepatitis B vaccine is only recently available, and therefore the level of risk to which most practicing physicians presumably consented is the prevaccine level. Similarly, although the certainty of death following HIV may be th e factor th a t im presses some physicians, I believe most simply underestim ate the combined probability of dying from nosocomial hepatitis B. T he conclusion we are led to is this: there is in general good reason to treat consent to the risks o f hepatitis B as tantam ount to consent to the risks o f HIV. Nonetheless, the differences between these risks are such that we cannot simply treat as disingenuous someone who is im pressed by the differences and denies consenting to the risks of HIV. We cannot dismiss all instances o f reluctance to treat as exam ples o f reneging on a p rio r commitment. Consent and Disaggregated Risks_____________ The evidence about HIV risks is for the most part consistent with the modified AMA position, but two qualifications are in order. First, the estimated, but not observed, cumulative risks to some physicians who practice in high-incidence areas exceeds the standard level ofrisk. Despite the speculative nature of these estimates, it is not unreasonable and not disingenuous for this minority of physicians to insist that additional consent to these risks is necessary. Second, some people perceive the risks of hepatitis B and HIV differently, despite the fact that the combined risk of infection followed by death is similar (sans vaccine). For them, consent to the risks of HBV is not tantam ount to consent to the risks of HIV. Since our conclusion that physicians have consented to some general level o f risk is based on a complex inference, we should err in cases of reasonable disagreem ent about the risks in the direction o f seeking explicit consent rather than insisting that a duty already obtains. Moreover, since some of these alleged risks are elevated because society has failed to m eet its clear obligations to remove insurance and other barriers to access, it would be hypocritical to insist that physicians comply with their contested obligations. With these qualifications, the AMA position occupies a reasonable m iddle ground between blanket affirmations and blanket denials o f a duty to treat. Consent as a Constraint on Foundations_______ T here must be consent to the risks involved in a duty to treat. This fact imposes constraints not just on the scope or content of such a duty, as we have seen, b u t on th e k in d s o f ju s tific a tio n —o r

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foundations—we can provide for it. This point might itself seem uncontroversial. After all, professional obligations are acquired obligations, and acquired obligations in general result only from actions or roles one undertakes consensually. (There may be e x c e p tio n s, such as filial o b lig a tio n s .)21 U n fo rtu n a te ly , th e p o in t has b ee n m ad e controversial. Only by deemphasizing consent to risk can a blanket duty to treat be made immune to claims such as, “I may have consented to some risks on entering the profession, but not to those risks,” or, “Maybe earlier practitioners consented to risks of infection, but I entered the profession when such risks were few and I did not consent to them .” On the view I have been defending, these denials of consent have to be taken seriously. The defense of a duty to treat is thus cumbersome and inelegant, the justifications burdened by detail. Seeking a cleaner line of defense, proponents of a blanket duty to treat have looked elsewhere for foundations. A natural place to look is in the requirem ents of justice. If justice required physicians to treat despite risks, we would have a clean, straightforward defense. But proponents of a duty to treat have been frustrated with the results of the appeal to justice: justice does not under all circumstances imply there is such a duty. Looking elsewhere, some have claimed that the very “concept” of being a medical professional implies a duty to treat despite nosocomial risks. Others try to ground the duty in appeals to what history tells us were at some time the standard virtues or duties of such professionals. By examining these alternative justifications briefly, I want to show that they either incorporate consent to risk without acknowledging it, or they fail to provide a foundation for a duty to treat. I also want to draw some lessons from these accounts that point to a plausible model of professional obligations in general. U nderstanding this model will help us see how best to respond to the reluctance of physicians to treat HIV patients. Justice and Duties to Treat___________________ It is commonly claimed that justice, even when it includes rights to health care, cannot be the basis for a duty to treat.22 If individuals have a right to health care, there must be a correlative social obligation to guarantee that appropriate health care is provided—but this social obligation does not individuate directly into an obligation of each physician or health care provider to deliver that care. (I have no objection to this point; see chapter six of myJust Health Care.) Rather, society m ight be able to guarantee the delivery of all necessary care by letting physicians contract individually to deliver whatever care they choose. Such a system of

voluntary contracts would involve no general moral duty to treat that is binding on all physicians. Physicians would have specific contractual duties to treat only patients they chose to treat. Proponents of a duty to treat binding all physicians then turn elsewhere, for example to claims about what it is to be a virtuous physician, in their search for foundations. The argum ent fails, however, to show that we must seek alternative foundations for a duty to treat. To see why, observe that the duty of physicians to treat anyone they are com petent to treat, despite ihe nosocomial risks, divides into two independent components. First, physicians might have a duty to treat anyone they are com petent to treat, provided there are no nosocomial risks. T hat is, there is no choice about whom to treat, except that self­ protection overrides the duty. Second, physicians might have a duty to disregard (at least some) nosocomial risks in deciding whom to treat, but have no general duty to treat any patient they are com petent to treat. T hat is, they can select patients on any basis except nosocomial risks. Justice may have a bearing on each of these distinct duties to treat. U nder some conditions, it may be possible to assure access to care without establishing a binding duty to treat of either kind on all physicians. U nder other conditions, however, justice may require us to impose one or both of these duties to treat on physicians, for example, as a condition of licensing, or as a condition on eligi­ bility for third-party reimbursements, because that is the only way, or the best way, to guarantee adequate and equitable access to care. Whetherjustice requires us to impose either or both duties to treat depends on the design of the health care system, the willingness of physicians to accept patients of all kinds, and the kinds of needs that have to be met— n o t m erely on th e fact th a t physicians are professionals. Moreover, the imposition of such duties is compatible with the requirement of consent. In agreeing to pursue a career in medicine when a duty to treat is a condition of licensing, physicians would be consenting to accept certain obligations and the risks that they entail. A lthough such conditions clearly restrict the options open to individuals—one cannot be a physician without agreeing to the conditions—imposing them need not violate any basic liberties of individuals and th u s involves no in c o n sisten c y w ith in th e requirem ents of justice itself.23 We can now see why the argum ent fails to show that justice could not provide foundations for a duty to treat. The argum ent assumes that a bona fide duty to treat applies to all physicians simply because they are physicians. In deciding to impose either

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one of the duties to treat that we distinguished, however, justice takes into consideration complex facts about access to care, and so it cannot yield a duty to treat that applies to all physicians under all circumstances. By assuming that m oral duties binding professionals are transcendent, that is, independent of facts about the delivery system, and thus binding in all medical systems, the argum ent begs the question against a justice-based account. Justice can provide us with foundations for p e r­ fectly adequate duties to treat, albeit not for tran ­ scendent ones, if there are any. Arguments from the Concept of a Virtuous Physician________________________ In his excellent discussion, Arras distinguishes two “virtue ethic” accounts of the duty to treat, one conceptual and the other historical.24 Zuger and Miles typify the conceptual approach and trace their view to Scribonius, a first century Roman physician: “To be in a profession implied a commit­ ment to a certain end (professio), and thus an obli­ gation to perform certain functions or duties {officia) necessary to attain that end. In the case of medicine, the professio is healing, the officia is treatm ent of sick persons presenting for care. Professional virtues are the attributes of character needed to honor the commitment to healing.” Because physicians have voluntarily committed themselves to the end of healing, they are obliged to undertake the duty of caring for HIV-infected patients. Physicians who refuse to treat “are falling short of an excellence in practice implicit in their professional commit­ ment.”25 (I here ignore the general objection that failing to live up to an ideal of virtuous behavior may not itself be a basis for public sanction.) This conceptual approach errs because it assumes that the end to which physicians have committed themselves is the comprehensive one of healing, period. T hat is not an achievable end, since no one can treat everyone. An achievable goal would be to treat the patients one chooses to take on, or the patients assigned to one in an HMO—which is how the AMA Code, Principle VI, for example, con­ strues the commitment. Physicians have a right to choose whom to treat, provided no morally objec­ tionable or illegal discrimination is involved. From the Scribonian concept of a healer that Zuger and Miles describe, we cannot infer ju st whom healers must treat. F u rth e rm o r e , p ro p e rly u n d e rs to o d , th e conceptual approach, far from showing that we need not worry about consent to risks, really contends that physicians have already consented to all nosocomial risks because they have adopted the unrestricted end o f healing, and that end logically

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commits them to facing all nosocomial risks. But there is no such conceptual link here. It simply does not follow that if I have a goal of healing (some) people, then I have that goal regardless of the dangers that arise in carrying it out. From a rea­ sonably circumscribed goal of healing, nothing follows about the levels o f risk one is willing to take to achieve that goal. In discussing the m odified AMA view, we concluded that by consenting to become physicians, people accepted some standard level of risks and a duty to treat in the face of them. Physicians learn to distinguish standard risks from exceptional risks through medical education, clinical training, and observation of the role models who surround them in various institutions. Nothing about the risks or their consent to them is contained in the concept of a physician. Historical Accounts o f Virtue-based Duties For reasons similar to mine, Arras rejects the conceptual approach to deriving virtues. Instead, he suggests that we try abstracting from the historical record a pattern of virtuous physician to which physicians appear to have been committed. At least in the last century or two, with foreshadowings even before that, he concludes, professional organizations and society as a whole have expected physicians to face significant risks o f contagion or infection in epidem ics. V irtuous physicians would feel an obligation to treat even at risk to themselves.26 Several problems face the historical approach, most o f which Arras acknowledges. First, the historical record is spotty. As Fox notes, physicians in many epidemics have hardly been the paradigms of the virtues Arras extols, and Fox concludes, as I noted earlier, that voluntary arrangem ents (usually with some form of special compensation) have been traditional solutions to the problem o f excessive risk.27 Second, the fact that virtuous physicians behaved one particular way under conditions ex­ isting long ago tells us little about manifestations of virtue today. Many things about medical practice have changed: our understanding of disease, the product we deliver, the institutional framework through which it is delivered. Given those facts, the burden of proo f is on those who would claim that the virtues rem ain unchanged. Acknowledging that the virtues d ep en d on context and are not immutable, Arras suggests that ongoing negotiation between the profession and society is responsible for the em ergence of a historically d eterm ined model of the virtuous physician. This means that virtues are “fragile” (Arras’s term). We—society and the profession—

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renegotiate what virtues we want physicians to exhibit as conditions change. Therefore, obligations that derive from past virtues are binding now only if we still agree to those virtues. If contemporary physicians or their professional organizations insist that they have not consented to the risks past physicians accepted, renegotiation is already under way. By acknowledging the fragility of virtue, we admit the duty to treat ultimately rests on consent and is not, after all, transcendent. Despite being rooted historically, the ideal of a good physician changes with changing conditions in medicine and the health care system. With or without negotiation and with or without change, the historical version of virtue theory only sets the stage for consensual undertaking. It makes explicit the understanding of the virtues that people entering the profession incorporate through their education, training, and emulation of role models. But this is a consensual undertaking, and thus the picture of how the virtues of the good physician are articulated and become internalized is consistent with my central point: consent to risk acts as a constraint on any account of the foundations for a duty to treat. Dissecting the virtue-ethic account, we find consent at its core. We learn an im portant lesson from the virtue theorist’s motive in deemphasizing consent, however. It is not, after all, simply up to the individual entering a profession to tailor-make a contract that suits her wishes. The shape of the professional obligations to which an individual consents is determ ined over time through negotiation with society. T he nego­ tiation is complex because at the heart of it is a complex problem: wiiat departures from the re ­ quirements of common morality should society allow or require professionals to make? Exceptions are desirable from society’s point of view.28 For example, lawyers must keep the confidence of their clients and plead their defense even when they believe the clients are guilty. Such behavior might constitute obstruction of justice if others did it, but it leads to greater legitimacy of trial outcomes. Similarly, physicians must act as advocates of their patients and respect their confidences even when such behavior by others would not be morally ac­ ceptable. Allowing professionals to live by a special morality leads to better treatments. This complex structure of morally required and permissible professional behaviors is not up for renegotiation by each individual. O n entering the profession, the individual adopts the whole package, which has the wisdom (and biases) o f a tradition behind it. One cannot omit the duty to treat, for example, and accept the rest. I believe it is this fact th at m otivates the virtue th eo rist to attack

contractual models of professional duties. By focus­ ing on the risk-taking involved in the duty to treat, we are forcefully rem inded that we cannot drop consent out of the account. Some Points o f Convergence Several features of a m ore general view of phy­ sician obligations emerge from this discussion of alternative foundations for a duty to treat. These points of convergence give us some guidance in responding to the reluctance of physicians to treat HIV patients. First, virtue theorists like Arras, playing down the idea of an individual contract, rem ind us that individuals cannot custom tailor the obligations they u n d e rta k e on e n te r in g a p ro fe ssio n . Neverthless, if that package includes a duty to treat, individuals must consent to some standard level of risks th at lim its the duty. T hese po in ts are compatible. Second, justice constrains the negotiations between society and the profession and limits what physicians are perm itted and required to do. For example, the liberty to select patients, which the AMA insistently defends, must nevertheless be exercised in ways that are not discriminatory. Moreover, justice may require im posing some special obligations on physicians. If access to care cannot be assured without imposing restrictions on physician autonomy to choose their patients, then that autonomy may be restricted. For example, as a condition of licensure or eligibility for third-party reimbursements, physicians m ight be required to treat patients regardless of their type of insurance or despite some level of nosocomial risks. Consent is involved here too: physicians accept these constraints when they apply for their licenses or seek third-party payments, knowing that these con­ ditions obtain. The virtues a “good” physician ex­ hibits can thus be shaped by what society believes it has social obligations to guarantee. T hird, society may want virtues in its physicians that go beyond what justice requires. Society may want physicians to be advocates for their patients and to put their patient’s interests before their own in certain ways, believing that physicians guided by an ethic of agency will deliver better care and will better respect their patients. For example, we may want physicians to make “p u re” clinical judgm ents, untainted by calculation of the physician’s interests or views about the social worth of the patient. We may want physicians to put their p atient’s interests before their own by treating despite some level of nosocomial risks. So even if justice did not require our imposing a duty to treat despite nosocomial risks, we might have good social reasons for wanting

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physicians to undertake it. These obligations, like requirements of justice, are sensitive to facts about the design of health care systems and are thus not fully transcendent either. T hese three features com bine to yield the following picture of professional obligations: the socially negotiated ideal of the good physician is constrained by, but not limited to, what justice requires. It thus stands as a relatively fixed conception from the point of view o f any individual. The individual entering a profession must consent to adopt this conception, but cannot custom tailor consent, picking and choosing am ong obligations. Although becoming a doctor means accepting this set of obligations, the ideal is not immutable and is renegotiated as conditions in and outside medicine change. Such a model of professional obligations still leaves room for controversy of the kind that surrounds the duty to treat HIV patients. T here can be disagreem ent both about the level of standard risks covered by a duty to treat and about whether the nosocomial risks of HIV exceed that level. Where evidence is complex, reasonable people may d iffer. T h e g ro u n d is also fe rtile fo r unreasonable biases and fears to produce dogmatic stands. O n the other hand, this model suggests four types of response to the reluctance o f physicians to treat HIV patients: reaffirming a duty to treat, respecting the limits o f the duty, reacting to efforts to renegotiate professional obligations, and assuring equitable access to care. Reaffirming a Duty to Treat__________________ We have obligations to take certain risks only if we have consented to adopt those obligations and face those risks. Contem porary physicians, whether they entered the profession during Pax antibiótica or earlier, pre- or post-HIV, understood that treating patients carries some m oderate risks of nosocomial infection, such as hepatitis B. All physicians knew of the possibility of antibiotic-resistant strains of infection, and even of the possible emergence of new or previously undiagnosed diseases. They knew that standard practice involved physicians’ treating patients within their com petence despite this m oderate level of risk. In their training, these physicians observed cases in which risks exceeding the stan d ard level are p resen t. T h e special p ro tectio n s offered im m unocom prom ised or pregnant health care workers, for example, suggest that individuals are not obliged to take risks that exceed some m oderate standard. Given all these things they knew and accepted, I conclude that contem porary physicians accepted a duty not to refuse treatm ent for HIV patients, unless the

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cumulative risks of such treatm ent exceed the standard level of risk that limits the duty to treat. As we saw, extrapolative estimates (not observations) suggest that nosocomial risks of HIV infection exceed that standard level only for a small num ber of practitioners in certain high-incidence areas. Reaffirming this duty to treat involves several kinds of action. It involves education, both about the actual nosocomial risks of HIV transmission and about the reasons for claiming that physicians have accepted a duty to treat in the face o f some modest level of risks. Clear and honest discussion of the nosocomial risks is essential, because some physicians are heavily influenced by anecdotal evidence—often difficult to trace. Fear is sometimes com pounded by bias against those in high-risk groups, and by a belief that the government agencies responsible for m onitoring data on these risks are politically constrained to underestim ate the risks. The result is an educational process slow and u n ­ even in its effects: many physicians will feel the risks they actually face exceed their duty to treat. T he educational effort must also be clear about the reasons for asserting that physicians have this duty. It confuses the issue to claim that physicians today are bound by this duty because past physicians were, or to say that physicians have such a duty because “virtuous” physicians have always affirmed it. N or do claims that “the concept of a healer implies it” help. T he effort must rather be to show physicians that they already have adopted the duty, though it is a duty limited to some reasonable level of risks. Reaffirming the duty involves moral pressure from fellow professionals and from professional organizations, though this must be exerted with sensitivity. Moral pressure can influence people, but not if it appears to be self-righteous exhortation by those who actually face few or no risks. The duty to tre a t is sensitive to actual levels o f risk; exaggerated affirmations of a duty to treat regardless of risk, as in the AMA statement, tend to backfire. A difficult issue facing professional organizations is what recourse they offer those HIV patients who feel physicians have excluded them from their practices, or to physicians who feel certain colleagues are unjustifiably reluctant to treat. A nother difficult but equally pressing issue is raised by the importance of role models in medical education. House staff often complain that they bear the burden of treating HIV patients and that some physicians are notably difficult to track down when referrals for HIV patients are involved. (Remember Peter’s rem ark, “They can’t get out of it, but I can.”) If we tolerate a double standard, it will eventually provide a basis for new practitioners to say that they never really

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undertook such a duty because it was never really part of the package most physicians live by. Clear policy in teaching centers can help. Unfortunately, many teaching centers refrain from adopting ex­ plicit policies affirming a duty to treat, and some that do still do not enforce them in an even-handed way. Respecting the Limits of a Duty to Treat_______ The duty to treat despite some standard level of nosocomial risks is a limited duty. If risks exceed the standard level—however roughly understood— then we have a case “beyond the call of duty.” The difficulty we face is that we have only speculative, extrapolated estimates of the cumulative nosocomial risks facing the minority o f practitioners who practice in high-incidence areas and who perform procedures that involve significant exposures. The softness o f these estim ates leaves room for disagreement. The consent model calls for erring on the side of caution and giving ample opportunity for individuals to provide more specific forms of consent to these risks. For example, hospitals in high-incidence areas should have explicit policies affirming a duty to treat. Agreement to work under these conditions would amount to the special consent needed, but, as noted earlier, the policy must be im plem ented in an even-handed way for all personnel, notjust for those with the least power. It also means that society has an obligation to reduce the concentration of these risks on a small num ber of practitioners by increasing access to care. Respecting the limits to a duty to treat means that we must appeal to the special commitment and courage o f those who are willing to face higher risks or to act under conditions where considerable uncertainty obtains. For example, we sometimes do not really know what the risks o f certain procedures are, such as u n p ro te c te d m o u th -to -m o u th resuscitation of someone at high risk for HIV in emergency situations, especially where exposure to blood is involved as well. Nurses and other health care workers have often attem pted resuscitation in these situations, believing certain death for their patient outweighed uncertain risks to themselves. But the duty to treat cannot be presum ed to cover such situations.29Oddly, we do not treat such acts as acts of heroism, as we do in other rescue situations. Renegotiating Professional Obligations________ The persistent denials of a duty to treat by some physicians and professional organizations are most charitably viewed as an attem pt to renegotiate the duty to treat recognized by others. Society has c re a te d th e c o n d itio n s u n d e r w hich such

renegotiation does not seem extraordinary. By offering physicians direct economic incentives to deny treatm ent to (or to overtreat) their patients, for example, society underm ines physicians’ belief that they are acting as advocates for their patients. Similarly, professional organizations tolerate many conflicts that arise between physicians’ economic interests and the well-being of their patients, thus eroding the ethic of agency. In this climate, it makes perfect sense to many physicians to deny a duty to treat in the face of nosocomial risks. Virtue is “fragile,” as Arras noted. To preserve the duty to treat we must act to preserve a more encompassing patient-centered ethic, and we can do th a t only if we p reserv e—or establish— institutio n al a rran g em en ts .that sustain such commitments. It is possible to design a health care system that assures access to all and allocates health care resources without trying to convert physicians into gatekeepers motivated by their own economic interests. Unless we dem onstrate a comm itment to such goals, we will not be able to resist those who would renegotiate the duty to treat. Assure Access to Care________________________ Justice requires that adequate access to treatm ent be available for HIV patients. As many have noted, one way to reduce the concentration of nosocomial risks on those physicians and health care workers practicing in high-incidence areas is to improve access to care, eliminating insurance and other barriers to access. If it requires a universal, compulsory health insurance scheme to eliminate insurance barriers, then HIV simply points us toward a measure already indicated by other problems of access and coverage in the health care system. Insurance barriers are not the only barriers, however. We lack adequate facilities and personnel in inner-city and rural areas. Addressing these problems of access, which requires new program s and incentives, will do far m ore to improve access than exhorting physicians to be more willing to treat. Until society fulfils its obligation to treat, focusing primarily on the reluctance of physicians to treat is not only ineffective but hypocritical. If society demonstrates a commitment to treating HIV patients, it will be easier to address problems that arise from physicians’ reluctance to treat. Educational and m oral appeals will be m ore c re d ib le . O nce we e lim in a te fin an c ia l a n d geographical barriers to access, we can take stronger steps against physician reluctance if it persists, for example, by linking commitments to treat to working conditions in hospitals, h ea lth m ain ten an ce organizations, and other reim bursem ent schemes. If necessary, we could require physicians to accept

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such patients as a condition o f eligibility for reimbursement or licensing, and we could do so without violating any basic liberties of providers. But none of these steps may be necessary, and all would be easier to justify, if other measures to improve access are taken first. In short, we can best reaffirm that physicians have a duty to treat despite nosocomial risks if we show our societal commitment to assure access to care in all feasible ways. Acknowledgments Research for this paper was supported by the National Endow­ ment for the Humanities (RH20917) and the National Library of Medicine (IR01LM05005). I appreciate critical comments from John Arras, Dan Brock, Sherwood Gorbach, Michael Grodin, Klem Meyer, James Noble, Stephen Pauker, Constance Putnam, and Dan Wikler.

References 1. Ellen Goodman, “For Doctors, an AIDS Dilemma That’s Spreading with the Disease,” Boston Globe, 25 Februai^ 1988, p. 21. 2. National Commission on Acquired Immune Deficiency Syn­ drome, Report Number Three, “Personnel and Workforce,” Wash­ ington, D.C., 1990, pp. 1-13. 3. George J. Annas, “Legal Risks and Responsibilities of Physi­ cians in the AIDS Epidemic,” Hastings Center Report 18, Special Supplement (1988): 26-32. 4. American Medical Association, Council on Ethical and Judicial Affairs, “Ethical Issues Involved in the Growing AIDS Crisis,” De­ cember 1987, cited in Benjamin Freedman, “Health Professions, Codes, and the Right to Refuse to Treat HIV-Infectious Patients," Hastings Center Report 18, Special Supplement (1988): 20-25. 5. American Nurses’ Association Committee on Ethics, “State­ ments Regarding Risk v. Responsibility in Providing Nursing Care,” ( 1986), cited in Freedman, “Health Professions, Codes and the Right to Refuse to Treat.” 6. M. Charen, “My Brother, the Doctor, Is in Danger,” New York Doctor 2, no. 7 (1989): 17. 7. Norman Daniels, Just Health Care (New York: Cambridge University Press, 1985), chap. 7. 8. Daniels, Just Health Care, chap. 8. 9. W. V. Flegenheimer et al., “A Model for Facilitating Physician’s Acceptance of Risk When Treating Patients with AIDS," Abstract, 5th International Conference on AIDS (1989), p. 960. 10. Daniel M. Fox, “The Politics of Physicians’ Responsibility in Epidemics: A Note on History,” Hastings Center Report 18 Special Supplement (1988): 5-10. 11. James R. Allen, “Health Care Workers and the Risk of HIV Transmission,” Hastings Center Report 18, Special Supplement (1988): 2-5.

46

12. Centers for Disease Control, Morbidity and Mortality Weekly Report 38, S-6 (1989): 5-6; B. J. Fahey et al., “HIV-1 Infection after Occupational Exposure," Abstract, 5th International Conference on AIDS (1989), p. 725; R. Marcus and CDC Cooperative Needlestick Surveillance Group, “Surveillance of Health Care Workers Exposed to Blood from Patients Infected with Human Immunodeficiency Virus,” NEJM 319, no. 17 (1988): 1118-27; R. Marcus et al., “HIV-1 Infection after Single Blood Exposure,” Abstract, 5th International Conference on AIDS (1988), p. 63. 13. Allen, “Health Care Workers and the Risk o f HIV Transmis­ sion," p. 3. 14. D. Cowan et al., “HIV Prevalence in Military Reservists Employed in Health Care,” Abstract, 5th International Conference on AIDS (1988), p. 63. 15. M. D. Hagen, K. B. Meyer, and S. G. Pauker, “Routine Preoperative Screening for HIV: Does the Risk to the Surgeon Outweigh the Risk to the Patient?"/4Ai,4 259 (1988): 1357-59; J. R. Smith, and J. M. Grant, “Gloves Punctured in 107/200 Lower Segment Caesarian Sections,” Abstract, 5th International Confer­ ence on AIDS (1989), p. 167; G. P. Wormser et al., “Estimated Risk of HIV Infection among New York City Area Surgeons,” Abstract, 5th International Conference on AIDS (1989), p. 796; A. Panlilio et al., “Blood Exposures During Surgical Procedures,” Abstract, 5th International Conference on AIDS (1989), p. 148. 16. J. Perrone, “Have We Underestimated the Risk?” American Medical News, 15 December 1989, p. 25. 17. Ezekiel Emanuel, “Do Physicians Have an Obligation toTreat Patients with AIDS?” NEJM 318, no. 25 (1988): 1686-90. 18. Centers for Disease Control, Morbidity and Mortality Weekly Report 38, S-6 (1989): 5-6. 19. Annas, “Legal Risks and Responsibilities." 20. Centers for Disease Control, Morbidity and Mortality Weekly Report 38, S-6 (1989): 5-6. 21. Norman Daniels, Am I My Parents' Keeper? An Essay onJustice Between the Young and the Old (New York: Oxford University Press, 1988), chapters 2, 7. 22. Abigail Zuger, Stephen M. Miles, “Physicians, AIDS, and Occupational Risk,’7/!Ai/l 258, no. 14 (1987): 1924-28; John Arras, “The Fragile Web of Responsibility: AIDS and the Duty to Treat,” Hastings Center Report 18, Special Supplement (1988): 10-20; Emanuel, “Do Physicians Have an Obligation to Treat?” 23. Daniels, Just Health Care, chap. 6. 24. Arras, “The Fragile Web of Responsibility,” p. 13. 25. Zuger and Miles, “Physicians, AIDS, and Occupational Risk,” p. 1927. 26. Arras, “The Fragile Web o f Responsibility,” p. 14. 27. Fox, “The Politics of Physicians’ Responsibility,” p. 7. 28. Benjamin Freedman, “A Meta-Ethics for Professional Moral­ ity,” Ethics 89, no. 1 (1978): 1-19. 29. Ruth Macklin, “HIV Infection and Mouth-to-Mouth Resusci­ tation," unpublished ms., 1990.

[3] DORAN SMOLKIN

HIV INFECTION, RISK TAKING, AND THE DUTY TO TREAT* ABSTRACT. The paper advances a consequence-based argument in support of the American Medical Association's policy that a physician may not ethically refuse to treat a person with HIV solely because the patient is seropositive. A limited number of alternative arguments, both in support of and in opposition to this policy are also considered, but are found wanting. The paper then concludes with a discussion of some of the other obstacles to quality health care that persons with HIV must often confront. Key Words: consequentialism, mandatory policy, managed care, volunteerism.

I. INTRODUCTION AIDS patients are entitled to competent medical service with compassion and respect for human dignity... Those persons who are afflicted with the disease or who are seropositive have the right to be free from discrimination. A physician may not ethically refuse to treat a patient whose condition is within the physi­ cian's realm of competence solely because the patient is seropositive (The American Medical Association's Council on Ethical and Judicial Affairs, 1988, p. 1360).

The AMA's statement concerning the ethical responsibility of physicians is echoed by the legal requirement set forth in the Americans With Disabilities Act of 1991. The ADA also forbids physicians to refuse to treat a person solely on the ground that he or she is HIV positive (Gostin, 1992, p. 365; Hermann, 1991, p. 290).1 Yet, despite the existence of these ethical and legal pro­ nouncements, disagreement over whether physicians have a duty to treat persons with HIV persists.2 A considerable percentage of physicians, medical students, and pre-medical students have con­ sistently stated that they believe physicians are not ethically required to take such risks, and that they would avoid doing so if Doran Smolkin, Ph.D., Assistant Professor, Department of Philosophy, Kansas State University, Kansas, U.S.A. The Journal of Medicine and Philosophy 22: 55-74, 1997. © 1997 Kluwer Academic Publishers. Printed in the Netherlands.

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they were given a choice. Thus the 1990 National Commission on AIDS reports that "a shocking number of physicians are reluctant to take care of people living with HIV infection and AIDS. . . " and a 1992 survey of resident physicians finds that 23% of U.S. resi­ dents "indicated that they would not care for persons with AIDS if they had a choice" (ACLU's AIDS Project, 1990, pp. 78-80; Shapiro, et al , 1992, pp. 510-515; Daniels, 1991, p. 36). One of the main reasons why many physicians are unwilling to treat persons with HIV is because they fear becoming infected with the disease.3 And this concern leads to the argument that the ADA's and AMA's policies are unjustified because they require physicians to take risks which they should not be required to assume.4 In order to evaluate this argument we need to consider two things: first, what is the level of risk physicians face when treating persons with HIV; and second, what arguments can be given that this level of risk is or is not one that physicians must bear. After discussing the risks of occupational HIV infection, I shall argue that an analy­ sis of the expected costs of both a voluntary policy and the AMA/ADA's mandatory policy reveals that there are strong reasons for favoring the mandatory policy. I then conclude with a discussion of other obstacles to quality health care that persons with HIV must often confront; specifically, I discuss some of the problems that arise from the various ways in which health care is delivered in the United States.

II. THE RISK OF OCCUPATIONAL HIV INFECTION

In the health-care setting, workers can be infected with HIV by being stuck with needles containing HIV infected blood, or by infected blood entering the worker's bloodstream through an open cut or by splashes into a mucous membrane (e.g., eyes or inside of the nose). HIV cannot be transmitted through "casual contact" like handshakes, coughs, sneezes, etc. (Center For Disease Control and Prevention, 1994, pp. 1-3). Accordingly, the risk of occupational HIV infection varies depending on the nature of the interaction between physician and patient (Zuger, 1991, pp. 229-232, and Stine, 1995, pp. 208-11). Physicians performing non-invasive procedures on their patients will have zero risk of occupational HIV infection. On the other hand, physicians who are exposed to the blood of infected patients will be at a risk that is

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greater than zero. Just how great this risk is depends on a number of factors: such as the prevalence of HIV infection; the frequency of exposures to HIV infected blood; and the efficiency of transmis­ sion from each exposure. The prevalence of HIV varies. In some areas, the percentage of HIV patients remains very rare, while in other places, a sizable minority of all emergency room or hospital­ ized patients may be infected with HIV (Zuger, 1991, p. 230). Since occupational HIV infection usually occurs either as a result of an inadvertent stick by a contaminated needle or other sharp object, or, more rarely, by a mucous membrane exposure to contaminated blood or secretions of bodily fluids, the probability of exposure to blood can be reduced by implementing protective measures. Gloves, gowns, goggles, masks, and careful use and disposal of needles will help prevent workers from exposure to the virus. However, such protective measures are not fail-proof. Gloves tear, for example, and needles are sometimes hastily placed (and mis­ placed). Thus even with these guidelines, exposure to blood remains common, with at least one study estimating one million needlesticks occurring in the United States each year (Stine, 1995, p. 210). Fortunately, the risk of transmission of the virus from a needlestick or mucous membrane exposure to HIV infected blood is quite low, at least when compared to such blood bom diseases as hepatitis B. While the risk of hepatitis B infection from a needle­ stick (of contaminated blood) is estimated to be between approxi­ mately 1 in 17 (6%) and 1 in 3 (30%), the risk of seroconverison from a needlestick with HIV infected blood is estimated to be between 1 in 330 (0.3%) and 1 in 250 (0.4%), and the probability of seroconverting from a mucous membrane exposure to infected blood is much less than that.5 Yet, despite the low probability of seroconversion if one is exposed to HIV infected blood, occupa­ tional HIV infection has happened and there is little doubt that it will continue to occur. As of the end of 1994, the Centers for Disease Control and Prevention (CDC) has received documented reports of 40 health care workers in the United States (and 59 cases worldwide) with occupationally infected HIV, and another 84 reports of possible cases of occupational HIV infection (Stine, 1995, pp. 209-210). Although these instances of infection are tragic and are proof that (some) physicians are at a real risk of occupa­ tional HIV infection, it is perhaps worth noting that annually in the United States there are some 12,000 transmissions of hepatitis B to health care workers (Stine, 1995, p. 115).

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Given that the risks of nosocomial HIV infection are real, one can understand the fear that some physicians have of performing inva­ sive procedures on these patients. And it is important to note that those who express this fear are not limited to physicians who have deliberately avoided contact with patients with HIV: concerns have also been voiced by those who have dedicated themselves to the care of the HIV infected. Gerald Friedland, for example, a physician dedicated to the care of AIDS patients states, "After seven years of working with AIDS patients, knowing well the sta­ tistical risks, I must admit that I remain frightened. When I notice a blemish on my skin, I can't help wondering if it could be Karposi's sarcoma. I still interpret minor illnesses as the beginning of the 'expected' HIV infection although rationally I know better" (Levine, 1991, p. 199). The question that needs to be asked is whether the policies of the AMA and ADA are justified, given that it requires physicians to risk their lives in the treatment of their patients.

III. HIV, HEPATITIS B, AND THE DUTY TO TREAT

Given that physicians have generally treated persons with hepati­ tis B infection, and given that hepatitis B is much more communi­ cable than HIV, one might think that one could infer a duty to treat persons with HIV from the fact that physicians have consis­ tently treated those with hepatitis B. Such is Norman Daniels' strategy in his paper, 'Duty to treat or right to refuse.' Daniels begins his argument with the assumption that "The general mech­ anism for distributing the benefits and burdens of risk-taking is, and should be, consent. Consequently, if physicians have a duty or obligation to take certain risks, it must be the result of their agree­ ing to do so" (Daniels, 1991, p. 38). He then argues that physicians have a duty to treat HIV-infected patients because, in agreeing to enter into and to train for the medical profession, they agreed to a certain standard level of risk, a risk which is not exceeded by the risks of being infected by treating an HIV-infected patient (Daniels, 1988, p. 38). In order to defend this view, Daniels needs to establish two claims: first he must say something about the level of risk which doctors agreed to face when entering into the field of medicine, and secondly, he must provide empirical support that the risk of infection from treating patients with HIV does not exceed this level of risk.

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Daniels attempts to accomplish both of these tasks by compar­ ing the risks for nosocomial HIV infection with the risks involved in treating patients with hepatitis B. Daniels points out that hepatitis B is more highly communicable (by a factor of around 40), more prevalent (by a factor of around 10), but that it is less likely to kill than HIV. He then notes that physicians have been willing to treat hepatitis B. Thus he concludes that despite some differences between the risks of treating patients with HIV and those with hepatitis B, "there is in general good reason to treat consent to the risk of hepatitis B as tantamount to consent to the risks of HIV" (Daniels, 1988, p. 40, also see Stine, 1995, pp. 115-116). Daniels' argument from consent is unpersuasive, however. First of all, one could deny that physicians have a duty to treat patients with hepatitis B. Though it may be true that physicians have gen­ erally treated those with hepatitis B, this does not prove that they had a duty to do so. For one could claim that their willingness to take the risks involved in treating such patients was supereroga­ tory and not obligatory. At the very least then, a proponent of this consent-based argument needs an additional argument which explains why physicians have a duty to treat patients infected with hepatitis B. Daniels gives us no such argument, however, and there is no reason to think an argument that there is a duty to treat patients infected with hepatitis B would be any easier to establish than an argument that there is a duty to treat those who are infected with HTV. Secondly, as Daniels himself notes, but does not seem to appre­ ciate fully, the comparison between a willingness to risk hepatitis B infection and a willingness to risk HIV infection is itself prob­ lematic given the differences of the risks involved (Daniels, 1988, p. 40). Though the probability of occupational hepatitis B infection is much greater than the chance of HIV infection, the probability of death from hepatitis B is significantly less than the probability of death from HIV (Daniels, 1988, p. 40). Further, there may well be less stigma attached to being infected with hepatitis B than HIV. And given these three differences between HIV and hepatitis B infection, one could reasonably maintain that the dangers involved in treating HIV are, with respect to the gravity of out­ comes, greater than the risks involved in treating hepatitis B, and so it follows that even if one grants that physicians have a duty to treat hepatitis B infected patients, one could reasonably deny the

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inference that physicians have a duty to treat HIV infected persons. Finally, what seems to me to be especially problematic about a consent-based argument is that it seems very difficult to believe given the substantial amount of controversy among physicians over whether or not they have a duty to treat.6 That is, one would think that if Daniels is right that physicians have consented to a certain level of risk which is not exceeded by the treatment of HIV-infected patients, then this would be understood by physi­ cians and a duty to treat would be universally (or almost univer­ sally) recognized. But, of course, whether there is such a duty to treat has been and continues to be a matter of heated debate among physicians, and so the claim that they have consented to treat such patients becomes difficult to believe. Put another way, if physicians really have consented to take such risks, then given the fact of controversy among medical practitioners, it appears that it was not an informed consent to take such risks. Consequently, it becomes difficult to see why one should regard the kind of consent that was given as morally binding on physicians and grounds for a duty to treat. And it is important to see that this point is devastating to a view like Daniels' that is premised on the belief that exposing others to risk requires consent. For the fact of disagreement among physicians over whether there exists an ethical duty to treat persons with HIV is fairly conclusive evidence that at least some of these physicians did not (knowingly) consent to take such risks. Nor would it be plausible to maintain that these physicians should have known that they were consenting to such risks when they joined the medical profession, for we must remember that until very recently several medical associations, including the AMA, maintained that physicians had the freedom to refuse to treat patients with HIV.7 Thus Daniels' argument fails by its own standards: he claims that placing a person at risk requires his or her consent, yet he fails to demonstrate that (all) physicians have given this consent. An argument for a duty to treat persons with HIV based on a comparison with the risks of treating persons infected with hepati­ tis B appears, therefore, to be unpromising. The risks associated with HIV infection may reasonably be viewed as greater than the risks associated with hepatitis B infection, one could reasonably deny that physicians have a duty to treat persons with hepatitis B, and finally, there is little evidence that (all) physicians (knowingly)

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consented to take the risks involved in treating persons with HIV (or hepatitis B).

IV. A CONSEQUENTIALIST APPROACH

Given the many difficulties with a consent-based argument for a duty to treat, I think one would do well to attempt to ground this duty in another way. In this section, I shall advance a different and I believe more promising argument in support of the AMA and ADA policy that physicians have a duty to treat persons with HIV. I believe such a duty can be supported by comparing the expected consequences of there being a social policy which upholds a duty to treat (a mandatory policy like the AMA's and ADA's) with the expected consequences of a policy that allows doctors the freedom to choose whether or not to treat HIV-infected patients (a policy of volunteerism). A convincing argument for a mandatory policy can be made if it turns out that the costs of volunteerism can be expected to be, on balance, much more objectionable than the costs of a mandatory policy.8 In developing this argument it should be noted, however, that I shall be comparing only two possibilities, a mandatory and a vol­ untary policy. I shall not consider more complicated proposals, which, for example, require some physicians to treat persons with HIV but allow others the freedom to refuse.9 Further, in consider­ ing the merits of these two policies, I assume, unless otherwise noted, that various background factors will remain relatively con­ stant or at least not change in unexpected ways. Thus, for example, I do not consider whether a mandatory policy would still be appropriate were there suddenly a super-abundance of physicians who, for the most part, were willing to treat persons with HIV. Finally, in comparing these two policies, I consider only their expected costs and not their expected benefits as well. I do this because to examine the benefits of these policies as well as the costs would be redundant, for any benefit of one policy can simply be understood as a cost of the other. For instance, if a benefit of volunteerism is that it respects the autonomy of physi­ cians, then we can recognize this by noting that a cost of the mandatory policy is that it fails to respect physicians' autonomy. Similarly, if a benefit of the mandatory policy is that patients will not need to worry about disclosing information that could result

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in the loss of access to medical care, then this can be captured by pointing out that a cost of volunteerism is that patients may well be so worried. Accordingly, I shall focus only on the expected costs of both of these policies, and I shall argue that a comparison of these costs reveals that there is strong reason to prefer a manda­ tory to a voluntary policy. A. A Policy of Volunteerism. The costs of a policy of volunteerism

can be roughly divided into four categories: costs to physicians; costs to the physician-patient relationship; costs to those without HIV; and most importantly, costs to persons with HIV. Below, I shall spend some time discussing these costs. However, before I do so, I want to raise a caveat: the sorts of costs involved here are profound and far-reaching though often difficult to perceive and appreciate fully; accordingly, it is very likely that I will fail to iden­ tify all of these costs and that I will not fully appreciate the costs that I do identify. The following then should be viewed as a nonexhaustive description of the costs of allowing physicians the freedom to choose whether or not to treat HIV-infected patients; nevertheless, I believe that this description will be sufficient to prove that there are strong reasons that speak against a policy of volunteerism and in favor of a recognized duty to treat such patients. 1. Costs to Physicians. If physicians are allowed to refuse to treat HIV-infected patients, it will mean that those physicians who are willing to treat HIV-infected patients will be exposed to greater risk of infection, simply because they will be seeing more infected patients. Now how much greater this risk will be will depend largely on the number of HIV-infected patients in need of treat­ ment and on the number of physicians willing to treat them. Although it is unclear how many physicians would be willing to treat if volunteerism were permitted, judging by the attitudes of many medical students and of various medical associations, it is reasonable to assume that the numbers of physicians refusing to treat would be substantial.10 And it is a virtual certainty that the numbers of physicians willing to treat will vary dramatically from region to region, with some areas suffering from severe shortages of willing physicians (Stine, 1995, p. 306). To make matters worse, it is also the case that the number of HIV-infected persons in the United States alone is already estimated at one million, and it is

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expected by many that this number will continue to rise, particu­ larly among those groups of society who already have limited access to care (Stine, 1995, pp. 189, 211-221; Centers for Disease Control and Prevention , 1993, pp. 1-3).11 Accordingly, to allow physicians the freedom to refuse to treat would be to place those physicians who are willing to treat in the situation of being over­ worked due to an unmanageable number of patients who need treatment, and at a heightened risk of becoming infected due to heightened exposure to the virus (Arras, 1988, p. 12). 2. Costs to the Physician-Patient Relationship. A policy of volun­ teerism would also damage the physician-patient relationship, and so would be bad for medical practitioners and patients gener­ ally. More precisely, the fact that physicians may be unwilling to treat those infected with HIV threatens to damage the trust that underlies the physician-patient relationship. It is generally agreed that in order for the relationship between physician and patient to function at its best, the physician must be able to trust that her patient is being open with her about her medical condition and about any behavior she has engaged in that may be relevant to her health. However, in order for a patient to have the confidence to confide in her physician, she must believe and trust that her physi­ cian will be committed to acting in her best interest. But if volun­ teerism is practiced, and if confiding may mean the possible loss of access to medical care, then a patient may lack the confidence necessary to trust the physician and so may be unwilling to dis­ close certain symptoms she may be experiencing or to discuss certain risky behavior that she has engaged in. Similarly, physi­ cians may come to distrust their patients, suspecting them of not disclosing all relevant information. Consequently, it is reasonable to believe that the physician-patient relationship will be seriously compromised if volunteerism were practiced. 3. Harms to People not Infected with HIV. A policy of volunteerism can be expected to have adverse affects on those without HIV. First, the non-HIV-infected patient may suffer both physically and emotionally from the weakening of trust between physician and patient that would result were volunteerism practiced. Such patients may suffer needless physical harm due to their failure to disclose some treatable problem to their physicians out of fear that it could lead to the loss of access to medical care. And patients

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may suffer emotionally due to the worry and strain involved in being sick and not feeling free to disclose their symptoms to their doctor and of being unable to learn the true nature of their ailment. Also, they may suffer emotionally from the fear of losing access to their doctor of choice should they turn out to be HIV-positive. Perhaps an even more worrisome consequence of volunteerism is that it sends the wrong signal to people in non-medical profes­ sions who are themselves wondering how to respond to people who are HIV-positive. Volunteerism in the medical profession signals that persons infected with HIV are dangerous and that because of this they may justifiably be discriminated against. The result of this is likely to be the validation and encouragement of irrational fears among those who are non-HIV-infected and of dis­ criminatory practices against those with HIV throughout society (Blendon and Donelan, 1989, pp. 20-28, Epidemic of Fear, 1990, pp. 78-80, and Stine, 1995, pp. 286-300). In non-medical profes­ sions, in schools, in housing, and in countless other areas of social life, the irrational fear that those who are HIV-positive are danger­ ous and can be justifiably discriminated against will be sanctioned by a medical profession - a profession that is supposed to be "in the know" concerning how to control infection - that treats people with HIV in these ways. Thus by increasing unnecessarily the general level of fear and distrust of others, a policy of volun­ teerism within the medical profession threatens to compromise relations between people throughout society. 4. Harms to People with HIV. Although the costs of volunteerism on

people practicing in the medical profession and on those who are not infected with HIV are real and substantial, there is no doubt that the most objectionable costs of volunteerism would fall on those who have HIV. The costs to HIV-infected patients, if volun­ teerism is practiced, would again be in the form of physical and psychological harm: harms that we can begin to understand in relation to the costs, already identified, that this policy would have on the medical profession and on society as a whole. First, recall that an upshot of volunteerism is a likely shortage of physicians who are willing to treat HIV-infected patients. Not only does this policy tax the energies of physicians who are willing to treat HIV-infected patients, but it also has profound effects on the health care of these patients. Patients who otherwise could have obtained relief from an ailment will now have to wait, causing

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them to suffer more. In regions where there may be no doctors willing to treat, or where there are no available physicians because those who are willing to treat are too busy to care for everyone, some patients will simply not receive the attention they need (Arras, 1988, p. 12). Further, a shortage of willing physicians also threatens needy patients' psychological well-being. From the point of view of the HIV-infected patient who is trying to get in to see a physician and who is unable to do so, or who finds out that she has to wait long periods of time to be seen, while other non-HIVinfected patients can see a doctor almost immediately, the painful feelings of being "a second class citizen," of being "marginalized," of being "an undesirable," must be profoundly wounding.12 Several harmful consequences to patients also follow from the knowledge that one's physician is unwilling to treat HIV-infected patients. First, as has already been suggested, patients who suspect that they may have been infected with HIV may be unwilling to be tested by their doctor, or if they know that have been infected, they may be unwilling to tell their doctor for fear that they will lose access to quality care. By delaying disclosure, they may fail to get treatment that could be beneficial for them, and they will have to endure great anxiety due to the fact that they cannot learn what their true condition is or whether or not there is anything that could be done to improve their health. Finally, if I am right that if volunteerism is practiced a signal will be sent that HIV-infected patients are dangerous and can justifiably be treated differently than non-HIV-infected people, they will not only feel the stigma of being an "undesirable" in a medical setting, but also the risk is increased that they will be harmed (physically and emotionally) in a variety of non-medical, social interactions. Thus the very people who are forced to live with a deadly disease and who are so vulnerable and in need of support will be the ones who will quite likely have to suffer from added irrational and unnecessary discrimination encouraged by physicians' signal that such people are dangerous and may be shunned. These then are some of the expected costs of volunteerism. As stated previously, I have no doubt that there are other, insidious, costs which I have overlooked, but even confining ourselves to the harms discussed above, it is clear that the expected costs of volun­ teerism are many and great. Taken together, they constitute a pow­ erful set of reasons in favor of there being a duty to treat.13

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B. Costs of a M andatory Policy. What are the costs, by contrast, of a

mandatory policy? The costs of a mandatory policy can be divided into two general categories: costs to physicians and costs to patients. 1. Costs to Physicians: Autonomy. Perhaps the strongest reason advanced against a mandatory policy is that it violates the auton­ omy of physicians. I take the basic idea behind this argument to be that (1) the autonomy of physicians is violated by compelling them to take risks and treat patients with HIV whom they do not want to care for, and that (2) this consideration outweighs the kind of consequentialist considerations in favor of a duty to treat. There are two ways of responding to this objection. The strongest response would be to deny the claim that physician autonomy is violated by compelling them to treat HIV-infected patients. It is here that a view like Daniels' consent-based argu­ ment would do nicely. The idea would be that requiring physi­ cians to take the risks of treating HIV-infected patients does not violate the autonomy of physicians because, by entering the medical profession, they consented to take such risks. But we have seen that Daniels' argument is unsound, and so it cannot be appealed to here. What I think can and should be said against this objection to a mandatory policy is that its second claim does not follow from its first. It can be granted that requiring physicians to take the risks of treating HIV-infected patients does violate their autonomy and is a reason in favor of volunteerism, but it can be shown that this reason in favor of volunteerism is not nearly strong enough to out­ weigh the reasons against it. Requiring physicians to treat when they would rather not may be very upsetting to some physicians and it may increase their risk of infection somewhat. But we have seen that the actual risks of infection will remain very low, espe­ cially if appropriate barrier precautions are practiced. And if the emotional stress of the requirement to treat is too great, it is important to remember that physicians are free to switch profes­ sions or to retrain and practice in an area of medicine which has little if any invasive contact with patients. And the fact that physi­ cians can change their professions and thereby wholly avoid the emotional and physical risks of treating patients with HIV brings out a very important difference between the suffering of HIVinfected patients should volunteerism be permitted and the suffer-

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ing of physicians should volunteerism be prohibited: people with HIV are, on the whole, far more vulnerable than physicians. Though physicians, when really pressed, can always cease being physicians, people with HIV are powerless with respect to their disease: they cannot cease being HIV-infected and thereby avoid the trauma of being HIV-positive when they find themselves mar­ ginalized and shunned or in otherwise intolerable situations. And when given a choice between adopting a policy which has unavoidable and severe costs and a policy which has avoidable and less severe costs, then clearly morality must give the nod to protecting the latter over the former. 2. Harms to Patients. Other reasons typically advanced in favor of volunteerism are (1) requiring physicians to treat those who are infected with HIV will result in poor medical care, since those physicians who feel forced to treat will not do it well, and (2) if there is a requirement to take such risks, there will be a shortage of physicians because too few people would chose medicine as a career and many of those who are now practicing will cease prac­ ticing. If true, the second reason would constitute a powerful argu­ ment in favor of volunteerism. However, given the relatively small risks of infection, and the large number of capable students seeking admittance to medical school, such a claim is difficult to believe. Rather, what is more likely is that by rejecting volun­ teerism and espousing a duty to treat, more people who are com­ mitted to treating HIV-infected patients will enter the profession, while those who would not be inclined to treat would choose other professions. So while different people may become physi­ cians than would have become physicians if volunteerism were practiced, there is little reason to think that there would be a short­ age of physicians. This leads us to the claim that requiring physicians to treat those who are infected with HIV will result in poor medical care, since those physicians who feel forced to treat will not do it well. Again this claim seems doubtful. First, my suspicion is that physicians are, in the main, more professional than this argument gives them credit for being, so that if it was clearly and unequivocally articu­ lated by medical associations and licensing boards that treating the HIV-infected, when competent to do so, is part of what is required of physicians, then it seems likely that the vast majority

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of physicians would do so, and do so well. Further, if my earlier point is correct, over time only those people willing to care for the HIV-infected will enter medical school in the first place, and so there is every reason to think that they will be committed to pro­ viding first-rate care for their HIV-infected patients. It seems then that the arguments in favor of volunteerism and against the duty to treat are somewhat of a mixed bag. Of the arguments typically advanced in favor of volunteerism, I believe only the autonomy argument survives critical reflection. But though it survives as a reason which speaks in favor of volun­ teerism, I believe that it is overridden by more compelling reasons which speak in favor of a duty to treat. There may of course be other arguments for volunteerism but I know of none that look promising, and on the basis of the arguments considered, we can conclude that, all things considered, the balance of reasons over­ whelmingly favors a duty to treat.

V. CONCLUSION: FURTHER OBSTACLES TO QUALITY HEALTH CARE

However, as Troyen A. Brennan argues, emphasis on the physi­ cians' (or even, more generally, the health care workers') ethical responsibility to treat persons with HIV "may go only part way in guaranteeing access to health care for patients who are HIV seropositive" (Brennan, 1989, p. 56). Brennan argues, correctly I think, that legal sanctions (e.g., anti-discrimination laws) and financial incentives (e.g., workers' compensation, and private dis­ ability and life insurance for occupationally infected health care workers) also have a role to play in helping to remove barriers to access to care. But access to quality health care - not just for patients with HIV - but for all people living in America, will also require changes in how health care is delivered in the United States. The need for universal health care coverage as a crucial aspect in obtaining access to quality care is emphasized in the Report of the National Commission on A ID S : The Commission urges the President and Congress to address the health care problems of all people living in the United States by supporting universal health care coverage. This coverage should be comprehensive and include prescription drugs. No person living in the United States should be denied health care because of an inability to pay, nor should people be forced into poverty or left

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without dignity because they are unfortunate enough to have a major health problem. Our nation must do what virtually every other industrialized nation has done-adopt a universal health plan that ensures access to health care for all its citizens. Unless action is taken, the ranks of the uninsured and underinsured will con­ tinue to grow, opportunities for HIV education, prevention, counseling, and early intervention will continue to be missed, and individuals whose HIV disease requires acute care will turn increasingly to the already overburdened public hos­ pital system (America Living with AIDS, 1991, pp. 67-68).

Despite the need for universal coverage, there is at present little movement toward its adoption in the United States. Instead, the health care delivery system in the United States has been charac­ terized by the expansion of managed care. The trend toward managed care and away from the traditional fee for service medi­ cine is due largely to an effort to control health care costs. Insofar as managed care plans have helped to control costs without sacrificing the quality of patient care, they are to be commended. Indeed, by emphasizing preventive care, education, and team medicine - with the expanded use of nurse practitioners, physi­ cian assistants, and midwives - managed care organizations may be able to control the costs of health care while actually improving patient care (Emanuel and Neveloff Dubler, 1995, pp. 326-327). Yet, other cost-saving practices engaged in by some managed care organizations pose a threat to the quality of health care, and so are cause for concern. Among the issues of particular concern to those with HIV are policies that are designed either to exclude those with pre-existing conditions from obtaining coverage in the first place or to drop enrollees who develop chronic conditions that prevent them from continuing to work, policies that refuse to pay for treatments that are experimental, and financial incentives made available to primary care physicians to limit care. Though the likely financial benefits of these measures are clear, the likely harms to patient care and to the patient-physician relationship are also considerable. I shall conclude this essay with a brief discus­ sion of these more questionable policies. "To hold down costs, many insurance companies and managed care organizations may try to select [only] enrollees who are likely to use fewer and cheaper services ("cherry pick") through selec­ tive marketing, increased use of exclusions, modifications of benefits offered, and other techniques" such as attempting to ter­ minate the coverage of those who are chronically ill and who are

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no longer able to work (Emanuel and Neveloff Dubler, 1995, p. 327). Such policies may result in those with HIV, or those in groups considered to be at risk for HIV, being denied private insurance protection in the first place or losing their coverage when they need it most. Unable to attain private insurance, they will be forced into the already overburdened public sector, where "they do not have any meaningful choice of health care setting or of a primary care physician," and where even with the best efforts of health care workers, "it appears that uninsured patients do have worse health outcomes" (Emanuel and Neveloff Dubler, 1995, p. 325). These policies, then, are plainly harmful. Moreover, they harm those who are precisely the most in need of the good being denied. There is, then, strong prima facie reason to oppose such policies. The refusal of some managed care programs to cover experi­ mental procedures is particularly problematic for patients with HIV and AIDS insofar as these treatments may be the only proce­ dures that may be of benefit to them. Such restrictive policies, then, are especially harmful to them and to sufferers of other ill­ nesses where the established treatments are few if any.14 The unwillingness to cover such procedures places such patients in a kind of catch-22: without the coverage patients may not be able to participate in the testing of the experimental procedure; but without the participants to test the procedure's effectiveness, it cannot be proven effective, and so it will remain uncovered by the plan and so inaccessible to those patients. Rather than a blanket refusal to pay for experimental procedures, it seems that managed care organizations should be prepared to cover the costs of experi­ mental treatments when there is reason to believe that they may materially benefit the patient, and when no established proce­ dures are as promising. And in circumstances where the plan does not cover some treatment that may reasonably be thought to be in the best interest of the patient, physicians should do what they can to see that the most promising treatments are made available to their patients. As the American Medical Association's Council on Ethical and Judicial Affairs makes clear: Cases may arise in which a health plan has an allocation guideline that is gener­ ally fair but in particular circumstances results in unfair denials of care, i.e., denial of care that would materially benefit the patient. In such cases, the physi­ cian's duty as patient advocate requires that the physician challenge the denial

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and argue for the provision of treatment in the specific case. Cases may also arise in which a health plan has an allocation guideline that is generally unfair in its operation. In such cases, the physician's duty as patient advocate requires not only a challenge to any denials of treatment from the guideline but also advocacy at the health plan's policymaking level to seek an elimination or modification of the guideline (Council on Ethical and Judicial Affairs, 1995, p. 333).

And regardless of whether some procedure is covered by the managed care organization or not, it should be clear that the physician's responsibility, at least as a matter of securing a patient's informed consent, is to "disclose all available treatment alternatives, regardless of cost, including those potentially beneficial treatments that are not offered under the terms of the plan" (Council on Ethical and Judicial Affairs, 1995, p. 332). Finally, incentives to limit pay need to be viewed with much caution: for a program that provides financial incentives to limit care threatens to place physicians' financial interests in conflict with their patients' interests in receiving the best medical treat­ ment available. This, in turn, could lead to patients receiving poor health care, and to a lessening of trust between patient and physi­ cian. One may be left wondering (with good reason) whether one's physician is really doing everything she or he can to treat the patient, or whether, certain measures are not being done because, though promising, they would cut into the physician's pay. The attempt to limit costs by rewarding physicians for doing the least possible for his or her patient seems seriously wrong­ headed and dangerous to the patient, the integrity of the physician-patient relationship, and threatens to erode the respect for the profession as a whole. Rather than rewarding physicians for limit­ ing the quantity of care, it would be better to reward physicians for practicing quality medicine (Council on Ethical and Judicial Affairs, 1995, p. 333). To this end, standards need to be arrived at for what constitutes appropriate treatment in a particular circum­ stance, and physicians need to be measured against these stan­ dards.15 The concern should be to reward physicians for quality care, and to penalize them for care that is either excessive or inad­ equate. In the earlier sections of this essay, I argued on the basis of consequentialist considerations that physicians should be subject to a policy that forbids them to refuse to treat a patient solely because he or she is infected with HIV. But as the issues discussed in this

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final section of the paper make clear, providing quality care for persons with HIV will require more than the willingness of physi­ cians (or, more generally, health care workers) to treat such patients, it will also require that health care be delivered by a system whose foremost objective is the provision of quality care to all.

NOTES * In writing this paper I have received very helpful comments from Shelly Kagan, David Schmidtz, Kai Draper, John Exdell and an anonymous referee from this journal. I am grateful for their assistance. 1 The ADA protects a wide variety of disabled persons from discrimination in the workplace, in dealings with governmental bodies, and in access to medical care. The ADA explicitly recognizes HIV infection and AIDS as disabilities (Gostin, 1992, p. 365; Hermann, 1991, p. 290). 2 Of course the question of whether there is a duty to treat persons with HIV applies not just to physicians, but to all health care professionals. For the sake of simplicity, however, I will focus only on whether physicians have a duty to treat persons with HIV. Whether the arguments defended in this paper can be extended to other health care professionals, and if so, to which ones, is left for the reader to consider. 3 Other reasons given by physicians who are unwilling to treat persons with HIV are discussed by Blendon and Donelan (1989, pp. 19-30) and Schwarz (1989, pp. 31-41). 4 Until quite recently, a variety of medical societies reflected this belief. For instance, from 1957 to 1988, Section VI of the AMA's Code of Ethics read as follows: "A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve..." (Zuger, 1991, p. 222; Daniels, 1988, pp. 36-37). 5 A study of 545 health care workers receiving 928 mucous membrane exposures resulted in only one seroconversion (Stine, 1995, p. 115, p. 210). 6 Studies have consistently found that approximately 75% of physicians believe that there is an ethical duty to treat, but that some 25% of physicians do not. In my opinion, that represents a substantial disagreement among physicians over whether there is such a duty to treat (Schwarz, 1989, pp. 36-37). 7 Recall that prior to 1988, the AMA's Principles of Medical Ethics included the following clause: "A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical services" (Zuger, 1991, p. 222). 8 A consequentialist argument for a duty to treat HIV-infected patients is dis­ cussed briefly by John Arras (1988, p. 12) and is developed in greater detail by Benjamin Freedman (1991, pp. 95-98).

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9 On its face, such a policy seems unfair and arbitrary, and not obviously in the best interests of patients. Why should some physicians be required to treat while others not? On what basis should we decide who must treat and who may be free to refuse to treat? And what would be the consequences of having such a policy on the physician-patient relationship and on the treatment of patients generally? To my mind, it is doubtful that such a policy could overcome these worries, but whether such a policy could, in the final analysis, be defended shall not be settled here. 10 See section 1 above. 11 The total number of persons with HIV and AIDS will be on the increase as long as the number of people becoming infected with HIV is greater than the number of people with HIV who die. 12 That a policy of volunteerism threatens to marginalize those with HIV is par­ ticularly tragic given that gay men, for example, often already feel that they are viewed as "undesirables" by health care professionals. Thus a policy of volun­ teerism promises to make an existing problem even worse (Blendon and Donelan, 1989, pp. 24-25; Schwarz, 1989, pp. 31-34; Epidemic of Fear, 1990, pp. 78-80). 13 At this point, it is common for opponents to argue that these costs are exagger­ ated, or far-fetched, or mere speculation. I don't agree: in fact, I think they are all very likely consequences of a policy of volunteerism, and that each one is a source of serious concern. But it is important to realize that even if only some of the above costs are acknowledged as probable, we still have serious reason to be concerned about a policy of volunteerism. Of course, the more numerous and serious the costs are, the greater reason we have for being opposed to such a policy. 14 For a shocking expose of how one managed care plan treated one of their enrollee's who developed cancer, see Larson, 1996, pp. 44-52. 15 Of course, arriving at sound standards of appropriate behavior will be difficult. For suggestions of how this may be done, see again the recommenda­ tions of the AMA's Council on Ethical and Judicial Affairs (1995, p. 333).

REFERENCES Arras, J.: 1988, 'The fragile web of responsibility: Aids and the duty to treat/ Hastings Center Reports, 18(2), pp. 10-19. Blendon, R.J. et al: 1989, "AIDS, the public, and the "NIMBY" syndrome,' in D.E. Rogers et al, (eds.), Public and Professional Attitudes Toward AIDS Patients, Westview Press, Boulder, CO, pp. 19-30. Brennan, T.A.: (1989) 'Removing barriers to health care for people with HIVrelated disease: A matter of law or ethics?' in D.E. Rogers et al., (eds.), Public and Professional Attitudes Toward AIDS Patients, Westview Press, Boulder, CO, pp. 55-73.

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Centers for Disease Control and Prevention: 1993, The scope of the HIV/AIDS epidemic in the United States/ Centers for Disease Control and Prevention. Council on Ethical and Judicial Affairs: 1988, The Journal of the American Medical Association, 259(9), p. 1360. Council on Ethical and Judicial Affairs: 1995, 'Ethical issues in managed care/ The Journal of the American Medical Association, 273(4), pp. 330-335. Daniels, N.: 1991, 'Duty to treat or right to refuse?' Hastings Center Reports, 21, pp. 36-46. Emanuel, E.J. et a l: 1995, 'Preserving the physician-patient relationship in the era of managed care/ The Journal of the American Medical Association, 273(4), pp. 323-329. Report of the ACLU's AIDS Project: 1990, Epidemic of Fear: A Survey of AIDS Discrimination in the 1980's and Policy Recommendations for the 1990's, American Civil Liberties Union, New York. Freedman, B.: 1991, 'Health-care workers' occupational exposure to HIV: Obligations and entitlements/ in C. Overall et al, (eds.), Perspectives on AIDS: Ethical and Social Issues, Oxford University Press, Toronto, pp. 91-105. Gostin, L.O.: 1992, 'Health law/ The Journal of the American Medical Association, 268(3), pp. 364-366 Hermann, D.H.J.: 1991, 'AIDS and the law/ in F.G. Reamer (ed.), Aids & Ethics, Columbia University Press, New York, pp. 277-304. Larson, E.: 1996, 'The Soul of an HMO/ Time, 147(4), pp. 44-52. Levine, R.J.: 1991, 'AIDS and the physician-patient relationship/ in F.G. Reamer (ed.), Aids & Ethics, Columbia University Press, New York, pp. 188-214. Schwarz, M.R.: 1989, 'Physicians' attitudes toward AIDS/ in D.E. Rogers et al, (eds.), Public and Professional Attitudes Toward AIDS Patients, Westview Press, Boulder CO. Shapiro, M.F. et al: 1992, 'Resident experiences in, and attitudes toward, the care of persons with AIDS in Canada, France, and the United States/ The Journal of the American Medical Association, 268, pp. 510-515. Stine, G.J.: 1995, AIDS Update: 1994-95, Prentice Hall, Englewood Cliffs, NJ. Zuger, A.: 1991, 'AIDS and the obligations of health care professionals,' in F.G. Reamer (ed.), Aids & Ethics, Columbia University Press, New York, pp. 215-239.

Confidentiality/Privacy

[4] Ethical and Legal Issues in AIDS-Related Practice Gary B. Melton

ABSTRACT: The AIDS epidemic has presented many new ethical dilemmas regarding psychologists' obligations to their clients and third parties. Both ethical and legal norms remain unsettled in regard to most o f these dilem­ mas. In general, psychologists should strive to protect the privacy of their clients and to promote the welfare o f in­ dividuals affected by AIDS. When compelling interests of third parties lead to a different result, intrusions on clients' interests should be no greater than necessary. Although a lack of training about AIDS may limit psychologists’ competence and constrict their duties to people with AIDS, the duty remains for clinicians to obtain training to re­ mediate such gaps in knowledge or skills and to advocate for resources and protectionfrom discriminationfor people affected by AIDS. Besides presenting difficult scientific questions and ex­ traordinary human and economic costs, the AIDS epi­ demic has raised a substantial array of ethical problems for psychologists and other professionals who work with people with AIDS or AIDS-related complex (ARC) and individuals who have been infected by the human im­ munodeficiency virus (HIV), as well as the “worried well.” Indeed, the dilemmas involved just in identifying all of the interests at stake in AIDS-related work are sufficiently complex and emotion-laden that they can serve as a model for socially sensitive research and practice, particularly in regard to public health matters (see Bayer, Levine, & Murray, 1984; Committee for the Protection of Human Participants in Research, 1985; Gray & Melton, 1985; Melton & Gray, 1988; and Melton, Levine, Koocher, Ro­ senthal, & Thompson, 1988). Amid vociferous popular and scholarly debates about the desirability of coercive interventions in the lives of HIV-infected people, the duties of psychologists can become obscured. The difficulty of the ethical and legal problems is exacerbated by both the rapid growth of in­ formation about AIDS (and, therefore, continual change in the calculation of risks related to possible ethical breaches) and the dearth of case law and definitive phil­ osophical analyses about such matters. Although I am able to give few unambiguous answers to psychologists faced with dilemmas related to AIDS, I do intend in this article to clarify factors to be weighed in attempting to resolve such problems, consistent with the Ethical Prin­ ciples of Psychologists (American Psychological Associ­ ation [APA], 1981).

The Duty to Protect Third Parties Probably no aspect of AIDS policy has attracted more attention than the question of the ethical and legal pro­ November 1988 • American Psychologist Copyright 1988 by the American Psychological Association, Inc. 0003-066X/88/S00.75 Vol. 43. No. II, 941-947

University of Nebraska-Lincoln

priety of intrusions on the privacy and autonomy of HIVinfected individuals in order to protect the general public or particular third parties. Debates about mandatory testing, reporting of HIV status, closure of businesses where high-risk behavior is prevalent, and even quarantine of people with AIDS have filled the halls of city councils, state legislatures, and the U.S. Congress. In that regard, there probably is no AIDS-related ethical and legal issue that has concerned practicing psy­ chologists more than the question of the duty to protect third parties from HIV infection by a client. Must a cli­ nician or counselor violate confidentiality and perhaps take coercive action when a client known to be HIV-in­ fected is believed to be sexually active or sharing needles with partners who are unaware of the client’s infection? This problem bears obvious resemblance to the question of the duty to protect third parties from violent behavior by a client believed to be dangerous ( Tarasoff v. Regents of University o f California, 1976; hereafter cited as Tarasoff). However, the application of Tarasoffto the threat of HIV infection has not yet been litigated in the appellate courts, and some jurisdictions do not follow Tarasoff even in regard to potential violent behavior. Moreover, even if Tarasoffdoes not apply, the well-established principles of public health law (e.g., Jacobson v. Massachusetts, 1905) may permit states to create a duty of clinicians to breach confidentiality or to take even more intrusive action when HIV-infected clients may behave dangerously. Therefore, a firm conclusion about the law in regard to protection of third parties from HIV infection is not yet possible, but the issues to be considered at least can be identified. Implications o f Tarasoff

The Tarasoff doctrine. Tarasoff is probably more fa­ miliar to mental health professionals than any other legal case, even if it is not necessarily well understood (Givelber, Bowers, & Blitch, 1984). This decision by the California Supreme Court not only has sparked substantial com­ mentary, but it also has spawned scores of reported de­ cisions in other jurisdictions (see Fulero, 1988, for an annotated list). Most but not all of the courts that have considered therapists’ duties to third parties have adopted the Tarasoff logic. Obviously, psychologists interested in applying the Tarasoff line of cases to their AIDS-related practice should learn the law prevailing in their state. The Tarasoff doctrine sometimes is described as a duty of therapists to warn potential victims when threats of violence are made by clients. Actually, neither the duty nor the circumstance invoking the duty is correct in that formulation. What the California Supreme Court did hold was the following: 941

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fection, it does not necessarily require warning the po­ tential “victims” (e.g., sexual partners) of infected clients. Other action may suffice if a therapist reasonably believes that an HIV-infected client is not following authoritative risk reduction practices and is engaging in sexual inter­ course without use of condoms or is sharing unsterilized needles with unsuspecting partners. Tarasoff applied to AIDS. To determine whether Tarasoff applies at all to AIDS, it is useful to return to the logic that the California Supreme Court used in de­ termining whether there is a duty to protect a third party. Note that the court did not require informing the Assuming, as the court did, that the special relationship intended victim of the danger; warning is only one means between therapist and client (and, therefore, a duty of of fulfilling the duty to protect a potential victim. In fact, care by the therapist) extends to those who are affected if another means would be a better exercise of “reasonable when the therapist fails to control the client’s behavior, care,” warning the intended victim arguably would violate there remains a balancing test to determine the proper the Tarasoff duty. For example, if a warning would ex­ policy. Among the factors to be weighed are the foresee­ acerbate a volatile situation, but another action, such as ability of harm (identified by the court as the most im­ a change of treatment plan, would reduce the risk of dan­ portant consideration) and “the extent of the burden to ger, the latter course is more consistent with the logic of the defendant [therapist] and consequences to the com­ Tarasoff. munity of imposing a duty to exercise care with resulting Note also that a threat of violence by itself does not liability for breach” (Tarasoff, 1976, p. 342). invoke Tarasoff, which is applicable only when a “serious In such a logic, prevention of AIDS may be distin­ danger” is present. Even then, a therapist can be held guishable from prevention of violence (see Girardi, Keese, liable only if he or she reasonably could have foreseen Traver, & Cooksey, 1988). First, the foreseeability of harm the danger, taking into account “the broad range of rea­ when a client has a gun, an intended victim, and a vo­ sonable practice and treatment in which professional ciferously expressed intent to kill the particular individual opinion and judgment may differ” (Tarasoff, 1976, p. arguably is substantially greater than even a circumstance 345). Noting that threats of violence may be common­ in which an HIV-infected client admits to having had place in psychotherapy but that they are seldom acted unprotected sexual relations and having plans to do so upon, the California Supreme Court expressly noted a in the future with an identifiable individual. The lethality preference that therapists not routinely disclose threats of AIDS and the inappropriateness of risky sexual be­ made in “the open and confidential character of psycho­ havior notwithstanding, intercourse with an HIV-infected therapeutic dialogue” (Tarasoff, 1976, p. 347). person often results in no harm to the partner because Most post-Tarasoff courts that have considered the of the biological variability involved in becoming infected issue have further limited the definition of “reasonable by the AIDS virus (Curran et al., 1988), but the harm foreseeability” to instances in which there is a specific, from being the target of a gunshot is virtually certain. clearly identifiable, intended victim (e.g., Brady v. Hopper, Nonetheless, the risk from intercourse without use of 1983). A decision to the contrary by the California Su­ condoms still may be sufficiently great to warrant a breach preme Court (Hedlund v. Superior Court, 1983) was later of confidence. overturned by legislative action (Cal. Civ. Code, 1985). Second, Tarasoff is at least in part a doctrine of Hedlund extended Tarasoff beyond the intended victim negligent misdiagnosis. Assessment of dangerousness, to others who might reasonably be foreseen to be in danger however invalid it may be, is clearly a behavioral problem (in that case, the victim’s minor child). conceptually within the province of psychotherapists. The In some instances, an express threat may not be re­ same cannot be said as confidently for determination of quired. For example, the Ninth Circuit Court of Appeals the risk that an individual will transmit HIV. However, upheld a finding of negligence when a psychiatrist failed such an argument is weak. A client’s HIV status may be to obtain medical records that would have revealed a known to a psychologist. If the client is known with cer­ client’s history of violence toward women to whom he tainty to be infected, then the prediction of danger to a was close and that would have provided a basis for as­ third party is largely a matter of behavioral prediction. sessment of danger to the plaintiff (Jablonski ex rel. Pahls A third potential distinction is the most compelling. v. United States, 1983). The cost to society of breaches of confidence in AIDSIn short, even if Tarasoff extends to risk of HIV inrelated treatment may be greater than the cost of viola­ tions of confidentiality in most psychotherapeutic rela­ Correspondence concerning this article should be addressed to Gary B. tionships. Discussing the risk for AIDS or transmission Melton, Department of Psychology, University of Nebraska, 209 Burnett of HIV inherently takes the psychologist and the client Hall, Lincoln, NE 68588. into consensually recognized zones of privacy. Undeni­ 1 Page numbers in the Tarasoffdecision refer to the Pacific Reporter ably, there is special sensitivity in discussion of an indi­ vidual’s sexual practices and drug-taking history. Public (551 P.2d 334) report of the case. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a se­ rious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of several steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or take whatever other steps are reasonably necessary under the circumstances. (Tarasoff, 1976, p. 340,' emphasis added)

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November 1988 • American Psychologist

AIDS: Society, Ethics and Law knowledge about either can subject the client to embar­ rassment, social stigma, and criminal penalties. Rela­ tionships between health professionals and the groups most directly affected by AIDS often have been tenuous, and breaches of confidentiality would be likely to intensify such mistrust and to deter individuals from seeking treat­ ment or counseling (see Dardick & Grady, 1980). Thus, the policy arguments contrary to the Tarasoff holding take on a special urgency when applied to AIDS. Psychologists should be aware, though, that the ex­ plosion of state legislation about AIDS may alter the Tar­ asoff logic in some jurisdictions. When the legisla­ ture expressly frees clinicians from liability for breaches of confidentiality when they inform a client’s sexual part­ ners about his or her HIV status (e.g., Communicable Disease Prevention and Control Act of 1987), courts sub­ sequently may interpret this as indicative of a legislative determination that the costs of maintaining confiden­ tiality are too great in cases of HIV infection, even though the act carries no express duty to warn sexual partners. Implications o f Public Health Law

Although no decisions about the application of Tarasoff to HIV infection have been reported, the doctrine has occasionally been applied in cases of other infectious dis­ eases. In fact, Tarasoff itself was based in part on the history of judicial support for breaches of confidentiality to protect public health (Tarasoff, 1976, p. 344), even though that case was focused on other forms of public danger. In the most directly apposite post-Tarasoff case (Gammillv. United States, 1984), the Tenth Circuit Court of Appeals considered whether a military physician was liable for failing to report a case of infectious hepatitis promptly to public health authorities. The plaintiff be­ came ill with hepatitis after babysitting a child with the disease. Interpreting Colorado law, the circuit court found no liability, because it concluded that no special rela­ tionship existed between the physician and the plaintiff, whom the physician did not know. The court expressly rejected the argument that a professional position by itself creates a duty of care. The Gammill rule is that liability for failure to protect third parties from an infectious in­ dividual applies, in the broadest interpretation, to iden­ tifiable persons at risk. Even if a duty to breach confidentiality to protect third parties from HIV-infected persons does not exist as a corollary to Tarasoff, states still may be able to require clinicians to take such action, pursuant to the state’s pub­ lic health authority (police power). By making the analogy between actions for the protection of public health and the principle of self-defense, the Supreme Court has sanctioned broad discretion in the exercise of such au­ thority ( Jacobson v. Massachusetts, 1905). Nonetheless, states cannot behave arbitrarily in re­ stricting liberty or intruding on privacy, even when the purpose is to protect public health. For example, in a case analogous to some recent litigation involving children with AIDS (New York State Association for Retarded November 1988 • American Psychologist

49

Children, Inc., v. Carey [Willowbrook], 1979), federal courts forbade the New York City Board of Education from barring mentally retarded children who were hepatitis-B carriers. The circuit court in Willowbrook noted the medical and psychoeducational evidence admitted in the case: At trial, the Board was unable to demonstrate that the health hazard posed by the hepatitis-B carrier was anything more than a remote possibility. There has never been any definite proof that the disease can be communicated by nonparenteral routes such as saliva. Even assuming that there were, the activities that occur in classroom settings were not shown to pose any signif­ icant risk that the disease would be transmitted from one child to another, (p. 650)

At the same time, though, the court indicated that the Board could return to court to have the injunction lifted if a change occurred in medical knowledge about hepatitis-B or in the classroom behavior of the children. In that regard, as I will discuss in more detail later, courts are prone to rely heavily on evidence presented by health professionals in determining whether state action in the name of public health is legitimate. Use o f Commitment Power

Even if Tarasoff or a similar doctrine clearly requires ac­ tion by a clinician to protect the health of a third party, the question remains of what specific action is legally required. Pressure may grow to exercise civil commitment power as a de facto quarantine measure when HIVinfected clients are believed to be behaving dangerously. The legality of such action is most plausible in jurisdic­ tions that recognize substance abuse as a threshold con­ dition for civil commitment (e.g., Nebraska Mental Health Commitment Act of 1976, §§ 83-1009 and 83-1009.02) and in cases in which the means of acquiring AIDS was through needle sharing. Alternatively, the state might ar­ gue that the very act of having sexual intercourse or shar­ ing needles when an individual knows that he or she is infected by HIV is indicative of a mental disorder. Both lines of argument have major logical flaws. In the former instance, it would be difficult to prove that imminent dangerousness is directly the result of substance abuse, even if such a causal nexus can be established for HIV infection. If mental illness is the threshold condition, there is obvious circularity in alleging that a history of risky sexual or drug-taking behavior is per se evidence of a mental disorder. Otherwise, any dangerous behavior, regardless of the client’s mental status, would be a ground for commitment. Moreover, as APA argued and the Fourth Circuit Court of Appeals held in a recent case (Currie v. United States, 1987), Tarasoffdoes not create a duty to commit; a clinician who believes an individual to be dangerous but not committable (e.g., exhibiting aggressive behavior but not mentally ill within the meaning of the commit­ ment statute) may take other protective action (e.g., warning potential victims). Otherwise, the Tarasoff doc­ trine would be effectively stretched to subsume a duty of care to all persons, not just identifiable potential victims. 943

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As the Fourth Circuit also noted, a duty to commit would contravene public policy because of the level of restric­ tiveness of liberty entailed. The existence of such a duty might also be a particularly potent deterrent of treatment when an individual is considering psychotherapy or counseling on issues related to AIDS. In short, even in cases that involve predictable risky behavior, mental health professionals should resist misuse of commitment authority to detain HIV-infected persons. If the plan is to quarantine promiscuous infected persons or otherwise restrict their liberty, then such a decision should be made forthrightly by public health authorities, who usually will be the appropriate recipients of infor­ mation that an HIV-infected client may be behaving un­ safely. Implications o f the Ethical Principles

Consistent with respect for the wishes of the community as expressed through legitimate authority, psychologists have an ethical duty to obey the law “in the ordinary course of events” (APA, 1981, Principle 3d). Such a prin­ ciple does not end the inquiry, though. In some circum­ stances, competing ethical principles may be so funda­ mental that they justify disobedience of the law. Con­ versely, of course, behavior that does not violate the law still may breach ethical canons. Therefore, determination of the law on duty to pro­ tect—itself a murky undertaking—still leaves questions whether psychologists bear an ethical duty to protect con­ fidentiality even in the face of risk to a sexual or needlesharing partner of a client or, conversely, to violate con­ fidentiality in order to protect the safety of a specific third party or the general public, and of whether either obli­ gation is strong enough to justify disobedience of con­ trary law. The Ethical Principles of Psychologists (APA, 1981) give little guidance toward the answers to those questions. On one hand, protection of confidentiality is identified as a “primary obligation” (APA, 1981, Principle 5), con­ sistent with “respect [for] the dignity and worth of the individual” (APA, 1981, Preamble). A breach of confi­ dence not only harms the psychotherapeutic enterprise, but it also wrongs the client by violating his or her privacy and thus his or her integrity as a person (Melton, 1983). A wrong is done, regardless of the harm to mental health practice or the social consequences to the client. On the other hand, the Principles give permission for breaches of confidentiality “in those unusual circum­ stances in which not to do so would result in clear danger to the person or to others” (APA, 1981, Principle 5). If legal strictures do interfere with a preeminent principle of protection of human welfare, then the Principles pro­ vide only that the psychologist clarify the conflict and work toward a resolution (APA, 1981, Principle 3d). They apparently bar neither blind obedience nor civil disobe­ dience. The clearest implication of the Ethical Principles in regard to a duty to protect third parties is that, if a breach of confidence does occur, the intrusion on privacy should 944

be no greater than necessary to exert reasonable care. Otherwise, the overriding principle of respect for persons is given insufficient weight, even in the face of a compel­ ling societal interest in public safety. Undue intrusiveness also exerts more threat to the integrity of psychological practice (and related social welfare) than is necessary and thus violates the duty of fidelity to the profession and the public (cf. APA, 1981, Principle 3). The California Supreme Court itself cautioned that the therapist’s obligations to his patient require that he not dis­ close a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger. (Tarasoff, 1976, p. 347)

In short, the question is not whether to warn a po­ tential victim. (Actually, in AIDS cases, the more prudent course when the clinician believes that the duty to protect requires a breach of confidentiality is to alert public health authorities to the danger.) Rather, the question is how to protect third parties from serious harm, with minimal intrusion on the privacy of the client. The answer to that question requires considerable clinical acumen as well as ethical sensitivity. Such a thoughtful approach to prob­ lems of third-party safety in AIDS-related practice is likely to comport as well as possible with both ethical and legal norms.

Is There a Duty to Treat? Difficult AIDS-related ethical problems in psychological practice are not limited to decisions about individuals whom a psychologist already is serving. Indeed, as a mat­ ter of public policy, the more significant ethical questions may be ones of professional responsibility for development of appropriate resources for persons directly affected by AIDS. Perhaps the most controversial issue in that regard is the question of whether health professionals have a duty to treat HIV-infected persons. In widely publicized actions, the American Medical Association (1987) and the American College of Physi­ cians (1988) recently declared physicians’ refusal to treat HIV-infected persons to be a violation of professional ethics. The medical organizations’ decisions were based on an application of the principle of beneficence, the duty shared by all psychologists to promote human welfare (APA, 1981, Preamble and Principle 6). Nonetheless, a universal mandate to professional psychologists to accept persons directly affected by AIDS as clients probably would not maximize social benefit. Because of the potential harm or at least diminution of benefit that may result when unskilled practitioners de­ liver services, the Ethical Principles require psychologists to “only provide services and use techniques for which they are qualified by training and experience” (APA, 1981, Principle 2). In view of the fact that the groups that are most affected by AIDS (i.e., gay men and intra­ venous drug users) elicit strongly negative reactions in some people, there is particular reason to doubt the wis­ November 1988 • American Psychologist

AIDS: Society, Ethics and Law dom of an expectation of universal extension of services to people directly affected by AIDS. When therapists are homophobic, the Ethical Principles actually may pro­ scribe rather than mandate their acting as service provid­ ers to gay men who have been infected by HIV or who are worried about the risk of HIV infection (APA, 1981, Principles 2d and 2f ). Not only may homophobic indi­ viduals fail to relate therapeutically to gay men, but it is probable that they are less knowledgeable about AIDSrelated issues (cf. Lewis, Freeman, & Corey, 1987). Even when psychologists are liberated from such prejudice toward risk groups, some may be themselves sufficiently worried or ignorant about AIDS that, for the time being, they should refrain from counseling people about matters related to AIDS. As this issue of the Amer­ ican Psychologist demonstrates, AIDS has presented an enormously complex set of problems and an explosion of knowledge that may be relevant to AIDS-related psy­ chological services. Practitioners, especially in commu­ nities that still have a low prevalence of AIDS cases, may find themselves unprepared to respond when AIDS-related issues do arise (cf. Lewis et al., 1987). Even spe­ cialists on AIDS occasionally may find such issues to be so overwhelming that their personal responses interfere with effective services (see APA, 1981, Principle 2f; McKusick, 1988). Indeed, one of the most troubling aspects of the AIDS epidemic is that it so disturbs settled social con­ structs. AIDS is not logical; people are certain that such a deadly infectious disease must be transmitted by air­ borne means, no matter what the medical and epidemi­ ological data tell them. Illustrative of this belief is the fact that many physicians in three urban centers reported that they would not allow their children to visit the home of a person with AIDS and that they would not attend a party where a person with AIDS was preparing food (Kelly, St. Lawrence, Smith, Hood, & Cook, 1987). That particular groups with unconventional life-styles appear to have been singled out for AIDS further disturbs people’s thinking. Given such impediments to rational practice, psy­ chologists untrained about AIDS probably should refrain from providing services to people with AIDS. Otherwise, implicit contractual obligations between therapist and client are apt to be violated, with corresponding threats to client welfare and autonomy. However, analysis of a possible duty to treat should not end with such a conclusion. The fact that a psychol­ ogist is not currently competent to provide AIDS-related services does not absolve him or her from responsibility. Analogously, the Ethical Principles require that, “when necessary, they [psychologists] obtain training, experience, or counsel to assure competent service” to persons whose social status presents special issues (APA, 1981, Principle 2d). Thus, although a duty to treat may not exist, at least a duty to become capable of providing competent service and then to treat can be found in the Ethical Principles. In that regard, the excuse that a psychologist’s prac­ tice in a low-prevalence area is sufficiently unlikely to November 1988 • American Psychologist

51

encompass persons with AIDS to warrant investment in such training is invalid. Although the odds of encoun­ tering people with AIDS in communities in some parts of the country are apt still to be low in the near future, estimates of rates of seropositivity to HIV antibodies sug­ gest that the number of such communities is likely to diminish rapidly. Regardless, the AIDS epidemic is suf­ ficiently explosive that it is hard to imagine a mental health practice free from concerns about AIDS. Besides the fact that many clients may have fears about AIDS, clinicians and counselors need to help ensure that clients avoid high-risk behavior. For example, given that adolescent clients of the mental health system are particularly likely to engage in risky, impulsive behavior, AIDS prevention probably should be a standard element of psychological practice with adolescents (Melton, 1988; see also Slater, 1988, on treatment of gay youth). At the same time, the duty to treat (or at least the duty to be trained to treat) should not be confused with a duty to be treated. The assurance of availability of psy­ chological services for people directly affected by AIDS may be an ethical duty of psychologists, but it does not follow that potential clients should be compelled to accept such services. Indeed, in most cases, preservation of free­ dom not to be treated has two separate ethical bases. First, such a policy is consistent with respect for personal autonomy and privacy and maintenance of personal dig­ nity (see APA, 1981, Preamble and Principle 6). Second, compelled treatment or counseling may be countertherapeutic and, therefore, inconsistent with the promotion of human welfare. Koocher and O’Malley (1981) have noted that denial sometimes is adaptive for people with life-threatening illnesses. Inflicted insight actually may result in psychological harm, a point that research on HIV testing has indicated (Joseph, Montgomery, & Kirscht, 1987).

Advocacy as a Professional Responsibility The injunction to psychologists to become trained in de­ livery of AIDS-related services raises another issue: the professional responsibility of psychologists, individually and collectively, to advocate for humane responses to people with AIDS. The Ethical Principles (APA, 1981) require psychologists to protect the dignity (Preamble), civil rights (Principle 3c), and welfare (Preamble and Principle 6) of clients and others whom they serve. Such codified duties are consistent with the ethical principles of beneficence and respect for persons. Thus far, the judiciary has shown the way to respond to people directly affected by AIDS. In a case that the Supreme Court itself acknowledged, without holding, may have implications for HIV-infected persons, the Court decided that the Rehabilitation Act of 1973 bars discrim­ ination by a public employer against a person with tu­ berculosis {School Board v. Arline, 1987). Writing for a seven-member majority, Justice Brennan specifically re­ jected “discrimination on the basis of mythology [e.g., fear of epilepsy or cancer]—precisely the type of injury Congress sought to prevent” (p. 1130). 945

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Consistent with the tradition in public health law, the Court relied heavily on medical evidence. Citing a brief by the American Medical Association, Justice Bren­ nan argued that public health can be protected sufficiently by a case-by-case inquiry to determine when a significant risk of communicating infection is present: [There is not] any reason to think that today’s decision will extend the [Rehabilitation] Act beyond manageable bounds. Construing Section 504 not to exclude those with communicable diseases will complement rather than complicate state efforts to enforce public health laws. As we state, courts may reasonably be expected normally to defer to the judgments of public health officials in determining whether an individual is otherwise qual­ ified unless those judgments are [not] medically supportable. Conforming employment judgments with medically reasonable judgments can hardly be thought to threaten the States’ regu­ lation of communicable diseases. Indeed, because the Act re­ quires employers to respond rationally to those handicapped by a contagious disease, the Act will assist local health officials by helping remove an important obstacle to preventing the spread of infectious diseases: the individual’s reluctance to report his or her condition, (p. 1130)

In post-Arline cases, federal courts have held that the Rehabilitation Act bars a public school system from removing a teacher with AIDS from the classroom (Chalk v. U.S. District Court, 1988) and that the fourth amend­ ment prohibits a mental retardation agency from man­ datory HIV-testing of its employees (Glover v. Eastern Nebraska Community Office of Mental Retardation, 1988). In the latter decision, the court concluded its opin­ ion with a scathing critique of the agency’s policy, in the light of medical evidence: The evidence leads to the conclusion that the policy was prompted by concerns about the AIDS virus, formulated with little or erroneous medical knowledge, and is a constitutionally impermissible reaction to a devastating disease with no known cure. The risk of transmission of the disease from the staff to the clients at the agency is minuscule, trivial, extremely low, extraordinarily low, theoretical, and approaches zero. Such a risk does not justify the implementation of such a sweeping policy that ignores and violates the staff members’ constitutional rights, (p. 2561)

Courts also have interpreted special education and antidiscrimination laws to bar public schools from dis­ criminating against children who are HIV-infected (.Board o f Education v. Cooperman, 1987; District 27 Community School Board v. Board of Education, 1986). In summary, the courts have provided considerable room for psychologists and other health professionals to seek redress for individuals who are being discriminated against because of HIV infection or AIDS. Given the way that evidence is commonly evaluated in public health law, individual psychologists, state psychological associations, and APA all can play an important role by clarifying behavioral issues that may affect AIDS policy and law. The ethics of psychological practice related to AIDS ex­ tend beyond the exercise of care in individual relation­ ships to the affirmative exercise of social responsibility. 946

REFERENCES American College of Physicians, Health and Public Policy Committee. (1988). The acquired immune deficiency syndrome (AIDS) and in­ fection with the human immunodeficiency virus (HIV). Annals of Internal Medicine, 108, 460-469. American Medical Association. (1987). Ethical issues involved in the growing AIDS crisis. JAMA, 259, 1360-1361. American Psychological Association. (1981). Ethical principles of psy­ chologists. American Psychologist, 36, 633-638. Bayer, R., Levine, C., & Murray, T. H. (1984). Guidelines for confiden­ tiality in research on AIDS. IRB: A Review o f Human Subjects Re­ search, 6(6), 1-7. Board of Education v. Cooperman, 105 N.J. 587, 523 A.2d 655 (1987). Brady v. Hopper, 751 F.2d 329 (10th Cir. 1983). Cal. Civ. Code § 1714 (West 1985). Chalk v. U.S. District Court, 56 U.S.L.W. 2502 (9th Cir. Feb. 26, 1988). Committee for the Protection of Human Participants in Research. (1985, July). Ethical issues in research on AIDS. APA Monitor, p. 26. Communicable Disease Prevention and Control Act of 1987, Tex. Rev. Civ. Stat. Ann. art. 4419b-1 (Vernon Cum. Supp. 1988). Curran, J. W., Jaffe, H. W., Hardy, A. M., Morgan, W. M., Selik, R. M„ & Dondero, T. J. (1988). Epidemiology of HIV infection and AIDS in the United States. Science, 239, 610-616. Currie v. United States, 836 F.2d 209 (4th Cir. 1987). Dardick, L., & Grady, K. E. (1980). Openness between gay persons and health professionals. Annals of Internal Medicine, 93, 115-119. District 27 Community School Board v. Board of Education, 130 Misc. 2d 398, 502 N.Y.S.2d 325 (1986). Fulero, S. M. (1988). Tarasoff: 10 years later. Professional Psychology: Research and Practice, 19, 184-190. Gammill v. United States, 727 F.2d 950 (10th Cir. 1984). Girardi, J. A., Keese, R. M., Traver, L. B., & Cooksey, D. R. (1988). Featured debate: Psychotherapist responsibility in notifying indivi­ duals at risk for exposure to HIV. Journal o f Sex Research, 25, 1-27. Givelber, D., Bowers, D., & Blitch, C. (1984). Tarasoff: Myth and reality; an empirical study of private law in action. Wisconsin Law Review, 1984, 443-497. Glover v. Eastern Nebraska Community Office of Mental Retardation, 56 U.S.L.W. 2560 (D.Neb. Mar. 29, 1988). Gray, J. N., & Melton, G. B. (1985). The law and ethics of psychosocial research on AIDS. Nebraska Law Review, 64, 637-688. Hedlund v. Superior Court, 34 Cal. 3d 695, 194 Cal. Rptr. 805, 669 P. 2d 41 (1983). Jablonski ex rel. Pahls v. United States, 712 F.2d 391 (9th Cir. 1983). Jacobson v. Massachusetts, 197 U.S. 11 (1905). Joseph, J. G., Montgomery, C., & Kirscht, J. (1987). Perceived risk of AIDS: Assessing the behavioral and psychological consequences in a cohort of gay men. Journal of Applied Psychology, 17, 231-250. Kelly, J. A., St. Lawrence, J. S., Smith, S., Jr., Hood, H. V., & Cook, M. S. (1987). Stigmatization of AIDS patients by physicians. American Journal of Public Health, 77, 789-791. Koocher, G. P., & O’Malley, J. E. ( 1981 ). The Damocles syndrome. New York: McGraw-Hill. Lewis, C. E., Freeman, H. E., & Corey, C. R. (1987). AIDS-related competence of California’s primary care physicians. American Journal of Public Health, 77, 795-799. McKusick, L. (1988). The impact of AIDS on practitioner and client: Notes for the therapeutic relationship. American Psychologist, 43, 935-940. Melton, G. B. (1983). Minors and privacy: Are legal and psychological concepts compatible? Nebraska Law Review, 62, 455-493. Melton, G. B. (1988). Adolescents and prevention of AIDS. Professional Psychology: Research and Practice, 19, 403-408. Melton, G. B., & Gray, J. N. (1988). Ethical dilemmas in AIDS research: Individual privacy and public health. American Psychologist, 43, 6064. Melton, G. B., Levine, R. J., Koocher, G. P., Rosenthal, R., & Thompson,

November 1988 • American Psychologist

AIDS: Society, Ethics and Law W. C. (1988). Community consultation in socially sensitive research: Lessons from clinical trials of treatments for AIDS. American Psy­ chologist, 43, 573-581. Nebraska Mental Health Commitment Act of 1976 (as amended), Neb. Rev. Stat. §§83-1001 to 83-1081 (Reissue 1981 and Cum. Supp. 1986). New York State Association for Retarded Children, Inc., v. Carey, 446 F. Supp. 487 (E.D.N.Y. 1979), off'd, 612 F.2d 644 (2d Cir. 1979). Rehabilitation Act of 1973, 29 U.S.C. §§ 701-709, 720-724, 730-732,

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740-741,750, 760-764, 770-776,780-787,790-794 (1982 and Supp. II 1984). School Board v. Arline, 107 S.Ct. 1123 (1987). Slater, B. R. (1988). Essential issues in working with lesbian and gay male youths. Professional Psychology: Research and Practice, 19, 226235. Tarasoff v. Regents of University of California, 131 Cal. Rptr. 14, 551 P.2d 334 (1976).

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[5] Journal of medical ethics, 7992, 18, 173-179

HIV infection and AIDS: the ethics of medical confidentiality Kenneth M Boyd Secretary, I M E working party, on behalf of the working party

Author’s abstract An Institute of Medical Ethics working party argues that an ethically desirable relationship of mutual empowerment between patient and clinician is more likely to be achieved if patients understand the ground rules of medical confidentiality. It identifies and illustrates ambiguities in the General Medical Council*s guidance on AID S and confidentiality, and relates this to the practice of different doctors and specialties. Matters might be clarified, it suggestsyby identifying moralfactors which tend to recur in medical decisions about maintaining or breaching confidentiality. The working party argues that two such factors are particularly important: the patienf s need to exercise informed choice and the doctor’s primary responsibility to his or her own patients.

Medical confidentiality and discretion ‘All that may come to my knowledge in the exercise of my profession or outside of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal’ (1). The modern Declaration of Geneva reformulates this clause from the Hippocratic Oath as, ‘I will respect the secrets which are confided in me, even after the patient has died’ (2). These statements show that the medical profession continues to regard confidentiality as a very important moral duty, but does not consider it an absolute one. The Hippocratic Oath is concerned with discretion as well as with confidentiality, and limits both to what ‘ought not to be spread abroad’. The Geneva version, restricted to ‘secrets which are confided in me’, promises to ‘respect’ rather than to ‘never reveal* them. Both statements, thát is, imply that the duty of confidentiality may be qualified by other considerations. Neither version specifies what these considerations might be: but current disciplinary guidelines allow doctors to disclose confidential information in certain exceptional circumstances, when this is Judged to be in the interest of the patient

Key words AIDS; confidentiality; General Medical Council; mutual empowerment

concerned, or (normally when required by law) to be in an overriding public interest (3). The medical profession’s stance on confidentiality and discretion can be morally justified on the understanding that duties originate from relationships, and that medical practice involves relationships of trust both with individual patients and with society. Doctors promise to make ‘the health of my patient... my first consideration’, and ‘to consecrate my life to the service of humanity’ (2). This inevitably calls for trust in the discretion of doctors when the claims of an individual patient conflict with the wider interests of society generally. Medical confidentiality serves the patient’s health in two ways: a free exchange of information in a relationship of mutual trust is therapeutically effective; and confidentiality protects the patient’s autonomy from being constrained by those outside a trusting relationship gaining access to sensitive personal information. Medical confidentiality also normally serves the common good: most patients either have no secrets which could endanger public health, or, if they do, can be encouraged within a confidential relationship to disclose them voluntarily to whoever has a need to know. It is only in very exceptional cases, when the patient cannot be persuaded to disclose a harmful secret voluntarily, that an exception to the rule may be justifiable. But the doctor’s promise to put the patient’s health first, means that the onus of proof is on showing that the exception is justified. All of this is only underlined by the fact that in at least one context, sexually transmitted disease (STD) clinics, medical confidentiality is protected by legislation.

HIV Infection and AIDS The moral reasons for maintaining or breaching medical confidentiality have not been changed by the advent of AIDS. HIV infection, however, has the potential not only to create a medical pandemic, but also to provoke social prejudice. This makes it especially important to protect patients with HIV infection or AIDS from casual or unintentional breaches of confidentiality. At the same time, the need to control the spread of infection makes it vital that maintaining confidentiality should serve the common good as well as that of the individual patient. In some

,

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174 H IV infection and AIDS: the ethics of medical confidentiality

cases these goals may be, or may be perceived to be, in conflict. This paper discusses the ethics of medical confidentiality in such cases. Its approach embodies the view that a relationship of mutual empowerment between clinician and patient serves the ends both of medical beneficence and of patient autonomy. The concept of mutual empowerment is based on the following considerations:

tell her that he was HIV-positive. John loved Jane, but knew her nature, part-Puritan, part-hypochondriac. When he came back to see Dr Browne after thinking things over, he tried to explain his misgivings about telling her. Dr Browne was unimpressed: John was like a man with a loaded revolver as far as his wife was concerned, he told him. He was also more explicit about his own potential role. His duty of confidentiality towards John was not absolute. Jane also was his patient; and both the a) The ultimate power of decision-making about their General Medical Council and the British Medical own future normally and properly belongs to patients Association made it clear that in these circumstances he themselves. could breach confidence. b) Patients, unaided by effective communication, Reluctantly, John told Jane. As he feared, she took may not possess even the most basic medical his confession extremely badly, becoming quite information required for choices about their clinical hysterical and refusing to listen further. She took the treatment; and they will often be unable to interpret children home to her parents, saying that it was not safe the implications of the state to which their illness has for them to be in the same house as him, and shortly progressed. after she began divorce proceedings. Before he went c) Clinicians have knowledge and skill which they can back to Africa, John revisited the consultant in not only exercise for the good of patients, but also put London, who discussed his options, gave him some at patients’ disposal, providing them with the good practical advice, and told him how he might know information and practical assistance they require to when it was time to come back. When the time came make and carry out their own responsible decisions. however, unable to face his situation and the prospect d) Clinicians cannot do this effectively, unless they in of dying of AIDS, John killed himself.

tu rn are provided by patients w ith adequate inform ation about their way of life and how they hope to be enabled by their treatm ent.

A relationship of mutual empowerment, we suggest, is more likely to be realised if patients understand the ground rules of medical confidentiality. With this in mind, we examine the implications of a General Medical Council statement of May 1988 on the subject (see below), with particular reference to different medical contexts and to the patient’s informed choice as a significant factor in decisions about medical confidentiality. We begin with two examples based on simplified scenarios which illustrate the problem under discussion.

John and Jane John was in his mid-thirties, married and with two young children, when his company sent him to set up a new branch in Central Africa. He was nine months on his own, and during that time he worked exceptionally hard and successfully, letting himself go only on one regretted occasion when, after a convivial evening with some clients, he visited a local brothel. By the time John returned home, Jane had found a cottage in her parents’ village where their belongings could be stored when they returned to Africa together. To buy the cottage, John needed â small mortgage, and two questions on the form led him from Dr Browne, their family doctor, to a London consultant and back again. It was just good luck, Dr Browne told him, that Jane’s gynaecological condition had temporarily prevented them from having intercourse since his return. But John now clearly had no alternative but to

Tracy and Kevin Tracy had always wanted to go on the stage, and after completing her nursing degree had tried it for a time but without much luck. She drifted back into nursing, found she both enjoyed and was good at it, and eventually became a tutor. Her hospital was in a Northern town, in whose amateur dramatic society she soon became very involved. As usual, there was a shortage of men, but for T racy, Kevin’s arrival put that out of her mind. Her only difficulty was to understand why he had given up professional acting. Dr Macphee also met Kevin, in his walk-in clinic at Tracy’s hospital. It was not easy to tell him that he was HIV-positive, even when Kevin replied that he had been half-expecting it, ever since the disastrous season when his professional career and his marriage had both ended in a haze of heroin. He agreed too that Tracy should be told, but when she in turn sat in Dr Macphee’s office, she was in no doubt that her relationship with Kevin should continue. Death was a risk love had to take, she said, but she had not been infected and they were using condoms. Tracy’s confidence was misplaced. Some time later she had a sero-conversion illness and was found to be infected. Shortly before this, their relationship had broken down and Kevin had vanished. However, Tracy told Dr Macphee, she had discovered that he had begun a new affair with an actress he knew, who was playing in repertory 40 miles away. She was pretty sure Kevin could not have told the girl. Was it not Dr Macphee’s duty to inform her? Kevin agreed to come to see Dr Macphee, but protested that Tracy had made the whole thing up, and that if the doctor acted on false information from a

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jealous woman, he would make serious trouble. He did know that actress as it happened: she belonged to a rather strait-laced religious group and was unlikely to take kindly to the suggestion. But above all Kevin himself would greatly resent it if his confidentiality was breached. If Dr Macphee did that, he would have to find another doctor. Dr Macphee thought about the problem, decided to maintain confidentiality, and parried Tracy’s further enquiries by saying that Kevin was now his problem, not hers. A few weeks later, in his capacity as an expert in HIV medicine at the regional centre, he received a letter from a doctor in the town where the actress was playing. Would Dr Macphee see this young woman, who had an unusual glandular-fever-like illness with pronounced neurological features? The doctor understood that her boy-friend was an ex-drug-user. She too turned out to be infected. These two examples illustrate ethical tensions related to confidentiality in the context of HIV infection and AIDS. Each example, clearly, is coloured by particular cultural assumptions about men, women, guilt, innocence, sexuality, family life, family doctoring and hospital clinics. But a common feature of both is that a bad situation seems to have been made worse by failure to exploit all the constructive possibilities of the clinician-patient relationship. Dr Browne cut these possibilities short by precipitately raising the question of breaching confidentiality. Dr Macphee also may have done so, by focusing attention on Tracy’s claims, rather than by creating an atmosphere in which Kevin was more likely to take his advice about the risks of any further sexual relationships he might have. Neither Dr Browne and John, nor Dr Macphee and Kevin, in other words, seem to have been successful in establishing a relationship of mutual empowerment. The human limitations and fallibility of individual doctors and patients mean, of course, that this ideal is not always realised in practice. But insofar as it is, it may be possible to avert some of the harmful consequences illustrated above. The ideal of mutual empowerment is more likely to be achieved, we believe, if patients and the public, as well as clinicians, begin from a realistic understanding of the ethics of medical confidentiality - that there are morally defensible reasons why doctors have a duty to preserve confidentiality in most circumstances and to consider breaching it on some rare occasions.

Guidance and interpretation A significant step towards such understanding was taken by the General Medical Council, in its statement of May 1988. ‘Questions of conflicting obligations ... arise when a doctor is faced with the decision whether the fact that a patient is HIV positive or suffering from AIDS should be disclosed to a third party, other than another health-care professional, without the consent of the

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patient. The council has reached the view that there are grounds for disclosure only when there is a serious and identifiable risk to a specific individual who, if not so informed, would be exposed to infection. Therefore, when a person is found to be infected in this way, the doctor must discuss with the patient the question of informing a spouse or other sexual partner. The council believes that most patients will agree to disclosure in these circumstances, but where such consent is withheld the doctor may consider it a duty to seek to ensure that any sexual partner is informed, in order to safeguard such persons from a possible fatal infection* (4). What does this authoritative guidance suggest for the examples we have outlined? At first sight, it appears to support Dr Browne’s view that he would be justified in telling Jane about John’s condition, if John finally refused to do so himself. What the General Medical Council actually says, however, is that a doctor ‘may consider it a duty to seek to ensure that any sexual partner is informed’: it states neither that the duty is categorical, nor how it should be discharged. (There are, in fact, several ambiguities here: ‘may consider’ could either permit or require; ‘a duty’ could be either prima facie or categorical; ‘seek to’ could mean either do his utmost or do a reasonable amount.) In our second example, therefore, even if Dr Macphee had good grounds for suspecting that Kevin was not telling him the truth, he too might claim to be following the council’s guidance, or at least what that guidance allowed. Dr Macphee’s reasoning might be as follows. In his considered judgement, Tracy’s allegation of a ‘serious and identifiable risk to a specific individual’ was less convincing than Kevin’s threat to go elsewhere if his confidentiality was breached. It is not uncommon for doctors to be given information which might be important to third parties, but which they can neither directly prove nor immediately act upon. Those in Dr Macphee’s position - hospital consultants to whose clinic patients have direct access - cannot influence their patients’ behaviour by manipulating family or social pressures. If he did go elsewhere, Dr Macphee thought it quite possible that Kevin might infect several other women before he needed to seek further medical assistance. The best chance of avoiding this, was for Dr Macphee to maintain confidentiality, make clear to Kevin that he had no illusions, and try to persuade him to undertake not to put any other person at risk. Dr Macphee’s argument then, is that he interpreted the General Medical Council’s guidance in the way he judged most likely, at the time, to serve the health both of his patient and of the public. But D r Browne in our first example, if he disregarded the possibility that John could have infected others, also might have argued that he was interpreting the guidance with these ends in view. Since it seems that the same guidance can be followed either by maintaining or by breaching

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confidentiality, does the choice between these alternatives depend entirely on the individual doctor’s fallible judgement about the most likely consequences of his action? Or are there other ethical considerations which, if patients knew of them, might help to make their own doctors’ choices seem less arbitrary? This question has been of special concern to people with HIV infection or AIDS, because at an early stage of the epidemic, some patients who voluntarily disclosed their HIV status were then refused treatment or otherwise discriminated against by health care workers. The relevant professional bodies stated firmly that this was unethical, but some patients continued to fear discrimination.

Different doctors, different contexts Dr Browne and Dr Macphee were each interpreting the General Medical Council’s guidance in a way which probably was consistent with their own moral views and professional experience. Might understanding be assisted therefore, if doctors made their own distinctive interpretation of the General Medical Council’s guidance on confidentiality clear to patients as part of their initial contract? Some doctors, for example, might promise that, unlike others, they would maintain confidentiality come what may. Others might promise that they would not breach it unless the patient did something which they had earlier agreed together would provide a reason for this. Others again, who refused to state their position, or were evasive about it, might be judged unlikely to maintain strict confidentiality. There are three obvious objections to this approach. One is that very few doctors indeed can honestly promise never to breach confidentiality - at least not without the risk that their unstated reservations may become known and damage their credibility. The second is that negotiating conditions for breaching confidentiality is not the best way of initiating a relationship of mutual trust. The third difficulty is that many doctors do not consider it appropriate, or even possible, to make an explicit contract with most of their patients. Some doctors may be anxious to reassure a particular patient constituency that they will not breach confidentiality. But they can rarely ensure that they achieve this before a relationship of trust is established. Within such a relationship their approach can be clarified when necessary. Otherwise they can only hope that their attitude will become known, as their patients get to know them better. In a busy grouppractice, where patients tend to see whatever doctor is available, even this may be an unrealistic expectation. But if the attitudes of individual doctors to confidentiality cannot readily be distinguished, it may be possible to distinguish the distinctive attitudes of different specialties.This can be illustrated by the fact that two specialties, occupational health and genito­ urinary medicine, are known to observe particularly strict rules of confidentiality. A similar approach has

been adopted in other specialties especially concerned with HIV infection and AIDS; and the possibility that this approach is not shared by all doctors seems to be implicitly recognised in the General Medical Council’s advice (5) that when a patient, after counselling, ‘still refuses to allow the general practitioner to be informed then the patient’s wish for privacy should be respected’. These observations may help patients to understand one aspect of the ground-rules of medical confident­ iality. The specialties mentioned undoubtedly do observe very strict rules. But it would be both inaccurate and invidious to conclude from this that doctors in other specialties or in general practice are any more likely to breach confidentiality. The difference, rather, is that because of their special circumstances, and some legal as well as professional constraints, these specialties tend to interpret General Medical Council policy in a more uniform way than elsewhere in medicine. In other specialties, including general practice, there are many doctors whose approach is just as strict as that of those in the specialties mentioned. Patients have few if any ways of knowing who these doctors are however; and it could be very helpful to them if the profession were seen to be more consistent in its approach to confidentiality. Because judgements about a variety of factors are normally involved in any decision whether or not to breach confidentiality, it is unlikely that further carefully-worded guidance of the kind provided by the General Medical Council, however correct ethically, can provide what is needed for a more consistent approach. But, building on the General Medica’ Council’s statement, it may be helpful: 1) to identify some moral factors which tend to recur in doctors’ decisions about maintaining or breaching confidentiality; 2) to examine the part they play in examples of a variety of decision-making contexts, and 3) to ask if agreement can be reached about making their role more consistent. One of the most important of these moral factors is informed choice.

Informed choice The General Medical Council states that a doctor may have a duty to breach confidentiality ‘only when there is a serious and identifiable risk to a specific individual who, if not so informed, would be exposed to infection’. This assumes that if the individual were informed, he would choose not to be exposed to infection. A crucial (albeit not the only) moral principle involved here is respect for autonomy. The well-known application of this principle is in informed consent to medical treatment. If an HIVinfected cardiac surgeon who continues to operate, for example, refuses to disclose his status to anyone but his own doctor in a confidential relationship, his doctor ‘has a duty’ to breach his confidence and ‘to inform an appropriate body’ (6). The moral reason for this is not only to avoid harm to the surgeon’s patients. It is also

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because, without knowing the surgeon’s HIV status, the patients could not give truly informed consent to being operated upon. This would be a crucial moral factor (although this is an extreme example), if that surgeon alone was available to perform a life-saving operation on a patient who, on being informed, was willing to risk infection in the interest of survival. A further HIV-related example of informed choice is when one drug-abuser is at risk of being infected by sharing needles with another who conceals from him that he is HIV-positive. If both are patients of the same doctor, and the doctor decides to inform the atrisk patient by breaching the other patient’s confidentiality, his reasons for doing this presumably include the need to provide him with information which might help him decide against the risk-bearing activity. But is the doctor justified in breaching confidentiality in this case? It differs from that of the surgeon in at least two significant ways. The first is that needle-sharing, unlike surgery, is one of the surest ways of becoming infected - both because of the direct blood-to-blood contact and because anyone now prepared to do this is already quite likely to be infected. The second difference is that almost all of the information to be given by breaching confidentiality is already public knowledge; and (since in this case the person at risk is the doctor’s patient) it is precisely the information of which the doctor should be making every effort to help the patient become aware in relation to his own behaviour. Taking these features into account, it can be argued that, unless the doctor judges that his efforts have failed to help the at-risk individual become aware of the risks (and hence to make an informed decision against drug-injecting), the doctor has not sufficient reason to breach his other patient’s confidentiality. In this case, moreover, the doctor’s normal duty to maintain confidentiality is reinforced by the hope that in so doing he may encourage his infected patient to change his behaviour, thereby protecting not only his own uninfected patient, but also others potentially at risk. The difference between the case of the surgeon and that of the drug abuser suggests a way of distinguishing whether or not it is justifiable to consider breaching confidentiality when there is a risk of sexually transmitted HIV infection. Again, the moral factor of informed choice is central. If a specific individual, unable to give informed consent to sexual intercourse because of immaturity or mental incapacity, is at risk of being infected by a doctor’s patient, or if anyone is at risk of being raped or otherwise assaulted by him, the doctor has a clear duty to breach confidentiality either to the authorities or to the individual at risk. The doctor again has a duty, in this case to consider breaching confidentiality, if an HIV-positive patient refuses to disclose his HIV status to a potential sexual partner, who has no reason to suspect it. If the person at risk also is the doctor’s patient, and there is no other way of making him aware

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of the risk, a breach of confidentiality can be justified by arguing that he cannot make a free choice about having intercourse, without first being informed, by his doctor, of the exceptional unsuspected risks.

Duties to patients The ethical implications are more complex, however, if the person at risk is not a patient of the same doctor, or if the person at risk might have reason to suspect that their sexual partner is infected. In the latter case, the patient at risk may appear unaware of what the doctor would consider reasonable grounds for uncertainty about whether or not their potential partner is infected - for example, that they either have had other sexual partners, or have previously contracted a sexually transmitted disease. Since these may still be popularly regarded as less risky forms of behaviour than, for example, needle-sharing, it might be argued that in this case the doctor does have a duty to breach confidentiality, in order to protect the at-risk patient. There are strong reasons for resisting this argument. What the doctor may consider as a duty, the General Medical Council states, is ‘to seek to ensure that any sexual partner is informed, in order to safeguard such persons from a possible fatal infection’. His first duty therefore is to make every effort to ensure that his patient becomes informed of the facts of HIV transmission. How the doctor chooses to do this without breaching his other patient’s confidentiality will depend upon the circumstances. On the rare occasions when this problem arises the doctor may well find ways of solving it without compromising either confidentiality or honesty. But there may be occasions, particularly when there is no apparent reason for his initiative, when this is not possible, and the doctor has to choose either to lie, or to risk awakening the suspicion that he knows more than he admits. In these exceptional circumstances the doctor’s choice will reflect not only how absolute a duty he believes maintaining confidentiality to be, but also his assessment of the consequences of breaching confidentiality, both for the doctor-patient relationship in general, and specifically for the subsequent response of both patients. A crucial factor will be the doctor’s judgement about how far, by maintaining confidentiality, he can encourage the infected patient to acknowledge his or her responsibility to respect the interests of others. Often, however, some way can be found, without directly breaching confidentiality, of ensuring that the at-risk patient becomes able to make his or her own informed choice. Even in the case of John and Jane, for example, Dr Browne might have averted the circumstances in which he felt it necessary to breach confidentiality, if he had been alert earlier to the possible counselling implica lions of treating a gynaecological condition in the wife of a man living alone for nine months in a part of the world where there is known to be a high risk of HIV infection.

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178 H IV infection and AIDS: the ethics of medical confidentiality

Duties to others What if the person at risk is not the doctor’s patient? In this case, the doctor has no ready way, without serious risk of breaching confidentiality, either of discovering if the person at risk is sufficiently informed of the general risks of HIV infection to make an informed choice about intercourse with the infected patient, or of ensuring that this information is acquired by them. Here again, a crucial aspect of the doctor’s decision must be his judgement of how far, by maintaining confidentiality, he can encourage his patient to respect others’ interests. In this case moreover, the doctor cannot tell whether the specific individual whom he suspects to be at risk is the only person at risk from his HIV-positive patient. He may quite reasonably decide, therefore, that the most effective way available to him of protecting everyone at risk is by what he hopes to achieve from maintaining confidentiality. Depending upon how the doctor learns about a possible risk to others, of course, there may still be ways in which he can take some additional action. In the case of Tracy and Kevin, for example, Dr Macphee had neither sufficient grounds, nor the opportunity, to reinforce whatever the actress might know and understand about the risks of HIV infection. But he might have suggested to Tracy that, while he was not justified in informing the actress, she herself might have a responsibility to do this. A final example illustrates that even when there seem to be the strongest reasons for breaching confidentiality, this may not be practicable. A walk-in clinic doctor was consulted by a young woman who became HIV-positive after a blood transfusion. Some time later, she met a young man, and they both wanted to marry: she was still a virgin and there was nothing in her history to make him suspect that she was infected. She did not want her general practitioner to be informed, but had a good relationship with the clinician. This continued until he began to suggest that she ought to inform the young man, implying that if she did not do so, he might have to. At this, the young woman left the clinic, telling the clinician that there was no point in trying to follow her up, because, fearing from the outset precisely what he had threatened to do, she had given him a false name and address. Since the clinician had relied on the young woman’s own account of her medical history and knew only the young man’s first name, there was nothing further he could do. He was now unable, in the context of the continuing clinical relationship, to influence the matter further.

Conclusion This example is less unrepresentative than it may seem. It is not uncommon for patients attending such clinics to give a false name and address; and the fears which lead them to do so are among the reasons why such clinics exist. This serves as a reminder that all cases in which a doctor may be justified in considering

whether to breach confidentiality are exceptions; and that the onus will always lie with the doctor for demonstrating not only that breaching confidentiality is morally justified, but also that it is likely to achieve its intended purpose. One of the most important reasons for maintaining medical confidentiality, we have argued, is to empower patients to make informed choices about matters vital to their life and health. On very rare occasions, a doctor may have to consider breaching one patient’s confidentiality, if this is the only way to protect another’s ability to make a crucial informed choice. If he decides to breach confidentiality, however, the doctor may lose his only opportunity of influencing his patient to behave responsibly - and thereby his only opportunity of protecting further individuals with whom the patient may have sexual contact. This possible consequence may have to be accepted if the doctor judges that breaching confidentiality is the only way to ensure that his at-risk patient, to whom he has a particular responsibility, is informed. (This responsibility is not diminished by the possibility that the at-risk patient may already have been infected, since early diagnosis of HIV infection may have important implications for beneficial treatment.) But when the person at risk is not his patient, the doctor’s responsibility is more general and his judgement less certain. Thus the doctor may justifiably decide that his general responsibility to all non-patients at risk is best served by maintaining confidentiality in order to encourage his HIV-positive patient to respect others’ interests. If the medical profession is seen to accept the general principles on which this argument is based, we believe, it will help patients to understand that the ground rules of medical confidentiality, although complex, are consistent and justifiable. If patients have confidence in these ground-rules, moreover, this will encourage the kind of open dialogue and mutual empowerment which makes any need for breaches of confidentiality less likely. Kenneth M Boyd, MA, BD, PhD, is Director of Research at the Institute of Medical Ethics, and an Honorary Fellow of Edinburgh University Medical Faculty.

Institute ot Medical Ethics Working Party on the Ethical Implications of AIDS The Rt Hon Sir Patrick Nairne, Chairman. Professor Brenda Almond, Director, Social Values Research Centre, University of Hull. Miss Marija Danilunas, Solicitor, Gray’s Inn. Miss Ursula Gallagher, Nursing Adviser, Charing Cross Hospital; Honorary Research Fellow, IME. Dr Raanan Gillon, General Practitioner; Editor, Journal of Medical Ethics. Mr Jonathan Grimshaw, Director, The Landmark.

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AIDS: Society, Ethics and Law Kenneth M Boyd

Mr Kenneth Howse, Philosopher; Honorary Research Fellow, IME. Dame Rosalinde Hurley, Professor of Microbiology, Royal Postgraduate Medical School. Mr Michael Marland, Headmaster, North Westminster Community School. Professor Anthony Pinching, Professor of Immunology, St Bartholomew’s Hospital Medical College. Mrs Renee Short, Member, Medical Research Council. Mr Richard Wells, Oncology Nursing Adviser, Royal Marsden Hospital. Mrs Patricia Wilkie, Research Fellow, St George’s Hospital Medical School. Dr David Zideman. Consultant Anaesthetist,

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Hammersmith Hospital. Dr Kenneth M Boyd, Secretary.

References (1) Hippocratic Oath. In: Duncan A S, Dunstan G R, Welbourn R B eds. Dictionary o f medical ethics , revised edition. London: Darton, Longman and Todd, 1981: 210.

(2) See reference (1): Declarations: 132. (3) General Medical Council. Professional conduct and discipline: fitness to practise. London: General Medical Council, 1983: 18-21. (4) General Medical Council. Statement sent to all doctors in the UK: paragraph 19. IM E bulletin 1988; 41, Aug: 5f. (5) See reference (4): paragraph 17. (6) See reference (4): paragraph 10.

Infected Health Care Workers

[6] Infected Physicians and Invasive Procedures: National Policy and Legal Reality

PATTI MILLER TERESKERZ, R I C H A R D D. P E A R S O N , and J A N I N E J A G G E R University of Virginia, Charlottesville

It is one thing to trust physicians’ promises to diagnose, to treat, and not to make matters worse unnecessarily. It is quite another to trust them to know what is for their patients’ benefit, in the many senses of the word, when choices are available which can make matters both better and worse. (Jay Katz, cited in DeBarge 1993)

E

very

individual

in

our

society

is

a

potential

candidate for an invasive or surgical procedure. Most individuals, faced with this prospect, do not consider the possibility that their physician might harbor a serious, transmissible bloodborne pathogen, such as hepatitis B virus (HBV), hepatitis C virus (HCV), or the human immunodeficiency virus (HIV). The potential transmission of bloodborne pathogens from physician to patient during invasive procedures is an emotionally charged issue that puts the patient’s interests in di­ rect conflict with the interests of physicians. It is a conflict of life versus livelihood. Reports of the transmission of HBV (Goodwin, Fannin, and McCracken 1976; Rimland, Parkin, Miller, et al. 1977; Reingold, Kane, Murphy, et al. 1982; Polakoff 1986; Welch, Webster, Tilzey, et al. 1989; British Medical Journal 1991; Heptonstall 1991; Prentice, Flower, The Milbank Quarterly, Vol. 77, No. 4, 1999 © 1999 Milbank Memorial Fund. Published by Blackwell Publishers, 350 Main Street, Malden, MA 02148, USA, and 108 Cowley Road, Oxford 0 X 4 1JF, UK.

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5 12

P.M. Tereskerz, R.D. Pearson, andJ-Jagger

Morgan, et al. 1992; Johnston, MacDonald, Lee, et al. 1992; Heptonstall, Collins, Smith, et al. 1994; Harpaz, Von Seidlein, Averhoff, et al. 1996; Hospital Eî?iployee Health 1996; Incident Investigation Teams and Others 1997), HCV (Esteban, Gomez, Martell, et al. 1996; Bosch 1998), and HIV (Lot, Seguier, Fegeux, et al. 1999) from physicians to patients during invasive procedures have again raised the question of whether it is advisable for physicians infected with these types of dan­ gerous or lethal bloodborne pathogens to perform invasive procedures, and, if so, under what conditions. The transmission of HBV from surgeons who are infected with that virus, and in whom hepatitis B e antigen (HBeAG)— a marker for high infectivity— is present, has been well documented (Goodwin et al. 1976; Rimland et al. 1977; Reingold et al. 1982; Polakoff 1986; Welch et al. 1989; British Medical Journal 1991; Heptonstall 1991; Prentice et al. 1992; Johnston et al. 1992; Debarge 1993; Heptonstall et al. 1994; Harpaz et al. 1996; Hospital Employee Health 1996). In the United Kingdom, ten clusters of HBV involving 81 patients of HBe AG-positive surgeons have been reported {Hospital Employee Health 1996). In 1996, one report quantified the HBV infection rate among patients of an HBeAg-positive cardiac surgeon, which occurred despite his adherence to accepted infection-control precautions during surgery (Harpaz et al. 1996). In addition, it has been documented that HBV-positive surgeons with no detectable HBeAg have transmitted HBV to patients during invasive procedures (Incident Investigation Teams and Others 1997). It now appears that a subset of persons infected with e antigen-negative mutants may be as infectious as those who are e antigen positive (Boxall and Ballard 1997; Reiss-Levy, Wilson, Hedges, et al. 1994), and e antigen-negative mutants have been associated with fulminant hep­ atitis and a type of chronic hepatitis that is more severe than nonmutant HBV (Lee 1997). Patients of an HCV-positive cardiac surgeon have been infected with that virus (Esteban et al. 1996). More recently, an HCV outbreak re­ ported in Spain was traced to an anesthetist with the same HCV genome as the infected patients (Bosch 1998). At the time, 217 of his patients were infected and 2,000 more are now being screened for HCV. Restricting the practice of infected physicians who perform invasive procedures became a subject of discussion in the United States in 1990 when the first case of HIV transmission from a dentist to a patient was

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5 13

reported (Gostin 1989; Barnes, Rango, Burke, et al. 1990; Centers for Disease Control 1990; Gostin 1991; Orentlicher 1991; Lo and Steinbrook 1992). The issue recently came to the public’s attention again when the French Ministry of Health announced the probable transmis­ sion of HIV from an infected surgeon to his patient during orthopedic surgery (AIDS/TB Committee of the Society for Healthcare Epidemiol­ ogy of America 1997). The Centers for Disease Control and Prevention (CDC) is revising its recommendations on the management of health care workers infected with bloodborne pathogens. Proposed drafts of revised recommenda­ tions are currently embargoed. We are at the threshold of an opportu­ nity to adopt a national policy that can protect the welfare of patients without unduly restricting the practices of infected physicians. Several court decisions have been rendered and various laws have been passed since the first case of HIV transmission from dentist to patient was re­ ported. We will review the legal aspects of this issue in order to assist policy makers and to highlight the importance of gathering the opinions of professionals from multiple disciplines when devising policy in this area. National policy can address the issue of infected physicians perform­ ing invasive procedures in several ways. We will consider two ap­ proaches: restricting the practice of the infected physician and/or requir­ ing disclosure of serostatus before undertaking an invasive procedure as part of informed consent. This evaluation inevitably requires us to as­ sess the legal considerations associated with the two approaches and to consider the attendant feasibility and likely effectiveness of the legal findings. We have narrowed our discussion to the legal issues that bear on the restriction of practice and disclosure. We have chosen to consider the development of national policy governing physicians known to be in­ fected with a bloodborne pathogen who perform invasive procedures. The problem of using screening procedures to identify infected physi­ cians who pose a risk is a separate, albeit extraordinarily important, issue that merits its own consideration. Our focus is on the legal aspects of this complex ethical and scientific topic. Although we will be devoting the most space to physicians, our conclusions apply as well to other health care professionals who perform or assist with invasive procedures.

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£Ai. Tereskerz, R.D. Pearson, andJ. J agger

Current Recommendations of the Centers for Disease Control and Prevention (CDC) Despite mounting evidence of HBV, HCV, and HIV transmission from health care workers to patients during invasive procedures, policies sim­ ilar to those enacted in England, which restrict some infected physicians from performing invasive procedures (Hospital Employee Health 1996; Communicable Disease Report Weekly 1995), have yet to be adopted in the United States. U.S. national policy on this issue was established in 1991, when the CDC published its recommendations (Centers for Disease Control 1991). The CDC recommendations do not impose specific restrictions on in­ fected health care workers performing invasive procedures. Instead, the CDC recommendations state that infected health care workers “should not perform exposure-prone procedures unless they have sought counsel from an expert panel and notify prospective patients of the healthcare worker s seropositivity prior to undergoing an exposure-prone proce­ dure.” The expert panels should consist of health professionals from a variety of medical backgrounds. The CDC rejects mandatory testing of health care workers who perform invasive procedures, but it encourages voluntary testing. A recent CDC document on prevention and control of HCV states that there are no recommendations for restricting the pro­ fessional activities of health care workers with HCV (Centers for Disease Control and Prevention 1998). The CDC recommendations define characteristics of exposure-prone procedures but do not identify specific procedures (Centers for Disease Control 1991 ). The CDC proposal that the identification of exposureprone procedures be left to medical, surgical, and dental organizations was opposed by many organizations on the grounds that more scientific data were needed to make these decisions (Anderson 1993). The Amer­ ican Medical Association (AMA) initially supported the CDC's efforts to develop a list of exposure-prone procedures, stating that “it is sim­ ply unacceptable for the medical profession to stand by, wait, and watch for possible cases of health care workers infecting patients with HIV in order to bring more scientific confidence to our recommendations. . . . Ambiguity or uncertainty should be resolved in favor of our patients’ interest” (Anderson 1993). In June, 1992, the CDC officially adopted its initial recommenda­ tions but did not provide a list of exposure-prone procedures. The agency

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determined that each state health department should decide for itself which, if any, procedures are exposure prone (Centers for Disease Con­ trol 1991). Subsequent federal legislation required states to adopt the CDC recommendations or their equivalent (Gerberding 1996). The CDC strategy has resulted in widely divergent policies for regu­ lating infected health care workers (Anderson 1993). In Texas and Arkansas, for example, infected physicians must inform patients of their infected status before undertaking an invasive procedure (Anderson 1993). Other states leave it to the discretion of the review panel to deter­ mine whether physicians must disclose their infected status. However, most states have adopted laws or regulations that do not require infected physicians to disclose their infectious status to patients prior to surgery (McIntosh 1 9 9 6 ). The landscape is further complicated by case law. Statutes and regu­ lations regarding disclosure exist in most states (McIntosh 1996). How­ ever, it is still possible to file civil suits, which leave to the courts the options of assessing the validity of the statutes or regulations, of inter­ preting them, or of deciding whether disclosure will be required in states whose statutory or regulatory schemes are silent on the issue.

Grounds for Liability A patient who has been infected by a physician or who has unwittingly submitted to an invasive procedure performed by an infected physi­ cian may bring a claim for battery, misrepresentation, or negligence (Strausberg and Getz 1992). To date, claims against physicians for bat­ tery or misrepresentation for failing to disclose their HIV status to pa­ tients have not been successful because the plaintiffs were unable to demonstrate that they had been damaged. In each case, the plaintiff was not infected by HIV but claimed emotional distress as a result of the exposure.1 The legal basis for most claims has been, and will likely con­ tinue to be, negligence for failure to obtain informed consent to perform an invasive procedure when the physician is infected.

1Faya v. Almaraz and Rossi v. Almaraz, 620 A2d 327 (Md. 1993); Health Law Rep. 3:1190 (BNA) (August 11,1994) citing Marchia v. Long Island Railroad Co., CA2, No. 93-7521, July 29, 1994; Brzoska et al. v. Olsen, 1994 WL 233866 (Del. Super. Ct.).

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Negligence To prove negligence, a plaintiff must show the following: 1. the existence of a duty, recognized by law, to adhere to a standard to protect others against unreasonable risks 2. that a breach of the duty occurred 3. a causal connection between the conduct and 4. resulting injury or damages (Strausberg and Getz 1992) Before the 1970s, the professional standard formed the basis for judg­ ing whether informed consent was necessary. The “professional stan­ dard” refers to what a reasonable practitioner would do under the same circumstances; in other words, the medical community set the standard.2 However, with Canterbury v. Spence^ and Cobbs v. G rant^ many courts adopted a new standard, requiring the physician to disclose all informa­ tion that a reasonable person, not a reasonable physician, in the patient’s circumstances would consider material to a treatment decision. Thus, it is relevant that opinion polls have indicated that most Americans believe physicians infected with HIV should disclose their status to pa­ tients (Orentlicher 1991). A 1991 Newsweek poll found that 94 per­ cent of adults surveyed agreed that physicians and dentists should be required to inform patients if they are infected with HIV; 63 percent thought HIV-infected surgeons should not be allowed to practice (Lo and Steinbrook 1992). A 1987 Gallup poll found that 86 percent of re­ spondents thought patients should be told if their physician has AIDS (Orentlicher 1991). The American Medical Association’s Council on Ethical and Judicial Affairs has stated that physicians who know they are infected by a trans­ missible pathogen should not engage in any activity that creates a trans­ mission risk to others. The Council stated: “{I]f a risk of transmission of an infectious disease from a physician to a patient exists, disclosure of that risk to patients is not enough; patients are entitled to expect that their physicians will not increase their exposure to the risk of contracting an infectious disease, even minimally” (Orentlicher 1991).

2Natanson v. Kline, 350 P.2d 1093 (Kan. I960). 3464 F. 2d 772 (D.C. Cir 1972), cert, denied, 409 U.S. 1064 (1972). 48 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972).

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A more attenuated AMA statement on HIV-infected physicians dated January 17, 1991, read: The health of patients must always be the paramount concern of physicians. Consequently, until the uncertainty about transmission is resolved, the American Medical Association believes that HIV in­ fected physicians should either abstain from performing invasive pro­ cedures which pose an identifiable risk of transmission or disclose their seropositive status prior to performing a procedure and proceed only if there is informed consent. As a corollary, physicians who are at risk of acquiring HIV infection, and who perform invasive procedures should determine their HIV status. (Altman 1991) The 1996 A M A Policy Compendium states that any HIV-infected physi­ cian should disclose his or her serostatus to a state public health official or local review committee. The review committee may recommend to the appropriate authority restrictions upon the physician’s practice if there is significant risk to patients’ welfare. The Superior Court of New Jersey, in Behringer Estate v. Princeton Med­ ical Center,5 addressed the issue of informed consent in the case of a physician with AIDS who practiced otolaryngology and facial plastic surgery. The physician’s estate brought suit against the hospital where he worked, claiming the hospital had discriminated against him by, among other things, requiring him to obtain informed consent before perform­ ing invasive procedures. The court upheld the use of informed consent, concluding that it was an important check on the medical profession when determining the existence of risk. Regardless of whether the prudent patient or reason­ able physician standard is used, the court held that informed consent is required. The Behringer case is noteworthy for its recognition of the inherent conflict of interest in decisions by the expert panels of health profes­ sionals that have been recommended by the CDC (Centers for Disease Control 1991). The court determined that a panel member’s judgment may be influenced by the knowledge that any limitations placed on the practice of colleagues might ultimately affect his or her own career.5 Consequently, the court concluded that informed consent is necessary when a determination that no risk exists was reached by experts with a vested interest in the outcome of that decision. 5592 A.2d 1251 (N.J. Super. Ct. 1991).

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Significantly, the court found that transmission risk was not the only one to consider. The risk of exposure to surgical personnel, which could subject the patient to months of HIV follow-up testing and prophylactic treatment, was alone sufficient to require disclosure. In making its determination, the court considered these factors: 1 . the severity of the risk

2. the probability that transmission of HIV would occur 3. the circumstances surrounding the experience of risk The court found that as the severity of a potential harm increases, the need to disclose risks of low probability becomes more pressing. The court also emphasized the element of choice: A reasonably prudent patient would find information that his phy­ sician is infected with HIV material to his decision to consent to a seriously invasive procedure because the potential harm is severe and the risk, while low, is not negligible. Moreover, he can avoid the risk entirely without any adverse consequences for his health: By choosing another equally competent physician (where available) he can obtain all the therapeutic benefits without the risk of contracting H IV from his physician. The patient, then can demonstrate not only that the information is material to his decision, but that he would have made a different decision had he been given the facts, (citation omitted )5 Within this context, the court held that New Jersey’s strong pol­ icy supporting patient rights weighed against the physician’s individual right to perform an invasive procedure. The court found that when the ultimate harm is death, a policy that precludes the performance of inva­ sive procedures is justified when there is “any” risk of transmission.5 The decision has been noted for the court’s recognition that the risk of transmitting infectious diseases from physician to patient is unlike general risks associated with medical procedures, as it can be eliminated if a noninfected physician performs the procedure (DeBarge 1993). Some have argued that courts, by upholding disclosure,6 will permit irrational or invidious discrimination. The Behringer court addressed this concern as follows: “If the patient’s fear is without basis, it is likewise the duty of the physician to allay that fear.”5 6Leckelt v. Board of Commissioners, 909 F.2d 820 (5 th Cir. 1990); In re Milton S. Hershey Medical Ctr., 634 A.2d 159 (Pa. 1993); Bradley v. Univ. of Texas, /VI. D. Anderson Cancer Center, 3 F.3d 922 (5th Cir. 1993).

,

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Others have concluded that the Behringer court was correct because there is a choice between infected and uninfected physicians. Patients who choose to undergo surgery by an uninfected physician may be acting rationally, rather than irrationally, because a patient is entitled to have all risks within his or her doctor’s control eliminated (Debarge 1993; McIntosh 1996). One observer commented: If the CDC and the Occupa­ tional Safety and Health Administration consider the risk of HIV trans­ mission to a physician following an exposure to a patient to be significant enough to require repeated follow-up testing, then a reasonable patient would also likely conclude that the risk of exposure to an infected physi­ cian is sufficiently serious and material to require disclosure (McIntosh 1996). Not only has informed consent been upheld, but courts have also al­ lowed civil suits to be brought for failure to obtain it. From a policy perspective, informed consent alone cannot adequately protect patients. However, given that the CDC recommendations do not restrict infected physicians from undertaking procedures that pose a risk of exposure, it remains one of the limited tools available to protect patients. Despite increasing evidence that bloodborne pathogens can be trans­ mitted by physicians to patients during invasive procedures, the CDC recommendations for protecting patients have not been updated. A 1997 compendium of CDC guidelines restates the 1991 recommendations for health care workers infected with HBV (Friede, O ’Carroll, Nicola, et al. 1997). A survey of five large medical centers in New York City concerning their HBV-related policies illustrates the limited protection available to patients. The survey found that the 1991 CDC guidelines are still generally observed and that few hospitals restrict the clinical privileges of health care workers infected with HBV unless there is evidence of e antigen. Only one hospital reported checking e antigen—negative work­ ers for HBV D N A in serum samples, which is the best indication of active viral replication (Ristinen and Maintani 1998). Ristinen and Maintani have taken the position that the CDC has em­ phasized the rights of health care workers while focusing to a lesser de­ gree on the risk of transmission of serious and potentially fatal bloodborne pathogens to patients. Another perspective expressed by an advisory council to the National Institute of Allergy and Infectious Disease is that the CDC “bowed to political pressure in making its recommendations” rather than basing

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them on available scientific evidence (Anderson 1993). Current CDC recommendations shift the responsibility for decision-making to practi­ tioners and their patients. In response, the courts, as the case of Behringer made clear, have correctly assessed that informed consent is vital to the protection of patients’ interests. Although imposing liability for failure to obtain informed consent is important, it is by no means sufficient because it begs the question of whether consent within this context can ever be truly informed. Patients may find it difficult to evaluate scientific information concerning risk and may be reluctant to request an alternative physician when their own physician is infected. A uniform national policy is needed that explicitly spells out which procedures are exposure prone and present a risk to patients. Once these are identified, the CDC recommendations should be revised to state that infected physicians should not perform exposure-prone procedures that present a risk of transmitting bloodborne pathogens to patients. How­ ever, until such a definitive national policy is established, informed con­ sent is one of the limited, though less than ideal, means available to protect patients by requiring disclosure of an otherwise hidden risk.

Emotional Distress The issue of informed consent has arisen in cases initiated by patients who have undergone surgery performed by an HIV-infected surgeon but were not informed prior to surgery that the surgeon was HIV positive. The plaintiffs brought suit for emotional distress resulting from fear of acquiring AIDS. Some courts have allowed suits to be brought on the basis of fear of acquiring AIDS, even in the absence of proof that the source of the ex­ posure was HIV positive or that the plaintiff actually serocon verted.7 In Faya v. Almaraz and Rossi v. Almaraz ,8 for example, two patients brought negligence actions against an HIV-positive oncologist for failing to in­ form them that he was HIV-positive. The Maryland Court of Appeals held that the patients could recover for the emotional distress they en­ dured from the moment they learned of the physician’s status to the time they received their own HIV-negative test results. 1Carroll v. Sisters ofSt. Francis Health Services, 1992 WL 276717 (Tenn. App. 1992); Castro v. New York Life bisurance Co. 153 Misc.2d 1, 588 N.Y.S2d 695 (1991); Kaehne v. Schmidt 163 Wise.2d 524, 474 N.W.2d 107 (Wis. App. 1991) (unpublished opinion). HFaya v. Almaraz and Rossi v. A lm a r a z 6?0 A.2d 327 (Md. 1993).

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Most courts have required the plaintiffs to prove actual exposure to HIV as a result of a physical injury that results in emotional distress and physical manifestations of such distress to recover damages.9 A recent national survey of emotional distress claims for potential or actual exposure to HIV provides a state-by-state analysis of what is re­ quired to prove such a claim (Fisher 1997).

Restricting a Physician’s Practice and Discrimination Although there is judicial authority to support disclosure of a physician’s HIV status to patients, the issue of whether restricting an infected physi­ cian’s practice is discriminatory has been raised. The Federal Rehabilitation A ct 10 prohibits employment discrimina­ tion by the federal government, federal contractors, and recipients of federal assistance on the basis of handicap if the individual is “otherwise qualified” to perform the job. Likewise, the Americans with Disabilities Act (ADA ) 11 prohibits discrimination on the basis of disability in both public and private employment. The ADA follows section 504 of the Rehabilitation Act in defining handicap. The United States Supreme Court ruled in School Board of Nassau County v. Arline 12 that an individual with a contagious disease is con­ sidered handicapped under the Rehabilitation Act and is therefore pro­ tected from discriminatory practice. The Supreme Court has also held that individuals with contagious diseases are otherwise qualified for 5'Johnson v. West Virginia University Hospitals, 186 W.Va. 648, 413 S.E.2d 889 (1991); Burk v. Sage products Inc., l A l F. Supp. 285 (E.D. Pa 1990); Barrett v. Danbury Hosp. 232 Conn. 242, 654 A.2d 748 (1995); Neal v. Neal, 125 Idaho 617, 873 P.2d 871 (1994); Funeral Services by Gregory, Inc. v. BlueÆet3omm. Hosp., 186 W.Va. 424, 413 S.E.2d 79 (1991), overruled on other grounds, Courtney v. Courtney, 190 W.Va 126, 437 S.E.2d 436 (1993); Kerins v. Hartley, 27 Cal. App. 4th 1062, 33 Cal. Rptr. 2d 172 (1994); Doe v. Surgicare of Joliet, Inc., 268 111. App.3d 793, 643 N.E.2d 1200 (1994); Ordway v. County of Suffolk, 154 Misc.2d 269, 583 N.Y.S.2d 1014 (Sup. Ct. Suffolk Co. 1992); Harev. New York, 173 A.D.2d 523, 570 N.Y.S.2d 125, appeal denied, 78 N.Y.2d 859, 575 N.Y.S.2d 455 (1991); Doev. Doe 136 Misc.2d 1015 519N.Y.S.2d 595 (Sup. Cc. 1987); Lubouitz v. Albert Einstein Medn.il C tr, 424 Pa. Super. 468, 623 A.2d 3 (1993); 2 Health L. Rep. 1685 (BNA) (Dec. 20 1993) citing KAC v. Benson, Minn. Ct. App. Nos. C6-93-1306 and C4-93-1328, Dec. 14, 1993. 1029 U.S.C. §794(a) as amended by the Rehabilitation, Comprehensive Services, and Development Disabilities Amendments of 1978, P. L. 95-602 §119, 92 Stat. 2955. 11Americans with Disabilities Act, P. L. 101-136, 104 Stat. 327. 12480 U.S. 273 (1987).

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employment if they do not pose a “significant risk” of transmitting dis­ ease. It is noteworthy that in determining the standard by which sig­ nificant risk should be judged, the Court adopted certain features of the recommendations formulated by the AMA: 1 . the mechanism of disease transmission 2 . the duration of the risk

3. the severity of the risk 4. the probability that the disease will be transmitted The Court also noted that an individual is not otherwise qualified if reasonable accommodations will not eliminate the risk. The Arline decision was codified in the Civil Rights Restoration Act, which is “applicable to a person with a contagious disease if he or she does not pose a ‘direct threat to the health or safety of other individu­ als.’” 13 The legislative history of this act demonstrates that the language “direct threat” refers to the standard of “significant risk” used by the court in Airline. More recently, the Supreme Court has ruled that asymptomatic HIV infection is a disability under the ADA and, regarding the direct threat provision, determination of whether a significant health risk exists from accommodating such a disabled person must be based on medical or other objective evidence, not only on a good-faith belief that a significant risk exists. 14 The question then becomes whether restriction of an infected physi­ cian s practice can be considered discriminatory. Notwithstanding the very recent Supreme Court decision , 14 courts in the past have consis­ tently upheld practice restrictions placed upon surgical personnel in­ fected with HIV or HBV under the ADA and/or the Rehabilitation Act . 15 The courts determined that the plaintiffs were not otherwise qual­ ified because they posed significant risks to patients that could not be reasonably accommodated. The case that has most extensively addressed this issue is again Behringer Estate v. Princeton Medical Center,5 in which the HIV-infected l3P. L. 100-259, 9, 102 Scat. 28, 31-32 (1988). 14Bragdon v. Abbot, 118 S.Ct. 2196 (1998). 15Doe v. University of Maryland Medical System Corp., 50 F.3d 1261 (4th Cir. 1995); Bradley v. Univ. of Texas, 3 F.3d 922 (5th Cir. 1993); Mauro v. Borgess Medical Center, 886 F. Supp. 1349 (W.D. Mich. 1995); Scoles v. Mercy Health Corp., 887 F. Supp. 765 (E.D. Pa. 1994).

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physician brought his claim under a state antidiscrimination law whose language is similar to that of the Americans with Disabilities Act. When the plaintiff, who was an otolaryngologist and plastic surgeon, was diag­ nosed with AIDS, the president of the medical center where the plain­ tiff had staff privileges immediately canceled his surgical cases. Subse­ quently, the matter was presented to the hospital’s board of trustees, which adopted a policy stating that an HIV-positive health care worker could continue to treat patients but could not perform any procedures that pose any risk of transmission to the patient. HIV-infected surgeons were also required to obtain informed consent before operating. The test applied by the court was whether the surgeon’s continued performance of invasive procedures caused a reasonable probability of substantial harm to others; the court upheld the restrictions placed on the surgeon by the hospital and found that there was no discrimination. Doe v University of Maryland Medical System Corp. 15 is also noteworthy for the court’s treatment of the CDC recommendations. Doe involved an HIV-positive neurosurgery resident who was permanently suspended from practice. Dr. Doe brought suit against the employing institution, claiming violation of the Rehabilitation Act. A panel of experts was con­ vened in accordance with the CDC recommendations to determine the circumstances under which Dr. Doe should be allowed to practice. The panel recommended that Dr. Doe be allowed to return to surgical prac­ tice but restricted him from undertaking certain surgical procedures. The panel did not recommend that Dr. Doe be required to obtain in­ formed consent. The hospital rejected the panel’s recommendations and terminated the resident, concluding that all procedures he would under­ take were exposure prone within the CDC definition. The court upheld the institution’s decision and found that the hos­ pital’s decision to bar Dr. Doe from performing procedures the hospital determined to be exposure prone was consistent with the CDC recom­ mendations. Implicit in this decision is the court’s upholding of an in­ stitution’s right to terminate or restrict the practice of an HIV-positive physician against the advice and counsel of the expert committee rec­ ommended by the CDC. The court, in Doe v. Washington University,16 reached the same conclu­ sion when it determined that an HIV-positive dental student was not otherwise qualified to perform invasive procedures because the risk was

16780 F. Supp. 628 (E.D. Mo. 1991).

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in conflict with the axiom to do no harm as embraced by the Hippocratic Oath.

Conclusion The contrast between existing recommendations and relevant court rul­ ings is notable. Recent judicial rulings have upheld informed consent and the restriction of an infected physician’s practice under some cir­ cumstances where the physician has been HIV positive. Courts have consistently denied discrimination claims of infected health care workers and have upheld restrictions on the practice of HIVinfected physicians who perform invasive procedures, despite the low transmission risk. In rendering their decisions, courts have relied heavily on AMA policies. Legal authority is consistent with early AMA policy in holding that there is no tolerable level of risk of HIV transmission from physician to patient. The judiciary has also carefully guarded patient autonomy by requiring informed consent before an infected physician undertakes an invasive procedure, even when the medical community has determined that no risk exists.5 The following legal principles driving these decisions can be derived from the cases reviewed: 1 . The health and welfare of patients takes precedence over the rights

of infected physicians to perform invasive procedures. 2. No minimal level of risk of transmitting infection from physician to patient is tolerated for a disease in which the potential for harm is serious or for which there is a substantial risk of transmission. 3. The patient s right to self-determination is upheld by requiring that an infected physician obtain informed consent before perform­ ing any invasive procedure. Although the cases reviewed here involve HIV, it is likely that the same principles will hold for HBV and HCV. "Whereas the severity of disease caused by HBV and HCV is often, but not always, less than that of HIV, the risk of transmission is higher. Level of risk is given considerable weight in a court’s determination of whether or not to allow infected physicians to perform invasive procedures (Keyes 1990).

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The lack of a uniform national policy means that patients’ rights and the risks they assume in undergoing treatment do not depend on a national medical standard, but rather on the state or institution where treatment is provided. Thus, a uniform national policy, based on spe­ cific criteria for identifying procedures with a theoretical risk of HIV, HBV, and HCV transmission, is still needed. These criteria may then be used to identify invasive procedures that infected physicians should not perform. Such criteria probably should be pathogen specific, given the differences in transmissibility among HIV, HBV, and HCV. Both legal and medical realities call for a straightforward policy that provides decision makers with clear guidance in determining whether, and under what conditions, infected physicians should perform invasive procedures. We have recommended the establishment of a multidisci­ plinary national committee to develop a uniform national policy. This committee would be responsible for determining which procedures are exposure prone. Clearly, a shortcoming of the current CDC recommendations is that they do not adequately represent the patient’s interest. The regulation of infected health professionals by committees composed primarily of health professionals presents a serious conflict of interest. Faced with making a decision to limit an infected colleague’s practice, health pro­ fessionals must be aware that their decisions could affect their own prac­ tices and livelihoods in the future. This inherent conflict of interest has hampered the development of a coherent national policy that fairly addresses the opposing and incom­ mensurate considerations of physicians’ livelihoods versus patients’ lives and health. An essential component of future policy development is a balanced approach that fosters equitable representation and protection of all in­ volved parties. N ot only would a more representative, multidisciplinary committee correct for the conflict of interest that currently exists; it might also create the opportunity to break the current stalemate in the development of a definitive national policy. Committees composed of medical professionals, with only token representation of other disciplines, do not sufficiently balance and protect the interests of patients. There are models for establishing a multidisciplinary committee. Among them is the National Bioethics Advisory Commission, whose members include representatives from the professions of ethics, law, and

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medicine, as well as representatives from the community. The latter are important because they speak for the interests and values of potential health care recipients. It would also be instructive to consider the federal regulations governing Institutional Review Board membership . 17 There comes a point when both legal and medical reality call for a decisive policy that may present serious consequences for infected physi­ cians; however, the principles upon which medical practice was founded must not be compromised to avoid difficult decisions. Percival, writing on medical ethics, commented on this point nearly two centuries ago: And [the patient] has the strongest claim from the trust reposed in his physician, as well as from the common principles of human­ ity, to be guarded against whatever would be detrimental to him . . . . (DeBarge 1993)

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Rimland, D., W.E. Parkin, G.B. Miller, Jr., and W.D. Schrack. 1977. Hepatitis B Outbreak Traced to an Oral Surgeon. New EnglandJour­ nal of Medicine 296:953-8. Ristinen, E., and R. Maintini. 1998. Ethics of Transmission of Hepatitis B Virus by Health-care Workers. Lancet 352(9137): 1381—3Strausberg, G.I., and R.D. Getz. 1992. Health Care Workers with AIDS: Duties, Rights, and Potential Tort Liability. Baltimore Law Review 21:285-310. Welch, J., M. Webster, A.J. Tilzey, N .D . Noah, et al. 1989. Hepatitis B Infections after Gynecological Surgery. Lancet 1(8631):205-7. Address correspondence to: Patti Miller Tereskerz, JD, PhD, Director of Health Law and Policy, International Health Care Worker Safety Center, Suite 400, Blake Center, 1224 West Main Street, Charlottesville, VA 22903 (e-mail:[email protected]).

[7] The Journal o f Legal Medicine, 13:333-356 Copyright © 1992 by Hemisphere Publishing Corporation

HIV-POSITIVE HEALTH CARE WORKERS AND THE OBLIGATION TO DISCLOSE DO PATIENTS HAVE A RIGHT TO KNOW? Karen C. Lieberman, J.D.* Arthur R. Derse, M.D., J.D.f

INTRODUCTION The AIDS epidemic has attracted much attention and instilled great anxiety in people throughout the world.1 The disease, for which neither a vaccina­ tion nor a cure currently exists, has caused renewed examination of the manner in which society deals with infectious diseases.2 Studies show that health care workers are concerned about the possibil­ ity of becoming HIV-infected by treating people with HIV and AIDS.3 Many health care providers have expressed the view that they would prefer not to

* Adjunct Assistant Professor of Law, Marquette University Law School. Address correspondence to Professor Lieberman at Marquette University Law School, 1103 West Wisconsin Avenue, Mil­ waukee, Wisconsin 53233. * Staff Physician, St. Joseph’s Hospital and Assistant Clinical Professor of Emergency Medicine and Bioethics, Medical College of Wisconsin. The authors are grateful to Prof. Mary Mahoney, Ms. Mary Olson, and Mr. Duane Strojny for their valuable research assistance. 1 See, e.g., Hepatitis B and HIV Infections in Dental Professionals—British Columbia, 16-34 C a n ­ a d a D is e a s e s W e e k ly Rep. 175 (Aug. 25, 1990); Dentist Infected by AIDS, N ew Z e a l a n d D e n t. J. 64 (Apr. 1988); Doctors Infected with HIV, 296 B r it. M e d . J. 76 (Apr. 30, 1988); Duties of Dentists Infected with Human Immunodeficiency Virus (HIV) or Suffering from AIDS, 164 B r it. D e n t. J. 61 (Feb. 6, 1988); Dentists and AIDS, 1987 D e n t a l U p d a te 440 (Dec.). See also Fluss & Zeegers, AIDS, HIV, and Health Care Workers: Some International Legislative Perspectives, 48 M d . L. Rev. 77 (1989). 2 See Council Report, Ethical Issues Involved in the Growing AIDS Crisis, 259 J.A.M .A. 1360 (1988); Bayer & Gostin, Legal and Ethical Issues in AIDS, 2 C u r r e n t T o p ics in AIDS 263 (1989); Zuger & Miles, Physicians, AIDS, and Occupational Risk, 258 J.A.M.A. 1924 (1987). 3 E.g., Gerbert, Maguire, Badner, Altman, & Stone, Why Fear Persists: Health Care Professionals and AIDS, 260 J.A.M .A. 3481 (1988); Gostin, Hospitals, Health Care Professionals, and AIDS: The 4‘Right to Know” the Health Status of Professionals and Patients, 48 Md. L. Rev. 12, 42 (1989).

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treat HIV-positive patients,4 prompting a burgeoning body of literature on the subject of the obligation of the medical profession to care for patients who are HIV-infected.5 Health care workers are not the only people concerned about AIDS. Patients are worried too. The publicity surrounding the case of Kimberly Bergalis,6 who apparently became infected after an invasive procedure per­ formed by an HIV-infected Florida dentist,7 raises poignantly some troubling issues involving the HIV-infected health care worker. Just as health care providers are concerned about the risk to their safety when treating HIVinfected patients, patients are concerned about the risk to their safety when being treated by HIV-infected health care providers. What is the extent of health care workers’ obligations to protect pa­ tients from HIV infection? The question raises myriad complex issues: for example, whether and to what extent disclosure of a health care worker’s HIV-positive status to co-workers, supervisors, or administrators should be required; whether mandatory testing of some or all health care professionals should be implemented or whether a system of voluntary testing will suf­ fice;8 and, whether and how practice modification for HIV-infected health care workers should be implemented. Further complicating the resolution of these questions is the fact that what may appear to some to be epidemiologically sound solutions appear to others to result in discrimination against

4 Colombotos, Messeri, Burgunder, Elinson, Gemson, & Hynes, Physicians, Nurses, and AIDS: Preliminary Findings from a National Study 6 (Columbia University School of Public Health June i2, 1991) (“ Nearly two-thirds [of respondent physicians and nurses] ‘would rather not care for patients who are HIV positive’ ” ); Gramelspacher & Siegler, Do Physicians Have a Professional Responsibility to Care for Patients with HIV Disease?, 4 Is su e s L. & M ed . 383, 384-86 (1988); Gostin, supra note 3, at 42. 5 See, e.g., Emanuel, Do Physicians Have an Obligation to Treat Patients with AIDS?, 318 N ew E n g . J. M e d . 1686 (1988); Lo, Obligations to Care fo r Persons with Human Immunodeficiency Virus, 4 Is su e s L. & M e d . 367 (1988); Gramelspacher & Siegler, supra note 4; Zuger & Miles, supra note 2. See also Physicians May Not Be Obligated to Take New HIV Patients, 6 M ed . E th ic s A d v is o r 113 (Sept. 1990). 6 See, e.g., Dental Patient Tom by AIDS Calls for Laws, N.Y. Times, June 22, 1991, at 5, col. 1 (National ed.); Breo, Meet Kimberly Bergalis—the Patient in the “Dental AIDS Case," 264 J.A.M.A. 2018 (1990); Patient Whose AIDS Was Tied to Dentist Will Get $1 Million, N.Y. Times, Jan. 24, 1991, at D22, col. 1; AIDS from a Healer, Scorn from Others, N.Y. Times, Feb. 9, 1991, at 1, col. 2. 7 Update: Transmission o f HIV Infection During an Invasive Dental Procedure—Florida, 40 M o r ­ b id ity & M o r t a l i t y W e e k ly Rep. 21 (Jan. 18, 1991). The same dentist apparently infected ^our other patients as well, although the precise mode of transmission remains uncertain. See id. See also Update: Transmission o f HIV Infection During Invasive Dental Procedures—Florida, 40 M o r ­ b id ity & M o r t a l i t y W e e k ly Rep. 377 (June 14, 1991). 8 For a thorough review of the debate on the testing issue, see Angell, A Dual Approach to the AIDS Epidemic, 324 N ew E n g . J. M e d . 1498 (1991); Bayer, Public Health Policy and the AIDS Epi­ demic: An End to HIV Exceptionalism?, 324 N ew E n g . J. M ed . 1500 (1991); Brennan, Transmis­ sion o f the Human Immunodeficiency Virus in the Health Care Setting—Time fo r Action, 324 N ew tiNG. J. M e d . 1504 (1991).

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HIV-infected health care workers and unwarranted infringements on their right to privacy.9 This article focuses on yet another of these highly controversial issues: whether HIV-positive health care workers have an obligation to disclose their seropositive status to patients. This issue has caused a great deal of consternation among health care workers because public opinion polls show that most patients would choose another practitioner upon learning that their health care provider is HIV-positive. 10 In short, a requirement that HIVinfected health care workers disclose their HIV status to patients may well result in the significant modification or termination of those health care workers’ careers. Patients, on the other hand, faced with a deadly infectious disease, overwhelmingly feel that a health care worker’s HIV-positive status is information they want and are entitled to know. 11 The task of balancing conflicting interests is rarely easy, and is particu­ larly difficult in a situation where both sides have so much at stake. Never­ theless, balancing of competing interests is a task routinely undertaken by our courts. Because the issue of a health care worker’s liability for failing to disclose the worker’s HIV-positive status to patients already has been pre­ sented to the courts, 12 it is useful to explore the question from a legal per­ spective. Accordingly, this article examines the relevance of the legal con­ cepts of informed consent and fiduciary duty to the health care worker-patient relationship in this context. The article concludes that courts applying these legal concepts likely will rule that HIV-positive health care 9 See, e.g., Gostin, The HIV-Infected Health Care Professional: Public Policy, Discrimination, and Patient Safety, 18 Law, M e d . & H e a l t h C a r e 303 (Winter 1990). 10 In a Gallup Poll done for Newsweek in June of 1991, 65% of respondents said they would discon­ tinue all treatment with an HIV-infected physician, dentist, or other health-care worker; 13% said they would continue treatment but exclude surgery or other invasive procedures; and, 15% said they would continue treatment with stringent protective measures. For the Gallup/Newsweek Poll: AIDS and Health Care Workers, see Doctors and AIDS, N e w sw eek , July 1, 1991, at 48, 52. See also Gerbert, Maguire, Hulley, & Coates, Physicians and Acquired Immunodeficiency Syndrome: What Patients Think About Human Immunodeficiency Virus in Medical Practice, 262 J.A.M.A. 1969, 1970 (1989) (56% of respondents thought they would go to a different physician if their current physician had AIDS or the AIDS infection). 11 Newsweek Poll, supra note 10, at 51 (at least nine out of 10 respondents felt that health care workers should be required to tell patients if they are infected with the AIDS virus); Gerbert, Maguire, Hulley, & Coates, supra note 10, at 1971 (80% of respondents believed their physician should inform them if the physician had AIDS or the AIDS virus infection). See also New AHA Guidelines Urge Universal AIDS Precautions, 16 M e d . S t a f f N ew s 2, 2 (Aug. 1987) (“ In a recent poll of 1,000 adults nationwide, conducted . . . by SRI Gallup, . . . 86 percent said patients should be told if the health care worker caring for them has AIDS.” ). 12 At least two patients infected by the Florida dentist have sought recovery against his estate and insurance company. See Breo, supra note 6; Patient Whose AIDS Was Tied to Dentist, supra note 6; Second Patient of Dentist in Florida Files Suit Over AIDS Infection, N.Y. Times, Feb. 15, 1991, at A22, col. 1. Moreover, at least one court has examined the duty of an HIV-positive surgeon who performs invasive procedures to disclose his HIV status to patients. Estate of Behringer v. Medical Center at Princeton, 249 N.J. Super. 597, 592 A.2d 1251 (1991).

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workers have a duty to disclose their health status to patients if health care workers intend to perform procedures that pose a potentially material risk of HIV transmission. Current medical evidence indicates that such procedures would primarily be invasive procedures. 13 These rulings will be based on application of the relevant legal principles as well as consideration of the underlying ethical and public policy objectives upon which the legal princi­ ples rest. 14 I. HIV AND AIDS IN THE HEALTH CARE SETTING Acquired Immune Deficiency Syndrome (AIDS), first recognized in 1981, is the most severe manifestation of a clinical spectrum of illness after infection with the human immunodeficiency virus (HIV). The disease is characterized by the development of serious opportunistic infections, neo­ plasms, or other life-threatening manifestations resulting from immunosup­ pression. By the end of October 1991, 196,034 cases of AIDS in adults were reported in the United States.15 Another 80,000 cases are projected to be diagnosed in 1992 alone. 16 By the end of October 1991, 126,491 deaths among adults with AIDS had been reported to the Centers for Disease Con­ trol (CDC) . 17 13 The term “ invasive” has been defined by the Centers for Disease Control to mean surgical entry into tissues, cavities, or organs or repair of major traumatic injuries (1) in an operating or delivery room, emergency department, or outpatient setting, including both physicians’ and dentists’ offices; (2) cardiac catheterization and angiographic procedures; (3) a vaginal or cesarean delivery or other invasive obstetric procedure during which bleed­ ing may occur; or (4) the manipulation, cutting, or removal of any oral or perioral tissues, including tooth structure, during which bleeding occurs or the potential for bleeding exists. Recommendations fo r Prevention o f HIV Transmission in Health-Care Settings, 36 M o r b id ity & M o r t a l i t y W e e k ly Rep. 6S-7S (Aug. 21, 1987) (Supp. 2S) [hereinafter 1987 CDC Recommenda­ tions]. See also Recommendations fo r Preventing Transmission o f Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures, 40 M o r b id ity & M o r t a l i t y W e e k ly Rep. (July 12, 1991) (Appendix) [hereinafter 1991 CDC Recommendations]. For purposes of this article, the CDC definition of the term “ invasive” is interpreted broadly to include any procedure in which a foreseeable risk exists of contact between a health care worker’s blood and a patient’s blood, body cavity, subcutaneous tissues, or mucous membranes. 14 Although this article addresses the obligations of health care workers to patients, the authors are of the view that patients upon whom invasive procedures are to be performed should disclose their seropositive status to the health care workers who will participate in their care. It is true that patients are not subject to the same legal and ethical constraints on their conduct as are health professionals; nonetheless, health care workers performing invasive procedures on HIV-positive patients are subject to at least as much risk of seroconverting as are patients becoming infected by an HIV-positive health care worker. Accordingly, voluntary disclosure by patients to their health care providers is warranted. 15 C e n t e r s f o r D is e a s e C o n t r o l , U.S. D e p a r tm e n t o f H e a l t h a n d H u m an S e r v ic e s , H IV /A ID S : S u r v e i l l a n c e 5 (Nov. 1991). 16 Cumberland & Curran, Epidemiology and Prevention o f AIDS and HIV Infection, in P r in c ip le s a n d P r a c t i c e o f I n f e c t io u s D ise a se s 1029, 1029-30 (3d ed. 1990). 17 HIV/AIDS: S u r v e i l l a n c e , supra note 15, at 13.

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An estimated one million persons in the United States are infected with HIV.18 The World Health Organization estimates that 40 million people will be infected with HIV by the year 2000 .19 HIV is transmitted almost exclusively through sexual contact, paren­ teral exposure to blood or blood products, and perinatally from infected mothers to their infants. The asymptomatic phase of the disease may persist for months or years.20 Ultimately, however, studies have shown that more than 40% of HIV-infected individuals will develop AIDS within 8 V2 years, and experts predict that virtually all of these individuals will develop AIDS within 13 years of infection.21 Moreover, by current standards, AIDS ap­ pears to be invariably fatal.22 As of September 30, 1990, the Centers for Disease Control had re­ ceived reports of 122,159 persons with AIDS for whom occupational infor­ mation was available.23 Of these persons, 5,815 (4.8%) had been employed in health care settings.24 The number of dental workers and surgeons who are HIV-infected is estimated to be 1,248 and 336 respectively.25 Occupational transmission of HIV to health care workers from patients has been well documented.26 The incidence of transmission to patients from health care workers during invasive procedures, however, has not been ex­ tensively studied.27 Therefore, the degree of risk of transmission of HIV from health care worker to patient is uncertain, but the possibility that trans-

18 Angell, supra note 8, at 1498. 19 WHO Says 40 Million Will Be Infected with AIDS Virus by 2000, N.Y. Times, June 18, 1991, at B8, col. 1. 20 Cumberland & Curran, supra note 16, at 1035. 21 I n s t i t u t e o f M e d ic in e , N a t i o n a l A c a d e m y o f S c ie n c e s , C o n f r o n t i n g AIDS—U p d a te 1988, at 35-36 (1988). 22 By the end o f O cto b e r 1991, 64.5% o f adult patients rep o rted to have co n tracte d A ID S had d ied . H IV /A ID S : S u r v e i l l a n c e , supra note 15, at 13. T h e actual m ortality rate is p resu m ab ly h igher, due to incom plete rep o rtin g . T h e C D C estim ate o f m o rtality fro m H IV is at least 0.95. C e n t e r s f o r D ise a se C o n t r o l , U .S . D e p a r tm e n t o f H e a l t h a n d H u m a n S e r v ic e s , E s tim a te s o f t h e R isk o f E n d e m ic T ra n s m is s io n o f H e p a titis B V iru s a n d H u m a n Im m u n o d e fic ie n c y V ir u s t o P a ti e n ts by t h e P e r c u t a n e o u s R o u te D u r in g In v asiv e S u r g i c a l a n d D e n t a l P r o c e d u r e s 9 (Jan. 30,

1991) (D raft) [h erein afte r C D C E s tim a te s ]. See also P o sition P ap ers, The Acquired Immunodefi­ ciency Syndrome (AIDS) and Infection with the Human Immunodeficiency Virus (HIV), 108 A n n a l s In t. M ed . 460, 460 (1988). 23 CDC E s tim a te s , supra note 22, at 4. 24 Id. 25 Id. at 4-5. 26 Id. at 1, 4. See also Mishu, Schaffner, Horan, Wood, Hutcheson, & McNabb, A Surgeon with AIDS: Lack o f Evidence o f Transmission to Patients, 264 J.A.M.A. 467, 469 (1990). 27 CDC E s tim a te s , supra note 22, at 5 (“ The risk of transmission of HIV from an infected [health care worker] to a patient during an invasive procedure has not been extensively studied.” ); Mishu, et al., supra note 26, at 469 (“ There has been little scrutiny . . . of possible HIV transmission from infected [health care workers] to their patients.” ); Gostin, HIV-Infected Physicians and the Practice o f Seriously Invasive Procedures, 19 H a s tin g s C e n t e r Rep. 32, 34 (Jan./Feb. 1989).

,

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mission could occur cannot be excluded28 and is reported apparently to have happened in connection with one dental practice.29 The CDC has estimated the probability of transmission after a per­ cutaneous exposure of HIV-infected blood to be approximately 0 .3 %.30 The CDC thus estimates the risk of transmission from an HIV-positive surgeon to a single patient by this means to be .0024% to .00024%.31 Even with the use of universal precautions,32 the cumulative probability that an infected surgeon will transmit the infection to at least one patient in one year (assuming the surgeon performs 500 procedures per year) is estimated to be 1 .2 %, with the range among specialties being .2 % to 2 . 8% .33 Finally, the probability that a surgeon will transmit HIV to at least one person during the remainder of the surgeon’s working lifetime after acquisition of HIV-infection (assumed to be seven years, 500 proce­ dures per year) is estimated to be 8.1 %, with the range among specialties being from 1 .0 % to 18.3%.34 Based upon the CDC estimates of the number of HIV-infected sur­ geons and dentists, the number of invasive procedures performed by each while infected, and the probability of transmission to a single patient, the CDC estimates that between 13 and 128 persons were infected with HIV during invasive procedures between 1981 and 1990.35 Because the proba­ bility of death due to HIV infection is at least 0.95 ,36 at least 12-122 deaths would be expected to occur.37 II. THE DEBATE OVER DISCLOSURE In January of 1991, the American Medical Association (AMA) issued guidelines recommending that HIV-positive physicians who perform inva28 See Bell, Human Immunodeficiency Virus Transmission in Health Care Settings: Risk and Risk Reduction, 91 Am. J. M ed . 294S, 298S (1991) (Supp. 3B); Position Papers, supra note 22; A m eri­ c a n M e d ic a l A s s o c ia tio n , S ta t e m e n t o f t h e A m e ric a n M e d ic a l A s s o c ia tio n t o t h e C e n t e r s f o r D ise a se C o n t r o l R e: HIV T ra n sm is sio n D u rin g In v asiv e P r o c e d u r e s 2 (Feb. 21, 1991). 29 See supra note 7. 30 CDC E s tim a te s , supra note 22, at 6; 1991 CDC Recommendations, supra note 13, at 3. 3! CDC E s tim a te s , supra note 22, at 7. The risk of transmission of HIV from an infected health care worker to an uninfected patient by percutaneous means has been estimated by the CDC as the product of the probabilities that: (1) the health care worker will suffer a percutaneous injury during the procedure; (2) the sharp object causing the injury will recontact the patient’s open wound, resulting in percutaneous exposure of the patient to the health care worker’s blood; and, (3) infec­ tion transmission to the patient will occur after such an exposure. Id. at 6-7. 32 See 1991 CDC Recommendations, supra note 13, at 1-4; 1 9 8 7 CDC Recommendations, supra note 13, at 5S-6S. 33 CDC E s tim a te s , supra note 22, at 7. 34 Id. 35 Id. at 7-9. 36 See supra note 22. 37 CDC E s tim a te s , supra note 22, at 9.

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sive procedures either disclose that fact to their patients or cease perform­ ing those procedures: “ [U]ntil the uncertainty about transmission is re­ solved, the American Medical Association believes that HIV infected physicians should either abstain from performing invasive procedures which pose an identifiable risk of transmission or disclose their sero­ positive status prior to performing a procedure and proceed only if there is informed consent.” 38 The American Dental Association (ADA) issued simi­ lar guidelines, stating that “until the uncertainty about transmission is re­ solved, the ADA believes that HIV-infected dentists should refrain from performing invasive procedures or should disclose their seropositive sta­ tus.” 39 The New York State Department of Health, however, issued contrary guidelines on the issue of disclosure, indicating that “ [hjealth care facili­ ties in New York State are not required to disclose information to patients about the HIV infection of personnel.” 40 The guidelines acknowledge that the risk of transmission “cannot be quantified precisely,” but rely on the conclusion that “ [a]ll available data point to an extremely low risk of transmission from medical care personnel to patient.” 41 In July of 1991, the CDC issued new guidelines regarding HIVinfected health care providers.42 These guidelines appear to represent a compromise position, recommending disclosure to patients of a health care worker’s seropositive status, but only in connection with a limited number of invasive procedures, defined by the CDC as “exposure-prone” proce­ dures:43

38 A m e r ic a n M e d i c a l A s s o c i a ti o n , A M A S t a t e m e n t o n H IV I n f e c t e d P h y s ic ia n s (Jan. 17, 1991). The A M A has reiterated this position several times since issuing its initial guidelines. See S t a t e m e n t o f t h e A M A t o t h e CDC, supra note 28, at 3 , 5 ; A.M. A. Approves AIDS Testing for

Doctors and Health Workers, N.Y. Times, June 27, 1991, at D28, col. 1; AMA Backs AIDS Tests “Consistent with” Exams for Other Communicable Diseases, Wall S t. J., June 27, 1991, at B4, col. 1; AMA Backs Off on an AIDS Risk List, N.Y. Times, Dec. 15, 1991, at A18, col. 1 (National ed.). 39 A m e ric a n D e n t a l A s s o c ia tio n , I n te r im P o lic y o n H I V - I n f e c te d D e n ti s t s (Jan. 16, 1991). T h e A m erican A cadem y o f O rth o p aed ic S u rgeons and the A m erican C o lleg e o f O b stetrician s an d G y n e­ cologists also h av e adopted po licies adv isin g m e m b ers infected w ith th e A ID S v iru s to in fo rm p atients o f th e ir H IV -p o sitiv e status b efo re p erfo rm in g in v asiv e p ro ced u re s.

See A m e r ic a n

A cad­

em y o f O r th o p a e d i c S u r g e o n s , A d v is o ry S ta t e m e n t: H IV I n f e c t e d O r th o p a e d ic S u r g e o n s 5, 6 (M ar. 1991); A C O G , C o m m ittee O pin io n : H um a n I m m u n o d efic ien c y V irus I n f ec t io n : P h y si ­ c ia n s ’ R espo nsibilities 3 (S ept. 1990). 40 N e w Y o r k S t a t e D e p a r t m e n t o f H e a l t h , P o l i c y S t a t e m e n t & G u i d e l i n e s : H e a l t h C a r e F a c i l i ­ tie s & H IV -In fe c te d M e d ic a l P e r s o n n e l

4 (Jan. 1991). See infra note 50 and accompanying

text.

41 Id. at 1. 42 1991 CDC Recommendations, supra note 13. 43 “ Characteristics of exposure-prone procedures include digital palpation of a needle tip in a body cavity or the simultaneous presence of the [health care worker’s] fingers and a needle or other sharp instrument or object in a poorly visualized or highly confined anatomic site.” Id. at 4.

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[Health care workers] who are infected with HIV . . . should not perform exposure-prone procedures unless they have sought counsel from an expert re­ view panel*441 and been advised under what circumstances, if any, they may con­ tinue to perform those procedures. Such circumstances would include notifying prospective patients of the [health care worker’s] seropositivity before they un­ dergo exposure-prone invasive procedures.45

Following the issuance of the CDC guidelines, Congress enacted legis­ lation requiring each state to institute the guidelines or their equivalent within one year of the legislation’s passage. States that fail to certify to the Secretary of Health and Human Services that they have instituted such guidelines will be ineligible to receive assistance under the Public Health Service Act.46 The actions by the CDC and Congress did not end the debate on disclo­ sure, however. Several organizations have adopted policies consistent with the CDC guidelines. The AMA, for example, continues to adhere to its policy that physicians should disclose their seropositive status to patients before performing invasive procedures posing a risk of transmission.47 The American Hospital Association48 and the New Jersey Board of Medical Ex­ aminers49 also support such disclosure. Other professional organizations, however, have taken contrary posi­ tions, stating that disclosure to patients is not required. The New York State Department of Health, for example, has reaffirmed its earlier position that “ [HIV-infected health care] workers are not required to disclose their HIV

44 The CDC recommends that the review panel include experts who represent a balanced perspective, perhaps including: (1) the health care worker’s personal physician; (2) an infectious disease special­ ist with expertise in the epidemiology of HIV transmission; (3) a health professional with expertise in the procedures performed by the health care worker; and, (4) state or local public health offi­ cials. See id. at 5 n.*. 45 Id. at 5. The CDC guidelines recommend that various professional organizations and institutions participate in the identification of exposure-prone procedures, a recommendation rejected by virtually every group to consider it. In December of 1991, the CDC decided not to pursue its plan to generate a list of exposure-prone procedures. See Lo & Steinbrook, Health Care Workers Infected with the Human Immunodeficiency Virus, 267 J.A.M.A. 1100 (1992); U.S. Backs Off on Plan to Restrict Health Wbrkers with AIDS Virus, N.Y. Times, Dec. 4, 1991, at A l, col. 5. See also U.S. To Let States Set Rules on AIDS-Infected Health Workers, N.Y. Times, June 16, 1992, at C7, col. 1. 46 Treasury, Postal Service and General Government Appropriations Act, Pub. L. No. 102-141, § 633, 105 Stat. 834 (1991). 47 See A.M. A. Backs Off on an AIDS Risk Lisi, supra note 38. 48 A m e r i c a n H o s p i t a l A s s o c i a t i o n T e c h n i c a l P a n e l o n I n f e c t i o n s W i t h i n H o s p i t a l s , T e c h n i c a l B r i e f i n g o n M a n a g e m e n t o f H e a l t h C a r e W o r k e r s I n f e c t e d w i t h H u m a n I m m u n o d e f i c ie n c y V i r u s (H IV ) a n d H e p a t it is B V i r u s (H B V )

4

(A u g .

1991).

49 S t a t e o f N e w J e r s e y D e p a r t m e n t o f L a w a n d P u b l i c S a f e t y , D iv is io n o f C o n s u m e r A f f a i r s ,

HIV P o s i t i v e P h y s i c i a n s (Oct. 1991) (“ Licensees who are HIV positive should either abstain from performing invasive proce­ dures which pose an identifiable risk of transmission or disclose their status to the patient and proceed only with informed consent.” ). B o a r d o f M e d ic a l E x a m in e rs , P o lic y S ta te m e n t R e g a r d in g

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status to patients or employers. Health care facilities are under no obligation under New York law to disclose to patients the status of an infected health care worker in their employ . . . .’,5° Policy statements by the California Medical Association51 and the Michigan Department of Public Health52 also reflect the view that health care workers should not be required to disclose their seropositive status to patients. Still other groups have concluded, either explicitly or implicitly, that HIV-infected health care workers should not be required to disclose their seropositive status to patients, but that such health care workers should be required to disclose this information to state health officials. The Federation of State Medical Boards is silent on the issue of disclosure to patients, but recommends that state medical boards have the power and responsibility to require disclosure of a physician’s HIV-infected status to the board.53 The State Medical Board of Ohio adopted a policy in 1987 that required disclo­ sure to patients, but amended this provision in August of 1991 to require disclosure instead to professional colleagues, the treating physician, and the Board.54 The Oregon Medical Association also has issued a compromise disclosure policy.55 The widespread attention being given to this issue leaves no doubt about its importance to both the health care community and the general public. The divergence of opinion among the nation’s leading health care organizations indicates that resolution of the controversy within the health professions is not imminent. Moreover, the policy statements and guidelines of these various groups, though influential, do not carry the force of law. Inevitably it will be for the courts and the legislatures to decide whether HIV-infected health care workers must disclose their health status to patients and, if so, under what circumstances. III. THE LAW OF INFORMED CONSENT American courts have long recognized that a patient’s consent to a medical procedure is an essential prerequisite to the performance of that 50 N ew Yo rk S tate D epartm ent o f H e a lth , P o lic y S tatem en t a n d G uid elin es to P r ev en t T r an s ­ mission o f H IV an d H epatitis B T h ro ugh M ed ica l /D ental P ro c ed u r es 4 (M ay 1992). 51 C a lifo rn ia M ed ic a l A sso ciation , P ro tectio n o f Patients fro m HIV a n d O t h e r B lo o d -B o r n e I n fec tio n s o f H ealth C a r e W o rk ers 4 (undated). 52 M ic h ig a n D e pa r tm en t o f P u b l ic H e a l t h , M ic h ig a n R e com m en dation s H ealth C a r e W ork ers 2 (O ct. 1991).

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53 See F ederation o f S tate M ed ica l B oa rd s , P o l ic y S tatem en t R elated to t h e P r ev en tio n o f HIV/HBV T ran sm ission to Patients (Oct. 1991). 54 See S tate M edical Board o f O hio , AIDS P osition Papers (adopted O ct. 1987, am ended Aug. 1991). 55 See O reg o n M ed ic a l A ssociation , O M A AIDS P o licy (Apr. 1991) (advising HIV-positive physi­ cians to notify state health officials, at which time a group of peers would decide whether the infected physician’s practice should be limited).

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procedure,56 and a physician who performs such a procedure without the patient’s consent does so at the risk of incurring liability.57 Moreover, it is generally accepted in American jurisprudence that the consent given by the patient must be “informed” ; that is, the patient must have sufficient infor­ mation to make an intelligent decision.58 The law of informed consent emanates from at least two sources. First, the courts have acknowledged and, in more recent times accorded substantial protection to, the concept of patient autonomy. Simply stated, it is for the patient to decide what is in his or her best interests and to make decisions based on personal judgment.59 Competent adult patients have the right to refuse medical treatment as they see fit, and this is so even if the physician believes the decision is unsound or irrational.60 Indeed, the United States Supreme Court recently affirmed that this right to refuse treatment is protected by the United States Constitution.61

56 The informed consent doctrine has received extensive attention in the legal literature. It is not the purpose or intent of this article to canvass the entirety of this body of literature or to explore the myriad intricacies of the doctrine’s evolution and interpretation by courts and commentators. For a fuller explication of the informed consent doctrine, see Weisbard, Informed Consent: The Law ’s Uneasy Compromise with Ethical Theory, 65 N e b . L. R ev . 749 (1986); Miesel, The “Exceptions" to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Deci­ sionmaking, 1979 Wis. L. R ev . 413; Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw . U.L. R ev . 628 (1970). See also J. K a t z , T h e S il e n t W o r l d o f D o c t o r a n d Pa t ie n t (1984). 57 See, e.g., Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914) (“ Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” ). 58 See Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 154 Cal. App. 2d 560, 578, 317 P.2d 170, 181 (1957) (“ A physician violates his duty to his patient . . . if he withholds any facts which are necessary to form the basis of an intelligent consent . . . . Likewise, the physician may not mini­ mize the known dangers of a procedure or operation in order to induce his patient’s consent.” ). 59 See, e.g., Wilkinson v. Vesey, 110 R.I. 606, 624, 295 A.2d 676, 687 (1972) (the patient’s right to make a decision in light of the patient’s own value judgment is the very essence of freedom of choice); Cobbs v. Grant, 8 Cal. 3d 229, 242, 502 P.2d 1, 10, 104 Cal. Rptr. 505, 514 (1972) (“ [I]t is the prerogative of the patient, not the physician, to determine for himself the direction in which he believes his interests lie.” ). 60 Wilkinson, 295 A.2d at 687 (“ The keystone of this doctrine is every competent adult’s right to forego treatment, or even cure, if it entails what for him are intolerable consequences or risks however unwise his sense of values may be in the eyes of the medical profession, or even the community.”). See also Natanson v. Kline, 186 Kan. 393, 406, 350 P.2d 1093, 1104 (“ AngloAmerican law starts with the premise of thorough-going self-determination. It follows that each man is considered to be master of his own body and he may, if he be of sound mind, expressly prohibit the performance of life-saving surgery, or other medical treatment.” ), clarified, 187 Kan. 186, 354 P.2d 670 (1960). 61 Cruzan v. Director, Missouri Dep’t of Health, 110 S.Ct. 2841 (1990) (‘“ No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’ . . . The principle that a competent person has a consti­ tutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.” —quoting Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891)).

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A second source of the informed consent doctrine is found in the fiduciary relationship between health care workers and patients. Numerous courts have held that the relationship between physician and patient is one of trust and confidence, thereby imposing on the physician the duty of utmost good faith and fair dealing.62 This duty has been held to include the duty to “reveal to the patient that which in his best interest he should know.”63 The physician’s duty arises as a result of the physician-patient relationship and is fixed by law.64 A. Standards for Disclosure Whatever the source of the duty to disclose, the doctrine of informed consent is now “ firmly entrenched in American tort law,”65 giving rise to an action for damages by a patient against a health care worker for breach of the duty to reveal that which is necessary to make an informed decision whether to accept proposed medical treatment.66 Just what information a health care worker must disclose in order to fulfill obligations to the patient has been the subject of much debate. The majority rule in the United States is the so-called “professional commu­ nity” rule: a physician has a duty to disclose that information which a reasonable medical practitioner would disclose under the same or similar circumstances.67 The rationale for this rule is that the determination as to what the patient needs to know is essentially one of medical judgment; therefore, the decision requires the insight provided by the experience and expertise of those trained individuals who regularly deal with such matters.68 As the Kansas Supreme Court stated in Natanson v. Kline,69 a 62 See, e.g.. Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469, 482 (1985); State ex rel. McCloud v . Seier, 567 S.W.2d 127, 128 (Mo. 1978) (en banc); Hales v. Pittman, 118 Ariz. 305, 576 P.2d 493, 496-97 (1978) (en banc); Hummel v. State, 210 Ark. 471, 196 S.W.2d 594, 595 (1946). 63 Emmett v. Eastern Dispensary & Casualty Hosp., 396 F.2d 931, 935 (D.C. Cir. 1967); Phillips v. Good Samaritan Hosp., 65 Ohio App. 2d 112, 416 N.E.2d 646, 648 (1979). 64 State ex rel. McCloud, 567 S.W.2d at 128; Phillips, 416 N.E.2d at 648. 65 Cruzan, 110 S. Ct. at 2847. 66 There is some disagreement in the law as to the theory of recovery which a plaintiff should adopt when making a claim of inadequate disclosure. The older view is that the inadequate disclosure vitiates the consent entirely, thus rendering the health care worker liable for the intentional tort of battery. See, e.g., Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Bang v. Charles T. Miller Hosp., 251 Minn. 427, 88 N.W.2d 186 (1958). A health care worker found liable for battery may be liable for punitive damages, which may not be covered by malpractice insurance. See Cobbs, 502 P.2d at 8. The modem view is that inadequate disclosure claims should be pleaded in negligence. See, e.g., Cobbs, 502 P.2d at 8; Wilkinson, 295 A.2d at 685-86. 67 See, e.g., Green v. Hussey, 127 111. App. 2d 174, 262 N.E.2d 156 (1970); Roberts v. Young, 369 Mich. 133, 119 N.W.2d 627 (1963); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, clarified, 187 Kan. 186, 354 P.2d 670 (1960). See also N.H. R ev . S tat. A n n . § 507-C.2 (Supp. 1977); 18 D e l . C o d e A n n . § 6852 (Cum. Supp. 1978). See generally A. R o so f f , I n f o r m e d C o n s e n t (1981). 68 A. R o s o f f , supra note 67, at 34-35. 69 186 Kan. 393, 350 P.2d 1093, clarified, 187 Kan. 186, 354 P.2d 670 (i960).

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landmark decision setting forth the “ professional community” standard: The duty of the physician to disclose . . . is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circum­ stances. How the physician may best discharge his obligation to the patient in this difficult situation involves primarily a question of medical judgment. So long as the disclosure is sufficient to assure an informed consent, the physician’s choice of plausible courses should not be called into question if it appears, all circum­ stances considered, that the physician was motivated only by the patient’s best therapeutic interests and he proceeded as competent medical men would have done in a similar situation.70

Although many states continue to follow the professional community rule, it is likely that courts in these jurisdictions will have some difficulty applying the rule in the context of disclosure by a health care worker of the worker’s HIV-positive status. The reason, as the Natanson court made clear, is that courts applying the professional standard rely upon the prem­ ise that health care workers’ decisions regarding disclosure are “motivated only by the patient’s best therapeutic interest.”71 In the present context, however, such a motivation may not be as­ sumed.72 It is unlikely that a health care worker’s decision not to disclose HIV-positive status is motivated by a patient’s therapeutic interests. On the contrary, it is more probably motivated by a health care worker’s personal interests, such as privacy, confidentiality, and the ability to con­ tinue practicing.73 These are undoubtedly legitimate interests of HIVinfected health care workers—-interests that the health professions and society generally must strive to accommodate. Nevertheless, the preva­ lence of these self-interests necessitates treating situations involving dis­ closure of a health care worker’s HIV-positive status quite differently from the typical informed consent situation, in which the health care worker’s interests and the patient’s interests are aligned. Lack of assur­ ance that health care workers are acting in their patients’ best interests may well make many judges uncomfortable with a doctrine that places the disclosure decision entirely in the hands of the very people who owe the duty of disclosure to patients. Accordingly, courts are likely to rule that the professional disclosure standard does not apply in this context.74 70 Natanson, 350 P.2d at 1106.

71 Id. 72 See Gostin, supra note 27, at 34. 73 See id. 74 Cf. Helling v. Carey, 83 Wash. 2d 514, 519 P.2d 981 (1974) (court ruled professional standard in testing for glaucoma in patients under the age of 40 was inadequate and therefore did not apply in this case). A judge reaching this conclusion might, as discussed below, carve an exception to the professional community standard and apply a patient-oriented standard instead, or might choose to analyze the question as whether the health care worker breached a fiduciary duty to the patient.

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Partly in recognition of this sort of problem, a growing number of states, by action of courts and legislatures, have moved away from the professional community standard, applying instead a “ reasonable pa­ tient” standard.75 This patient-oriented approach to informed consent fo­ cuses more on the informational needs of the average, “ reasonable” patient than on professional standards. It requires the health care worker to disclose such information that a reasonable patient would deem “mate­ rial” to a decision whether to consent.76 The landmark decision adopting this view is Canterbury v. Spence,77in which the United States Court of Appeals for the District of Columbia Circuit discussed in depth the duty of disclosure: True consent of what happens to one’s self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each. The average patient has little or no understand­ ing of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision. From these almost axiomatic considerations springs the need, and in turn the requirement, of a rea­ sonable divulgence by physician to patient to make such a decision possible.78

With respect specifically to the duty to disclose risks of a proposed procedure, the court reasoned: The context in which the duty of risk-disclosure arises is invariably the occa­ sion for decision as to whether a particular treatment procedure is to be undertaken. To the physician, whose training enables a self-satisfying evaluation, the answer may seem clear, but it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie. To enable the patient to chart his course understandably, some familiarity with the therapeu­ tic alternatives and their hazards becomes essential.79

The Canterbury court then turned its attention to the standard of dis­ closure to be applied. Explicitly rejecting the view that a patient’s claim for damages was dependent upon a breach of a professional tradition, the court stated: There are, in our view, formidable obstacles to acceptance of the notion that the physician’s obligation to disclose is either germinated or limited by medical 75 See A. R o s o f f , supra note 67, at 37-38. 76 See id. at 38. This duty of disclosure includes revelation of the diagnostic nature and purpose of the proposed treatment, risks, and consequences of the proposed treatment, the probability that the proposed treatment will be successful, feasible treatment alternatives, and the prognosis if the proposed treatment is not given. Id. at 41. 77 464 F.2d 111 (D.C. Cir.), cert, denied, 409 U.S. 1064 (1972). 78 Id. at 780 (footnotes omitted). 79 Id. at 781 (footnotes omitted).

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practice. To begin with, the reality of any discernible custom reflecting a profes­ sional consensus on communication of option and risk information to patients is open to serious doubt. We sense the danger that what in fact is no custom at all may be taken as an affirmative custom to maintain silence, and that physicianwitnesses to the so-called custom may state merely their personal opinions as to what they or others would do under given conditions. . . . Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone. Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physi­ cians rather than one which physicians may or may not impose upon themselves.80

Instead, the court adopted the patient-oriented approach: In our view, the patient’s right of self-decision shapes the boundaries of the duty to reveal. That right can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. The scope of the physician’s communications to the patient, then, must be measured by the patient’s need, and that need is the information material to the decision. Thus the test for determining whether a particular peril must be divulged is its materiality to the patient’s deci­ sion: all risks potentially affecting the decision must be unmasked. And to safe­ guard the patient’s interest in achieving his own determination on treatment, the law must itself set the standard for adequate disclosure.81

Thus, the patient-oriented approach requires the health care worker to determine what information a patient would consider important to the deci­ sion whether to consent. The health care worker need not subjectively discern precisely what information a particular patient might consider ma­ terial to the decision; rather, the standard in most jurisdictions is an objec­ tive one, requiring a health care worker to reveal that which the average, reasonable patient would consider material under the same or similar cir­ cumstances.82 A risk is material, according to the Canterbury court, “when a rea­ sonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed ther-

80 Id. at 783-84 (footnotes omitted). 81 Id. at 786-87 (footnotes omitted). 82 Id. at 787. See also Cooper v. Roberts, 220 Pa. Super. 260, 286 A.2d 647, 650 (1971) (physi­ cian need not be a mind-reader). The patient-oriented approach has been adopted in a number of jurisdictions. See, e.g., Hamish v. Children’s Hosp. Med. Center, 387 Mass. 152, 439 N.E.2d 240 (1982); Keogan v. Holy Family Hosp., 95 Wash. 2d 306, 622 P.2d 1246 (1980) (en banc); Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977); Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 227 N.W.2d 647 (1975); Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972); Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972).

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apy.”83 Other courts have offered similar definitions.84 Accordingly, the health care worker need not disclose every risk, however remote or insig­ nificant, or else face potential liability;85 however, the health care worker must disclose those risks that likely would have actual significance to the average, reasonable patient. B. Informed Consent and the HIV-Positive Health Care Worker The question tftus becomes whether the HIV-positive status of a health care worker who performs invasive procedures is a material risk that should be disclosed to a patient under the patient-oriented informed consent approach. The answer depends on whether a reasonable patient would at­ tach significance to the risk or risks in making a decision whether to forego treatment. Public opinion polls and surveys dealing with the issue leave no doubt that the vast majority of patients believe they should be told if their health care provider is HIV-positive and that many of these people would choose a different practitioner upon learning this information.86 Thus it is clear that most patients would indeed “attach significance” to the risks presented by HIV-positive health care workers in deciding whether to refuse invasive treatment. Some commentators have argued that these views do not reflect the expressions of a “reasonable” patient, but rather indicate a public hysteria over AIDS that clouds rational judgment.87 The strength of the numbers alone appears to undermine this position. Furthermore, the position taken by the public at large also has been adopted substantially by the American Medical Association, the American Dental Association, and the Centers for Disease Control, which possess the information and expertise necessary to make reasonable judgments. Moreover, even if some patients are acting “ irrationally,” the answer is not merely to abrogate the informed consent process, but rather to improve patient education and awareness of HIV and AIDS to ensure that patients do, in fact, act rationally and reasonably in

83 Canterbury, 464 F.2d at 787 (footnote omitted). 84 See, e.g., Hamish, 439 N.E.2d at 243 (“ Materiality may be said to be the significance a reasonable person, in what the physician knows or should know is his patient’s position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment.” ) (quoting Wilkinson); Sard, 379 A.2d at 1022 (“ A material risk is one which a physician knows or ought to know would be significant to a reasonable person in the patient's position in deciding whether or not to submit to a particular medical treatment or procedure” ). 85 See Hamish, 439 N.E.2d at 243; Cooper, 286 A.2d at 650. 86 See supra notes 10-11. 87 See Gerbert, et al., supra note 10, at 1971; Dickey, Physicians and Acquired Immunodeficiency Syndrome: A Reply to Patients, 262 J.A.M .A. 2002 (1989) (Editorial).

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.heir decision-making.88 Indeed, this is the very point of the informed con89 sent process. The primary argument that has been put forth against the need for disclosure is that the risk of transmission from health care worker to pa­ tient is so low as to be immaterial. There are several responses to this argument. First, the actual risk of transmission is unknown, in part because the question has not yet been extensively examined.90 Further scrutiny of this issue may reveal that the risk is greater than currently estimated. In any event, this uncertainty regarding the incidence of transmission is, in itself, a reason that courts likely will rule that a duty to disclose exists, as it has been held that potentially material risks must be disclosed under the informed consent doctrine, even if those risks have not yet been docu­ mented or accepted as a fact by the health care professions.91 As a further consideration, even if it is assumed that the risk of trans­ mission from health care worker to patient during an invasive procedure is quite low, various courts have held that the fact a risk is remote will not always negate the duty to disclose under the informed consent doctrine. In Hartke v. McKelway,92 for example, the plaintiff alleged that her physician had failed to obtain her informed consent by failing to disclose that there was 88 See Gerbert, et al., supra note 10, at 1972. See also In re Milton S. Hershey Medical Center, 595 A.2d 1290, 1296 n.10 (Pa. Super. Ct. 1991) (In a case involving post-exposure disclosure, the court noted that “ risks can be lessened through education and the dissemination of information necessary to contribute to informed and consensual choices.” ); Behringer, 592 A.2d at 1251. 89 The education process is critically important because, from a legal perspective, the “ reasonable­ ness” of the patient is a question of fact that is determined by judges or juries, many of whom lack any sort of medical expertise. Therefore, as a practical matter, public perception of what is reason­ able in terms of disclosure ultimately will dictate what is held to be reasonable in a court of law, even if it is the view of many in the medical community that public perception is misinformed. Similarly, public perception will guide the actions of legislators, many of whom also lack any sort of medical expertise. 90 See supra note 27 and accompanying text. “ In view of the difficulties in conducting and interpret­ ing [the needed] studies, it seems unlikely that precise estimates of patient risk will be available soon.” Bell, supra note 28, at 298S. 91 Harbeson v. Parke Davis, Inc., 746 F.2d 517, 525 (9th Cir. 1984). See also Canterbury, 464 F.2d at 787 (“ [A]ll risks potentially affecting the decision must be unmasked.” emphasis added). The existing uncertainty regarding the incidence of transmission of HIV from health care workers to patients has been noted by the American Medical Association and the American Dental Association in the adoption of their current policies. See AMA Statement on HIV Infected Physicians, supra note 38 (“ In cases of uncertainty about the risks to patient health, the medical profession, as a matter of medical ethics, should err on the side of protecting patients.” ); Statement o f the AMA to the CDC, supra note 28, at 5 (“ [B]ecause of the uncertainty about the risks to patient health, physicians should err on the side of protecting patients.” ); ADA Interim Policy, supra note 39 (“ This uncer­ tainty [about the risk of transmission from health care provider to patient] leads to the conclusion that the foremost concern of the dental profession must continue to be protection of the patient.” ). The fact that the health professions themselves are uncertain about the degree of risk to patients is all the more reason why patients should be in a position to decide for themselves whether to accept the risk, as the courts have held. 92 707 F.2d 1544 (D.C. Cir.), cert, denied, 464 U.S. 983 (1983).

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aO.1% to 0.3% risk that a tubal cauterization procedure might not succeed in preventing a future pregnancy, and for failing to disclose alternative pro­ cedures to achieve the desired result. The plaintiffs medical history indi­ cated that because of serious complications in earlier pregnancies, including an ectopic pregnancy, even a small risk of pregnancy would be unusually dangerous for her. A jury found in favor of the plaintiff, and the United States Court of Appeals for the District of Columbia Circuit upheld this finding, concluding that although the risk was very small, the jury could nonetheless conclude that a reasonable person in the plaintiffs position would be likely to attach significance to the risk. Similarly, the plaintiff in Canterbury sued over his physician’s failure to disclose a one percent risk of paralysis following a laminectomy. The court held that it was the jury’s responsibility to determine whether the one percent risk of paralysis in lami­ nectomies was of sufficient magnitude to require disclosure.93 The courts have been especially receptive to the claim that a remote risk is material when the consequences resulting from the occurrence of the risk are severe. As the Rhode Island Supreme Court explained in Wilkinson v. Vesey:94 “ [MJateriality is to be the guide. . . . Among the factors which point to the dangerousness of a medical technique are the severity of the risk and the likelihood of its occurrence. A very small chance of death or serious disablement may well be significant . . . .”95

93 464 F.2d 772 (D.C. Cir.), cert, denied, 409 U.S. 1064 (1972). See also Distefano v. Bell, 544 So. 2d 567 (La. App.) (one percent risk that rhinoplasty patient would suffer from long-term valvecollapsing problem should have been disclosed), cert, denied, 550 So. 2d 650 (La. 1989); Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977) (materiality of two percent risk that a tubal ligation might not succeed in preventing future pregnancies was question for jury); Cooper v. Roberts, 220 Pa. Super. 260, 286 A.2d 647 (1971). 94 110 R.I. 606, 295 A.2d 676, 689 (1972). See also, e.g., Hartke v. McKelway, 707 F.2d 1544 (D.C. Cir.) (in view of serious consequences of pregnancy for patient, jury could properly conclude that .1% to .3% chance of undisclosed risk of subsequent pregnancy following sterilization proce­ dure was material), cert, denied, 464 U.S. 983 (1983); Salis v. United States, 522 F. Supp. 989 ,M.D. Pa. 1981) (one percent to two percent risk of serious complications should have been disclosed); Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972) (minimal disclosure requires revelation that given procedure inherently involves a known risk of death or serious bodily harm). 95 Of course, there are also cases in which courts have held that the existence of a remote risk did not give rise to a duty to disclose. See, e.g., Henderson v. Milobsky, 595 F.2d 654 (D.C. Cir. 1978); Sawyer v. Methodist Hosp., 522 F.2d 1102 (6th Cir. 1975); Walstad v. University of Minn. Hosp., 442 F.2d 634 (8th Cir. 1971); Longmire v. Hoey, 512 S.W.2d 307 (Tenn. App. 1974). However, the courts in such cases generally find no duty to disclose because the complications resulting from the occurrence of the risk were determined not to be serious, and many courts explicitly distinguish the case before it from others in which materiality was found on this basis. See, e.g., Longmire, 512 S.W.2d at 310 (“ In the reported cases which have held that failure to advise of a 1 % risk or such other low percentage may be a basis for liability, we also find that which was risked was of a devastating nature; such as complete or partial paralyses, blindness or deafness.” The court noted that “ when such is the nature of the risk reasonable minds might differ on whether or not the patient should have been advised of that risk.” ).

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While the risk of transmission of HIV from health care worker to patient during an invasive procedure may be low, the consequence of the occurrence of that risk at this time appears invariably to be death.96 Thus, courts and juries considering these circumstances likely would conclude that the risk of HIV transmission is a material risk warranting disclosure under the informed consent doctrine. At least one court has already so held. In Behringer v. Medical Center at Princeton,97 the estate of an otolar­ yngologist and plastic surgeon who died of AIDS sued the medical center at which he had worked alleging, among other things, that the medical center wrongfully restricted the physician’s surgical privileges upon learn­ ing that he was HIV-positive. The restrictions included a requirement that the physician’s patients sign a consent form specifically noting the physi­ cian’s HIV-positive status. The court rejected the claim, stating: If there is to be an ultimate arbiter of whether the patient is to be treated invasively by an AIDS-positive surgeon, the arbiter will be the fully-informed patient. The ultimate risk to the patient is so absolute—so devastating—that it is untenable to argue against informed consent . . . .98

Finally, it is significant that the actual transmission of HIV is not the only risk associated with the performance of invasive procedures by HIVinfected health care workers. As the court in Canterbury stated, a risk is material when a reasonable patient under the circumstances “would be likely to attach significance to the risk or cluster o f risks in deciding whether or not to forego the proposed therapy.”99 In addition to the risk of actually seroconverting, a risk also exists that a surgical accident, such as a needlestick or a cut glove, will occur during the procedure that might result in a patient’s percutaneous exposure to the health care worker’s blood.100 While the accident may not ultimately result in seroconversion by the pa­ tient, it may well require the patient to undergo continual testing over an extended period of time. Such an occurrence undoubtedly would instill 96 See supra notes 21-22, 36 and accompanying text. 97 249 N.J. Super. 597, 592 A.2d 1251 (1991). 98 Id. at 1283. In analyzing the issue, the Behringer court noted that the risk associated with the performance of an invasive procedure by an HIV-positive health care worker can be completely eliminated if the patient is told about it and chooses another practitioner. See id. In this sense, the risk of HIV transmission from health care worker to patient is fundamentally different from the vast majority of risks a patient faces when undergoing an invasive procedure; that is, the patient has the ability to avoid the risk completely while still obtaining the therapeutic benefits of the procedure (by having it performed by another equally competent practitioner). 99 Canterbury, 464 F.2d at 787 (emphasis added) (footnote omitted). 100 In a CDC observational study, the mean rate of injury resulting in percutaneous exposure to patient blood for a surgeon was found to be 2.5 per 100 surgeon-procedures. CDC E s t im a t e s , supra note 22, at 2, 6.

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anxiety in the patient throughout the testing period and may also require the patient to make significant alterations in lifestyle, including changes in sexual contact and child-bearing plans during the testing period.101 The Behringer court was persuaded that this “cluster” of risks would indeed be material to the reasonable patient: “In assessing the ‘materiality of risk,’ this Court concludes that the risk of accident and implications thereof would be a legitimate concern to the surgical patient, warranting disclosure of this risk in the informed consent setting.” 102 The law of informed consent, then, appears to impose a duty upon HIV-infected health care workers to disclose the fact of their infection to patients before performing invasive procedures. One court has already so held, and others are likely to follow suit. Such rulings are consistent with respect for the patient’s autonomy and constitutional right to refuse un­ wanted treatment. Certainly health care workers may, to the extent they are capable, help patients assess the risks of having an invasive procedure performed by an HIV-infected health care worker (as in the case of any other material risk), but the law is unlikely to permit these risks to go undisclosed.103 IV. THE FIDUCIARY RELATIONSHIP BETWEEN HEALTH CARE WORKERS AND PATIENTS As noted above, the informed consent doctrine is grounded, in part, upon the fiduciary relationship that exists between the health care worker and the patient.104 As a fiduciary, a health care worker’s relationship to the patient is one of special trust and confidence.105 The Supreme Court of Kentucky has explained it this way: The relationship of a patient to his physician is by its very nature one of the most intimate. Its foundation is the theory that the physician is learned, skilled and experienced in the afflictions of the body about which the patient ordinarily knows little or nothing but which are of the most vital importance to him. There-

101 See Behringer, 592 A.2d at 1280. 102 Id. 103 The Texas legislature has enacted a law making explicit that the informed consent doctrine applies in the context of HIV-infected health care workers. See T e x . H e a l t h a n d S a f e t y C o d e A n n . § 85.201 (West 1992) (“ A health care worker who performs an exposure-prone procedure . . . shall notify a prospective patient of the health care worker’s seropositive status and obtain the patient’s consent before the patient undergoes an exposure-prone procedure, unless the patient is unable to consent.” ). Other states have introduced similar legislation. See, e.g., New Jersey Assem­ bly BUI 4918 (1991); New York S .B . 4835 (1991). 104 See supra notes 62-64 and accompanying text. 105 See State ex rel. McCloud v. Seier, 567 S.W.2d 127, 128 (Mo. 1978) (en banc); Hummel v. State, 210 Ark. 471, 196 S.W.2d 594, 595 (1946); Phillips v. Good Samaritan Hosp., 65 Ohio App. 2d 112, 416 N.E.2d 646, 648 (1979).

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fore, the patient must necessarily place great reliance, faith and confidence in the professional word, advice and acts of his doctor.106

Thus, the fiduciary nature of the relationship is said to impose upon the health care worker duties of good faith and fair dealing with patients that exceed those existing in ordinary arms-length transactions.107 These fiduciary duties are fixed by law, and health care workers who breach these obligations may incur liability.108 Inherent in the special duty of good faith and fair dealing is the duty of loyalty.109 This duty obligates the health care worker to remain faithful to a patient’s interests in the face of conflicting interests. The law has recognized this duty of loyalty and will protect a patient against its breach.110 Resolution of the question whether a health care worker is obligated to disclose the worker’s HIV-positive status to a patient must take these fiduciary duties into consideration. Nondisclosure of relevant information to a patient has at times been condoned by the courts, but the striking similarity in the cases is that the decision not to disclose is based solely upon a conclusion that nondisclosure is in the patient’s best interests (for example, in an emergency or when disclosure clearly would be harmful to the patient’s psychological state), not when nondisclosure furthers the in­ terests of the health care worker.1,1 Thus, these decisions not to disclose are deemed matters of “therapeutic privilege.” As discussed above, the decision by a health care worker not to dis­ close the worker’s HIV-positive status to a patient is not likely motivated by the patient’s therapeutic interests but rather by the health care worker’s

106 Adams v. Ison, 249 S.W.2d 791, 793 (Ky. 1952). 107 See Canterbury, 464 R2d at 782 (“ The patient’s reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated with arm’s length transac­ tions.” ). 108 State ex rel. McCloud, 567 S.W.2d at 128. See also Phillips, 416 N.E.2d at 648. Some courts have even recognized that a failure to disclose material information to the patient may, as a result of the duties imposed by the fiduciary relationship, render a health care worker liable for fraud. See, e.g., Nixdorf v. Hicken, 612 P.2d 348, 355 n.24 (Utah 1980); Adams, 249 S.W.2d at 793-94. Fraud, like battery, is an intentional tort that may subject the health care worker to punitive damages, which may not be covered by insurance. See supra note 66. 109 State ex rel. McCloud, 567 S.W.2d at 128 (“ [T]he duty of the physician to exercise the utmost good faith in dealing with his patient . . . contemplates the physician’s undivided loyalty to his patient ------ ” ). 110 See id. 111 See Canterbury, 464 F.2d at 789 (“ The critical inquiry is whether the physician responded to a sound medical judgment that communication of the risk information would present a threat to the patient’s well-being.” ). See also Harnish v. Children’s Hosp. Medical Center, 387 Mass. 152, 439 N.E.2d 240, 244 (1982); Gostin, supra note 27, at 34; J. K a t z , supra note 56, at xvii-xviii, 207.

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personal interests.112 This is not to suggest that the health care worker’s interests are illegitimate or unimportant—certainly one’s personal privacy and desire to earn a livelihood are interests of substantial importance. In view of the fiduciary relationship between the health care worker and pa­ tient, however, courts are unlikely to permit these self-interests to super­ sede the patient’s right to expect that a health care provider will disclose material information. When a health care worker permits a patient to be placed at risk in order to obtain personal benefit, even when the risk is as potentially remote as transmitting HIV to an uninfected patient, the health care worker’s inter­ ests conflict with those of the patient. The law recognizes that such conflicts must be avoided.113 Furthermore, the various codes of ethics that govern the conduct of professionals warn against the dangers inherent in conflict of interest situations.114 Ethics codes do not have the force of law, but they can be the basis for disciplinary action against a professional. Importantly, these codes often provide that the existence of a conflict of 1.2 See supra notes 72-73 and accompanying test. Some health care workers may genuinely believe that, because of their considerable experience and expertise, performance of the invasive procedure by them is actually in the patient’s best interests. However, the failure to disclose cannot be justified on this ground. “ The physician’s privilege to withhold information for therapeutic reasons must be carefully circumscribed . . . for otherwise it might devour the disclosure rule itself. The privilege does not accept the paternalistic notion that the physician may remain silent simply because divulgence might prompt the patient to forego therapy the physician feels the patient really needs.” Canterbury, 464 F.2d at 789 (footnote omitted). See also Hamish, 439 N.E.2d at 244. Having disclosed the risks, the health care worker is, of course, free to explain to the patient why, in the opinion of the health care worker, the benefits to the patient of proceeding with that particular health care worker outweigh the risks. 1.3 In State ex rel. McCloud, for example, the defendant in a personal injury action sought to require the plaintiffs treating physician to serve as the defendant’s examining physician for purposes of the litigation. The court declined to require the patient to submit to an examination by his treating physician at the defendant’s behest: “ [A]s th[e] duty [of loyalty] contemplates the physician’s undivided loyalty to his patient, such duty necessarily runs contrary to the dual allegiance that would result if the physician were employed and paid by his patient’s adversary. The physician would per force be cast into a position of conflict.” State ex rel. McCloud, 567 S.W.2d at 128. 1.4 See, e.g., A merican N u r ses * A sso cia tion , C od e fo r N urses § 10.2 (1985) ( “ N u rses sh o u ld re ­ frain from casting a vo te in any d elib eratio n s involving h ealth ca re serv ices o r facilities w h ere the n urse has b u siness o r o th e r interests that could be co n stru cted as a co n flict on in terest.” ); A m erican B ar A sso ciation , M o d el R ules

of

P ro fessio n al C o n d u c t R ule 1.7(b) ( “ A la w y e r shall not

rep resen t a clien t if the rep resen tatio n o f that client m ay be m aterially lim ited . . . by th e la w y e r’s ow n in terests, unless: (1) the la w y e r reasonably believ es th e rep resen tatio n w ill n ot be ad v ersely affected , and (2) the clien t co n sen ts afte r c o n s u lta tio n ” ) (em p h asis ad d ed ); A m erica n I n stitu te o f C er tified P ublic A c c o u n ta n ts , C o d e o f P ro fessio n al C o n d u c t art. IV (Jan. 1988) ( “ A m e m b er should m ain tain o b je ctiv ity and b e free o f conflicts o f in terest in d isch a rg in g p ro fessio n al resp o n si­ b ilities.” ). See also id. R ule 102 ( “ In the p e rfo rm a n ce o f any p ro fessio n al serv ic e, a m e m b er . . . shall be free o f conflicts o f in t e r e s t. . . .” ). T h e A M A ’s Principles o f Medical Ethics do n o t in clu d e an e x p licit refere n ce to co n flicts o f in terest; how ever, th e op in io n s on p ractice m a tte rs o f the C ouncil on E thical and Ju d icial A ffairs do ad d ress co n flicts o f in terest in th e co m m ercial co n tex t.

See Current Opinions o f the Council on Ethical and Judicial Affairs o f the American Medical Association, Opinions on Practice Matters §§ 8 .0 3 , 8 .0 7 (1 9 8 9 ). S ectio n 8 .0 7 , w h ich d eals w ith

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D er se

interest does not always preclude the parties from pursuing a relationship, but, in such situations, a professional may only provide services after mak­ ing full disclosure of the conflict and obtaining consent to proceed.115 Com­ pliance with ethical obligations, then, as well as the law, would seem to require that HIV-positive health care workers disclose their seropositive status to patients before performing invasive procedures.116 Health care workers who fail to disclose such risks may do substantial harm to the relationship with patients, breaching the trust that is the corner­ stone of the relationship. The HIV-infected health care worker presents a good example. The symptoms of AIDS cannot be masked indefinitely, and patients likely will discover the HIV-status of the health care worker at some point in time. The patient who discovers that he or she was treated by a health care worker who was HIV-infected but was not informed of this fact is likely to feel betrayed. The patient also is likely to feel resentful that physician ownership or financial interest in a health facility, provides that “ [u]nder no circum­ stances may the physician place his own financial interest above the welfare of his patients. . . . If a conflict develops between a physician’s financial interest and the physician’s responsibilities to the patient, the conflict must be resolved to the patient’s benefit.” 115 In section 8.03 of Current Opinions, supra note 114, for example, the Council on Ethical and Judicial Affairs permits physician ownership in a commercial venture such as a health facility, equipment, or pharmaceuticals; however, because such ownership gives rise to a potential conflict of interest, this section expressly imposes upon a physician “ an affirmative ethical obligation to disclose” the ownership interest before utilization, and the patient is to have free choice either to use the physician’s proprietary facility or therapy or seek needed medical services elsewhere. See also id. § 8.07; ABA M odel Rules, supra note 114, Rule 1.7(b). 116 Professor Gostin has cogently argued that, for physicians who perform “ seriously invasive proce­ dures,” disclosure is not enough. Rather, HIV-positive physicians who do seriously invasive proce­ dures should protect patient health by withdrawing from the practice of those types of procedures Professor Gostin argues that this solution promotes patient safety while protecting the HIV-positive health care worker’s privacy. See, e.g., Gostin, supra note 9; Gostin, supra note 27. Professor Gostin’s conclusion undoubtedly presents one viable solution to the problem, and there are likely many HIV-infected health care workers who would opt simply to refrain from practicing rather than disclose the fact of their infection to patients. However, there may be others who would prefer to continue to practice with patient consent. It may well be true that the result of disclosure would effectively be the same as withdrawing from practice (if all or most of the practitioner’s patients choose to find another provider), but there are, at least in theory, situations in which that will not be the case. A health care worker may be the only provider available when the need for assistance arises, or the health care worker may be renowned in his or her field. Under either scenario, a fully informed patient might decide that the benefits of proceeding with an HIV-positive health care worker outweigh the risks. While the risks associated with the perfor­ mance of an invasive procedure by an HIV-infected health care worker are not so remote as to permit nondisclosure, the current medical evidence suggests that the risks are no greater than those inherent in many other therapies that practitioners may use on patients once the patient has been advised and has provided consent. Compare the estimated risk of HIV seroconversion after invasive procedure by an HIV-positive surgeon (2.4-24 per million) with the estimated risk of (1) anesthesia related mortality (100 per million); (2) aplastic anemia after chloramphenicol (25-40 per million); (3) penicillin anaphylasix associated mortality (10-20 per million). CDC Estimates, supra note 22 (Table 4). Thus, the fully-informed patient may consider the risks remote enough to be worth taking under certain circumstances. The point is that the decision should belong to the patient. See HIVI n f e c t e d O r t h o p a e d ic S u r g e o n s , supra note 39, at 4-5.

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the health care worker apparently accorded no deference to the patient’s ability and right to decide whether to proceed. Such feelings can only serve to alienate the patient from the health care worker and, as a result, perhaps all health care workers.117 Similarly, any acceptance by the health professions of the notion that risks may remain undisclosed to patients in order to protect the interests of health professionals is likely to arouse inherent suspicion of the health professions. Patients will no longer be able to trust that health professionals have only the patients’ best interests in mind, and therefore may elect to forego therapeutic invasive procedures. As a matter of public policy, this clearly is an undesirable result.118 Courts balancing the competing interests undoubtedly will take ethi­ cal and public policy considerations into account.119 It seems unlikely that either courts or legislatures will permit conduct by health care workers that will jeopardize the health care worker-patient relationship or unduly bur­ den the patient’s ability to seek needed health care. Presumably, the health professions are equally concerned about such repercussions. CONCLUSION The courts are only beginning to address the numerous legal issues resulting from the AIDS epidemic.120 The issues relating to HIV-infected health care workers are especially novel, as the evidence that HIV-positive health care workers can, in fact, transmit the infection, is relatively recent. Nonetheless, the Behringer decision suggests that courts, like the public generally, will consider the risks to patients to be sufficiently fearsome to warrant providing legal protection to patients. The doctrines of informed consent and fiduciary duty appear to provide the basis for imposing a duty of disclosure on an infected health care worker who intends to perform 1.7 See J. K a t z , supra note 56, at 212. See also Dental Patient Tom by AIDS, supra note 6 (patient infected by dentist writes: “ I blame Dr. Acer and . . . [ajnyone who knew Dr. Acer was infected . . . and stood by not doing a damn thing about it.” ). 1.8 See J. K a t z , supra note 56, at 25-26; S t a t e m e n t o f t h e AMA t o t h e CDC, supra note 28, at 4 (“ [PJatients are certainly better off knowing that the profession has publicly reaffirmed that their interests will always come first.” ). See also In re Milton S. Hershey Medical Center, 595 A.2d at 1296. 119 See Behringer. 592 A.2d at 1282-83. 120 Examples of these issues include employment discrimination; routine testing of patients; routine testing and rights generally of HIV-positive inmates; rights of HIV-positive children to attend school; immigration policies regarding HIV-infected applicants; possible criminal charges against deliberate transmission and attempts to transmit HIV; confidentiality; negligence in disposing of HIV-tainted needles, swabs, and other medical equipment; and, liability for transfusion of HIVtainted blood and transplantation of HIV-infected organs. See generally, AIDS: The Legal Issues (1988) (Discussion Draft of the American Bar Association AIDS Coordinating Committee); AIDS a n d t h e L aw (W. Domette ed. 1987).

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invasive procedures, and a patient seeking redress against a health care worker for breaching this duty may have a variety of legal theories upon which to recover.121 The HIV-infected health care worker is deserving of compassion and assistance in coping with the infection, the resulting disease, and its devas­ tating ramifications. Efforts must be made to protect HIV-positive health care workers from unjust discrimination and unnecessary infringements on privacy. Efforts also must be made to ensure an acceptable standard of living for infected health care workers whose practices must be limited. However, these obligations of society and the health professions cannot legally be transferred to unconsenting individual patients by placing them at risk, even if remote, of death or serious harm without their knowledge and consent, and the courts likely will so hold. 121 Plausible theories include battery, negligence, lack of informed consent, fraud, breach of fiduciary duty, and intentional or negligent infliction of emotional distress. See, e.g., AIDS a n d t h e L aw, supra note 120, at 150-57.

Part II AIDS and the Law

[8] The Politics of AIDS: Compulsory State Powers, Public Health, and Civil Liberties L

T I. II.

arry

able o f

G

C

o s t in *

ontents

In t r o d u c t io n

A S i g n i f i c a n t R is k o f T r a n s m is s io n A. Risk o f Sexual Transmission B. Risk o f Transmission by Intravenous Drug Use

C. Saliva as a Route o f Transmission: Biting and Spitting D. An inoculum o f Blood as a Method o f Transmission: Hitting , Kicking, Splattering o f Blood E. Conclusion on Risks o f Transmission III.

Is o l a t io n

A. Procedures fo r Fair and Impartial Decision Making B. Safe Environment fo r Isolation

C. Disease or Status-Based Isolation D. Modified Isolation Based upon Behavior , not Disease Status

IV.

C r im in a liz a tio n o f

HIV T r a n s m i s s i o n A. Genera! Criminal Law Theory 1. Intentional or Knowing Transmission a. Sexual Intercourse b. Donation o f Blood c. Spitting, Biting , and Splattering o f Blood 2. Reckless or Negligent Transmission B. Public Health or AIDS-Specific Offenses

V.

Sum m ary

C. Goals o f the Criminal Law

I . I n t r o d u c t io n

The politics of AIDS is moving steadily in the direction of the use of compulsory powers of the state. Some politicians have demanded isolation and criminal confinement of “ recalcitrant” AIDS carriers.1 An ever increasing number of state * J.D ., Duke University. Executive Director o f the American Society o f Law and Medicine and Adjunct Associate Professor, Harvard School of Public Health. The author recently completed a global survey o f AIDS legislation for the World Health Organ»™Iion and a legal and policy analysis o f U .S. legislation for the U .S. Secretary for Health and Human Services. The author would like to thank Rebecca Hanson (Sarah Lawrence College), Jennifer Klein (Columbia Law School), and Richard Timmel (Harvard Law School) for their research and editorial assistance. I . Some politicians and commentators have called for isolation o f persons with HIV who persist in spreading the infection. Scr Orutsch & Robertson, The Coming o f AtDS: It D idn't Start with the Homosexuals a u d it Won't End with Them, 19 Am. S ítc ta itír 12(1986); Florida Considerinx Locking Up Some Carriers o f the AtD S Virus, N .Y. Times, Jan. 27, 1988. at A 15. col. I (state officials proposing "spécial lock-up wards” for AIDS vinis carriers); Boodman, Idaho's Drive to Stop AtDS at the Border Arouses Doubts, Wash. Post, Nov. 10, 1987, at 4 , col. I; Le win, Rights c f Citiiens

AIDS: Society, Ethics and Law

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OHIO STATE LAW JOURNAL

[Vol. 49:1017

legislatures have considered or enacted statutes authorizing the exercise of compul­ sory public health powers.2 Political advocacy for a “ tougher” approach to the AIDS epidemic needs to be understood. The widespread publicity given to the potential for continued spread of the epidemic3 has charged political debate. In an atmosphere of public health crisis, and with little early prospect of an effective scientific intervention,4 there grows an impatience with voluntary measures focused on education and counseling. The fact that the epidemic is growing relentlessly is not the only thing that fuels calls for coercive state action. It is also that'the human immunodeficiency virus (HIV) is spread predominantly through volitional behavior5 such as sodomy, prostitution,

and Society Raise Legal Muddle on AIDS, N.Y. Times, Oct. 14, 1987, at A I , col. I (Sen. Jcssc Helms and Pat Robertson suggesting “ quarantine may bccontc necessary"). Support for criminal law sanctions has been even more vocal. See S ix te e n th C o n fe re n c e o f E u ro p ean M in is te rs o f J u s tic e , R e s o lu tio n No. I (Lisbon June 22, 1988) (recommending use of criminal law to combat AIDS as a last resort); Sullivan & Field, AIDS and the Coercive Power o f the State, 23 Harv. C .R .-C .L . L. Rev. 139 (1988); Squires, Spreading AIDS on Purpose, Wash. Post, Apr. 19, 1988 (Health), at 6; Boorstin, Criminal and Civil Litigation on Spread o f AIDS Appears, N.Y. Times. June 19, 1987, at 1, col. 3. 2. See infra notes 71, 72, 1 2 5 -2 7 , & 148 and accom panying text. 3. O n D ecem ber 18, 1987, the U .S . C enters for Disease C ontrol (C D C ) published a full report o f the Dom estic Policy C ouncil containing an ex tensive review o f published and unpublished data on the prevalence and incidence o f HIV infection. Human Immunodeficiency Virus Infection in the United States: A Review o f Current Knowledge, 36 M o rb id ity & M o r t a li t y W e ek ly Rei’., (Supp. 6) I (1987) [h erein after Review o f Current Knowledge], By June 6, 1988, a total o f 6 4 ,5 0 6 cases o f A ID S had been rep o rted in the United States; o ver 14,000 o f these had been reported since Jan. 1, 1988. and 36,255 eases had resu lted in death. In the previous tw elve m onths, 2 3 ,2 0 0 cases were rep o rted , representing an increase o f 58% ov er the y ear before. C D C , W e ek ly S u r v e illa n c e Rnp.June 6 , 1988; Quarterly Report to the Domestic P o l y Council on the Prevalence and Rate of Spread of HIV and AIDS in the United States, 259 J. A .M .A . 2657 (1988). By the end o f 1991 it is p rojected that there will be m ore than 2 7 0 ,0 0 0 cases, w ith m ore than 7 4 ,0 0 0 o f those occurring in 1991 alone. Confronting AIDS: Directions for Pub. Health. Health Care and Research, 1986. In st, o f M ed ., N a t ’i. A c a d , o f S ciences, 8 - 9 , 8 5 - 8 9 . Confronting AIDS: Update 1988, 1988 In st, o f M ed. N a t ’i. A c a d , o f Sciences 5 1 -5 2 (hereinafter U p d a te I988J. These arc all cases o f A ID S as defined by the Revision o f the CDC Surveillance Case

Definition for Acquired Immunodeficiency Syndrome, 36 M o rb id ity & M o r t a li t y Rep. 35 (1987); Human Immunode­ ficiency Virus (HIV) Infection Codes Official Authorized Addendum ICD-9-CM (Revision N o.I), 36 M o rb id ity & M o r t a li t y W e ek ly Rep. (Supp. 7) IS (1987). C ases o f C D C -defined AID S are only the surface o f the epidem ic. T here is a second épidém ie o f persons w ho harbor the virus and w ho show few or no sym ptom s. T h e num ber o f p ersons infected with HIV in the United States is estim ated to be betw een 9 4 5 ,0 0 0 and 1.4 m illion people. U p d a te 1988, at 4 9 - 5 0 . See H arris, The AIDS Epidemic: Looking into the 1990s, 9 0 T e c iin o l. R ev. No. 5, at 58 (July 1987). These tw o pandem ic epidem ics are connected by a tow line o f tim e— the tim e betw een infection and subsequent disease. See generally M ueller,

The Epidemiology o f the Human Immunodeficiency Virus Infection, 14 L aw , M ed. & H e a l th C a rf. 250 (1986). T h is tim e link betw een infection and disease can be m easured in m onths or m any years, it is now thought that the overw helm ing m ajority o f infected individuals will d ev elo p serious sym ptom ology. U p d a te 1988, at 3 5 - 3 6 ; F orem an, Virus 'Inexorably' Leads to AIDS, U.S. Study Says, B oston G lobe, June 2, 1988, at I, col. 1. 4 . D evelopm ent o f a p reventative vaccine for HIV is fraught with difficulty. Frances & Petricciani, The Prospects for and Pathways Toward a Vaccine for AIDS, 3 13 New E n g . J . M ed. 1586 ( 1985); G u stin , Vaccination fo r AIDS: Legal and Ethical Challenges from the Test Tube, to the Human Subject, Through to the Marketplace, 2 A ID S a n d Pub. P o l ’y J. 9 (1987); M ariner & G allo , Getting to Market: The Scientific and Legal Climate for Developing an AIDS Vaccine, 15 L aw , M ed. & H e a l th C a r e 17 (1987). Prospects for treatm ent appear m ore likely. See Y archoan & B roder, Development o f an Antiretroviral Therapy fo r the Acquired Immunodeficiency Syndrome and Related Disorders: Progress Report, 316 New E no. J. M ed. 557 (1987). Yet, the only approved treatm ent, azidothym idinc (A Z T ) is not intended to be curative and can be highly toxic. Its purpose is to help prevent the occurrence o f opportunistic infections in patients w ho are im m unocom prom ised. See A Ray o f Hope in the Fight Against AIDS, Time, Sept. 29, 1986, at 60.

5. Of the cumulative total of AIDS cases reported to the CDC, 63% were homosexual and bisexual men and 19% were heterosexual men and women with a history of intravenous drug use. Approximately 4% of cases were attributed to heterosexual transmission. CDC, W e ek ly S u r v e illa n c e R ep., June 6, 1988. See also, Curran, Morgan. Hardy, Jaffe, Darrow & Dowdle, The Epidemiology o f AIDS: Current Status and Future Prospects, 229 S cience 1352 (1985) (hereinafter Curran & Morgan]; Gostin, Acquired Immune Deficiency Syndrome: A Review o f Science. Health Policy, and Law, in AIDS a n d P a t ie n t M a n ag e m e n t: L e g a l, E t h ic a l a n d S o c ia l Issues (M . Witt, ed. 1986). The pattern of "high risk groups" is considerably different in other parts o f the world. See P a n o s I n s titu te , AIDS a n d t h e T h ird W o rld (1988); Goldsmith, AIDS Around the World: Analyzing Complex Patterns, 259 J. A.M.A. 1917 (1988) (predominance

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and the use of intravenous drugs, which are widely regarded as immoral, even criminal. Because the virus is primarily transmitted by intentional behavior that is within the control of the carrier, it is seen as susceptible to a legal, rather than a public health, solution. The use of compulsory public health powers can be a visible political symbol of seriousness of purpose in controlling AIDS. Public opinion polls consistently show some support for coercive action, with a significant proportion of respondents favoring "quarantine” of people with AIDS “ in special places to keep them away from the general public.**6 A majority of respondents also favor governmental restrictions on the sexual activities of known AIDS carriers.7 Public health authorities have resisted political and public pressure for the use of coercive powers.8 Instead, they have relied upon education and counseling of high risk groups to encourage behavioral changes. Experience with hepatitis B has demonstrated that voluntary compliance can reduce the spread of a virus with an analogous pattern of transmission,9 and emerging evidence on AIDS shows signifi­ cant alterations of high risk behavior.10 Furthermore, experience with the use of coercive measures in venereal disease control shows that they can be ineffective, discriminatory, and invidious.11 Absent evidence that personal control measures change behavior more effectively than voluntary education and counseling, govern­ ment cannot justify their use. The behaviors sought to be controlled or punished are highly ingrained, intimate, and deeply human activities. Coercive state action is a particularly crude tool to compel change in these behaviors. Compulsory public powers are justified only if they meet the following criteria: there is a significant risk of transmission of the AIDS virus; the public health response is efficacious in preventing a primary mode of transmission of the virus; the of heterosexual transmission in Africa): Update: Acquired Immunodeficiency Syndrome (AIDS)— Worldwide, 259 J. A.M .A. 3104 (1988). 6. In five national opinion polls conducted between Sept. 1985 and Jan. 1986, between 28% and 51% of respondents said “ (p)cople with AIDS should be put into quarantine in special places to keep them away from the general public.” Singer, Rogers & Corcoran, The Polls—A Report: AIDS, 51 Pub. Opinion Q. 580, 591-92 (1987). See Growing Concern, Greater Precautions, N ew sw eek, N ov. 24, 1986, at 30, 32; Poll Indicates Majority Favor Quarantine fo r AIDS Victims, N .Y . Times, Dec. 20, 1985, at A24, col. 1. 7. Two national opinion polls conducted in Nov. 1985 and Jan. 1986 found that 58% and 51%, respectively, of the respondents believed that “ governmental restrictions should be placed on the sexual activities o f people who are known earners of AIDS.” Singer, Rogers & Corcoran, supra note 6, at 592. 8. T he U nited Stales Public H ealth Service relies on public ed ucation and c o u n selin g to e n co u rag e b e h a v io r change and has not advocated the use o f compulsion. See PH S T ask Force on AIDS, Public Health Service Plan fo r the Prevention and Control of Acquired Immune Deficiency Syndrome (AIDS), 100 Pub. H e a l th Rep. 4 5 3 (19 8 5 ); U.S. D e p ’t H ealth & H um an Services, G uidelines for AIDS P revention P rogram O p eratio n s (1 9 8 7 ); Accord, W o r l d H e a l th O r g a n iz a tio n , G l o b a l P ro g ram m e o n AIDS, G u id in g O b je c tiv e s a n d Principi.es f o r t h e C o m p reh en siv e C o o r d in a tio n o f G l o b a l a n d N a t io n a l AIDS A c tiv itie s , G P A /E R /8 8 .2 (1988). 9. Blumberg & Fox, The Daedalus Effect: Changes in Ethical Questions Relating to Hepatitis B, 102 A n n a ls I n te r n . M ed. 390(1985). 10. B ecker & Joseph, AIDS and Behavioral Change to Reduce Risk: A Review, 78 Am. J. Pub. H e a l th 394 (1988); S elf Reported Behavioral Change Among Gay and Bisexual Men—San Francisco, 34 M o rb id ity & M o r t a u l t y W e ek ly Rep. 613 (1985); Weller, Hindley & Adler, Gonorrhea in Homosexual Men, and Media Coverage o f Acquired Immune Deficiency Syndrome in London 1 9 8 2 -8 3 , 289 B r i t. M ed. J. 104! (1984). 11. See A. B r a n d t, N o M a g ic B u l le t : A S o c ia l H is to r y o f V e n e r e a l D isease in t h e U n ite d S t a t e s S in c e 1880, at 8 4 -9 7 , 156-60(1985, Rev. Ed. 1987); Brandt, AIDS: From Social History to Social Policy, 14 L a w , M ed . & H e a l t h C a r e 231,2 3 1 -3 3 ( 1986); Brandt, AIDS in Historical Perspective: Four Lessons from the History o f Sexually Transmitted Diseases, 78 Am. J. Pub. H e a lth 367, 369-70 (1988).

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economic, practical, or human rights burdens are not disproportionate to the public health benefits: and the public health power is the least restrictive alternative that would prevent viral transmission.12 These proposed criteria are intended to demonstrate two realities in public health. First, a compulsory power needs vigorous justification and should not be imposed merely because it is dressed in the guise of public health. Thus, there must be reliable epidemiologic evidence that the virus can, and probably will, be transmitted by the person’s behavior; and that the exercise of the power will prevent the transmission of the virus. Second, while the health of the community is often an overriding public value, it is not absolute. In each case the public good to be achieved must be balanced against the costs of the policy. If the invasion of human rights, the financial cost, or the practical burdens of the policy are wholly disproportionate to the benefits, it should not be adopted. There are instances where compulsory powers are necessary to prevent a clear likelihood that the virus will be transmitted. However, I will demonstrate that many compulsory powers have been, and will be, exercised in cases where they serve no overriding public purpose. In the following section Î carefully examine the levels of risk posed by behavior which can potentially transmit HIV. It is essential to understand the relative risks of such behavior as a foundation for the rest of this Article, which analyzes two major proposals for coercive state action: isolation of carriers of HIV and criminal prosecution for transmission of HIV. This Article will demonstrate that these compulsory state powers have little place in fighting a disease epidemic. II. A

S ig n i f i c a n t R is k o f T r a n s m is s io n

A threshold question in assessing the value of a compulsory public health power is whether there is a significant risk of transmission of the AIDS virus. Public health powers have been advocated or used in cases where the person’s behavior was highly unlikely to transmit the AIDS virus—biting, spitting, splattering of blood, or donating blood. The imposition of compulsory powers in these types of cases is misplaced for two reasons. First, the compulsory powers will have little public utility if the risk posed by the person’s behavior is exceedingly small. The resources placed into preventing low risk behavior are not well spent, for even if the behavior can be prevented, it is unlikely to have any effect on the spread of the epidemic. Second, focusing on low risk behaviors of AIDS carriers is iniquitous, for society already tolerates other activities that pose equal or greater risks. It is important to examine the relative risk when assessing sanctions against AIDS carriers. For example, a decision to incarcerate an AIDS carrier for biting or spitting ignores the fact that this behavior poses a much lower risk of serious harm than other behavior, such as dangerous driving, for which there is often no significant criminal liability. 12. See generally, Gostin. Curran & Clark. The Case Against Compulsory Casefmding in Controlling AIDS— Testing, Screening and Reporting, 12 Am. J. L. & M eo. 7, 21-24 (1986).

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The concept of “ significant risk” is well recognized in public health law. Modern courts have consistently required a clear public health justification for any personal control measure.13 Yet the concept of “ significant risk” has never been clarified or defined. It should be based upon epidemiologic evidence of the gravity of the harm and the probability of the harm occurring. A risk is significant only if the mode of transmission is scientifically well established, there is a reasonable likelihood that viral transmission will take place, and the potential harm is serious. Below I examine the various modes of transmission of the AIDS virus and the level of risk posed. A. Risk o f Sexual Transmission Sexual intercourse is a primary mode of transmission of HIV.14 HIV is much less easily communicated than other sexually transmitted diseases, such as hepatitis B, syphilis and gonorrhea.13 The range of the risk of transmission of HIV in a prolonged sexual relationship is 7 to 68% that the virus will be transmitted.16 Transmission through anal-receptive intercourse is considered more efficient,17 although it is thought that individual host susceptibility18 and variations in infectivity19 among different people may be additional factors. Transmission from male-to-female is well 13. Sec School Bd. of Nassau County v. Arline. 480 U.S. 273, 288 (1987) reh'g denied, 107 S.Ct. 1913 (1987) (school teacher with tuberculosis could not be fired unless she posed a "significant risk" to health); New York State A ss’n for Retarded Children v. Carey. 612 F.2d 644 (2d Cir. 1979) (mentally retarded children who were carriers o f senim hepatitis could not be excluded from regular public school classes because the health hazard was only a remote possibility): District 27 Community School Bd. v. Board of Educ., 130 Misc. 2d 398, 502 N .Y .S. 2d 325 (Sup. Ct. 1986) (the automatic exclusion of school children with AIDS would effect a purpose having no adequate connection with public health). 14. See Urn ATP. 1988, at 38-45; Friedland A Klein, Transmission o f the Human immunodeficiency Virus, 317 N ew E ng. J. Mw». 1125. 112 8 - 1130 ( I9R7); Pctcnnan. Stoncburner, Allen. Jaffe & Curran, Risk o f Human Immunodeficiency Virus Transmission from Heterosexual Adults with Transfusion—Associated Infections, 259 J. A.M. A. 55 (1988); Review of Current Knowledge, supra note 3. at 2 -4 . 15. Peterman & Curran, Sexual Transmission o f Human Immunodeficiency Virus, 256 J. A.M. A. 2222 (1986) (Transmission rate of Neisseria gonorrhoeae after a single sexual exposure is 22-25% for a man and 50% for a woman). 16. See generally Allain, Prevalence o f HTLV-lll/LAV Antibodies in Patients with Hemophilia and in their Sexual Partners in France. 315 New E ng. J. Med. 517 (1986); Fischl, Dickinson, Scott, Klimas, Fletcher A Parks, Evaluation o f Heterosexual Partners. Children, and Household Contacts o f Adults with AIDS, 257 J. A.M .A. 640(1987) (hereinafter Fischl & Dickinson); Kreiss, Kitchen, Prince, Kasper & Essex, Antibody to Human T-Lymphotropic Virus Type III in Wives o f Hemophiliacs: Evidence for Heterosexual Transmission, 102 A n n a ls I n te r n . M ed. 623 (1985); Mann, Quinn, Francis. Nzilambi, Bosenge. B ila, McCormick. Ruti, Asila & CurTan, Prevalence o f HTLV-lll/LAV in Household Contacts o f Patients with Confirmed AIDS and Controls in Kinshasa. Zaire, 256 J. A.M. A. 721, (1986) (hereinafter M ann & Quinnl; Rcdfield, Markham, Salahuddin. Sarngadharan, Bodner, Folks, Ballou, Wright & Gallo, Frequent Transmission o f HTLV-III Among Spouses o f Patients with AIDS-Related Complex and AIDS, 253 J. A.M. A. 1571 ( 1985) (hereinafter Redfield & Markham). 17. Goedert, Sarngadharan, Biggar, Winn, Greene, Mann, Gallo, Sarngadharan, Weiss, Grossman, Bodner, Strong & Blattner, Determinants o f Retrovirus (HTLV-III) Antibody and Immunodeficiency Conditions in Homosexual Men, 2 L a n c e t 711 (1984); Kingsley. Kaslow. Rinaldo, Jr., Detre, Odaka, Van Raden, Detels, Polk, Chmiel, Kelsey, Ostrow & Visscher, Risk Factors fo r Seroconversion to Human Immunodeficiency Virus Among Male Homosexuals, I L a n c e t 345 (1987); Winkelstein, Lyman, Padian, Grant, Samual, Wiley, Anderson. Lang, Riggs Sl Levy, Sexual Practices and Risk o f Infection by the Human Immunodeficiency Virus: The San Francisco Men's Health Study, 257 J. A.M.A. 321, 325 (1987). 18. Eales, Nye. Parkin, Weber, Forster & Harris, Association o f Different Allelic Forms o f Group Specific Component with Susceptibility to and Clinical Manifestation o f Human Immunodeficiency Virus Infection, 1 L a n c e t 9 9 9 , 999, 1 0 0 1 -0 2 (1987).

19. Dahl, Martin & Miller. Differences Among Human Immunodeficiency Virus Strains in their Capacities to Induce Cytolysis or Persistent Infection o f a Lymphoblastoid Cell Line Immortalized by Epstein-Barr Virus, 61 J. Virology 1602 (1987).

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documented,20 but female-to-male transmission is more controversial. Clearly female-to-male transmission occurs, but it has been less frequent in the United States.21 The level of risk of contracting HIV from one unprotected sexual contact with an infected partner is thought to be low. One study placed the seroconversion rate at approximately 1/1,000.22 While the use of barrier contraception is not entirely safe, it does provide important protection.23 Frequent and appropriate use of barrier protection clearly attenuates the rate of seroconversion.24 The risk of contracting HIV in a single sexual encounter while using a condom (assuming 90% effectiveness of such a barrier) is estimated to be 1/10,000.25 Prostitution is a major target of coercive AIDS legislation.26 Yet the primary risk factor for HIV infection in prostitutes in the United States is not sexual practice but intravenous drug use.27 Further, prostitutes often seek to use protection against exchange of body fluids. Their clients appear to pose as significant a health threat to the prostitutes as the prostitutes to their clients. “ Scientists are not certain how frequently prostitutes have been infected because of their multiple sexual contacts, or how often they have infected their customers, although the available evidence . . . indicates that this has not occurred on a large scale.” 28 B. Risk o f Transmission by Intravenous Drug Use Intravenous drug use has a major role in the transmission of HIV.29 IV drug users can spread HIV through their practice of sharing drug “ paraphernalia” or “ works” (needles and syringes). Sharing of works often occurs in “ shooting galleries” where addicts purchase their drugs and rent needles and syringes. The

20. The majority of cases of heterosexual transmission in the United States are. women. Review of Current Knowledge, supra note 3; Fricdland & Klein, supra note 14, at 1129. HIV is found in semen in relatively large concentrations. See generally Ho, Schoolcy, Rota, Kaplan & Flynn, HTLV-III in the Semen and Blood o f a Healthy Heterosexual Man, 226 S cien ce 451 (1984). 21. In Africa, female-to-male transmission has been well documented. Quinn. Mann, Curran & Plot, AIDS in Africa: An Epidemiologic Paradigm, 234 S cien ce 955 (1986). But the frequency in the U.S. is much less clear. Fricdland & Klein, supra note 14, at 1129-30. 22. Padian, Wiley & Winkclstcin, Male to Female Transmission o f Human Immunodeficiency Virus: Current Results, Infectivity Rates, and San Francisco Population Seroprevalence Estimates. Presented at the Third International Conference on AIDS, Washington D .C ., June 4, 1987. See Padian, Marquis. Francis, Anderson, Rutherford, O ’Malley & Winkelstein, Male-to-Female Transmission of Human Immunodeficiency Virus, 258 J. A.M. A. 788 (1987). 23. Gostin & Curran, Response from Gostin Curran, 77 Am. J. Pub. H e a lth 1553 (1987). 24. Conant, Hardy, Sernatinger, Spicer & Levy, Condoms Prevent Transmission o f AIDS—Associated Retrovirus, 255 J. A.M. A. 1706 (1986); Fischl & Dickinson, supra note 16, at 641; Voeller & Potts, Has the Condom Any Proved Value in Preventing the Transmission o f Sexually Viral Disease—fo r Example Acquired Immune Deficiency Syndrome, 291 B r i t. M ed. J. 1196(1985). 25. Hagen, Myer & Pauker, Routine Preoperative Screening for HIV: Does the Risk to the Surgeon Outweigh the Risk to the Patient? 259 J. A.M .A. 1357, 1358 (1988). 26. See supra notes 8 —11 and accompanying text for comments on the use of coercive powers. 27. See Rosenberg & Weiner, Prostitutes and AIDS: A Health Department Priority? 78 Am. J. Pub. H kai.tii 418 (1988); Antibody to Human Immunodeficiency Virus in Female Prostitutes, 36 M o rb id ity & M o r t a li t y W e ek ly Rep. 157 (1987) (Table 2); Review o f Current Knowledge, supra note 3, at 8. 28. Altman, U.S. Study Examines Prostitutes and AIDS Virus, N.Y. Times, March 27, 1987, at A14, col. I. 29. Twenty-five percent of all AIDS cases in the U.S. have occurred in IV drug users, and 17% have occurred among those in whom IV drug use is the only risk factor. Friedland & Klein, supra note 14. at 1127; Review o f Current Knowledge, supra note 3, at 14.

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sharing experience is often part of the culture of the drug dependent population, indicating a sense of camaraderie. Drugs are injected into a suitable vein and thus, when the needle is shared, it is likely to have traces of blood.30 Studies have documented needle sharing as a method of transmission of HIV.31 However, it is likely that the amount of blood on the needle is minute.32 Accordingly, the rate of seroconversion in any single case of percutaneous exposure to the needle is likely to be small—ranging from a rate of .03-.09%.33 However, episodes of injections by individual drug users may number in the thousands, so the cumulative risk of IV drug use is high.34 C. Saliva as a Route of Transmission: Biting and Spitting HIV has been isolated from saliva.35 The isolation of virus from a body fluid does not necessarily mean that the fluid is a significant mode of transmission. Transmission by biting or spitting, however, continues to be a societal concern, one which has resulted in the filing of criminal charges.36 There are strong grounds for believing the risk of transmission by saliva to be exceedingly low, approaching zero. First, HIV has been isolated in saliva only rarely and in very small amounts.37 It is thought that the risk of transmission from a small inoculum of virus in a single event is remote.38 Second, experiments indicate that both whole saliva and saliva filtrates contain components that inactivate HIV in vitro.39 Third, there has never been a documented case of transmission by saliva, despite close observation and follow-up investigations of cases of biting, spitting, deep kissing, and intimate caring activities.40 There has been one report, for example, of an adult patient with AIDS who bit thirty health care workers without any transmission of the virus.41 Several other follow-up studies of biting have revealed no

30. Friedland & Klein, supra note 14, at 1127—28; Ginzburg, Intravenous Drug Abusers and HIV Infections: A Consequence of Their Actions, 14 L a w , Mf.d. & H e a l th C a r e 268, 2 6 9 -7 0 (1986). 31. See generally Chaisson, Moss, Onishi, Osmond &. Carlson, Human Immunodeficiency Virus Infection in Heterosexual Intravenous Drug Users in San Francisco, 77 Am. J. Pub. H e a l th 169 (1987); D es Jarlais, Friedman & Stoneburner, HIV Infection and Intravenous Drug Use: Critical Issues in Transmission Dynamics, I/{feet ion Outcomes and Prevention, 10 R ev. I n fe c t. D is. 131 (1988); Fricdland, Harris, Butkus-Small, Shine, Moll, Darrow & Klein, Intravenous Drug Abusers and the Acquired Immunodeficiency Syndrome (AIDS): Demographic, Drug Use. and Needle-Sfmring Patterns, 145 A rc h iv e s I n te r n . M ed. 1413 (1985). 32. Friedland & Klein, supra note 14, at 1128. 33. Id. at 1126. 34. Id. at 1128. 35. Groopman, Salahuddin, Sarngadharan, Markham, Gorda, Sliski & Gallo. HTLV-III in Saliva o f People with AIDS-Related Complex and Healthy Homosexual Men at Risk fo r AIDS, 226 S c ien c e 447 (1984); Hoc, Byington, Schooley, Flynn, Rota & Hirsch. Infrequency o f Isolation o f HTLV-III Virus from Saliva in AIDS, 313 New E ng. J. M ed. 1606 (1985) (hereinafter Hoe & Byington]. 36. See infra note 117 and accompanying text. 37. Lifson, Do Alternative Modes o f Transmission o f Human Immunodeficiency Virus Exist? 259 J. A.M. A. 1353 (1988). In one study of men infcctcd with HIV, the virus could be isolated in 28 o f 50 samples o f blood but in only I of 83 samples of saliva. Hoc & Byington, supra note 35. 38. Fricdland & Klein, supra note 14, at 1126-27. 39. Fultz, Components o f Saliva Inactivate Human Immunodeficiency Virus, 2 L a n c e t 1215 (1986). 40. See Friedland & Klein, supra note 14. at 1132-33; Lifson. supra note 37, at 1353-54. 4 1. Tsoukas, Hadjis, Thebcrge, et a l., Risk o f Transmission o f HTLV-III/LAV from Human Bites, presented at the Second International Conference on AIDS, Paris, June 2 3 -2 5 , 1986.

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evidence of HIV transmission.42 There are also no documented cases of HIV transmission through kissing or insertive oral-genital contact.43 Fourth, there have been major population studies of households, dentists, and healthcare workers in intimate contact with HIV infected persons, without viral transmission.44 Households with an HIV infected member have been studied over a period of years. In these families there were repeated exposures to saliva. They shared eating utensils, plates, drinking glasses, and toothbrushes; towels, linens, and clothes were sometimes soiled with saliva; family members helped patients to eat and drink; and they kissed on the cheek and on the lips. These studies involved nearly five hundred members of various families, yet failed to find a single case of a family member who contracted HIV who did not have an additional exposure through a blood transfusion, sexual relations, or perinatal transmission.45 The risk of transmission by saliva has also been studied among dental workers who have had repeated exposure to saliva as well as blood. In one study of 1309 dental professionals (72% of whom treated high risk patients and 94% of whom reported accidental puncture wounds), only one had HIV.46 This one report is thought to have been from blood exposure. Other studies have not found another case of transmission to a dentist.47 Similar studies have been done with health workers who care for HIV-infected patients.48 These studies also have failed to document a case of HIV transmission with parenteral, mucous membrane, or open wound exposures to saliva;49 cardiopul42. Drummond, Seronegative 18 Months After Being Bitten hy a Patient with AIDS, 256 J. A.M. A. 2.142 (1986). But see Wahn, Kramer, Voit, Bruster, Scrampical & Scheid. Horizontal Transmission o f HIV Infection Between Two Siblings, 2 L a n c e t 694 ( 1986) (Authors concludc one plausible, though unlikely, route of transmission between brothers was through a bite, even though it did not break skin or result in bleeding.). 43. Lifson, supra note 37, at 1353-54. 44. These studies arc reviewed in: Friedland & Klein, supra note 14, at 1131-33; Gostin, Curran & Clark, supra note 12, at 22 n.3, 45. Fischl & Dickinson, supra note 16; Fricdland, Saltzman, Rogers, Kahl, Lesser. Mayers & Klein, Lack o f Transmission of HTLV-lll/LAV Infection to Household Contacts o f Patients with AIDS or AIDS-related complex with Oral Candidiasis, 314 New F.no. J. Mn>. 344 (1986); Jason. McDougal, Dixon. Lawrence. Kennedy, Hilgartner, Aledort & Evatt. HTLV-lll/LAV Antibody with Immune Status o f Household Contacts and Sexual Partners o f Persons with Hemophilia, 255 J. A.M .A. 212 (1986); Lawrence. Jason, Bouhasin, McDougal. Knutscn, Evatt & Joist, HTLV-lll/LAV Antibody Status of Spouses and Household Contacts Assisting in Home Infusion o f Hemophilia Patients, 66 B lo o d 703 (1985); Mann & Quinn, supra note 16; Redfield & Markham, supra note 16. 46. Klein, Phelan, Freeman, Schablc, Friedland, Tricger & Steigbigel, Low Occupational Risk o f Human Immunodeficiency Virus Infection Among Dental Professionals, 318 New E n g . J. M ed. 86 (1988). (Several letters to the editor in response to this article are in 319 New E ng. J. Mf.d. 112-14 (1988).). 47. Gcrbcrding, Bryant-LeBlanc. Nelson, Moss, Osmond, Chambers. Carlson, Drew, Levy & Sonde. Risk o f Transmitting the Human Immunodeficiency Virus. Cytomegalovirus, and Hepatitis B Virus to Health Care Workers Exposed to Patients with AIDS and AIDS-Related Conditions, 156 J. I n fe c t. Dis. 1, 4 (1987) (hereinafter Gerberding & Brynnt-L.cBlnncJ. 48 Gcrbcrding & Bryant-LeBlanc, supra note 47; Henderson, Saah, Zak. Kaslow, Lane, Folks, Blackwelder. Schmitt, LaCarncra. Masur & Fauci, Risk o f Nosocomial Infection with Human T-Cell Lymphotropic Virus Type IIIfLymphadcnopathy-Associated Virus in a Large Cohort of Intensively Exposed Health Care Workers, 104 A n n a ls Inip.rn. Mf.d. 644 (1986) |hercinafter Henderson & Saah]; Hirsch, Wormser, Schooley, Ho, Fclscnstcin, Hopkins, Jolinc. Duncanson. Sargadharan, Saxingcr & Gallo. Risk of Nosocomial Infection with Human T-Cell Lymphotropic Virus III (HTLV-III). 312 New E no. J. Mnn. I (1985); McCray & The Cooperative Ncedlestick Surveillance Group, Occupational Risk o f the Acquired Immunodeficiency Syndrome Among Health Care Workers, 314 N ew E ng. J. Mf.d. 1127 (1986) (hereinafter McCray & Nccdlestick Group]; Weiss, Saxinger, Rechtman, Grcico. Nadler, Holman. Ginzburg, Groopman. Gocdert, Markham, Gallo. Blattner & Landsman, HTLV-III Infection Among Health Care Workers: Association with Necdle-Stick Injuries. 254 J. A .M .A . 2089 (1985). 49. McCray & Necdlestick Group, supra note 48.

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monary resuscitation;50 and performance of invasive procedures with direct exposure to saliva.51 Nearly all documented cases of occupational transmission of HIV in health care settings have been attributed to accidental needlestick injuries or mucous membrane exposure to large amounts of blood.52 Of more than 60,000 cases of AIDS reported to the Centers for Disease Control, none have implicated saliva as a likely cause of transmission.53 One recent reviewer of the medical literature noted that, given these data, the risk of transmission by saliva is still only “ theoretical” or “ negligible.” 54 D. An Inoculum o f Blood as a Method of Transmission: Hitting , Kicking , Splattering o f Blood

HIV has been isolated in blood.55 Blood represents a significant method or transmission when there is a large inoculum.56 Thus, transfusions of blood and blood products have been implicated as major routes of transmission.57 It is the importance of blood transmissions as a risk factor for AIDS that has worried policy makers about scrapes, bruises, and bleeding occurring while there is physical contact with HIV infected persons. Thus, aggressive acts such as hitting, kicking, or splattering of blood by HIV infected people have been viewed as much more serious than the same behavior by non-infected persons. These aggressive behaviors, however, do not involve a large inoculum of HIV infected blood into the body. Rather, they often involve either a small inoculum of blood or, more likely, no exposure to blood inside the body.58 This shows that a single event of this kind poses a very low, or negligible, risk. The risk of transmission of HIV even after a deep parenteral exposure to infected blood is estimated to be in the range of .03-.09%.59

50. Savitccr, White, Cohen & Jason, HTLV-III Exposure During Cardiopulmonary Resuscitation, 313 N ew E n o . J. M ed. 1606 (1985). 51. Gerberding & Bryant-lxBlanc, supra note 47. 52. See supra note 48; Allen, Health Care Workers and the Risk o f HIV Transmission, H a s tin g s C e n . Rep. 2 -5 (April, May 1988); Recommendations for Prevention o f HIV Transmission in Health Care Settings, 36 M o rb id ity A M o r t a l i t y W e ek ly Rep. (Supp. 2) 35 (1987) (hereinafter Recommendations, 36, 1987). 53. Review o f Current Knowledge, supra note 3. 54. Lifson, supra note 37, at 1354. 55. Barrc-Sinoussi, Chermann, Rey, Nugeyre, Chamaret, Gniest, Dauguel A Axler-Blin, Isolation o f a T-Lymphotropic Retrovirus from a Patient at Risk fo r the Acquired Immune Deficiency Syndrome (AIDS), 220 S cien ce 868 (1983); Gallo, Salahuddin, Popovic, Shearer. Kaplan, Haynes, Palker, Redfield, Oleske, Safai, White, Foster & Markham. Frequent Detection and Isolation o f Cÿtopathic Retroviruses (HTLV-III) from Patients with AIDS and at Risk for AIDS. 224 Scien ce 500 (1984). 56. Fricdland & Klein, supra note 14. 1126-27. 57. Approximately 3% of adults and 13% of children have acquired AIDS through transfusions. CDC, W e ek ly S u r v e illa n c e Rep., July 4. 1988. Most transfusion-related cases occurred before screening for HIV antibody was technically possible. It is thought that, with current screening programs, the incidence o f transfusion-related infections are low. See Gostin. Curran A Clark, supra note 12, at 13-17. 58. Fricdland A Klein, supra note 14. 59. See Fricdland & Klein, supra note 14, at 1127 (1987) (placing the average level o f risk of HIV transmission at 0.76%). See also Gcrberding & Bryant-Le Blanc, supra note 47 (a study o f 270 health care workers found no evidence of HIV transmission from occupational exposure); Henderson & Saah, supra note 48, at 647. McCray & Needlestick Group, supra note 48, at 1131; McEvoy, Porter. Mortimer, Simmons & Shan son, Prospective Study o f Clinical, laboratory, and Ancillary Staff with Accidental Exposures to Blood or Body Fluids from Patients Infected with HIV, 294

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There have been only sixteen reported cases of occupational exposure to HIV.60 This appears insignificant, given the frequency of contact between health care workers and infected patients. The spillage of blood on skin surfaces is not thought to pose a significant risk. But two cases of seroconversion of health care workers from mucous membrane exposures to infected blood61 raised the level of public anxiety. The fact that these cases occurred demonstrates that HIV can be transmitted through a non-parenteral exposure to blood. However, the two cases involved virtual soaking in blood, without adequate precautions taken such as use of gloves. In each case the health care worker also had significant breaks in the skin allowing access to the virus; blood also soaked through mucous membranes. There is no data quantifying the risk of surface skin exposure to blood. However, it is reasonable to assume the risk is less than that caused by an injection of blood from a contaminated needle. This would place the risk of surface skin exposure even to a large amount of blood well below l% .62 E. Conclusion on Risks o f Transmission There is a strong consensus in the scientific literature that transmission of HIV occurs only through an inoculation of blood, sexual intercourse, or perinatally. The law should carefully reflect this scientific understanding by focusing its interventions on those behaviors which pose significant risks. Even in the area of greatest concern— sexual transmission—the risk of a single event (particularly if barrier protection is utilized) is very low, and probably comparable to other risks which are well accepted in society. Public concern has often focused on the aggressive behavior of “ recalcitrants” who bite, kick, spit, or splatter their blood, because of the theoretical possibility that HIV can be transmitted. Scientists cannot rule out the possibility that these alternative modes of transmission may occur in the future. An unrealistic requirement for absolute certainty persists, despite the knowledge that it is impossible scientifically to prove that an event cannot occur. Society seems prepared to deprive HIV-infected persons of their liberty, under the mantle of public health, for taking remote risks. The exercise of compulsory powers is based upon unproven fears, perhaps preju­ dices, and not upon rational assessment of scientific facts. I I I . I s o l a t io n

Infection control measures have long rested on the assumption that disease carriers must be physically separated from the rest of the population to prevent

B r it. M ed. J. 1595 (1987) (less than 1% chance o f developing HIV from a single exposure); Recommendations 36, 1987, supra note 5 2 , at 3. 60. See generally id. (This is a composite total from all of the sources cited.). 61. Barnes, Health Care Workers and AIDS: Questions Persist, 241 S cien ce 161 (1988). See Gostin. Hospitals, Health Care Professionals and AIDS: The 4‘Right to Know” the Health Care Status o f Patients and Professionals, M d. L. R ev. (in press); and Update: Human Immunodeficiency Virus Infections in Health-Care Workers Exposed to Blood o f Infected Patients, 36 M o rb id ity & M o r t a l i t y W e ek ly Rep. 285 (1987). 62. See Friedland & Klein, supra note 14, at 1126-27 1131-33.

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transmission of the infectious agent. Although the terms “ isolation” and “ quar­ antine” are often used interchangeably, both in public health statutes and in common parlance, there is a technical distinction between them. “ Isolation” is the separation of infected persons from others during the period of communicability so as to prevent transmission of the infectious agent; “ quarantine” is the detention of persons who are healthy, but have been exposed to a communicable disease, to prevent contact with persons not exposed.63 Since proposals for confining persons with AIDS tend to target persons who already exhibit symptoms of the disease or who demonstrably have been exposed to the virus, the term “ isolation” is more appropriate. Isolation is a particularly antiquated public health notion. It was designed in a very different era and intended for diseases of a character wholly different from that of AIDS. At the time most of these public health statutes were written, the sciences of virology and epidemiology were in their infancy.64 A crude tradition of isolation and quarantine of real and suspected cases was the rule, sometimes involving separation of an entire geographic area, although there was no understanding of the mechanism by which the disease spread or how to interrupt it.65 Modern public health interventions are founded upon a more sophisticated understanding of disease processes. Science more precisely understands the etiolog­ ical agents of infectious diseases, the most likely harborers of the agent, the most efficient modes of its transmission, and the methods of modifying behaviors or environments in order to interrupt its spread. Accordingly, modern measures for reducing the spread of disease are predom­ inantly based upon research, education, and counseling, specifically targeted to groups at risk of spreading or contracting the disease. Public health statutes and judicial review of public health action should reflect these scientific realities by requiring public health measures to interrupt only the most efficient modes of disease transmission. The public health benefit is thus maximized, while restrictions of individual liberty remain limited to those clearly necessary for community health.66 AIDS does not display the paradigmatic conditions that call for isolation. HIV is not transmitted by casual contact with others; it is not an airborne disease which is spread by coughing or sneezing; and it is not transniissable by touching, kissing, or other social activities.67 AIDS is transmitted only by specific, conscious behavior. Therefore, to isolate those who are infected with HIV, yet who do not engage in this behavior, lacks any useful purpose. At present, few state public health statutes authorize the isolation of persons with AIDS. Many states authorize the isolation of persons infected with venereal or sexually transmitted diseases, but for the most part AIDS is not so classified.68 63. See. e.g ., C a l . IIhai.tii & S a i e t y C o d e §8 2520. 2525 (West 1976). 64. See generally. Goslin, The Future o f Public Health Law. 12 Am. J. I.. & Mhi>. 461, 4 6 3 -6 5 (1986); Parmct. AIDS aiui Quarantine: The Revival o f an Archaic Doctrine. 14 H o is tk a L. R lv 53 (1985). 65. See, e.g., Jew Ho v. Williamson. 103 F. 10 (C.C.N.D. Cal. 1900) (court found that quarantine area was too large and unrelated to effective disease control). 66. See Goslin. supra note 64. at 46 4 -6 5 . 67. See supra notes 14-62 and accompanying text. 68. W. C u r r a n , L. G o s tin & M. C l a r k . A c q u ire d Im m unodeficiency S y n d ro m e: L e g a l a n d R e g u l a to r y P o lic y A n a ly sis i-ii. 2 0 4 -0 7 (1986. republished by U .S . Dcp’t of Comm. 1988).

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Although AIDS is classified as a communicable disease in many states,69 that designation alone does not provide a legal basis for the imposition of personal control measures. Similarly, the fact that all states require that AIDS cases be reported to public health officials does not, in and of itself, provide legal justification for isolating infected persons.70 To be sure, many state legislatures have considered bills to make AIDS, and even HIV infection, isolable conditions.71 A number of these states have already enacted statutes authorizing the isolation of persons with HIV. Some of these statutes do not mention the AIDS virus specifically, but would probably justify the detention of AIDS virus carriers.72 Two different kinds of isolation statute exist: those which authorize confinement on the basis of disease status alone, and those which authorize confinement of infected persons who engage in dangerous behavior. The distinction between antiquated disease-based isolation and more modern behavior-based isolation is pivotal, because one is concerned with an immutable health status, while the other is more directly targeted to prevent dangerous acts. Isolation, whether disease- or behavior-based, is a uniquely serious form of deprivation of liberty because it can be utilized against a competent and unwilling person without criminal conviction.73 It fully restricts the personal liberty of a rational adult, not out of concern for that person’s welfare, but out of concern for the welfare of others. Furthermore, it is a form of preventive confinement based upon what a

69. Id. at ii. See generally id. at 1-2 0 8 . 70. Id. at ii. 204 (su m m arizin g findings p resented at 1 -1 7 9 ). 71. Som e states specifically m ention H IV in the statu te, m aking it an isolable condition. See. e.g ., C o lo . Rf.v. S i a I ., §§ 25-4-1401 to -1410 (B radford Supp. 1987). (W hen a p c rs o n is o r is reasonably believed to be infected with H IV , the state or local hcalfh departm ent m ay o rd er the person to be exam ined and tested , to visit a health w o rk e r's office for c o u nseling, or to cease and desist from sp ecified d angerous conduct. If a person violates a cease and desist o rd er, personal restrictions can be im posed as n ecessary to prevent dangerous conduct. A p e rso n ’s failure to com ply with the statute can result in a crim inal p e n a lty .); 1987 M in n . Sess. L aw S e r v ., § 209 S .F . N o. 1048 (W est). O ther states sim ply add H IV to the list o f com m u n icab le diseases w hich are isolable. see, e.g ., Id ah o C o d e § 39*601 (1 988), or classify H IV ns a sexually transm itted d isease subject to iso latio n , see. e.g ., K y. Rf.v. S t a t . A n n . § 2 1 4 .4 1 0 (M ichic/B obbs-M errill 1988). Finally, som e states have o nly co n sid ered pro p o sals for m aking A ID S an isolable disease. These states include H aw aii, South C aro lin a, and W ash in g to n . V irginia and P ennsylvania have both passed gentle p robing m easures authorizing investigations into the ad eq u acy o f ex istin g state law s and regulations for disease co n tro l. See generally G ostin A Z ieg ler, A Review o f AIDS-Related Legislative and Regulatory Policy in the United States, 15 L aw , Mf.d. A H e a l th C a r e 5 (1987); C u rran , C lark A G o stin , AIDS: Legal and Policy Implications o f the Application o f Traditional Disease Control Measures. 15 L a w , M f.d. A H e a l th C a r e 27 (1987); R. M e r r i t t , C . Thom as A A. Zif.oi.er, A ID S -R f.la te d B ills C o n s id e re d in t h e 1986 L e g is la tiv e S essio n (1987); C . T hom as, A Synopsis o f S t a t e R e la te d L e g isla tio n (1987); Sullivan A Field, supra note 1, at 144 n .1 8 . 72. See, e .g ., 1987 A la . C o d e § 22-11A-18 (Supp. 1988) (authorizes public health officials to isolate persons with

sexually transmitted diseases if they may expose others to the disease and confinement is necessary to protect the public health); C o n n . Gf.n. S t a t . A nn. § 19a-221 (West 1986) (authorizes each health director to order an individual confined if there arc reasonable grounds to believe he or she is infected with a communicable disease and is unwilling or unable to act in a manner so as not to expose others); F la . S t a t . A nn. § 384.28 (West Supp. 1988) (authorizes public health authorities to isolate a person to prevent the “ probable spread of a sexually transmitted disease, until such time as the condition can be corrected or the threat to the public health is eliminated or reduced/*) Ind. C o d e A nn. $ 16-1-9.5-4 (West Supp. 1988) (allows the secretary for health or local health officers to restrict people who have a communicable disease and who may be endangering the public health). 73. See generally. Curran, Clark & Gostin, supra note 71; Ford A Quam, AIDS Quarantine: The Legal and Pr actical Implications, 8 J. L f.g a l M f.d. 353 (1987); Gostin, Traditional Public Health Strategies, in AIDS a n d t h e Law : A G uide i o r t h e P u b lic 47 (H. Dalton A S. Burris eds. 1987); Merritt, Communicable Disease Control and Constitutional Law: Controlling AIDS, 61 N .Y .U . L. Rev. 759 (1986); Parmct, supra note 64; Sullivan A Field, supra note I.

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person might do rather than what he or she has already done. Isolation, therefore, relies upon predictions of dangerousness. The law is usually loath to confine individuals for acts they have yet to commit,74 especially when these individuals are rational and competent adults, and their behavior is assumed to conform to legal standards. Even more telling is the fact that isolation has no temporal limitation; indeed, inasmuch as seropositive people are presumed to be infectious for the rest of their lives, isolation amounts to a kind of civil life sentence. Unlike a criminal sentence, however, the duration of isolation is not necessarily proportionate to the gravity of the behavior. Rather, consensual sexual behavior (or even less serious acts such as spitting or biting) could result in lifelong confinement. State legislators and public health authorities ought to consider these adverse consequences before they adopt isolation. Next, I review two legal prerequisites for any program of isolation— that procedural due process must be afforded before exercising a power to isolate an individual, and that the place of isolation should do no harm to the subject. I will then further consider the constitutionality and merits of programs for disease-based and behavior-based isolation. A. Procedures fo r Fair and Impartial Decision Making In addition to specifying standards for restraining individuals, a scheme for the control of communicable disease must identify the decision makers and describe a process for gathering information and making fair and correct decisions. Most state statutes delegate wide discretion to public health officials without carefully consid­ ering procedural safeguards designed to achieve both a more accurate fact finding process and greater fairness to the individual whose liberty is to be restrained. Many public health statutes are either silent or wholly inconsistent in their provision of procedural due process protections to subjects of compulsory powers. California law, for example, authorizes the California Department of Health Services to identify and then quarantine or isolate individuals having a communicable disease whenever, in its judgment , such action is necessary to protect or preserve the public health.75 Similar language is found in many public health statutes across the country.76 A few statutes do mandate application to a judge or magistrate for an order of isolation or quarantine, but fail to specify any other procedural requirements.77 Even

74. The U.S. Supreme Court has upheld preventive detention o f persons charged with offenses. United States v. Salerno. 107 S. Ct. 2095. 2101-02 (1987) (preventive confinement for persons on bail); Schall v. Martin, 467 U .S. 253 ( 1984) (preventive confinement of persons charged with juvenile offenses). It has also repeatedly upheld the detention of persons who arc mentally ill and thought dangerous. See, e.g., Youngberg v. Romeo, 457 U .S. 307 (1982); O ’Connor v. Donaldson. 422 U.S. 563. 575 (1975). But barring such special circumstances the Court has traditionally been suspect of preventive confinement. 75. C a l Hf.ai.tii & S a h t y C ode § 3051 (West 1979). 76. E.g., F la . S t a t . A nn. § 384.28(1) (West Supp. 1988); N.J. S t a t . A nn. § 26:4-2 (West 1987). But see C o n n . G en. S t a t . A nn. § l9a-5 (West 1986) (duties of Public Health Commissioner more detailed). 77. See. e .g .. N.Y. Pub. H e a l th L aw § 2301 (McKinney 1985). For example, the court in State v. Snow, 230 Ark. 746, 324 S.W. 2d 532 (1959) was able to thwart a state effort to quarantine an individual for tuberculosis only because initial judicial approval was required by the authorizing statute before enforcement could take place.

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statutes recognizing the importance of an impartial fact finder for an order of isolation or quarantine do not provide procedural safeguards prior to the exercise of other compulsory powers, such as mandatory physical examination, treatment, or contact tracing. Several statutes originating in the 1940s identify specific categories of individuals who may be required to undergo venereal disease examination by a public health officer.78 The applicable New Jersey statute, for example, presumes that a prostitute “ or other lewd person” may reasonably be suspected of having a venereal disease and may therefore be subjected to examination at any time without a hearing.79 These statutory provisions survive only because they have yet to be challenged in the courts. In contrast, mental health statutes before the 1970s which failed to require rigorous due process procedures were found to violate the due process clause of the fourteenth amendment.80 Since then, mental health cases have required notice and a hearing before a judge and have established a right to counsel.81 The standard of proof constitutionally required at civil commitment hearings is more than a preponderance of evidence; rather, it must demonstrate “ clear and convincing evidence.” 82 Courts in the current process-oriented era of constitutional review would most likely require procedural safeguards prior to or—in an emergency— immediately after the exercise of personal control measures. In determining the kinds of procedures required under the fourteenth amendment, the courts balance the interests of the state with those of the individual.83 The state’s interest in protecting the public from serious harm is compelling. The interest of the individual grows in proportion to the level of coerciveness of the public health measure to be applied. When a control measure, such as isolation, infringes upon liberty, the courts will likely require strict procedural due process safeguards in light of the deep invasion of personal rights, the risk of erroneous fact-finding, and the importance of avoiding confinement of nondangerous persons. The West Virginia Supreme Court reasoned in Greene v. Edwards 84 that there is little difference between loss of liberty under mental health and public health rationales. In each instance, the exercise of police power and the subsequent loss of the individual’s freedom are justified by the protection of the common good. Prospective subjects of isolation or quarantine are therefore entitled to the same procedural safeguards as persons facing civil commitment: written notice, counsel, 78. E.g. , N.J. S t a t . A n n . §§ 26:4-32 (West 1987) (applicable to prostitutes), id. § 26:4-49.6 (applicable to migrant workers). 79. Id. § 26:4-32 (West 1987). 80. See, e.g ., Suzuki v. Yuen. 617 F.2d 173, 178 (9th Cir. 1980); Colyar v. Third Judicial Dist. Court, 469 F. Supp. 424, 4 2 9 -3 0 (D . Utah 1979); Lessard v. Schmidt, 349 F. Supp. 1078 (E D. Wis. 1972); In re Seefeld, 2 M e n ta l D is a b ility L. Rep. 363 (Wis. Cir. Ct. 1977) (sequel to Lessard in which the Wisconsin statute enacted in response to Lessard was held unconstitutional). 81. Vitek v. Jones, 445 U.S. 480, 488 (1980) (inmate has liberty interest in preventing transfer from prison to mental institution). 82. indefinite 83. 84.

Addington v. Texas, 441 U.S. 418, 431-33 (1979) ( “ dear and convincing proof” may be required for involuntary commitment). Mathews v. Eldridgc, 424 U.S. 319, 334-35 (1976). 263 S.E.2d 661 (W. Va. 1980).

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presentation of evidence, cross examination, a “ clear and convincing” standard of proof, and a verbatim transcript for appeal. The state need not, however, go so far as to provide the procedural safeguards of a criminal trial.85 Rather, the foregoing procedural requirements should be built into public health statutes. Prior to or—in cases of urgent necessity— immediately after the imposition of personal control measures, an impartial decision maker should hear the case. This function belongs within the jurisdiction of the courts. The states should bear the burden of providing a hearing, and the potential subject of control measures should have the right to be represented by counsel to examine critically the grounds and evidence upon which decisions are made. The individual should not be left to discover after-the-fact remedies such as habeas corpus. State legislatures should give careful thought to these procedural safeguards designed to achieve both a more accurate fact-finding process and greater fairness to the individual whose liberty is to be restrained. Procedural due process does not merely protect the individual; it also ensures high quality decision making where a complete and structured body of information is presented to a dispassionate decision maker. Such hearings provide an opportunity for public health officials to review their general strategy for controlling disease epidemics and to apply that strategy in particular cases. Society has yet to employ its legislature to delimit the circumstances under which important public health decisions should be made. Because public health is one of the very few reasons for which individual liberty can be restricted absent the commission of a criminal offense, it is essential that legislatures guide officials to understand clearly, and to apply fairly, decision making criteria and procedures. B. Safe Environment fo r Isolation Even if otherwise constitutional, the question arises whether isolation measures may themselves be allowed to pose a health risk to their subjects. Although the court in Kirk v. Board o f Health 86 was quite prepared to uphold an isolation scheme despite the absence of proof that the form of leprosy from which Mary Kirk was suffering was contagious, it nevertheless refused to subject her to an environment it considered unsafe. Public health officials had planned to quarantine Kirk in a pesthouse, “ a structure of four small rooms in a row, with no piazzas, used heretofore for the isolation of negroes with smallpox, situated within a hundred yards of the place where the trash of the city . . . is collected and burned.” The court concluded that “ even temporary isolation in such a place would be a serious affliction and peril to an elderly lady enfeebled by disease, and accustomed to the comforts of life.” 87 The public health department was compelled to delay isolating her until it had finished building Kirk a “ comfortable cottage” outside the city limits. A more modern court, however, was less rigorous in reviewing the conditions

85. See id. at 662. 86. 83 S.C. 372, 65 S.E. 387 (1909). 87. Id., 65 S.E. at 391.

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of isolation. In Exporte Martin ™a 1948 California case, county officials had elected to isolate people with venereal disease in a jail, despite uncontested evidence that the jail was overcrowded and had been condemned by a legislative investigating committee. Tlie court supported the attorney general’s position that “ [wjhile jails, as public institutions, were established for purposes other than confinement of diseased persons, occasions of emergency or lack of other public facilities for quarantine require that jails be used.” 89 The use of the jail as a place of isolation and the absence of any rigorous demonstration that the persons isolated were actually infected with venereal disease imply that punishment was an underlying purpose in Martin . Punishment, however, is not an appropriate public health goal. Public health departments have an obligation not to do unnecessary harm, and that extends to avoiding unsafe or punitive environments for subjects of an isolation. Indeed, those who must forego their individual rights for the collective good should receive the best possible care and conditions. While no recent case tests the issue of a safe environment for isolation, the general trend towards insisting that health-Iaw measures be rooted in medical considerations strongly suggests that courts will reject any isolation scheme which, like that in Martin , has punitive overtones. The requirement to provide a safe and humane environment for isolation poses special problems in the AIDS context. The two options are to provide separate facilities or to integrate individuals in currently existing prisons, hospitals, mental hospitals, or other health care or criminal justice facilities. Providing separate facilities for infected persons sends a harmful message to the general public that the state is establishing “ AIDS colonies.” This gives the wrong impression that AIDS is transmitted from simple association with infected persons and that segregation from other populations is desirable. Segregated facilities must also be built or re-adapted, and adequately financed and staffed. It would be difficult to recruit guards, health care and social workers, and counselors to designated AIDS facilities. Segregated facilities must be clean, sanitary, and otherwise provide a healthful, nonviolent environment. If, for example, segregated individuals are exposed to violence, sexual advances, or drug use in the facility, it could be harmful to their future health. Scientists do not entirely understand the means by which a person progresses from HIV-positivity to AIDS-related complex to AIDS. It is certainly possible that re-infection with the AIDS virus will increase the progression from dormancy of the virus to serious symptomology and death. Use of integrated facilities would pose different problems. Residents and staff of hospitals, mental hospitals, nursing homes, and even prisons often do not want to be integrated with persons with HIV. This is particularly so if such individuals have been selected because of their irresponsible behavior. Many will rightly argue that their facilities have limited resources and training to deal with HIV infected patients.

88. 83 Cal. App. 2d 164, 188 P.2d 287 (1948). 89. Id at 170. 188 P.2d at 291 (quoting 4 Op. Att’y Gen. 146, 148).

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Furthermore, the facilities may argue that they were not designed or intended for this purpose. Prison authorities believe they have insufficient medical and nursing re­ sources to treat terminally ill and infectious inmates; hospitals and nursing homes argue that they should not have a social control role of confining aggressive persons; mental hospitals argue that they cannot provide effective treatment for AIDS dementia. If a policy of coercive action is socially beneficial, then government will engage in effective planning and resource allocation to solve many of these significant practical problems. However, given the antipathy of public health authorities toward coercive action to control a disease epidemic, it is unlikely that any of these pragmatic issues will be resolved. This places a large question mark over any program seeking systematic application of criminal or civil sanctions for AIDS transmission. C. Disease or Status-Based Isolation A disease, or status-based, isolation would reach all those who test positive for HIV or have CDC-defined AIDS.90 Such an isolation would cause unimaginable hardship, dislocation, and human, as well as social, cost. No state has seriously proposed a general isolation, and it is highly unlikely to take place in the United States. However, disease-based isolation has already occurred in Cuba91 and is a seriously considered option in other countries. Traditionally, the courts have been highly deferential to public health measures, including isolation and quarantine.92 However, it is widely agreed that a diseasebased isolation would most probably be held unconstitutional under modem doctrine.93 Isolation impacts on liberty and travel, rights which the Supreme Court has held to be fundamental.94 The Court would therefore evaluate an AIDS isolation statute under strict scrutiny. While the Court’s strict scrutiny analysis often signals its intent to hold the measure unconstitutional, that need not always be the case. The Court requires the state to have a compelling interest,95 and to achieve that interest by means which are narrowly tailored and minimally restrictive.96 Impeding the spread

90. The eighth amendment's ban on cruci and unusual punishment forbids criminal punishment for the status of being ill. Robertson v. California, 370 U.S. 660. 666 (1962). But the eighth amendment would not apply to isolation, civil commitment, or preventive detention because they are regarded as regulatory, not punitive. See Sullivan A Field, supra note I. at 146. 91. Betancourt. Cuba's Callous War on AIDS, N .Y . Times. Feb. 11, 1988, at A35, col. 2. See S. F lu s s , T a b u l a r In fo rm a tio n o n L e g a l I n stru m e n ts D e a lin g w ith A ID S a n d HIV In fe c tio n , SPA/HLE/87,1 (Available from WHO, Geneva). 92. Sec Burris, Fear Itself: AIDS, Herpes. and Public Health Decisions, 3 Y alf. L. & Pot.’y R ev. 479 (1985); Curran. Clark & Gostin. supra note 71. at 32; Gostin. The Future o f Communicable Disease Control: Toward a New Concept in Public Health Law. 64 M ilb a n k M e m o ria l F u n d Q . (Supp. I) 79, 8 5 -8 8 (1986) (hereinafter Gostin. Future Communicable Disease]: Gostin. supra note 64, at 464-68; Merritt, supra note 73, at 7 76-83: Parmet. supra note 64. 93. Goslin, supra note 64, at 468-71 ; Merritt, supra note 73 at 7 78-83; Parmet, supra note 73; Sullivan & Field, supra note I. at 146-52: Note. The Constitutional Rights o f AIDS Carriers, 99 H a rv . L. R ev. 1274, 1281-84 (1986). 94. Addington v. Texas, 441 U.S. 418. 425 (1979) (standard of proof for civil commitment for the mentally ill); Shapiro v. Thompson. 394 U.S. 618. 62 9 -3 0 (1969) (citing United States v. Guest. 383 U.S. 745, 757-58 ( 1966». 95. See Korcmatsu v. United States. 323 U.S. 214, 218 (1944) (only the gravest imminent danger to public safety can justify forced removal from one's home). 96. See Note. Developments in the L aw -E qu al Protection. 82 H a rv . L. R ev. 1065, 1084-86 (1969).

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of AIDS is certainly a state interest which is sufficiently strong to survive heightened judicial scrutiny.97 But a status-based isolation would be substantially overinclusive. It would indiscriminately sweep in its wake not only those who spread the disease, but also many who do not. Screening of low-risk populations can generate significant numbers of false positives98— i.e., persons who test positive but who do not harbor the virus. In addition, some individuals who do harbor the virus are no longer infectious because the virus has eliminated its host cells.99 Even for those who are truly infectious, the great majority will not be dangerous. Some are children. Some are involved in monogamous relationships, and would inform their partners and use barrier protection against the exchange of body fluids. Still others are too debilitated or demoralized to engage in any high risk activity. To assume that all persons who test positive for HIV antibodies are dangerous, and to confine them, potentially for life, would be a substantially overbroad policy. Status-based isolation could also be substantially underinclusive. In order to reach everyone capable of transmitting the AIDS virus, public health authorities would have to test the entire population periodically.100 This would be such a costly policy that politicians would more narrowly draw the boundaries of coercive action. These boundaries might be based on having CDC-defined AIDS, or on membership in a high risk group. Targeting persons with AIDS or in high risk groups for special treatment would exclude growing numbers of people with infection who are heterosexual, blood transfusion recipients, hemophiliacs, and others.101 The courts do not always view underinclusiveness as a serious constitutional flaw .102 Nothing prevents a state from devising a public health solution which is only partially effective. But sometimes the courts find that underinclusiveness is so arbitrary as to deny equal protection.103 As one commentator observes, underinclu­ siveness casts doubt on the sincerity of the public objective: “ Where a quarantine is mapped out along the boundaries of a group that is independently the object of fear, prejudice and hatred, there is reason for skepticism.” 104 The fact that status-based isolation would impact exclusively or disproportionately on IV drug users, gays, and

97. See Jacobson v. Massachusetts, 197 U .S. 11, 25 (1905). 98. The ELISA test for HIV antibodies produces false positive results ranging from 1/3 to 2/3 of all cases in a low risk population. This figure can be substantially reduced with confirmatory testing. See Barry, Cleary & Fineberg, Screening fo r HIV Infection: Risks, Benefits and the Burden o f Proof, 14 L aw , M ed. & H e a lth C a r e 259, 262-63 (1986); Cleary, Barry, Mayer, Brandt. Gostin & Fineberg, Compulsory Premarital Screening fo r the Human Immunodeficiency Virus: Technical and Public Health Considerations, 258 J. A.M .A. 1757, 1758 (1987); Ciostin, Curcan & Clark supra note 12, at 11-13. 99. Lceson, HTLV-III Antibody Tests and Health Education, 1 L a n c e t 911 (1986). 100. Since so many persons infcctcd with HIV and capable o f transmitting the virus are sym ptom Jess, the only systematic method of identifying them would be widespread population screening. This would be a highly costly and fruitless public health intervention. See Cleary, Barry, Mayer, Brandt, Gostin & Fineberg, supra note 98, at 1761 ; Gostin, Screening fo r AIDS: Efficacy, Cost and Consequences, 2 AIDS a n d Pub. P o lic y J. 14 (1987); Gostin, Curran & Clark. supra note 12, at 19-24. 101. See Review o f Current Knowledge, supra note 3. 102. See Note, supra note 96, at 1065, 1084-86. 103. Id. 104. Sullivan & Field, supra note I, at 149.

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racial minorities105 who are independently disfavored communities calls into question whether the true reason for this isolation is public health at all. The suspicion would persist whether the same policy of deprivation of liberty on a massive scale would be applied to more favored social groups.106 There are numerous public policy reasons against a disease-based isolation which can be added to the constitutional arguments. These policy reasons flow from the unique combination of scientific findings relating to HIV. First, the sheer number of people capable of transmitting the virus, estimated at up to 1.4 million and growing,107 would make a general isolation prohibitively expensive and wholly unmanageable. Huge practical problems would arise in identifying infected persons with initial and confirmatory tests, and then housing and caring for them, all at public expense. Second, retroviruses like HIV usually live in the carrier for life. There is no finite incubation period, so carriers of the virus are presumed chronically infectious.108 Confinement of carriers, if it is to be truly effective, must be indefinite. A program of confinement of a person with HIV, therefore, must count on the fact that it can be potentially life-long. Such extensive restriction of personal liberty for behaviors which are part of the human biological function appear excessive. Third, there is no preventive or curative treatment for HIV infection. Those whose liberty is infringed, therefore, would have no way to restore themselves to normal conditions in order to re-join the community. Finally, because casual contact does not spread the virus, segregation from society is unnecessary and, by definition, overly restrictive. Taken together, these factors set AIDS apart from other communicable diseases that have been the subject of traditional personal control measures and make status-based isolation a singularly inappropriate policy.

105. The cumulative incidence of AIDS eases is disproportionately high among blacks (3.0 to I ) and Hispanics (2.6 to I) compared with whites. When homosexual and bisexual men with AIDS are excluded, the ratio o f AIDS case incidence is 12.0 to I for blacks, and 9.3 to 1 for Hispanics as compared with whites. Review o f Current Knowledge, supra note 3, at 36. The reasons for this recurring racial disproportion of infection, whether behavioral or biological, are not yet apparent. The higher rate of IV drug use among black and Hispanic groups may be a factor, but there remains a racial disproportion even among IV drug users. See Greaves, The Black Community, in AIDS a n d t h e L aw : A G u id e f o r t h e P u b lic 281-82 (H. Dalton & S. Burris eds. 1987): Acquired Immunodeficiency Syndrome (AIDS) Among Blacks and Hispanics—United States, 35 M o rb id ity & M o r t a l i t y W e ek ly Rep. 655, 666 (1986). 106. There are several significant reasons why a court might not find under-inclusion unconstitutional in the AIDS context. The argument that isolation denied equal protection of the laws to gays or IV drug users falters on the Supreme Court's jurisprudence refusing to find either group to be a suspect class. In Bowers v. Hardwick, 478 U .S. 186 (1986), the Supreme Court held that the states could constitutionally criminalize sodomy. The Court found no privacy interest in homosexual relations and no reason to use heightened scrutiny because of the traditionally disfavored status o f gays. For strong arguments in favor of making homosexuality a suspect classification, see Note, The Constitutional Status o f Sexual Orientation: Homosexuality as a Suspect Classification, 98 H a r v . L. Rev. 1285 (1985); Note, An Argument fo r the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 S. C a l . L. R ev. 797 (1984). In New York City Transit Authority v. Beazel, 440 U.S. 568 (1979) the Court upheld a transit authority decision to exclude methadone users from employment. The Court found no reason to find drug users as a suspect class despite the fact that they are often poor and black or Hispanic. Finally, the Supreme Court has been loath to find that disproportional representation of minority groups is a reason for spécial scrutiny. So long as the class is not drawn on racial lines the court has looked the other way despite overwhelming evidence o f disproportionate impact on minorities. See McClcskey v. Kemp, 107 S. Ct. 1756 (1987) (upholding death penalty despite the fact that it was used in many more cases of black offenders). 107. See supra note 3. 108. See Curran & Morgan, supra note 5, at 1354; Fauci, The Human Immunodeficiency Virus: Infectivity and Mechanisms of Pathogenesis, 239 S cien ce 617, 621 (1988).

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D. Modified Isolation Based upon Behavior, not Disease Status The terms “ incorrigible” and “ recalcitrant” have been used to refer to persons who are aware that they have been exposed to the AIDS virus, yet continue to engage in high-risk activities that expose others to the disease, despite warnings by doctors and health officials to modify their behavior. Numerous cases have been publicized of individuals brazenly announcing their intentions to continue to infect others through prostitution, sexual intercourse, needle sharing, or donating blood.109 Those who engage in such seriously dangerous behavior are often well aware of the consequences of that behavior, and can be predicted to continue it. These people are widely regarded as blameworthy. If confinement is the only way to prevent an unmistakable risk to the public, then no one could reasonably deny the state’s right to intervene. The rationale for behavior-based isolation is a mix of prevention and retribution. Like traditional isolation, it is designed to be forward-looking in preventing future disease transmission. But its reliance upon past dangerous behavior has an element of retribution similar to that found in the criminal law. Apart from its purported objective of slowing the spread of AIDS, behavior-based isolation offers society an outlet for its frustration and anger towards AIDS carriers by restricting the liberty of a few individuals who are visibly evil and worthy of condemnation for fueling the epidemic. In truth, as we shall see, it will have very little positive effect on the epidemic. Recognizing the practical and legal problems with general isolation, state authorities have begun to revise their isolation proposals to encompass only incorrigible cases. This is politically much easier because it is far less expensive, and targets only individuals who are universally seen as culpable. While general isolation measures would be deemed unconstitutional by the courts, most commentators agree that a narrowly drawn behavior-based isolation would probably be upheld.110 Modified isolation, unlike general isolation, does not focus on a person’s health status, but upon his or her behavior. It is aimed at a small number of individuals rather than a sizeable class of persons united by a common characteristic. It is difficult to envisage a court striking down a well-focused public health measure, when there is clear evidence available that an individual is likely to engage in behavior leading to transmission of a potentially lethal virus. The courts have consistently upheld civil confinement of persons shown to be dangerous in the public health111 and mental health112 contexts. Such statutes, while 109. Stephanie Smith, for example, was shunned by her drug treatment facility when it discovered she was HIV positive. She dropped out of treatment. She told public health officials that she was sharing her needles without cleaning them and engaging in prostitution without taking precautions or informing her clients. Lewin, supra note !. See Squires, supra note I; Boorstin. supra note I. 110. Sec Sullivan & Field, supra note I , at 152-56; Merritt, supra note 71; Parmet, supra note 64; Gostin, Future Communieahlc Disease, supra note 92. at 91-95. But see Note, supra note 93. 111. See. e.g ., Greene v. Edwards, 261 S.E.2d 661 (W. Va. 1980); State r.r rel. Kennedy v. Head, 182 Tenn. 249, 185 S.W .2d 530 (1945); In re Caselli, 62 Mont. 201, 204 P. 364 (1922); Crayton v. Larabee, 220 N.Y. 493, 116 N.E. 355 (N.Y. 1917), aff'd 147 N .Y.S. 1105; Kirk v. Wyman, 83 S.C. 372,65 S.E. 387 (1909); Hurst v. Warner, 102 Mich. 238, 60 N.W. 440 (1894). See also, Merritt, supra note 73, at 776-78. 112. See. e.g., O ’Connor v. Donaldson, 442 U.S. 563 (1975).

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attracting heightened scrutiny, would achieve a powerful state interest in a way which focuses only on the dangerous and not on those unlikely to engage in high-risk behavior. The dangerous acts, moreover, are often criminal in themselves— prostitution, sodomy, or drug use. Even if courts were to uphold limited behavior-based isolation, distinct public policy reasons make them weak candidates for implementation. Behavior-based isolation suffers from some of the same defects as does general isolation. If the target is unable to alter his or her behavior, modified isolation is likely to mean permanent confinement. Further, isolation is far more intrusive and restrictive than would be the provision of drug treatment (where appropriate), physiological or medical treatment, counseling, or economic assistance designed to alleviate or alter the conditions that lead to “ incorrigible” behavior. The objective of isolation is to prevent future risky behavior. It may do so in individual cases, but will probably have an overall adverse impact on the wider high risk populations. Isolation statutes would discourage members of high risk groups from seeking testing or treatment, or speaking honestly to counselors concerning their behavioral intentions. If the certain legal consequence of a person confiding his future intentions is loss of liberty, then individuals would avoid contact with health care professionals and public health programs. The cost, therefore, of preventing a few cases of HIV transmission through isolation may be to undermine public health efforts for broad population changes in behavior. While the objective is to impede the spread of HIV, coercive measures could drive the epidemic underground, thereby defeating the purpose. Objective statutory and psychological criteria are inadequate to determine accurately enough who is “ recalcitrant” or to predict behavior. Even for those who are mentally ill, psychiatrists are still unable to predict dangerous behavior with anything better than random accuracy.1,3 There is no reason to believe that behavioral scientists could predict future behavior in the public health context any better. In other words, individuals who declared an intention to engage in high-risk behavior could not be reliably distinguished from those who forswore unsafe conduct. Those who come to the attention of public officials as candidates for isolation are a small fraction of the total infected population. This small part of the total at-risk population is likely to be the poorest, least articulate of those harboring the virus. Such a skewed “ lottery” would have a negligible impact on the spread of the disease because the vast majority of instances of transmissions would continue to go unnoticed. While isolation would lead to the impression that the state was “ getting tough” on AIDS transmission, in reality it would not scratch the surface of the epidemic. This may well lead authorities to widen the net of those subject to behavior-

113. See, E. M o n a h an , P re d ic tin g V io le n t B f.havior: A n A ssessm en t o f C lin i c a l T e c h n iq u e s (1981). In Barefoot v. Estelle. 463 U.S. 880 (1983). the Court upheld the death penalty based upon a psychiatric prediction o f dangcrousncss. This provoked Justice Blackmun to observe in dissent, based upon an amicus brief from the American Psychiatric Association, that predictions of dangcrousncss are wrong “ two out of three” times. Id. at 920. “ In the present state of psychiatric knowledge this is too much for m e.” Id.

,

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based isolation. Public health authorities may seek to sweep in HIV-infected persons attending bathhouses or gay bars, prostitutes, and IV drug users attending shooting galleries. Large numbers of unpopular individuals are perceived, but not proved, to be dangerous. If a public place such as a bathhouse is demonstrated to be a public health hazard, the state can exercise its regulatory power to closely supervise its activities or close it down. But a decision to confine all those who attend such facilities would be overly restrictive and prejudicial to the nondangerous. State intervention to prevent seriously dangerous behavior of “ incorrigibles” through isolation measures appears justified. However, the policy would be ineffec­ tive, perhaps counterproductive, in controlling the AIDS epidemic, and may easily include a wider net of nondangerous persons. Below, I explore the efficacy and fairness of using a retributive criminal law model to deal with a public health problem. IV.

C r im in a liz a tio n o f

HIV

T r a n s m is s io n

There is a powerful appeal in using the criminal law as a method of containing the spread of AIDS. The criminal law is well used to sanctioning blameworthy individuals for their dangerous acts. The justification of the criminal law is commonly understood to be retribution for past behavior. Yet, one of the principal objectives of the criminal law is the prevention of future acts. By establishing explicit penalties, the criminal law seeks to deter individuals from engaging in certain clearly specified behavior. The transmission of a potentially lethal infection with forethought or recklessness is just as dangerous as other behavior the criminal law already proscribes. It is not unreasonable for society to establish clear parameters as to the behaviors it will not tolerate. By drawing a bright line around the behaviors that pose serious public health risks, the law gives clear notice of the conduct which will be subject to criminal penalty. This approach can hardly be considered unfair to those individuais in high-risk groups for AIDS because it protects these groups against the spread of infection. Nor can it be considered unfair to the few whose behavior subjects them to criminal penalties, for it is better to give clear forewarning of unacceptable conduct rather than to confine a person who might engage in that behavior in the future. The criminal law has many advantages over the personal control measure most likely to survive judicial scrutiny— behavior-based isolation. Whereas isolation statutes employ such general terms as “ incorrigibility” and “ recalcitrance,” criminal statutes must specify the behavior that is prohibited. If its language is vague, a criminal statute fails to forewarn, and is for that reason unconstitutional. Whereas isolation statutes arise from predictions about the future, criminal statutes focus on behavior that has already occurred. Whereas “ incorrigibility” and “ recalcitrance” need only be proved by clear and convincing evidence, each element of a crime must be proved beyond a reasonable doubt. Whereas the period of isolation is usually indefinite, the period of criminal confinement is usually finite and proportionate to the gravity of the offense. As a deterrent, the period of confinement should not last longer than necessary to discourage future reckless behavior, both by the person detained and by others who take note of his or her plight. The longer the period of

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confinement, the more it smacks of retribution, a goal inconsistent with the mission of public health authorities. There is an attraction based upon clarity, objectivity, and sufficient safeguards which makes the criminal law a good candidate for public health consideration. This attraction of the criminal law has not escaped policy makers. The Presidential Com­ mission on the Human Immunodeficiency Virus Epidemic noted that “ (extending criminal liability to those who knowingly engage in behavior which is likely to transmit HIV is consistent with society's obligation to prevent harm to others and the criminal law’s concern with punishing those whose behavior results in harmful acts.” 114 The Presidential Commission report has been published in a political climate which has already heavily utilized the general criminal law in combatting the spread of AIDS. A conservative estimate is that there have been fifty to one hundred criminal cases brought relating to HIV transmission, which vary greatly in gravity.115 First, many cases have been brought against individuals who knew they were infected with HIV and had sexual intercourse without informing their partner. Several

114. R e p o rt o f tu b P r e s id e n tia l Com mission o n t h e H um an Im m unodeficiency V iru s Epidemic 13 0 -3 ! (U .S . G o v ’t Printing O ff., June 24, 1988) th erein after P r e s id e n tia l C om m 'n R ep.]. T h e C o m m issio n d ocs not favor use o f the general crim inal law , but ad option o f an A ID S-specific crim inal statute. See infra n otes 115-34 and a c co m p an y in g tex t. T h e Presidential C om m ission w as established under E xec. O rd er N o. 12,601, 3 C .F .R . 238 (1987), am en d ed by E xec. O rd er No. 12,603, 3 C .F .R . 238 (1987). T h e A m erican M edical A ssociation and lhe in stitu te o f M ed icare h av e also recom m ended the rare use o f co ercive pow ers. A m erican M edical A sso ciatio n , C ouncil on Ethical and Ju d icial A ffairs,

Ethical Issues Involved in the Growing AIDS Crisis, 259 J. A .M .A . 1360, 1361 (1988) (herein after A .M .A . C ouncil] (recom m endation 17— given the risk o f infection being transm itted sex u ally , an d given the d ire potential c o n seq u en ces o f transm ission, serious co nsideration should be given to sanctions for past dan g ero u s sexual acts); U p d a te 1988, supra note 3, at 83 (the use o f the crim inal law will not address (he core pro b lem s, but in “ rare in sta n c es” the state sh o u ld restrict personal liberties).

115. See, W. Curran, L. Gostin, & M. Clark, supra note 68, at 3 4 4 -4 8 (in which are discussed People v. Richards, 85-1715 FG, where HIV- infected person charged in Flint, Michigan with assault and intent to commit murder after he spat on four police officers; People v. Prairie Chicken, CRE-77357, where person suspccted o f having AIDS in El Cajon, California pleaded guilty to a felonious assault for biting an officer; People v. Julius, 761210, where a person suspected of carrying HIV pleaded guilty to a misdemeanor assault in San Francisco afler prosecutor abandoned plans to file felony charges over another police biting incident); Lacayoh, Assault with a Deadly Virus, Time, July 20, 1987, at 63 (reporting several cases of criminal charges relating to AIDS transmission); New Charges Possible in AIDS Assault Case, U.S. M ed., June 1987, at 8 (Pfc. Jane Doc charged with having sex without informing her partner that she was HIV infected); Squires, supra note 1 (citing numerous cases of courts martial or criminal charges brought against HIV-infectcd individuals for sexual relationships or biting); Soldier with AIDS Virus to be Imprisoned fo r Sexual Contacts, N .Y. Times, Dec. 4, 1987, at B5, col. I (first conviction); Medical Specialist Faces AIDS Related Court-Martial, Am. Med. News. Oct. 16, 1987, at 12 (case against Sgt. Richard W. Sargcant, similar to Pfc. Morris); Weisehaus, AIDS Criminal Laws. Cases Rise, Nat’l L.J., July 20, 1987, at 3, col. 1 (Minnesota prisoner convicted of assault with adcadiy weapon for biting a guard. The conviction was upheld in United States v. Moore, 669 F. Supp. 289 (D. Minn. 1987)); Cummings, Charges Filed Against Blood Donor in AIDS Case, N.Y. Times, June 30, 1987, at A 18, col. 1 (Joseph Markowski was charged with attempted murder for selling his blood to a private collection center; later the charges were dropped for lack of evidence. Pristin, Charges o f Attempted Murder Voided in Case o f AIDS-Tainted Blood, L.A. Times, Dec. 2, 1987 Part II (Metro), at 1, col. 1); Deadly Weapon in AIDS Verdict is Inmate's Teeth, N .Y. Times, June 25, 1987, at A 18, co l.6; Boorstin, supra note I (citing 30 cases being filed); HIV Positive Private Charged with Assault, Am. Med. News, May 22/29, 1987, at I (case of Army Pfc. Adrian Morris, Jr., who faced a court-martial for sexual relationships while infected with HIV); Testimony of Major Paul A. Capofari, Office of the Judge Advocate General, Department of the Army, Pentagon, to Presidential Commission on the Human Immunodeficiency Virus Epidemic, Interstate Commerce Commission Bldg. Hearing Room B, April 6, 1988 (reporting several more cases o f HIV infected soldiers facing courtsmartial). The only reported criminal case outside of the United States occurred in the case of Unwood B ., an employee o f a U.S. Military Base in Nuremberg, West Germany. The man is a private U.S. citizen who was convicted by a Bavarian Court for sexual intercourse, knowing he had HIV. See E. Drucker, The Case o f Linwood B ., Preliminary Report to Medicins du Monde, Paris, France (Unpublished December 25, 1987) (on file at the Ohio State Law Journal); Schmemann, Bavarian Court Convicts American in AIDS Case, N.Y. Times, Nov. 17, 1987, at A5, col. I.

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of these cases have involved military personnel. The Department of Defense orders HIV-infected personnel to refrain from unprotected sex and to inform their partners of their condition. Violation of a “ safe sex” order can result in charges ranging from disobeying a military order to assault with a dangerous weapon and attempted murder.M6 Second, criminal charges have been brought in connection with biting, spitting, kicking, or splattering of blood by an HIV-infected person.1,7 In United States v. M oore 1,8 a federal district court upheld the conviction of a prisoner for “ assault with a deadly or dangerous weapon” for biting two federal corrections officers. The “ weapon” was HIV. In State v. H a in es" 9 an Indiana Superior Court judge sentenced a person with AIDS-related complex to six years imprisonment after he was convicted by a jury on three counts of attempted murder of a police officer and emergency technicians for splattering his blood at them.120 Finally, cases have been brought for knowingly donating or selling blood contaminated with HIV. The most celebrated of these cases was Joseph Markowski who was charged with attempted murder for selling his HIV-infected blood to a Los Angeles blood company.121 The charges were subsequently dropped for lack of evidence on intent to murder,122 but legislators have since developed an interest in specifically criminalizing such activity.123 These cases point out the inadequacy of applying a general criminal law theory

116. The military distinguishes between married and unmarried personnel. The spouses o f married personnel are officially informed of the serological status of their spouse. A married couple then is permitted to have unprotected sex. The military will not inform a nonmarried sexual partner. But it has implemented a regulation effective April I. I9R8. requiring a commander to discuss a written counseling statement with any soldier who has tested positive and has received medical counseling. The form says that the commander is “ imposing the following restrictions: 'You will verbally advise all prospective sexual partners of your diagnosed condition prior to engaging in any sexual intercourse. You are also ordered to use condoms should you engage in sexual intercourse with a partner. . . . |Failure] to adhere to your previous medical counseling or the counseling I have just given you will subject you to administrative separatiop and/or punishment under the Uniform Code of Military Justice as I sec fit.” ’ See N .Y. Times. July 10, 1988. at A I9, col. I; See also Squires, supra note I : Turner, The Military Rattles a New “Biological” Weapon: AIDS, Nat’i L.J., May 11, 1987, at 6, col. I . The first military conviction resulted from a guilty plea in a court-martial to adultery, sodomy, and disobeying an officer by Sergeant Richard W. Sargeant: Testimony of Major Paul A. Capofari, supra note 115; Soldier with AIDS Virus to Be Imprisoned fo r Sexual Contacts, N .Y. Times, supra note 115. A guilty plea for aggravated assault and absence from the post in a similar case resulted in two years imprisonment. Army Sergeant Pleads Guilty o f Infecting a G.J. with AIDS, N.Y. Times, Dec. 17, 1987, at B25, col I. 117. See. e.g .. Squires, supra note 1; Boorstin, supra note 1. 118 669 F. Supp. 289 (D. Minn. 1987). 119. Cause No. S-5585 (Super. Ct., Tippccanoe County, Indiana 1987 Term). 120. Id. See Gostin, AIDS and Safety, Boston Globe, Feb. 22, 1988, at 19, col. 4 (Letter to the Editor); Gostin, litngcrgcncy Workers and AIDS. N.Y. Times, Feb. 14, 1988, $ 6 (Magazine), at 10, col. 2 (Letter to the Editor). 121. Cummings, supra note 115. See Gostin, Criminal Law Won't Stop AIDS, L.A. Times, July 6, 1987, Part II, at 5. col. 3. 122. Pristin, supra note 115. 123. A Bill by Senator Jesse Helms, for example, would make it a crime to donate blood, semen, or organs by anyone w ho is HIV positive or is a member o f a high risk group. S. 1352, 100th Cong. 1st Sess., 133 C ong . R ec . S7989-91 (1987). Up to Î .4 million people are estimated to be silently harboring the virus, and many more are in high risk groups. Sec supra note 3. The great majority of these individuals are of sexually active age. An unknown number of these individuals will cither know, or reasonably should know, they arc at risk for HIV. We can conservatively assume that there will be hundreds of thousands of incidents each year where these individuals will engage in sexual relations or needle sharing. Should all of these incidents be defined as unlawful and subject to societal retribution? What moral or public health differences are there between the so-called ‘*recalc itrant* * prostitute or drug abuser and the rest of the many thousands who will silently engage in the same kind of behavior?

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to an infectious disease. In the overwhelming majority of cases the prosecutions were dropped or individuals were acquitted. In none of these cases was there evidence that HIV had actually been transmitted. The general criminal law has sought to punish risk taking, sometimes of a very low level. Partly in frustration with the difficulty in obtaining convictions under the general criminal law, policy makers have sought other avenues to criminalize the risk of AIDS transmission such as creating public health or AIDS-specific offenses. Approximately half the states have public health laws which designate engaging in sexual intercourse while knowingly infected with a sexually transmitted disease as a public health offense.124 These public health statutes were created to control the spread of syphilis and gonorrhea. Most of these statutes, however, do not apply to HIV because AIDS is not usually classified as a sexually transmitted disease.125 In response to this perceived “ gap” in the law, some state legislators are moving toward re-classifying AIDS as a sexually transmitted disease.126 Several states have enacted AIDS-specific statutes.127 These statutes are based on the model of older public health offenses, except that they apply solely to HIV transmission. These AIDS-specific statutes differ in scope, but all make it an offense for a person to knowingly engage in some type of behavior which poses a risk of transmission of HIV—sexual intercourse, needle sharing, donating blood, or, more broadly, attempting to transfer any “ body fluid.” The elegance of such statutes from the prosecutor’s perspective is usually there is no need to prove any specific intent. The elements of the crime are usually straightforward: the person knew he was infected with HIV, engaged in well-defined, risky behavior, and failed to inform his partner of the risk. The haste to criminalize the risk of AIDS transmission ignores the failure of previous attempts to control venereal disease,128 as well as the considerable jurisprudential and public health problems that would arise. Below I enumerate those 124. Gostin. supra note 64. at 477; Sullivan & Field, supra note I, at 170. 125. W . C u r r a n , L. G o s tin & M. C i a r k , supra note 6 8. A few public health statu tes are not so lely ap p licab le to venereal diseases but co v er any act w here the person k now ingly transm its a co m m u n icab le d isease. See O k l a . S t a t . A n n . tit. 21 § 1192 (W est 1983); Tf.x. Rev. C iv. S t a t . A nn. art. 441 9 b - 1 (V ernon S u p p . 1987). 126. See. e.g., F la . S t a t . A nn. § 384.25(2) (West Supp. 1988). 127. See, e.g., F la . S t a t . A nn. §5 384.24, .34(1) (West Supp. 1988) (criminal offense for person with HIV to knowingly have sexual intercourse with another person, unless he first informs that person); Id a h o C o d e § 39-608 (Supp.

1988) (makes it a felony for any person to expose another with intent to infect or knowing he has HIV, including sexual or shared needle transmission as well as donative gifts); 1987 La. Sess. Law S c rv ., extraordinary session 663 H.B. no. 1728 (West) (criminalizes intentional, sexual transmission of HIV without partner's informed consent); 1988 Wash. Lcgis. Scrv. 206 S B. 6221 (West Supp.) (a person who with intent to inflict bodily harm or "causes to be taken" by another HI V or exposes or transmits HIV is guilty of assault). There are many other bills which have been proposed which would creatc AIDS-spccific offenses. See also H. R. 345, 100th Cong. 1st Scss. (1987) (would make it a crime if a federal employee with HIV knowingly or recklcssly attempts to transfer any of his body Huids). 128. Experience with these public health offenses shows that the laws are now very rarely enforced. When they have been enforced on a wide scale, there has been no perceptible impact on the rate of transmission of sexually transmitted diseases. See Brandt, supra note 11, at 239; Merritt, supra note 71. The most extensive use o f coercive powers have often been against vulnerable and visible populations such as prostitutes. See. e .g ., HIV Tests Ordered fo r Prostitutes, Their Clients. 31 Med. News 39 (Feb. 12, 1988). Indeed, some public health statutes now specifically target this population. F l a . S t a t . A nn. § 796.08(4) (West Supp. 1988) (any person who commits prostitution knowing that she or he has a sexually transmitted disease is guilty of an offense); N ev . R ev. S t a t . A n n ., 1987 Cum. Supp. (Michie, 1987) tit. 15, chap. 201, § 201.443 (any licensed prostitute who practices with knowledge o f a positive HIV test result is guilty o f a felony).

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problems in relation to general criminal law theory and AIDS-specific criminal statutes. A. General Criminal Law Theory Acts which pose a risk of HIV transmission have resulted in criminal charges ranging from simple or aggravated assault to attempted homicide or homicide.129 The objective of this section is to demonstrate the difficulty of proving that a crime has been committed under general criminal law theory; and, where it can be proved, to show that often it achieves no important public purpose. Depending upon the charge, there are three possible mental states required to prove an offense. The HIV-infected person can be accused of an act of transmission which is intentional, knowing, or reckless.130 1. Intentional or Knowing Transmission A person acts purposefully if his conscious objective is to cause a harmful result such as death.131 The Model Penal Code uses a subjective standard for criminal attempts so that if the facts were as the person believes them to be, it is an offense.132 This is important in the AIDS context because a person could be convicted of attempted murder if his intent is to kill, regardless of whether or not the method used poses a real risk of viral transmission.133 For example, if a person spits at an enemy intending to kill him by transmitting AIDS, he has in theory committed attempted murder. If an HIV-infected person plans to kill out of a motive such as revenge or greed, and uses a means which has some reasonably significant chance of killing such as sexual contact or needle sharing, that person should bear full responsibility under the criminal law. Yet, it would be unfair and contrary to public policy to punish acts which a person falsely believes to be dangerous. This is tantamount to punishing evil beliefs, while the law should be concerned with punishing and preventing truly dangerous acts. The criminal law achieves no valid purpose by punishing the nondangerous.134 129. It would be highly unlikely for a homicide or manslaughter charge to be relevant because the victim must already have died. There is a period of five years or longer from the time HIV is contracted to development of serious symptomology. See Fauci, supra note 108, at 621. In most cases the person accused would have pre-deceased the victim. 130. See M o d e l P e n a l C o d e § 210.2(1) (1980) (defining murder as the killing of a human being purposely, knowingly, or recklessly “ under circumstances manifesting extreme indifference to the value of human life.” ). For a perceptive discussion of the application of the Model Penal Code to HIV transmission, see Sullivan & Field, supra note 1, at 162-69. 131. M o d e l P e n a l C o d e § 2.02(2)(a) (1980) (defining a purposeful act). 132. Id. at § 5.01(1 )(a). 133. Impossibility or low likelihood is not a defense to an attempted murder charge. See, e.g.. Rex v. White (19I0J 2 K.B. 124 (C. A .) (low dose of poison insufficient to cause death resulted in conviction for attempted murder). The reason such cases are attempted murder is that, according to Justice Holmes, they address “ an evil which threatens death, according to common apprehension." Commonwealth v. Kennedy, 170 Mass. 18, 22, 48 N.E. 770, 771 (1897). See also E. M e eh a n , T h e L aw o f C rim in a l A tte m p t — A T r e a tis e 165-66 (1984). Compare such low dose poison cases with an HIV-infected person who enters into a long sexual relationship, intending to kill. While a single sexual encounter has a low chance of viral transmission, a longer relationship raises the probabilities considerably. 134. There is strong legal support for this conclusion in a number of jurisdictions which employ a “ dangerousness test"-viz, acts which are “ directly dangerous” to society, or any interest protected by the criminal law, should be an

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Irrespective of the dangerousness of an act, intentionality is exceedingly difficult to prove. One commentator illustrates the rarity of such cases by observing that “ fh]aving sex or sharing needles is a highly indirect modus operandi for the person whose purpose is to kill.” 135 “ Knowing” transmission of HIV is also difficult to prove. A person acts knowingly if he is aware or is “ practically certain” that his conduct will cause harm or death.136 In the AIDS context, the person must have tested positive for HIV and must know that the particular act would almost certainly transmit the virus. Knowledge of seropositivity, however, is difficult to prove because many individuals are tested anonomously at “ alternative test sites,” or decline to be tested at all. In the event that such knowledge can be proved, the prosecution must show further that the person understood the conduct was an almost certain method of viral transmission. But epidemiological studies have demonstrated very low probabilities of HIV transmission in a single incident. The press, moreover, has given contradictory messages about the communicability of HIV. Some reports, for example, have minimized the risk of heterosexual transmission,137 while others have emphasized it.138 Given these ambiguities, it is doubtful that the prosecution could show that the defendant “ knew” his conduct would be infectious. Charges of attempted murder have been brought in cases where it is barely conceivable that any “ purposeful” or “ knowing” state of mind could reasonably be established.139 Such cases often reflect either a politically motivated eagerness to be seen to be combatting AIDS or a misunderstanding of how it is transmitted. Unfortunately, many juries will labor under the same misapprehensions or have the same kinds of prejudices against groups most vulnerable to HIV.140 a. Sexual Intercourse Numerous cases have been brought against HIV-infected persons for knowingly or intentionally seeking to harm his or her partner through sexual intercourse.141 People enter sexual relationships with many different intentions, passions, desires,

attempted offense. See Sayre, Criminal Attempts, 41 H a r v . L . R ev. 835, 845 (1928). This is also referred to as the “ dangerous proximity” test. Hyde v. United States, 225 U.S. 347, 388 (1912). Justice Holmes explained the rationale by staling that public policy is at the “ bottom of the matter; the considerations . . . being the nearness o f the danger, the greatness of the harm, and the degree of apprehension felt.” O. H o lm es, T h e Common L a w 68 (1881). 135. Sullivan & Field, supra note 1, at 163. 136. M o d e l Penai. C o d e, § 2.02(2)(u)(u) (1980). “ Knowledge is established if a person is aware o f a 'high probability’ of a particular fact." Id. § 2.02(7). 137. Gould, Reassuring News About AIDS: A Dr. Tells Why You May Not Be At Risk, Cosmopolitan Magazine, Jan. 1988, at 146. 138. W. M a s te r s , E. Jo h n so n & R. K o lo d n y , CRISIS: H e te ro s e x u a l B e h a v io r in tiie A g e o f AIDS (1988). 139. See supra notes 115-123, and infra notes 140, 147-151 and accompanying text. 140. In the Haines case, for example, the jury took barely two hours to convict the defendant o f attempted murder on all three counts, despite the paucity of any evidence that he intended to kill a police officer and emergency technicians. Mr. Haines had never seen his victims before. They found him unconscious, face down in a pool o f blood after a serious suicide attempt. When he was revived by the emergency workers, his first words were “ let me die, I have AIDS." A superior court judge in Lafayette, Indiana substituted a conviction for battery in place o f the jury’s finding o f attempted murder. Mr. Haines was sentenced to six years imprisonment. State v. Haines, No. S-5585 (Super. Ct., Tippecanoe County, Indiana 1987 Term). See also supra note 120 and infra notes 160-61 and accompanying text. 141. See supra note 115 and accompanying text.

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and fears. Causing harm through sexuality is seldom consciously planned. Often the relationship involves love, affection, or passion, where neither partner wants to harm the other, but is willing to take risks. In order to establish beyond a reasonable doubt what the person knew or intended, it is often necessary to discuss what went on and what was said, in the privacy of a sexual encounter. That encounter may have taken place years ago, or it may be part of an ongoing relationship where much was discussed. Did the person know he harbored the virus? Did he inform his sexual partner? Did they engage in protected sexual intercourse? Did the partner assume the risk of HIV transmission in many other sexual encounters or IV drug experiences? Such issues as consent or assumption of risk may not be defenses to a charge of attempted homicide. But all these questions can be probative in establishing whether the person s intention was in fact to kill. A person whose purpose is homicide is unlikely to inform a consenting partner of the risk or to use barrier protection. The criminal law is ill suited to deal with intimate sexual relationships. Transmission of a virus does not fit neatly into the model of a guilty offender and an innocent victim. Both parties engaged in a relationship can, and are advised to, take precautions to avoid exchange of body fluids. It is usually problematic to allocate blame to one of the partners. For example, many targets of criminal prosecutions are prostitutes,142 who often try to use barrier protection despite client objections. If a man seeks out and pays a prostitute, and refuses to use protection, is the woman the only culpable party? Yet, in most such cases, only the prostitute is charged with a serious criminal offense.143 Sexual intercourse is a primary mode of transmission of HIV. A knowing decision by an HIV-infected person to endanger an unsuspecting partner is blame­ worthy. But balanced against this undoubted fact is the relatively low likelihood of HIV transmission in a single incident (estimated at 1/1,000 or 1/10,000 if a condom is used appropriately).144 Serious criminal sanctions to prevent relatively low risks may not be worth the costs. Attempts to criminalize sexual behavior are notoriously problematic. Sexuality and prostitution are highly complex human and biological behaviors which are resistant to change. Sexual intercourse is an integral part of human gratification and reproduction. Prostitution is a profession which has resisted societal efforts to prohibit it for millennia. The criminal law, moreover, does not simply require high-risk groups to change a single act for a specific period of time. They are required to alter their behavior over

142. See generally A. B r a n d t, supra noie II. 143. In an analagous ease at Fort Sam Houston in Texas, an Army serviceman tested positive for HIV and was ordered by bis company commander to inform his sexual partners of the test results and to take precautions. According to the charges against him, he continued dating and having sexual relations with three people. He confessed to his commander that while he took precautions to protect his sexual partners, he never informed them o f his HIV status. Squires, supra note 1. 144. See Boorstin, supra note 1; supra notes 22-25 and accompanying text. Compare the relatively low risk of sexual intercourse with the much more significant risk of an HIV-infected mother having a seropositive baby. Here the risk is approximately 50% or greater. Yet, the criminal law would not establish a penalty on the mother for conceiving and failing to abort.

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a lifetime. We already know from other health-related behavior such as smoking and diet how difficult such alterations are. High-risk groups, then, are required, under pain of law, to alter their social behavior, not necessarily for their own good, but for the welfare of others. This is tantamount to asking individuals to behave at the highest stages of moral develop­ ment. Reaching a high level of moral development is a goal most of us will not attain,145 and it may be particularly unrealistic to expect vulnerable groups such as drug users or prostitutes to do so. Society creates harsh legal penalties, dispropor­ tionately applied to vulnerable risk groups, for failure to attain such lofty behavioral ambitions. Consequently, the law appears unrealistic and inequitable. The creation of sexual offenses invites intrusion into the private lives of persons, particularly if they are gay or drug users. It legitimizes the state’s interests in the intimate relations of adults in their homes, hotels, social clubs, and places of entertainment. It also allows utilization of the numerous components of the criminal justice system—police surveillance, grand jury investigations, and search warrants. Enforcement of sexual offenses is controversial not only because of the intimate behaviors involved, but also because the persons who are most likely to be affected have a disfavored, sometimes minority, status. The potential for selective and discriminatory enforcement against certain individuals and groups, and overzealous intrusion into their lives, is substantial. A strong campaign of education and counseling to encourage monogamous relationships, avoidance of prostitutes, and use of barrier protection is likely to accomplish the public health objective more effectively and equitably. b. Donation o f Blood Approximately 2% of all cases of HIV are attributable to transfusions of contaminated blood.146 This mode of transmission has particularly interested prosecutors147 and federal148 and state legislators'49 in the use of coercion, because it directly affects heterosexual men, women, and children. When the behavior of a disfavored group such as gays or IV drug users has the potential for seriously harming a favored group such as heterosexuals and children, calls for compulsion are likely to be louder. 145. See R. K fa o a n . Tiik E v o lv in g Sfj.p (1982); L. Koin.nF.Ro. Tim P h ilo so p h y o f M o r a l D e v e lo p m e n t (1981); K ohlbcrg, Moral Stages and Moralization: The Cognitive-Developmental Approach , in M o r a l D e v e lo p m e n t a n d B eh a v io r: T iif o r y , R f.sf.arch a n d S o c ia l Issues (T. L ickona cd . 1976). 146. See CDC. Weekly Surveillance Rep., June 6, 1988. 147. The most celebrated case is Joseph Edward Markowski. Mr. Markowski, who had AIDS, sold his blood to a Los Angeles blood company. Plasma Production Associates. His case was discovered when he approached a bank security guard, tried to grab his gun and yelled “ kill me. kill me, I have AIDS.” He told police he had donated his blood on 23 other occassions. but this was never confirmed. He was charged with attempted murder. His case was later dropped for lack of evidence on intent, but not before receiving widespread publicity. See Gostin, supra note 121. 148. See S. 1352. 100th Cong., 1st Sess., 133 C o n g . R ec. S7989-91 (1987) (bill to make it a criminal offense to donate blood, semen, or organs by a person who knows he is HIV positive or in a high risk group). 149. See, e.g., Ind. Codf. § 16-8-7-6 (Supp. 1988) (knowing donation o f blood is a felony); Ky. Reg. Sess. 1988 New Laws 557 HB 50 (persons in risk groups who donate or sell blood commit a class D felony); T e n n . C o d e A n n . § 68-32-104 (1987) (offense to knowingly donate HIV positive blood). California has considered a similar statute. Cummings, supra note 115.

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The issue of criminalization for intentional donation of infected blood first emerged in the nationally publicized case of Joseph Markowski, who the prosecution claimed willingly received a small sum of money in return for a donation to a private blood collection agency.150 Proving intent in cases of donation of blood is problematic. It is usually impossible, for example, in the case of a person who is destitute and gives blood for money, to prove a specific intent to cause death.151 The motive may well be to obtain a sum of money to buy food, drugs, or alcohol, rather than to harm others. Difficulties of proving that a person fully understood the consequences of his act and intended to kill some unknown blood recipients are potentially insurmountable. The circumstances lack a conceivable motive to kill. The concern with blood donations as a mode of transmission of HIV are exaggerated. Since 1985 the U.S. blood supply has been screened for HIV antibodies using an Enzyme Linked Immunosorbent Assay (ELISA).152 The ELISA is very sensitive and is highly likely to detect contaminated blood.153 From 1985 to 1987, only two cases of HIV-infected blood had escaped detection. During that time twenty-four million units of blood were screened.154 The act of selling blood for which individuals are charged with attempted murder has a minuscule risk of causing harm. If the real objective of such prosecutions were to protect the blood supply there would be many more effective ways to do so. In most of the known cases of intentional donations of contaminated blood, payments were involved. Indeed, some private blood collection agencies have shown a blatant disregard for public health. They often recruit donors in poor, minority areas where there are high incidences of IV drug use and sexually transmitted diseases. These areas have a disproportionately high seroprevalence of blood-borne diseases such as AIDS and hepatitis B .155 Private blood collection agencies are largely unregulated and often do not actively seek to weed out individuals with infection by rigorous questioning and medical examination. Joseph Markowski, for example, had full-blown AIDS,156 and was an IV drug user. Either of these conditions probably could have been discovered if the agency were taking reasonable care.157 In effect, private blood collection agencies offer a monetary incentive to donate blood among the poorest members of the community; and because they are commercial entities interested in buying blood they may take less care in screening donors. Prohibition or direct regulation of private blood collection enterprises would

150. See supra note 147. 151 Mr. Markowski was reported l say. "I was so hard up for money lhai I didn’t give a damn." Goslin. supra note 121. 152. See Gostin, Curran & Clark, supra note 12, at 13-17. 153. Id. at 11-13. 154. See Cummings, supra note 115 (quoting Terry Gautier of the American Red Cross). 155. The prevalence of HIV in large, usually poor, urban areas like the Bronx, Newark, or Miami is disproportionately high. See A Review o f Current Knowledge, supra note 3, at 10-11. 156. See supra note 121. 157. IV drug use can be readily detected from examination of the person’s arm. Manifestations of symptomatic carriers of HIV can be detected from examination of swollen glands, rashes, or an emaciated state.

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be more beneficial to the public health than imposing harsh criminal penalties on HIV-infected donors.158 c. Spitting , Biting, and Splattering o f Blood Spitting, biting, or splattering blood at a person in anger can be a serious assault. But prosecutors across the country are viewing the same behavior among persons with HIV as attempted murder or assault with a deadly weapon.159 By viewing assaultive behavior as much more serious when exhibited by AIDS patients, prosecutors make two fundamental errors in judgment: they wrongly assume that persons with HIV have a desire to kill when they behave irresponsibly, and they significantly overestimate the danger presented by the behavior. Many of the cases reported to date involve HIV-infected persons biting, spitting, or splattering blood during the course of a medical emergency such as following a suicide attempt.160 Their intent to murder is supposedly established by words such as “ I want you to know what it is like to die of AIDS.” 161 Such outbursts are not uncommon for persons in emergency rooms, hospitals, or closed institutions such as prisons. The person’s behavior can just as easily be attributed to human despair and frustration, as to the desire to kill. In most cases the police officer, emergency physician, or medical technician is not even known to the defendant. Those who truly plan to kill, moreover, do not use the highly indirect means of spitting, biting, or splattering their blood. It must also be remembered that in these cases the defendant has a terminal illness. The hopelessness of the person’s condition and the anger involved in contracting a lethal virus relatively early in life can result in irrational behavior. Equally important is the fact that HIV has profound neurological effects which can develop before immunological deterioration can be detected.162 However, the extent 158. In many European countries, private blood collection agencics are banned. Another way to help protect the blood supply would be to develop a verifiable deferral list. Once a person donates positive blood, he would be informed that he was being placed on a list circulated to all blood collection centers. 159. See supra notes 115-16, 127. 160. The most illuminating case is State v. Haines, cause No. S-5585 (Super. Ct., Tippecanoe County. Indiana 1987 Term). On August 6, 1987, Joseph Haines, having discovered he had an advanced case o f AIDS-related complex, tried lo kill himself in his apartment. Police Officer John Dennes entered the apartment and found Haines unconscious, lying face down in a pool of blood. Two cmcrgcncy medical technicians arrived, Rodney Jewell and Daniel Garvey. They were applying pressure to his severely cut wrists when Haines jerked away screaming, “ let me die, 1 have A ID S.” He then got up off the floor, advanced toward them, shouting that he wanted them to know what it was like to have AIDS. He thrust his arms forward, spraying his blood toward them. None of the emergency personnel has tested positive for HIV. On January 14, 1988, Haines was convicted on three counts of attempted murder. Circuit Court Judge Vincent F. Grogg set aside the jury's verdict because Haines’ assault “ could not constitute a substantial step toward killing.” Grogg found Haines guilty of simple assault and sentenced Haines to three consecutive two year prison terms. See, Gostin, When AIDS is a Weapon, L.A. Daily Journal, March 3, 1988, at 4, col. 3; Gostin, AIDS and Safety, supra note 120. 161. See Slate v. Haines, supra note 160. But note the equally important first words in the Haines case, “ Let me die, I have AIDS.” Similar expressions of a wish to die are found in other cases. See supra note 147; Squires, supra note 115. 162. Levy & Bredcsen, Central Nervous System Dysfunction in Acquired Immunodeficiency Syndrome, 1 J. A c q u ire d Immune D eficiency S y n d ro m e 41 (nearly 40% of A ID S patients develop neurological complications, and about 10% experience neurological symptoms as the initial manifestations o f A ID S). See generally Fauci, supra note 108, at 621 (neurologic abnormalities occur in at least 60% of A ID S patients); Ginzberg & Gostin, Legal and Ethical h u es Associated with HTLV-III Diseases, 16 P s y c h ia tric A n n a ls 180, 182 (1986); Ho, Rola, Schooley, Kaplan, Allan, Groopman, Resnicke, Felscnstein, Andrews & Hirsch, Isolation o f HTLV-III from Cerebrospinal Fluid and Neural

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to which intentional or aggressive behavior can be associated with the neurological defects caused by HIV is not fully understood. Theoretically, a person could be convicted of attempted murder under the Model Penal Code if the prosecution successfully proves that he believed his behavior could kill, and that he intended that result.161 Although the risk of HIV transmission from spitting, biting, or splattering of blood is exceedingly remote,164 the law will treat it as a seriously dangerous act. Of course prosecutors are concerned with evil intentions of aggressors and the apprehension of victims. But where the behavior is truly not dangerous, application of the criminal law appears unjust and unnecessary.165 It is unjust because a person should not face serious punishment for a belief which will cause no harm .166 Individuals should not be imprisoned for misguided beliefs, but for seriously dangerous acts. It is unnecessary because the acts which society seeks to prevent are futile and pose no significant risks to the community. The principal purpose of the criminal law when applied to a disease epidemic is prevention. Because this spontaneous, highly emotional behavior is fundamentally irrational, it is unlikely to be deterred by the criminal law. B|ut even if the criminal law could prevent such minor assaultive behavior it would have no impact on the epidemic, because HIV will almost never be transmitted by such behavior. While transmission of HIV through saliva has never been reported,167 there have been two cases of transmission of HIV to health care workers who were soaked with contaminated blood.168 It is, therefore, a valid goal for public health authorities to seek to minimize the risk of exposure to contaminated blood. There are more effective and less restrictive ways to accomplish this objective besides the use of the criminal law. The most efficient method of preventing exposure to HIV-infected blood is for police, corrections officers, firefighters, emergency medical workers, and others to use rigorous precautions. The Centers for Disease Control (CDC) have issued detailed guidelines on prevention of HIV transmission in various settings such as the workplace,169 schools,170 and health care facilities.171 CDC guidelines for health care workers include all persons whose activities involve contact with patients or with blood or other body fluids. The CDC recommends universal precautions whenever a Tissues of Patients with Neurologic Syndromes Related to Acquired Immunodeficiency Syndrome, 313 New Eng J M ed 1538 (1985). 163. See supra notes 129-136 and accompanying text. 164. See supra notes 3 6 -4 0 and accompanying text. 165. Cf. supra note 133. 166 Should a person he prosccutcd for a criminal attempt hccause of a harmless belief? “ Even though a ‘voodoo doctor’ just arrived here from Haiti actually believed that his malediction would surely bring death . . . I cannot conceive of an American Court upholding a conviction . . . ” Commonwealth v. Johnson. 312 Pa. 140, 152-53, 167 A. 344, 348 (1933) (Maxcy. J.. dissenting). If the means used arc so ineffective, a conviction is often thought inappropriate. See A.G. v. Sillcm. 133 Rev. Rep. 731 (Ex. Ch. 1863). See also E. M e eh a n , supra note 133, at 172-74. 167. Sec supra notes 35 -5 4 and accompanying text. 168. See supra note 6! and accompanying text. 169. Recommendations for Preventing Transmission of Infection with Human T-Lymphotropic Virus Type III/ Lymphadcnopathy Associated Virus in the Workplace, 34 M o rb id ity & M o r t a li t y W eek ly Rep. 681 (1986). 170. Education and Foster Care o f Children Infected with Human T-Lymphotropic Virus Type lll/Lymphade nopa thy -Associat ed Virus in the Workplace, 34 M o rb id ity & M o r t a li t y W e ek ly Rep. 517 (1985). 171. Recommendations. 1987. 36 (Supp.), supra note 52, at 2S.

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person is likely to have contact with blood or body fluids, whether or not the fluid is known to be contaminated with HIV. It also urges particular care in emergency settings 4‘in which the risk of blood exposure is increased and the infection status of the patient is usually unknown.” 172 The Departments of Labor and Health and Human Services are developing a far reaching plan to prevent the transmission of blood-borne diseases. First, these Departments issued a Joint Advisory Notice on occupational exposure to HIV and hepatitis B virus (HBV).171 The Notice is applicable to any worker who has a “ predictable job-related requirement’’ that may involve exposure to blood or body fluids, such as health care workers, law enforcement officers, Firefighters, and other “ first response” emergency wokers.174 Second, the Occupational Safety and Health Administration (OSHA) has announced a targeted inspection program to examine actual workplace compliance with the guidelines.175 Third, OSHA has given advanced notice of proposed rulemaking in order to protect workers from the risk of blood-borne diseases.176 OSHA purports to act under the “ general duty clause“ of the Act, and the existing requirement for personal protective equipment whenever necessary to control environmental or other workplace hazards.177 OSHA requirements include the development of special operating procedures that must be followed in all cases of expected exposure to body fluids. Each worker must receive education and training on special procedures to be followed and the use of protective clothing, including gloves, overalls, and eye and face protection. Many police stations, prisons, and emergency departments across the country have not implemented OSHA requirements.178 In the Haines case, police and emergency personnel responded to a suicide call, knowing the patient was HIV positive, without any protective clothing or equipment.179 They applied pressure to a severely bleeding artery without any covering for their hands or face. Compliance with CDC guidelines and OSHA requirements would be more effective in preventing the transmission of blood-borne diseases than prosecutions under the criminal law. An alternative to a charge of attempted murder is aggravated assault. In United States v. M oore'm a federal district court upheld a conviction of assault with a “ deadly“ or “ dangerous“ weapon in connection with the biting of two federal correctional officers. The court decided there was sufficient evidence to sustain the

172. Id. at 5S. 173. Dep't of Labor and Dep’t of Health & Human Services, Joint Advisory Notice, Protection Against Occupational Exposure to Hepatitis B and Human Immunodeficiency Virus, (Oct. 19, 1987). 174. Id. at 5. 175. 52 Fed. Reg. 41818 (1987) (proposed Oct. 30. 1987). 176. Occupational Exposure to Hepatitis B Virus and Human Immonodeficiency Virus, 52 Fed. Reg. 45438 (1987) (codificd at 29 C.F.R. 1910) (proposed Nov. 27, 1987). 177. Occupational Safety and Health Act 1970, § 654(a)(1). 29 U.S.C . § 654 (1982) (requires each employer to furnish a place of employment which is “ free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” ). 178. See, e.g. , Judis, An AIDS Nightmare, N .Y. Times, Jan. 17, 1988, 6 (Magazine), at 32 (police and emergency workers soaked in blood when handling a brutal murder). 179. See supra note 140. The rescue workers covered the wound with their bare hands. 180. 669 F. Supp. 289 (D. Minn. 1987).

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conviction because the defendant tested positive for HIV, HIV could be transmitted through bodily fluids, and blood was sometimes present in the mouth. The reasoning in Moore is flawed. A dangerous or deadly weapon is an object that is “ used in a manner likely to endanger life or [cause] serious bodily harm.” 181 Scientific evidence clearly shows the absence of any “ likelihood’* that a human bite would endanger life or cause serious physical harm through transmission of HIV. Systematic epidemiologic investigations of persons exposed to small amounts of HIV infected saliva or blood demonstrate that there have been no documented cases of transmission from biting; that saliva may block transmissibility; and that even sustained exposures do not result in serological conversion.182 The federal district court, then, accepted evidence of a theoretical possibility of serious harm as sufficient to prove a likelihood. The Supreme Court, in a related context, has stressed the importance of basing legal decisions on scientific probabilities rather than remote, unforeseeable risks.*83 In a charge of assault with a dangerous weapon, the weapon is a potentially lethal microbe. Because that microbe can potentially be isolated in most, if not all, bodily fluids, prosecutors wrongly assume that a person’s saliva, blood, and mucous are deadly. It follows that what would ordinarily be regarded as minor assaultive behavior such as spitting, biting, kicking, or splattering blood becomes a felony if the person harbors the human immunodeficiency virus. The mischief of this approach is that the same behavior which many people exhibit in anger, frustration, or despair becomes a potentially serious crime because of the person’s health status. Such minor assaultive behavior can be witnessed almost daily in hospital emergency rooms, closed and overcrowded institutions such as prisons or hospitals for the mentally ill or retarded, and on sports fields when a player is angry with another player or the umpire. A human bite is clearly a battery and the law can and should prevent such crimes. But to raise this behavior to a very serious offense because of the person’s health status is misguided. I suggest that the reason for the new spate of charges of aggravated assault in relation to HIV has more to do with misbelief and prejudice than any clearly thought out position on culpability or degree of danger involved. The same minor assaultive behavior of persons with other blood-borne diseases such as hepatitis B (HBV) occurs with equal regularity. Transmission of HBV is much more efficient and is likely to result in higher overall morbidity and mortality from a bite or splattering of blood;184 yet, no prosecutions for deadly assault have been reported against HBV carriers. The reason for the differences in society’s treatment of these two comparable

181. United Slates v. Hollow, 747 F.2d 481, 482 (8th Cir. 1984). 182. See supra notes 3 5 -5 4 and accompanying text. 183. School Bd. of Nassau County v. Arline, 480 U.S. 273, 288 (1987) reh g denied, 107 S.Ct. 1913 (1987). See supra note 13 and accompanying text. 184. See, e.g., Lettau, Smith, Williams, Lundquist, Cruz, Sikes & Hadler, Transmission o f Hepatitis B with Resultant Restriction o f Surgical Practice, 255 J. A.M .A. 934 (1986) (Five patients contracted HBV after surgery, directly attributable to surgeon. Surgeon still permitted to practice using infection control until a further case of HBV transmission was discovered.).

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diseases is that AIDS has developed a special mystique. Public apprehension of transmissibility from aggressive behavior is out of proportion to the real risks involved. 2. Reckless or Negligent Transmission One of the principal difficulties with criminalization of intentional or knowing transmission of HIV is that the requisite mental states often cannot be proved. Criminal charges can also be brought against an individual for recklessness, or even negligence, in connection with HIV transmission. The problem here is not so much inadequate proof, but that too many people would be swept into the criminal justice system. A person acts recklessly under the Model Penal Code when he “ consciously disregards a substantial and unjustifiable risk’1185 and a person acts negligently when he “ should be aware of a substantial and unjustifiable risk.” 186 Disregarding that risk for a reckless or negligent act must involve “ a gross deviation from the standard of conduct that a law-abiding” 187 or “ reasonable” 188 person would observe in a similar situation. Crimes involving recklessness or negligence cast a very wide net. They could include not only persons who test positive for HIV, but also people in high risk groups. The criminal law could, therefore, impact on a very large population engaging in sexual activity.189 The great majority of the population is aware that AIDS is a sexually transmitted disease and that it is lethal.190 If a person knows he is seropositive and, nonetheless, engages in sexual intercourse, he is consciously disregarding a known risk, which can be considered reckless behavior. At the very least he should be aware of that risk, which can be negligent behavior. Opinion polls also show that most of the population knows that gays and IV drug users are at high risk for AIDS.191 It is conceivable that the criminal law would hold gays and IV drug users accountable not only for what they know, but also for what they reasonably should know. If a person has engaged in high risk behavior and failed to be tested,192 the courts could put him in the same position as if he knew he were seropositive. Any other rule of law would provide an incentive to avoid being tested or counseled. Thus, if a person tests positive for HIV or knows he is in a high-risk group, and 185. M o d e l P e n a l C o d e § 2.02(2)(c). 186. Id. § 2.02(2)(d). 187. Id. § 2.02(2)(c). 188. Id. § 2.02(2)(d). 189. See generally Sullivan & Field, supra note 1, at 164. 190. Polls consistently show that 98-99% of the public know about AIDS, and up to 93-95% know it is sexually transmitted. Singer. Rogers & Corcoran, The Polls —A Report, AIDS 51 Pub. O pinion Q . 580, 584, 588 (1987). 191. Id. at 586. 192. The Centers for Disease Control strongly advises persons in high risk groups to be tested. Additional Recommendations to Reduce Sexual and Drug Abuse-Related Transmission o f Human T-Lymphotropic Virus Type HULymphadenopathy-Associated Virus, 35 M o rb id ity Sl M o r t a l i t y W e e k ly Rep. 152 (1986) [hereinafter Additional Recommendations ].

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has sexual intercourse, he is potentially committing a criminal offense under a recklessness or negligence standard. The question will arise whether sexual inter­ course by a person who knew, or reasonably should have known, he was HIV positive is always reckless or negligent. Put in terms expressed by the Model Penal Code, is sexual intercourse by a person at risk always a “ gross deviation” from the standard of conduct a law abiding or reasonable person would observe?193 Public health options for persons at risk for HIV are not limited to abstinence. Health education efforts acknowledge that it may be reasonable for a person at risk to have sex, provided he discloses the risk to his partner and engages in “ safer sex” practices.194 A strong argument could be made that no crime is committed if public health advice is followed, because the person has not grossly deviated from acceptable societal standards. There are two major problems with using a recklessness or negligence test for criminalizing HIV transmission. First, there are potentially millions of people who come within recognized risk groups who could be susceptible to criminal charges.195 There is no clear advance notice given to these individuals as to what behavior will be treated as an offense; the prospect exists that any sexual or needle sharing behavior of persons in these groups would be viewed as a criminal act, at least by some prosecutors and juries. The potential for widespread use of the criminal law would chill cooperation with public health programs, and legitimize prejudice and moral disapproval of already disfavored populations. Second, an approach based upon recklessness or negligence would fail to target only those who engage in truly blameworthy behavior. For example, a person engaging in a long-term, loving relationship could “ recklessly” or “ negligently” transmit HIV to his partner, even though he had no intention whatsoever of causing him harm. Using a vague and far-reaching standard of recklessness or negligence could punish individuals who have no evil or antisocial intentions. B. Public Health or AIDS-Specific Offenses The substantial difficulties involved in prosecuting AIDS cases under the traditional criminal law have led state legislators to consider specific public health offenses. Criminal offenses are commonly found in old infectious disease and venereal disease statutes. Some statutes create an offense for transmission of any communicable disease, while others are limited only to specified sexually transmitted diseases. Many venereal disease statutes do not apply to HIV because of the way AIDS is classified.196

193. M o d e l Pr.NAi. Codf. § 2.02(2)(c), (d). 194. See Additional Recommendations, supra note 192. 195. The CDC lists a wide range of groups that are at high risk for HIV including homosexual and bisexual men. pnst and present IV drug users, persons with signs or symptoms of AIDS or ARC. persons born in Haiti and countries in Central America where heterosexual transmission has occuncd, male and female prostitutes, sex partners of infectcd persons, hemophiliacs who have received blood-clotting products, and children of infected mothers. W. C u r r a n , L. G o s tin & M. C l a r k , supra note 68, at 224-25. Are all of these individuals obliged in law to be tested? If they arc not tested and have sexual intercourse, is that sufficient to establish recklessness or negligence? 196. See supra notes 68-71 and accompanying text.

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One commentator has criticized the old public health laws as ineffective, unusable, and punitive (targeting “ easy” populations such as prostitutes).197 Such statutes have rarely been used. Undaunted by this historical perspective, state legislators are reclassifying HIV to include the virus within existing public health law offenses or are enacting new AIDS-specific statutes. The new statutes follow the same model as old public health law offenses, but many authorize more restrictive sentencing. While the old statutes tended to have a mild “ public health" sanction,198 levying a fine or a very short prison sentence, modern AIDS-specific offenses make HIV transmission a felony.199 The numerous problems of prosecuting under the traditional criminal law have been reviewed.200 Is it possible to prove that a person intended to kill a partner through the indirect method of sexual intercourse or sharing a needle? How real a possibility of transmission must exist before a prosecution can be successful? Does it matter if the virus is not actually transmitted and the “ victim” is left unharmed? Is the fact that the person disclosed his HIV status and/or used a condom relevant? Can a person’s mouth or teeth be regarded as a “ deadly” weapon? What behavior is “ reckless” or “ negligent?” Should all high risk groups be included whether or not they actually test positive for HIV? Many, if not all, of these “ nice” jurisprudential questions can be avoided by using statutes which clearly define the behavior they seek to punish. By creating a specific statute, legislators make it easier to convict in cases in which the individual is engaging in truly dangerous behavior and also give clearer notice to persons about the behavioral norms to which society expects them to conform. In formulating a specific public health statute, legislators should inquire what behavior may reasonably be proscribed as criminal by society. Such a statute would not be concerned with particular levels of mental intent and culpability.201 Rather, it would narrowly target those behaviors which were truly dangerous and which the criminal law might reasonably be expected to deter. Accordingly, the statute would be concerned only with the two primary modes of HIV transmission—sexual intercourse and the sharing of contaminated needles. It would not ban all sex and drug use of HIV- infected people. Such a course would be unrealistic and unfair. It would be unrealistic to expect individuals to forego all sexual contacts and use of drugs for their entire lives. Society has never had success in enforcing similar outright bans in the past.202 Banning all sex and drug use would also be unfair because sexuality is necessary

197. See supra note 11 and accompanying text. 198. See Curran, Gostin & Clark, supra note 12. 199. See. e.g.. Iim ijo C o d f § 39-60R (Supp. 1988) (any person exposing another intentionally or knowingly commits a felony punishable by up to 15 years in prison, a fine of up to $5 0 0 0 or both). 200. See supra notes 131-195 and accompanying text. 201. It has been proposed that AIDS-spccific statutes should follow a classic culpability approach. Robinson, AIDS and the Criminal Law: Traditional Approaches and a New Statutory Proposal. 14 H o f s tr a L. R ev. 91 (1 9 8 5 ). But such a statute would retain virtually all of the problems with a traditional criminal law approach. See Sullivan & Field, supra note I , at 1 7 8 -8 2 . 202. See supra notes 1 4 1 -4 5 and accompanying text; Fineberg, Education to Prevent AIDS: Prospects and Obstacles. 239 Scifncf. 59 2 . 596 (1988).

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for human contentment and gratification and because persons who use drugs are often physically dependent on them.203 Further, such a ban would not be narrowly tailored to combat the harm intended under the statute. Sharing a needle after it has been sterilized with bleach and having sexual intercourse using barrier protection are not highly dangerous acts, although they do pose a lower level risk. Finally, where a partner is informed of the person’s HIV status and consents, there should be no criminal penalty for sexual intercourse or needle sharing. Criminal statutes should not unnecessarily restrict sexual freedoms and should criminalize only culpable acts. Society may well believe that interference with an intimate relationship where both partners give a fully informed consent is unnecessary and unjust. A specific public health statute, therefore, would seek to change behavior of people who were infected with HIV by requiring them to give certain information and take certain precautions before engaging in well-defined dangerous behavior. A statute, following this conception, would make it a criminal offense only if all of the following elements were present: 1) the person knows he is HIV positive and has been apprised by a health care professional or public health official not to engage in unsafe sexual or needle sharing behavior; 2) the person does not notify his partner of his HIV status or does not use barrier protection against exchange of body fluids; and 3) the person engages in sexual intercourse or needle sharing. To establish the offense, it would not be necessary to prove either an intent to harm or that HIV was actually transmitted. The proposed test is the most acceptable formulation of a criminal standard for HIV transmission: it is based upon objective fact and not moral judgment, it is narrowly targeted to the most dangerous modes of transmission, and it allows vulnerable risk group members to engage in their private lives without state interference provided they obtain an informed consent from their partner or use barrier protection. Several recent public health acts authorize substantial prison sentences for breach of the statute.204 Such draconian measures are wholly inconsistent with the goal of a public health statute. Since those statutes appear in public health, not penal codes, their rationale should be different. The objective should not be retribution and sentences should not appear punitive.205 Mild public health sanctions such as fines, supervision, or attendance orders or, as a last resort, short prison sentences are more appropriate to the public health objective. The reasons are threefold. First, the state's purpose is to set a behavioral boundary to prevent transmission of disease, not to be overly concerned with culpability and moral judgment. The public health statute says nothing about whether the person deserves punishment because of his evil intentions. Where such evil intentions can be proven, and a retributive sentence is justified, the state should be required to bring a traditional criminal law prosecution such as attempted murder. Retribution is only justified if the sufficient criminal intent can be proven. 203. See supra notes 141-145 and accompanying text. 204. See supra notes 140, 199 and accompanying text. 205. See infra notes 207-209 and accompanying text.

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Second, there is no evidence that the imposition of a stiff criminal penalty will be more effective in preventing dangerous behavior. Most defendants will be terminally ill themselves, and are unlikely to be deterred by a potential felony, as opposed to a misdemeanor, conviction. Nor would there be much public support for harsh sentences of terminally ill individuals. Finally, the state ought to tread carefully in applying harsh criminal sentences in the deeply private sphere of sexuality or in the underground world of shooting galleries. These are activities which do not respond well to a punitive approach because they are, in part, biologically driven or habitual.206 There is a growing consensus among public health authorities that if coercion is to be used at all in the AIDS epidemic, a narrowly focused, nonpunitive approach such as the one proposed would be preferable.207 To be sure, such a statute would not address the core problems of the spread of HIV, but the inability or unwillingness of authorities to deal with such hard cases may undermine confidence in those who are entrusted with the protection of public health.208 The best case for criminalization of HIV, then, would be a specific public health statute. But it may well be a mistake to venture into any criminal law solution to a disease epidemic. The fundamental error of a specific criminal statute lies in the fact that it specifically addresses a subject (sexuality) which is deeply private and sensitive, and targets unpopoular populations (prostitutes, gays, and IV drug users). By doing so, society risks significant abuse of the organs of law enforcement and criminal justice. A statute addressing sexually transmitted disease legitimizes police interest in intimate sexual activities: how partners are chosen, what was said, what precautions were taken. Such a statute also provides an outlet for society’s moral distaste for prostitution, drug abuse, and homosexuality. Entrusting police, prosecu­ tors, and juries to detect, enforce, and adjudicate these laws invites unwarranted intrusions into privacy, and victimization of unpopular groups. An AIDS-specific statute also has the effect of separating HIV from the mainstream of communicable disease control. HIV is a virus which has many unique features. But public health measures designed to impede the spread of HIV should not be fundamentally different from those aimed at other viral infections.209 Risking transmission of HIV is no more dangerous than risking transmission of many other serious communicable diseases. By enacting laws which apply only to AIDS, legislators will further stigmatize carriers and raise apprehension among the public. The central question of whether the criminal law, in any form, should be applicable to HIV transmission is whether any legitimate societal goal would be served.

206. 207. 208. 209.

See supra notes 141-145 and accompanying text. See P r e s id e n tia l Comm’n R ep., supra note 114; A .M .A . Council, supra note 114. U p d a te 1988, supra note 3. at 83. See Gostin, The Future o f Public Health Law, 12 Am. J. L aw & M ed. 461 (1986).

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Goafs o f the Criminal Law

The overarching policy question in determining whether the criminal law is an appropriate model to apply to the AIDS epidemic is whether it serves some important public purpose. Each of the usual rationales for the criminal law—retribution, incapacitation, and deterrence— appear ill-suited to deal with a disease epidemic. There is an understandable outrage when any citizen acts maliciously to place another's life in jeopardy. But apart from those rare cases where a person consciously decidcs to use the virus to kill, there would be little public support for retribution for transmission of a virus. Persons who transmit HIV are also infected themselves and will probably die from AIDS. Thus, if punishment were to be sought, it would be directed against a terminally ill patient. Sometimes, if a person has only a short time to live, it can even provide a justification for discontinuing a prosecution.210 Further, in the overwhelming majority of cases, it is very difficult to establish that the accused had evil intentions deserving punishment. It is more often the case that the person took unreasonable risks motivated by sexual passions, physical dependence on drugs, or both. The application of a retributive criminal law model to a disease epidemic would likely be strongly opposed by public health authorities and distrusted by persons most vulnerable to infection. Even those responsible for prosecuting cases of HIV transmission reject retribution as a rationale.211 Instead, they argue for incapacitation. Incapacitation can be defined as the right or duty of society to incarcerate a dangerous individual to prevent him from doing harm, at least while he is deprived of liberty. It is certainly understandable to seek to isolate an individual engaging in dangerous behavior. But the danger is caused by a retrovirus that will remain in his body potentially for life. Any incapacitation during the period of “ danger,” therefore, can be lifelong. This potential life sentence is unjust when directed against an individual for public health “ crimes" such as having sex or sharing needles. More importantly, because the person continues to be infectious once he is imprisoned, he is not incapacitated at all. The decision to incarcerate only shifts the risk to a new, probably more vulnerable, population. The problem of homosexuality, rape, and drug use in prisons may make it more, not less, likely that the virus will be transmitted. Probably the most important goal of the criminal law in the context of a disease épidémie is deterrence. The best that can be hoped for is that the threat of criminal sanctions will prevent people from taking unreasonable risks that could trasmit the virus. The criminal law is not a likely vehicle for deterring such behavior. In most cases where the criminal law has been used against AIDS carriers there was no motive or advanced planning. Spontaneous behavior driven by human anguish, despair, or passion is difficult to prevent. Further, persons infected with HIV are dying, and a long prison sentence is unlikely to be a deterrent. It is hard to envisage that a person who only has months or years to live would fundamentally alter enjoyable behavior 210. See New York v. Camargo. 135 Misc. 2d 987. 516 N .Y .S .2d 1004 (N.Y. Sup. Ct. 1986) (N.Y. criminal court ruled that in the interests of justice it was discontinuing the prosecution of a defendant charged with the sale of cocaine because he was bedridden with AIDS and had only months to live). 211. See Squires, supra note I.

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because of the threat of a criminal prosecution. The person might be just as likely to continue the risky practices, but be certain not to confide in his physician, counselor, or sex partner. Use of the criminai law in cases of AIDS transmission, then, is unlikely to serve a valid public purpose. V.

Sum m ary

This Article has examined the charged issue of whether a person who risks AIDS transmission should be subject to coercive state action. This is not simply an academic question, for state legislators have already enacted laws which authorize isolation and criminal prosecution of “ recalcitrant” AIDS carriers, and prosecutors have already filed criminal charges in numerous cases. The reasons society has been attracted to coercive measures are understandable. A deliberate or reckless decision to endanger another person’s life is deplorable. Public health officials have sometimes appeared uncaring or impotent in dealing with highly visible cases of persons who act in wilful disregard of the value of human life. The use of compulsion provides an outlet for the rage and frustration society has for these “ hard” cases. The use of coercive powers, far from accomplishing its mission of impeding the spread of the AIDS epidemic, could well fuel it. Coercive powers would not go to the core of the problem. The overwhelming majority of cases of HIV transmission are outside the reach of legal control mechanisms and will go unnoticed. Those who do come to the attention of the police and public health officials are likely to be the poorest, least articulate of those harboring the virus. Indeed, there is ample historical evidence to demonstrate that coercive powers have almost exclusively been used against unpopular targets such as prostitutes; and even when used against large numbers of subjects, compulsory powers have not altered the course of disease epidemics.212 The reasons coercive powers are inappropriate to control the spread of disease are that they often fail to discriminate between unsubstantiated fears, or even loathing, of high-risk groups, and truly dangerous behavior; they are unlikely to deter highly ingrained human sexual or needle sharing behavior; and they cause a loss of trust and confidence by vulnerable populations who will not cooperate with essential public health programs of education, counseling, and treatment. Most compulsory powers do not focus narrowly on significant health risks. They sweep in nondangerous behavior such as spitting, biting, or splattering of blood, along with more dangerous behavior such as sexual intercourse and needle sharing. Prevention of very low risk behaviors will not have any effect on the AIDS epidemic, even assuming that such spontaneous behavior could be prevented by the threat of coercive action. Compulsory public health powers are unlikely to be efficacious in preventing even dangerous acts such as unprotected sexual intercourse and needle sharing. Both are highly resistant to change. Sexuality, including prostitution, is driven by a 212. See supra nolc 11 and accompanying lext.

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complicated set of biological, psychological, and social forces, and drug use is often physically addicting. Prostitution, drug use, and often sodomy are already unlawful, and it is doubtful whether new criminal offenses or isolation for HIV transmission would serve as a deterrent. The value of coercive laws as a deterrent is diminished further by the fact that AIDS is a terminal condition. Persons with catastrophic illnesses may be just as likely to continue their enjoyable activities quietly as they would be to give them up for fear of punishment. Indeed, there is good reason to believe that widespread use of coercion against AIDS carriers would make it more difficult to combat the disease. The argument that coercion will drive the epidemic underground is well rehearsed. But it may be one thing to require a person to be tested, and quite another to deprive a person of his liberty for having sexual intercourse or sharing a needle— behaviors he, and others, have engaged in throughout adulthood. It will very much be in the interests of risk group members not to know if they have the virus and not to discuss their sexual or needle sharing contacts with counselors or physicians. The last thing that public health officials want is a population that is frightened of punitive solutions to their health problems. The use of compulsion, then, is unlikely to be effective in impeding the spread of HIV, and may even exacerbate public health problems. Balanced against the marginal benefit of compulsion are the potential intrusions into the private lives of vulnerable populations. If persons at risk for HIV are prohibited from engaging in unprotected sex or drug use, then police and public health authorities have a corresponding duty to enforce these prohibitions. Isolation or criminal statutes open the door to surveillance of intimate relationships where there is an expectation of privacy. The concern is not only that compulsory measures are directed at intensely private affairs. It is also that the primary targets of coercion are traditionally unpopular groups—gays, drug users, and prostitutes, disproportionately represented by racial minorities. Police, prosecutors, and juries may base their decisions, in part, on “ vague, undifferentiated fears” or on “ irrational prejudice.” 213 Worse, they may succumb to a bare . . . desire to harm a politically unpopular group.” 214 Public policy aimed at isolating or criminalizing AIDS transmission may appear to be getting tough with the disease. But they divert our attention and resources from the policies that would make a real difference— focused education, testing, counsel­ ing, and treatment for drug dependency.

213. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 449 (1985). 214. United States Dep't of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).

[9] Bioethics ISSN 0269-9702 Volume 1 Number I 1987

AIDS, GAYS, AND STATE COERCION1 RICHARD D. MOHR

For Robert W. Switzer ALARUMS AND EXCURSIONS

Of those dead and dying from AIDS three-quarters are gay men. Government funding for AIDS research was at best sluggish till the disease appeared to the dominant non-gay culture as a threat. That perceived threat has spawned state-mandated discrimination against groups at risk for AIDS in employment and access to services, allegedly on medical grounds but in pointed contradiction to the judgments of the very medical institutions to which society has entrusted the determination of such grounds (the US Department of Health and Human Services, the Centers for Disease Control, and the National Institutes of Health).2 1 This paper partially overlaps ‘AIDS, Gay Life, State Coercion,’ Raritan: A Quarterly Review VI: 1 (Summer 1986) 38—62. It was widely circulated in draft form. I thank the following people for offering comments which prompted revisions or amplifications: the editors and referees of this journal, Jennifer Bremer (Robert Nathan Associates, D.C.), Sandra Panem (The Brookings Institution), Ronald Bayer (The Hastings Center), Doug Mitchell (The University of Chicago Press), Thomas Edwards (Rutgers), James Rachels (University of Alabama), Michael Slote and Fred Suppe (University of Maryland), Joyce Trebilcot (Washington University), Christopher Morris (Bowling Green State University), Timothy Murphy (Boston University), Larry Thomas (Oberlin), Mark Chekola (Moorhead State University), Larry Klein (San Francisco City College), Ferdinand Schoeman (University of South Carolina), Mary Mahowald (Case Western Reserve University), Donald Levy (Brooklyn College-CUNY), David Luban, Bob Fullinwider, Claudia Mills, Judy Lichten berg, Henry Shue and Doug MacLean of The University of Maryland’s Center for Philosophy and Public Policy, where the paper was written while I was the Rockefeller Foundation Fellow in the Humanities for 1985-86, and my husband, the dedicatee. 2 See particularly the CDC’s guidelines for preventing transmission in the workplace, ‘Recommendations for Preventing Transmission of Infection with Human T-Lymphotrophic Virus Type 111/Lymphadenopathy-Associated Virus © Richard D. Mohr 1986

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Government’s disregard for medical opinion and for the lives of gays strongly suggests that prejudicial forces are at work. There is of course nothing new in this, but the stakes here are high. The armed forces have already established quarantines of those at risk for AIDS on some bases (The Washington Post, 19 October 1985, A 12; The Advocate, #442, 18 March 1986, p. 14). With statemandated discriminations installed and calls for civilian quarantines circulating, it is clear that the AIDS crisis is going to test the country’s mettle. Not since the Supreme Court affirmed the internments of Japanese-Americans in World War II has so live a danger existed to America’s traditional commitment to civil liberties. And again the danger is created by hysteria and not a reasoned necessity. The hysteria, when not simply an expression of old anti-gay prejudices, is based on the presumption that the disease is spread indiscriminately. This presumption permitted Jeane Kirkpatrick to begin a syndicated column by using AIDS as a metaphor for international terrorism—‘it can affect anyone’—in the serene belief that her audience, educated America, already thought this about AIDS and might even be ready for extreme measures ( The Washington Post, 13 October 1985, B8).3 ALLEGED HARMS TO OTHERS

For public policy purposes, the most important fact about AIDS is not that it is deadly but that it, like hepatitis B, is caused by a blood-transmitted virus. For the disease to spread, bodily fluids of someone with the virus must directly enter the bloodstream o f another'. ‘It appears that, in order to infect, this virus must be virtually injected into the blood stream.’4 But not just any bodily fluid will do. Only in the Workplace,’ Morbidity and Mortality Weekly Report (MMWR) 15 November 1985, 34:45, 682-95. 3 If a Los Angeles Times poll of twenty-three hundred Americans is to be believed, the country indeed is ready for extreme measures: 51 per cent favored quarantines of people with AIDS, 48 per cent the closing gay bathhouses, 42 per cent closing gay bars and 14 per cent tattooing people with AIDS. Twenty-eight per cent thought AIDS was God’s punishment for homosexuals and 23 per cent thought AIDS victims were ‘getting what they deserve’ (19 December 1985, 1:1). For discussions of civil liberties issues raised by the AIDS crisis, see for example ‘AIDS and Individual Rights,’ The New York Times, 15 December 1985, E6 and ‘Quarantines Considered to Combat AIDS,’ The Washington Post, 16 December 1985 Al, 26-7. Krim, Mathilde. 1985. ‘AIDS: The Challenge to Science and Medicine’. AIDS: The Emerging Ethical Dilemmas, A Hastings Center Report Special Supplement

p. 4.

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blood and semen have been implicated in the transmission of the virus (M M W R 34:45, p. 682). That the virus is blood transmitted means first and foremost that, in countries with reasonable sanitation, groups at risk for the disease are clearly definable—more so than for virtually any other disease known—with 96 per cent of cases having clearly demarcated modes of transmission and cause.5 And now that blood supplies are screened with a test for antibodies to the AIDS virus, the number of these groups is indeed dropping. Hemophiliacs not already exposed and blood transfusion recipients are now no longer groups at risk. Admittedly, in countries without adequate sanitation, blood transmitted viruses like hepatitis B are rampant. If a population prone to cuts and abrasions bathes in the same water in which it bleeds and urinates, it will have blood-transmitted viruses dispersed widely through its membership. Perhaps a quarter of the Third World suffers from hepatitis B, which in the US infects the same groups that are at risk for AIDS. Though hepatitis B has always been around, it has not been a threat to the general US population and has never caused much social or government concern, even though for high risk groups—basically gays and intervenons drug users—it is occasionally fatal. At the very least it causes weeks or months of debilitating pain and exhaustion, and threatens chronic recurrence and a greatly increased risk of liver cancer. Indeed, the very close epidemiological modelling of AIDS to hepatitis B was what first led medical investigators to hypothesize that AIDS was caused by a blood-transmitted virus, long before the virus itself was discovered.6 Those who take Zaire as their model of AIDS contagion for the U.S. conveniently fail to weigh these facts or even mention them (e.g. Krim, p. 6).7 Fear of general, indiscriminate 5 ‘Strictly heterosexual adult men and women who cannot be classified as belonging to any high-risk group* constitute but one per cent of AIDS cases and this figure has been constant (Krim, p. 6). See also Norman, Colin. ‘AIDS Trends,’ Science 230, 29 November 1985, 1021. 6 For a comparison of AIDS virus transmission to that of the hepatitis B virus, see MMWR, 34:45, 682-3. The close modelling of the two viruses continues to be the chief basis of the CDC’s guidelines for AIDS prevention. 7 The much reported finding that AIDS occurs in Zaire in equal numbers between men and women weighs no more in favor of the thesis that heterosexual transmission is the cljief cause of African AIDS cases than that lack of sanitation is the chief cause. Alternatively, the widespread practices in central Africa of female circumcision, excision and infibulation and attendent consequences for sexual behavior may account for the high incidence of AIDS in central African women (see ‘AIDS in Africa,’ Science 231, 17 January 1986, 203). If so, again the circumstances of blood­ borne contagion in Africa are strongly disanalogous to those in America.

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contagion by AIDS is unwarranted—though it makes for terrific press. The July 1985 cover of Life informed the nation in three-inch red letters that ‘NOW NO ONE IS SAFE FROM AIDS.’ The magazine used as its allegedly compelling example a seemingly typical Pennsylvania family all but one of whose members has the disease. But it turns out that all those members with the disease were indeed in high risk groups. The father was a hemophiliac, his wife had sex with him, and she conveyed the virus to a child in the process of giving birth. No one got the disease either mysteriously or through casual contact. The family example in fact was evidence against the article’s generic contagion thesis. Equally irresponsible journalists, lobbyists, and elected officials have compared AIDS to air-borne viral diseases like influenza and the common cold.8 The case for general contagion cannot be made. In consequence government policy which is based on that fear is unwarranted. The extraordinary measures—including the suspension of civil liberties — which government might justifiably take, as in war, to prevent wholesale slaughter simply do not apply here. In particular, quarantining the class of AIDS-exposed persons in order to protect society from indiscriminate harm is unwarranted. HARM TO SELF

The disease’s mode of contagion assures that those at risk are those whose actions contribute to their risk of infection, chiefly through intimate sexual contact and shared hypodermic needles.9 In the transmission of AIDS, it is the general feature of self-exposure to contagion that makes direct coercive acts by government—like bathhouse closings—particularly inappropriate as efforts to abate the disease. If independence—the ability to guide one’s life by one’s own 8 For an irresponsible analogy of AIDS to air-borne disease, see Dr. Richard Restak’s widely reprinted op-ed piece ‘Worry about Survival of Society First; Then AIDS Victims’ Rights/ The Washington Post, 8 September 1986, Cl. For claims of casual transmission, see Johnson, Tom. 1986. ‘Congressman AIDS’. Los Angeles. 125 if. especially 199. For a history of irresponsible and hysteria-pandering reportage in the mass media, see Check, William. ‘Public Education on AIDS: Not Only The Media’s Responsibility’. Special Supplement (see n. 4 above), pp. 27—31. For a readable social history of the disease, see Altman, Dennis. 1986. AID S in the Mind o f America, Doubleday, New York. A small exception is those whose well-being and life chances are already substantially at the mercy of the person who infects them—newborns of infected mothers. For this set of cases social policy should be what ever it already is for cases of parents who pass fatal congenital disease to their children.

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lights to an extent compatible with a like ability on the part of others—is, as it is, a major value, one cannot respect that value while preventing people from putting themselves at risk through voluntary associations. Voluntary associations are star cases of people acting in accordance with the principle of independence, for mutual consent guarantees that the ‘compatible extent’ proviso of the principle is fulfilled. But the state and even the courts have not been very sensitive to the distinction between one harming oneself and one harming another— nor has the medical establishment.10 It appears to all of them that a harm is a harm, a disease a disease, however caused or described. The moral difference, however, is enormous. Preventing a person from harming another is required by the principle of independence, but preventing someone from harming himself is incompatible with it. While no further justification is needed for the state to protect a person from others, a rather powerful justification is needed if the state is to be warranted in protecting a person from himself. In the absence of such a justification, the state sometimes tries to split the moral difference and argues that state coercion may be used when the harm to others is remote and indirect. Such an argument from indirect harms runs to the effect that state-coerced use of, say, seatbelts and motorcycle helmets is warranted, for helmetless motorcycle crashes and seatbeltless car accidents harm even those not involved in the accidents, by raising everyone’s insurance costs and burdening the public purse when victims end up in county hospitals. Here state coercion comes in through the backdoor. This line of argument has been used with increasing frequency even by self-described liberals like New York’s Governor Cuomo, and it is beginning to be heard in AIDS discussions. This is not surprising, for the cost of AIDS patient care from diagnosis to death is somewhere between $35,000 and $150,000. Private funds are often quickly exhausted, and the patient ends up on the dole— harming everyone, and so allegedly warranting state coercion of the means of possible AIDS transmission. J. S. Mill’s rule-of-thumb for appraising such appeals to indirect harms is exactly on target: an indirect harm counts toward justifying state coercion only when the harm grows large enough to be considered a violation of another person’s right. This under­ standing of harm to others is necessary so that independence is not 10 For instance, Mervyn F. Silverman, former Director of Health for San Francisco, shows no cognizance of the distinction in his argument for his unsuccessful 1984 attempt to close that city’s bathhouses: Silverman, Mervyn F. and Silverman, Deborah B. ‘AIDS and the Threat to Public Health’ Special Supplement (see n. 4 above), pp. 21-2.

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rendered nugatory and, as a right, is only outweighed by something comparable to it. Now, while it is nice if products (like insurance) are cheap and taxes low, the considered opinion of our society is not that one’s rights have been violated when taxes or the price of milk goes up. Indeed, in the case of taxes, the considered opinion is cast as a Constitutional provision. So arguments that smuggle coercion in through the backdoor of indirect harms are not successful.11,12 In general, heed should be given to Douglas’s warning in his dissent to Wyman that the welfare state is gradually being allowed to buy up rights. In Wyman the Court ruled, among other horribles, that an indigent woman in accepting welfare for her child had simply waived her Fourth Amendment rights.13 Actions infringing upon rights are most likely to go unnoticed or be misperceived, and so be most insidious when they are performed for an end that is good. Many addressing the AIDS crisis seem to be operating with bad motives. They generally can be easily spotted; appeals to consistency are usually enough to trip them up. But those with good motives yet anxious to do something quickly are those most likely to effect policies which destroy rights. The problem identified 11 Whether it is legitimate for the state to condition, for instance, motorcyclists’ access to county hospitals upon the wearing of helmets, cannot be determined independently of an assessment of the arguments for such free health care in the first place. The arguments advanced in ‘AIDS, Gay Life, State Coercion’ (see n. 1 above, pp. 50-8) for AIDS patient funding bar any such conditioning of relief upon cost-reducing conformity. 12 A wife who contracts AIDS from a bi-sexual husband does not have a right that has been violated by the bathhouse where he may have been AIDS-exposed. Rather if she has a legitimate plaint, it is against the direct harm caused by the husband or against the institution of marriage itself if it has kept her in a position of enforced ignorance. But, it should be remembered that traditional marriage vows pledge the participants to joint risk taking and place commercial and medical risks on a par. The institution of marriage itself, then, acknowledges what is independently true: it is as little a good reason to shut down bathhouses to protect ‘innocent’ wives as it is to shut down stock-markets to spare them lost spousal income. Further, it is wholly unfair to coerce one institution, because of the patent immoralities of another. The immoralities which occur within marriage (lying, cheating, promise-breaking, willful ignorance) or which are endemic to it (enforced ignorance, indenture) cannot ground the coercion of gay bathhouses. For an excellent discussion of the procedural and substantive abuses inherent in traditional marriage contracts, see Ketchum, Sara Ann. 1977. ‘Liberalism and Marriage Law’ in Mary Vetterling-Braggin (ed.), Feminism and Philosophy. Littlefield, Adams, Totowa, NJ, pp. 247-76. 13 Wyman v. James, 400 US 309, 328 (1971) J. Douglas, dissenting: ‘The central question is whether the government by force of its largesse has the power to “buy up” rights guaranteed by the Constitution. But for the assertion of her constitutional right, Barbara James in this case would have received the welfare benefit.’

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by Justice Douglas is part of a wider problem detected in Justice Brandeis’ vindicated dissent in Olmstead: ‘Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroach­ ment by men of zeal, well-meaning but without understanding’ (iOlmstead v US, 211 US 438, 479). STATE PATERNALISM CONSIDERED

The important question remains whether AIDS warrants paternal­ istic state coercion to prevent those not-exposed from harming themselves, through banning or highly regulating the means of possible viral transmission. Usually paternalistic arguments cannot be made sensible and consistent. For example: federal AIDS funding for FY 1986 in the House came with a paternalistic rider giving the surgeon general a power he already has— to close bathhouses, gay social institutions, if they are determined to facilitate the transmission or spread of the disease, which indeed they do. (So do parks and bedrooms.)14 The sponsor of the rider 14 A directive from New York’s Governor Cuomo mandated in late 1985 the closing of public accommodations where oral or anal sex occur. But the distinction between a public accommodation and a private dwelling, given the nature of the disease, is medically irrelevant. So is the distinction between providing for profit a location for sex and providing one for free. Public accommodations, private clubs, parks and bedrooms—even marital ones—are medically all equally suspect. The line of thought that has led to bathhouse closings, if carried out consistently, would require shutting down relator’s offices that make a profit from selling homes to gays. Further, the directive curiously enough omits banning vaginal sex. Though there is some reason to believe that anal sex is extremely risky, there is no evidence that vaginal penetrations are any less likely a mode of transmitting the virus than oral sex. Cuomo’s directive disingenuously recriminalizes sodomy in New York (The Washington Post, 31 October 1985, Al). New York City’s corporation counsel has argued that restrictions on oral and anal sex do not discriminate against gays because they also apply to non-gays (The New York Times, 15 December 1985, IV 6). One could as well argue that a law against sleeping under bridges does not discriminate against the poor because it also bars the wealthy from sleeping there. In applying the directive both the Governor and New York City’s Mayor Koch claimed that their acts were not to be construed in any way as assaulting the gay community. But instead of showing good faith in this regard by doing something that would be politically unpopular (like first shutting down, say, a marriage with an AIDS-exposed hemophiliac member), they chose instead to shut down as their very first target a central part of gay male mythology—the notorious private membership sex club—The Mineshaft (The Washington Post 8 November 1985, A7). Subsequently, New York state’s health commissioner reported that ‘his

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argued that it was ‘a small step to help those who are unable or unwilling to help themselves’ ( The Washington Blade, 4 October 1985, p. 1). Cast so baldly, the argument simply denies independence as a value. For it is consistent with the presumption that the majority gets to determine both what the good life is and to enforce it coercively. The argument could as well be used to justify compulsory religious conversion—those who are unable or unwilling to see the light are helped to see it. REASON ASSURED

Occasionally, to be sure, the case for paternalism can be made to work. One legitimate way to justify paternalistic coercion is to claim as warrant a lack of rationality on the part of an agent (say, a child). By ‘rationality’ here I mean having relevant information and certain mental capacities, including the ability to reason from ends to means, but I do not presume that making the best possible assessment of means to an end is a requirement for rationality— error is compatible with rationality. A presumption of an agent’s rationality is a necessary condition for the very respect which is owed to his making his own decisions and guiding his life by them. Thus, paternalistic interference is warranted when a person is operating at risks which he is unable to assess due to diminished mental skills or lack of information. But education, not coercion, is the solution which is tailored to, and so appropriate for, such incapacities. Coercion in such cases is warranted only temporarily, to permit a check of whether a person indeed knows the risks he is taking. Thus (to borrow an example from Mill) it is justified to forcibly detain someone about to cross a structurally-compromised bridge just long enough to inform him of its condition. Dilated to an extreme, this line of argument permits paternalistic labelling of possibly dangerous products and other means of placing a decision-maker in a reasonable position to make decisions for himself. But far from justifying major paternalistic coercion of gay institutions, say, closing gay baths, the argument from rationality here indeed suggests that paternalistic arguments surrounding AIDS are not even being advanced in good faith. For though investigators will enter hotel rooms if necessary to stop sexual activities linked to the spread of AIDS’ {The Washington Post, 18 November 1985, A4). His office has assured gays that the free enterprise system will preclude discrimination against gays in hotel accommodations (The Washington Blade, 22 November 1985, p. 12). New York, like forty eight other states, has no legislation that would bar such discrimination against gays.

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education is one of government’s highest spending priorities, governments have made no serious attempt to educate people about medically-informed risk of AIDS and of safe alternatives to high-risk sexual practices. It took the federal government five years even to put out bids for studies of ways in which programs of AIDS education might be effected (see Federal Register 50:143, 25 July 1985, p. 30298). The government then stalled in releasing the funds and finally barred their use for sexual messages that would be explicit enough to be effective. James Mason, the director of the CDC, which administered the grants, claimed ‘We don’t think that citizens care to be funding material that encourages gay sex lifestyles’ {The Advocate, #437, 7 January 1986, p. 20). Local governments in many cases have positively hampered private attempts at such education. In Los Angeles and Philadelphia, for instance, government sponsorship of private-sector distribution of safe-sex literature was denied or withdrawn when some officials branded the literature as pornography—neo-feminists take note. Thus one is probably justified in seeing as disingenuous any governmental argument for the coercion of gay institutions on paternalistic grounds. At most the argument from rationality warrants placing warning labels on baths as they are placed on cigarettes, the use of which also threatens death. SELF-IN D EN TU RED GAYS?

The other legitimate argument for paternalistic coercion is that one should be protected from ceding away the very conditions that enable one to be an independent agent. Thus one cannot legitimately contract to become a slave or to sign away rights to the fair administration of the enforcement of contracts or more generally the equitable administration of justice. When dilated to the extreme, this line of justifying paternalistic coercion is used to support legislation mandating seat-belt use: it’s good for you, since it preserves you as an independent agent (though usually politicians cast the argument in terms of indirect harm to others). How does putting oneself at risk for AIDS weigh 15 Whether warning labels should be placed on bathhouses turns on considerations of consistency: some dangerous products are labelled, others not. What gets labelled should not depend on ideology, prejudice or politics. Getting right on this point is particularly important in the case of bathhouses since such labelling, even when carried out in good faith, will have the side-effect of saying to most people that gay sex is bad. The relevant question, one for which I do not have an answer, is whether bathhouses present the same degree of risk to the user as other products that are already so labelled.

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into this conceptual scheme? Does AIDS, invariably fatal in full­ blown cases, rise to a level of seriousness to warrant on these paternalistic grounds a state-imposed bar to putting oneself at risk for it? Admittedly, minimally good health is a central personal concern and its possession a necessary condition for being viewed seriously as an independent agent. So at first blush the AIDS case may seem relevantly similar to the contracting-to-slavery case. It differs, however, in two significant, severally decisive ways. First, slavery by definition is a condition of lost independence. However, as with other venereal diseases, not every sexual encounter with a virus-exposed person exposes one to the AIDS virus, and even exposure to it is nowhere near a guarantee of actually contracting AIDS, since only some portion of those exposed actually get the disease (Krim, pp. 4, 5). Because the risk is high but the results not invariably catastrophic, putting oneself at risk for AIDS becomes less like contracting into slavery and more like being a race car driver, mountain climber or astronaut. In the absence of inevitability, the assessment of risk should be left to the individual, and indeed, as the examples of space flight, mountaineering and race car driving show, this is the considered standard of society as well. Deviations from the standard in other similar cases are likely to be motivated by something other than honest paternalistic concerns. Second, it is hard to imagine even dispassionately and impartially that the momentary gain—say, some psychological thrill—from submitting to slavery could be reasonably balanced against the value to the individual of independence permanently lost. This differs significantly from ‘slavery’ in sex play where the thrill to the ‘slave’ lies in continuous voluntary submission. To imagine the pure case, however, is as hard as trying to imagine (Mishima aside) someone seeing suicide as the culmination and chief organizing principle of his life rather than as an exit from a life that has become incapable of significance. SEX AND LIFE

However an impartial examination of the role of sex in an individual’s life would show that, far from having any imaginable value or at most a trifling one, sex, like health, is in general a central personal concern, and that for those people with a sex drive, addressing sex as central and appropriating it to oneself in some way or another is probably necessary to meaningful life. Or at least the lives of those like priests and nuns who renounce it altogether

,

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would support a belief that one’s sexual choices are as central as any aspect of one’s life. For vows of chastity are as central to their religious life—their most meaningful life—as any vows they take. The centrality of sex as a value is indicated by the very vocabulary, or lack of it that surrounds sex. Sex used to seem so central and yet seemingly frightening that for centuries, as Murray S. Davis has noted, only theologians and pornographers could discuss it.16 Only the power of considerable and complex institutions was strong enough to preserve this gap in discourse and thought, a power so pervasive as to appear invisible. Thus when one looks at a newspaper’s cavalcade of engagement and wedding photos, it never even crosses one’s mind to think ‘gosh, what a slew of heterosexuals.’ When discourse about sex simply could not be avoided, the institutions were strong enough to fill the void with euphemisms so automatic and arcane as not to suggest a present presence—the language of ‘to have and to hold’ and ‘blessed events’. Even so, some ‘things’ were so powerful and frightening that they had to remain unnamed and unmentionable, to be dealt with not by appeal to and through institutional arrangements but only by extraordinary direct appeal to some allegedly preinstitutional fundament. When now sex is discussed forthrightly, the terms are not merely those of desire but also those of need, and correctly so for two reasons. First, though sexual activity is not necessary to the continued biological existence of the individual as are some things that are called natural needs, it is a desire (unlike addictions) that is recurrent independently of its satisfaction—a natural object, not a product. Second, (like addictions and desires for the prerequisites of continued biological existence) its frustration tends to sponsor aggression. The pleasures of sex are not mere forgoable pleasures like the quest for sugar. To forgo them would itself have to be a major life commitment. The centrality of sex to life means that it may have to be balanced with the value of continued independence—all the more so if independence is chiefly, like health, a generalized means to individuals’ ends rather than an end in itself. Independence is not the only value of life, nor one prior to all other values. Further, central values are not equally central for all—some people indeed do not find sex very important and yet do not seem repressed. These people seem to be missing something, not to be morally lesser beings but somehow, like Gertrude Stein’s Oakland, to have 16 Davis, Murray S. 1983. Smut: Erotic Reality/Obscene Ideology, Chicago, University of Chicago Press, p. xx. Davis’ book offers an excellent phenomenology of sex acts and an intriguing account of the conservative mind on matters sexual.

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less there there. It would be silly for them to take high sexual risks, for the balance for them is so clearly tilted in one direction, and little would be lost if the state nudged them that way. But this tilt will in general not be so clear. The balancing in cases of conflicting personally-affecting values is not a decision that the state could reasonably make across the board for all. The state is not capable of the probings of the soul that would be necessary for such a decision. Individuals, not the state, must make the difficult choices where values centrally affecting the self come in conflict. That such choice falls to the individual is generally recognized where religious commitment and health come in conflict. The state cannot legitimately make the trade-offs that an informed adult will make between religious values and health by, say, coercing a person—for the sake of preserving his own independence—to have a blood transfusion against his belief that a transfusion, even a coerced one, will damn him for all eternity. Sexual attitudes and acts in accord with them are at least as central to a person as religious beliefs and acts, and so they too are not fit subjects of state coercion for the individual’s own good, even when that good is the continued ability to make choices. Governments that have written off the value of gay sex altogether by having made it illegal, largely on religious or other grounds that do not appeal to the causing of harms to others, should be viewed as especially suspect when they make paternalistic arguments on behalf of gays. For they have already clearly shown that they do not respect gays as independent beings. PUBLIC HEALTH AND TOTALITARIANISM

Arguments offered so far by the medical community against quarantines and bathhouse closings have largely adopted the terms of mere practicality, appealing to such facts as the large number of people involved, the permanence of the virus in those exposed, and the possibility that the sexual arena may simply shift away from bathhouses where some educational efforts may be possible.17 I have suggested to the contrary that quarantines and closings should be opposed, not because they are impractical (though they may be), but because they are immoral. Doctors tend to hold their unrefined view that health policy is merely a matter of strategy because they, not surprisingly, tend to see health itself as a trumping good, second to none in importance. 17 For examples, see Mayer, Kenneth H. ‘The Epidemiological Investigation of AIDS’. Special Supplement (see n. 4 above), p. 15 (against both quarantines and bath closings) and Silverman and Silverman, p. 21 (against quarantines).

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This is a dangerous view, especially when coupled with their idea that health is an undifferentiated good. They fail to distinguish between my harming my health and my harming your health. Behind this oversight lies the further (sometimes unarticulated) presumption that you and I both are absorbed into and subordinated under something called the public health—a concept that tends to be analyzed in inverse proportion to the frequency with which it is used when trying to justify coercive acts.18 No literal sense exists in which there could be such thing as a public health. To say the public has a health is like saying the number seven has a color: such a thing cannot have such a property. You have health or you lack it and I have health or lack it, because we each have a body with organs that function or do not function. But the public, an aggregate of persons similarly disposed as persons, has no such body of organs with functions which work or fail. There are, however, two frequently used metaphoric senses of public health that do have a reference: one, is a legitimate use but largely inapplicable to the AIDS crisis; the other, when used normatively, is the pathway to totalitarianism. The legitimate sense places public health in the same conceptual scheme as national defense and water purification. These are types of public goods in a technical sense—not what most people want and thus what democratic governments give them nor what tend to maximize by state means some type of good (pleasure, happiness, beauty), but what everyone wants but cannot get or get efficiently through voluntary arrangements and which thus require coercive coordinations from the state, so that each person gets what he wants. Thus, the private or voluntary arrangements of the market system do not seem likely to provide adequate national security, because a defense system that protects those who pay for it will also protect those who do not; everyone (reasonably enough) will tend to wait for someone else to pay for it, so that national security ends up not being purchased at all, or at least far less of it is purchased than everyone would agree to pay for if there were some means to manifest that agreement. The coercive actions of the state through taxation are then required to achieve the public good of national defense. 18 For a signal example, see ‘Additional Recommendations to Reduce Sexual and Drug Abuse-Related Transmission of HTLV-III/LAV,’ MMWR, 14 March 1986, 35:10, 154, recommending the closing of bathhouses ‘on public health grounds’. No definition, elaboration or analysis is offered of the notion ‘public health’. The recommendation stands in marked contrast to the CDC’s employment recommendations (see n. 2 above), for which elaborate analysis and argumentation are offered.

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For exactly the same reason, the state is warranted in using coercive measures to drain swamps and provide vaccines against air-borne viruses. But the state is not warranted by appeal to the public good in coercing people to take the vaccine once it is freely available, for then each person is capable on his own—without further state coercion—of getting the protection from the disease he wants.19 The mode of AIDS contagion makes it relevantly like this latter case. Each person on his own—without state coercion—can get the protection from the disease that he wants through his own actions, and indeed can get it by doing himself what he might be tempted to try to get the state to force upon others, say, avoiding bathhouses. As far as the good of protection is concerned, it can be achieved with no state coercion. Is there a public good involved simply in reducing the size of the pool of AIDS-exposed people? I see just one, the one I argued for— the ability to have a robust sex life, without fear of death. But this good does not permit every form of state coercion. Not every public good motivates every form of coercion. The public goods mentioned so far could all be achieved by equitable coercion (e.g., universal conscription, taxation, compensated taking of property). When equitable coercion is the means, the public good can be quite slight and still be justified (as in government support for the arts). But when the coercion is inequitably dispersed, the public good served must be considerably more compelling than the means are intrusive. Thus, dispersed coercion against select individuals that involves restricted motion and physical suffering is warranted only by unqualifiedly necessary ends: when the individuals coerced have harmed others (as in punishment) or when it is necessary to the very existence of the country (as a partial military draft may be for a nation at defensive war). And thus too, the substantial good of civil rights protections is advanced only through the considerably weak intrusion of barring the desire of employers to indulge in whimsical and arbitrary hiring practices. The public good of an unencumbered sex life however fails this weighted ends-to-means test if the means are a dispersedly coerced sex life. For the intrusion and the good are on a par—on the one 19 The Supreme Court’s leading medical case, Jacobson v. Massachusetts, 197 US 11 (1905) (upholding criminal penalties—a five dollar fine—for refusing a free vaccination), because it leaves the notion public health wholly unanalyzed, contradicts its own declaration that the principle of independence is overridden only by public goods on a par with national defense. The upheld law’s resort to criminal penalties for a person refusing the vaccine rather than to coercing directly the taking of the vaccine shows that the law is incoherent as a measure aimed to protect against indiscriminate harms.

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hand encumbered sex, on the other unencumbered sex. And so it appears that only equitably coercive means are available to achieve the end of reducing the pool of AIDS-exposures—taxation for preventive measures like vaccine development, but not coercive measures that effect some but not others, like closing bathhouses or banning or regulating sex practices selectively. Those who do not find the possibility of carefree sex a public good—probably the bulk of those actually calling for state coercion—will find no legitimate help in the notion of public health for state coercion here. Those who do will find it justifies only equitable measures. The other metaphoric sense of public health takes the medical model of the healthy body and unwittingly transfers it to society— the body politic. But this transfer (when it has any content at all) bears hidden and extremely dangerous assumptions. Plato in the Republic was the first thinker systematically to press the analogy of the good society to the healthy body. The state stands to the citizenry and its good, as a doctor stands to the body and its health. Society, so it is claimed, is an organism in which people are mere functional parts, ones that are morally good and emotionally welloff only insofar as they act for the sake of the organism. The analogy is alive and well today and calling out for extreme measures now: ‘Much as a physician treating one organ must consider the effects on the entire organism, a public official has the community as the patient and must attend to all factors in seeking the greatest overall good’ (Silverman and Silverman, p. 22). On this view, the individual however harmed cannot fulfill his role. A damaged organ, the spleen for example, can be, to continue the analogy, simply cut out. By comparison, quarantines and coerced sex lives might appear as mild remedies on this analogy. But something has been lost here—persons. The medical model of society is the conceptual engine of totalitarianism. It presumes not that the goods of individuals are final goods but that individuals are good only as they serve some good beyond themselves, that of the state or body politic. The state exists not for the sake of individuals—to protect and enhance their prospects as rational agents—but rather individuals exist for the state and are subordinated to society as a whole, the worth of which is to be determined only from the perspective of the whole. The individual, thus, is not an end in himself but exists for some social good—whether that good be some hoped-for overall happiness or some social ideal—like, purity, wholesomeness, decency, or ‘traditional values’. Unconscious obedient servicing is dressed up as virtue.

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The worst political consequence of the AIDS crisis would not be simply the further degradation of gays. Gay internments would not be anything new to this century. In the European internment camps of World War II, gypsies wore brown triangle identifying badges, Jehovah’s Witnesses purple, political prisoners red, race defilers black, and gays pink triangles. Worse than the further degradation of gays in America would be a general, and not easily reversed, shift in the nation’s center of gravity toward the medical model and away from the position, acknowledged in America’s Constitutional tradition, that individuals have broad yet determinate claims against both general welfare and social ideals. The consequence of such a shift would be that people would come to be treated essentially as resources, sometimes expendable—a determination no less frightening when made by a combined father^ colonel, and doctor than by a fearful mob. The Department o f Philosophy University o f Illinois, Urbana.

[10] Journal of medical ethics, 1989,15, 61-67

AIDS symposium

Legal AIDS: Implications of AIDS and HIV for British and American law Alistair Orr Balliol College, Oxford

subjected to all kinds of discrimination on both sides of the Atlantic in such fields as education, employment, housing and insurance. One particular issue is where a health care professional refuses to treat a patient because of the condition. Whilst much of the information here is only anecdotal, there are strong arguments for discouraging this attitude amongst medical professionals. The United States private health-care system is open to different pressures from the British public health-care system but a nursing home in New York was prevented from accepting AIDS patients by a group of neighbouring residents ( 1) and, in Los Angeles, two paramedics who allegedly did not provide prompt medical assistance to the victims of heart attacks were sued (2). Fear of AIDS motivated the action of the neighbours of the nursing home and the hesitancy of the two paramedics. In the United Introduction Acquired Immune Deficiency Syndrome (AIDS) and Kingdom, on the other hand, the Royal College of the virus which may progress to AIDS, Human Nursing has warned that those nurses who refuse to Immunodeficiency Virus (HIV) present a paradox for care for AIDS victims face disciplinary action for their human hosts. For most people, although not all, unprofessional conduct (3). Although there have been the risk of contracting AIDS and of death from AIDS calls for doctors to follow suit (4), nothing has as yet comes from the very act which creates life, that of been done. It has been pointed out that there is a very sexual union. In a somewhat similar fashion the law, in strong ethical obligation on the doctor to treat the reacting to AIDS and HIV, is forced to act in ways AIDS patient and if the doctor’s refusal to treat such a which can appear, at first sight, to be contradictory. patient is based on the notion that the illness resulted Essentially the law must reconcile the dilemma created from voluntary conduct of which the doctor by the individual asserting a right to control over his or disapproves, then he leaves himself open to a charge of her life against the public right to be protected from serious professional misconduct before the General Medical Council (5). While doctors do, reasonably, this terrible affliction. If AIDS is to be tackled then those who have the have fears about contracting the disease, basic virus and those most at risk must be able to seek what precautions should guarantee their safety (6) and, treatment is available and, simultaneously, provide the given the feelings of hysteria which the AIDS virus can health services with information not only about the all too readily summon, there should be a special onus spread of the disease but also about its very nature. on the medical profession to be properly informed Against this there is the public need to restrict conduct about the disease and to act in a manner which allays which is likely to spread the disease. Often this is public fears and misapprehensions. The issue of a right conduct which many find morally offensive and yet to treatment again comes back to the fundamental which many others would argue was their right to difficulty that must be resolved by the law concerning enjoy. Those who have found themselves to have the this disease. Firstly, recognition must be given to the virus or even to have been at risk of the virus have been fact that the public are apprehensive of this mysterious and potentially lethal disease and that they wish to be given some sort of legal protection against it. Secondly Key words and against this, those who have the disease and - of equal importance - those who are seen as being at risk AIDS/HIV and the law; confidentiality and AIDS/HIV; of contracting the disease, must not be unduly medico-legal aspects of AIDS/HIV.

Author’s abstract

In its approach to AIDS and H IV the law has to protect two conflicting interests; it must recognise the right of the public to be protected against the disease and it must recognise the right of the individual not to be unfairly restricted by having or being at risk of the disease. Consequently the law must make some compromise which while protecting public health also protects the individual so that the individual will feel free to come forward for available treatment. In this way prevention o f spread of the disease is encouraged. How this compromise is or might be affected by British and American law is examined in several areas, including medico-legal matters, criminal and tort law, employment, insurance and education.

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62 Alistair Orr restricted or imposed upon by society as a whole, and any restrictions which are placed upon them must be equitable. Essentially, what is at issue here is a matter of constitutional law. Because of the way in which the American and British legal systems have developed they have different approaches to tackle this.

Constitutional law: a) the American position In the United States, it is possible, under the Constitution and Bill of Rights, for the Supreme Court to challenge any laws as violating the rights of individuals to, for example, liberty, privacy or property (7). What the courts are increasingly forced to do is to balance rights issues. Different individual rights have independent positive weights and weights of different value (8) and assessing what these are has become firmly entrenched in constitutional decision-making. The case of New York Stale Association for Retarded Children v Carey (9) held that the health risk posed by pupils with Hepatitis B was not sufficient to outweigh the burden on individual rights necessary for these children to be taught in segregated classes. Civil liberties then need not always yield to health risks, but it is too early to say how the courts will react to AIDS. What can be said is that some states have introduced laws demanding the reporting of all AIDS cases, establishing the mandatory reporting of HIV test results, and closing down places that permitted high-risk activity. Some states have also modified their laws to allow measures to be taken against those persons who expose others to a risk of infection. Are the current protections sufficient? In particular, male homosexuals (the group most seriously affected by the disease at present) feel that an epidemic of discrimination is accompanying the epidemic of the disease and lawyers have noted that this discrimination is driving AIDS victims underground (10). Some jurisdictions, notably the city of Los Angeles, have passed legislation to prohibit discrimination. The Los Angeles Ordinance provides the aggrieved person with a means for raising a civil action for damages, costs and punitive damages, and can be used by way of injunction (ie a court order prohibiting a particular act either before it occurs or while it is taking place). This is especially useful to someone with AIDS or HIV as the prospect of monetary relief after a prolonged court battle could prove pointless for such a person and because it greatly increases his power over the person exercising discrimination. While this local statute does provide a protection against discrimination it is also to be applauded for the role that it takes in trying to educate the public about the AIDS virus (11). It is, however, a unique phenomenon and the protection which it offers is not available in most parts of the United States.

legislative level with regard to both sex and race, but little has been doge outside that. In Britain, then, it would be very difficult to prove that one had been subjected to unfair treatment through being seen as at risk of contracting AIDS or HIV (although it may be possible to rely on other legislation, for example, prohibiting unfair dismissal from employment). Certain laws have been passed in the United Kingdom which do have reference to the AIDS virus. The Public Health (Infectious Diseases) Regulations 1985 (12) did not make AIDS a notifiable disease, largely because the disease is not particularly infectious and to do so would have put unacceptable restrictions on sufferers. On the other hand, the Public Health (Control of Diseases) Act 1984 allows, in ‘exceptional circumstances’, for patients believed to have AIDS to be compulsorily examined and those with AIDS to be removed to hospital and detained. This power appears to be used sparingly. In spite of the lack of constitutional protection, Britain does appear to be taking an informed and unobtrusive approach to the disease.

Quarantine

One area of constitutional relevance which has aroused considerable debate with regard to AIDS and HIV is that of quarantine. Although it has definite legal standing (13), the use of quarantine procedures has, unfortunately, been dogged by its potential to harass minority groups (14). Any attempt to quarantine those with AIDS or HIV must guard itself against being used sinjply as a means to exclude the socially disfavoured. Secondly, quarantine has traditionally been used to cope with diseases that are either highly contagious or else only contagious for a short period of time (15). AIDS and HIV are neither of these. If a quarantine was established on the basis of being seropositive then it would catch a large number of people who only have the virus and who are otherwise asymptomatic - a condition that could endure for the rest of that person’s life. Further, vast economic resources would be required to manage such an undertaking, especially if the quarantine were to continue indefinitely. If it were done solely on the basis of those diagnosed as having AIDS, then it would fail to stop the spread of the disease as only a small proportion of those who are infected and who can transmit the virus can actually be diagnosed as having AIDS. A quarantine might, however, operate in particular situations or with particular groups of people. One such group is prisoners. Two American cases have held that it is permissible to quarantine prisoners with AIDS (16), although both emphasise that what happened in prison was unlikely to be upheld in society at large. It appears to be the case in the United Kingdom that prisoners who are known to be seropositive are quarantined (17). Another category Constitutional law: b) the British position are those who continue to act in a manner that will put The British constitutional position is significantly others at risk. Here, every effort should be made to different; there is no written constitution and no bill of educate the individuals concerned - it is cheaper and rights. Discrimination has been addressed at a less onerous on individual rights than quarantine (18).

AIDS: Society, Ethics and Law AIDS symposium: Legal AIDS: implications of A ID S and. H IV for British and American Law

Under the British Public Health (Control of Diseases) Act 1984, quarantine must only be used in exceptional circumstances and even then it may be difficult to enforce. Fabian Bridges was an indigent male homosexual with AIDS who reportedly continued to have considerable sexual activity in a number of American cities. After several unsuccessful official attempts to restrain him, the local gay community provided him with a place to stay and supervision until his death. An enlightened policy of providing worthwhile care to AIDS sufferers may well prove to be the most successful method of encouraging the vast majority of them to desist from practices that put others at risk. For those few who do persist, the deprivation of liberty which quarantine entails demands that those who are quarantined should be entitled to significant procedural protections and there is a need to review such administrative actions. How the administrative law will develop in this field is still largely a matter of speculation but everyone should be aware of the inadequacies and severities of the use of quarantine. It should not be used lightly.

Medico-legal matters: a) confidentiality There is a genuine worry that if those who are at risk or who actually have contracted AIDS or HIV are not protected by a legal obligation demanding confidentiality, then these people will be slow to come forward and more people may be put at risk. But it has already been noted that there are situations where the interest of the individual can be overtaken by public interest. In the United States, the right of privacy is not explicit in the Constitution, but a right to privacy has been held to exist in certain medical matters (19). Further, state constitutions and laws may provide protection against the invasion of privacy, although statutes have also been passed requiring doctors to inform the relevant authorities that a patient has a communicable disease. When the information is passed on to these authorities, there is a definite need to protect the individual from the risk of the information falling into the hands of third parties, such as insurance companies. In one American case (20) a psychiatrist was held to have a duty to warn a woman that his patient was contemplating killing her. It is unclear how the American courts will interpret this in dealing with the issue of liability for failure to inform a third party of a patient’s antibody-positive status. A few states have adopted specific legislation safeguarding the confidentiality of individuals who are tested for the presence of the AIDS virus at blood banks and alternative test sites. Some states prohibit the use of a positive test result to determine eligibility for disability, health or life insurance or to terminate employment. Particularly regarding test results, there is a very strong argument for saying this information should only be disclosed once a written consent has been given (21). In the United Kingdom, General Medical Council

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guidelines permit the disclosure of confidential information where the ‘public interest demands that the doctor’s duty to maintain confidentiality be overridden. The doctor should first endeavour to persuade the patient if he is going to tell another and do his utmost to obtain that patient’s consent. But the doctor must also balance, against his patient’s interest, the risk to other individuals. When the doctor reasonably foresees that non-disclosure poses a real risk of harm to a third party then he should be free to warn that third party. Thus a doctor could tell the sexual partner or partners of someone with the disease about his patient’s condition, provided he had first sought the approval of that patient and this had been refused. Similarly, the National Health Service (Venereal Diseases) Regulations 1974 (22) make a specific exception to the duty on health authorities to ensure that the identity of a sexually-transmitted disease sufferer is kept secret where another person can be treated or the disease can be prevented from spreading. Only those people, though, who are in a high-risk category need be told and others, such as even the family and friends of a sufferer, far less their employers or insurers, should not be informed. Research has to be done into both AIDS and HIV. To allow this and, at the same time, to offer sufficiently stringent safeguards for the patient’s confidences a strong case can be made for a legislative initiative (23).

Medico-legal matters: b) testing At present, there exist a number of techniques which can test for the presence of antibodies to HIV in the blood, but it must be emphasised that there is no test for AIDS itself. This significant limitation should be coupled with the fact that false results are possible from such tests, especially during the latency period between contracting the virus and being found seropositive. From an individual’s viewpoint, taking the test is a significant act and being found seropositive can have a devastating effect on one’s lifestyle. Because of this there should be counselling both before and after the testing procedure and any patient who volunteers to submit to the test should make an informed decision to do so. Again a balance must be struck which protects those who have the disease and which also protects the healthy from the disease. Those who feel themselves to be at risk should be allowed to determine whether they are seropositive and yet to force them to do so or to do this without their assent may well drive them away from treatment and cause difficulties for a prevention strategy. It is largely for this reason that universal mandatory testing has been rejected in both Britain and the United States (although there is also the question of cost). Yet it may be worthwhile to permit mandatory testing of special groups, provided there is adequate justification for overriding individual rights. In most instances these justifications will not exist. For example, although it would be unnecessary to test all those who are in hospital, one might test patients in dialysis units

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64 Alistair Orr because of the dangers of transmission. Also, there are factors peculiar to the prison environment which may mean that testing is acceptable. Many doctors have felt that they are at danger from the virus and they have accordingly advocated testing without the consent of the patient. Obviously this is because they realise that performing such an act can be upsetting to the patient, to say nothing of the devastation a positive test result may bring. Doctors’ fears are understandable but they should not lose sight of the interests of their patients. Patients do have a recognised legal right to determine what is done to their own bodies and if this is not respected then the patient may be able to allege battery or ‘unlawful touching’ by the doctor or possibly negligence for professional misconduct. Considerable discussion has centred on this topic in Britain, particularly at meetings of the British Medical Association (BMA). Counsel’s opinion has stated that patients should be told if they are to be tested for HIV, and that they should agree to the testing (24). If they do not then they should be treated as if they are infected. The current position of the BMA is that any doctor who tests patients without consent must be prepared to defend that decision before the courts or the General Medical Council. The American Medical Associàtion has voted against the mandatory testing of those groups at high risk of infection with HIV (25)-instead doctors should encourage those at risk to take the test. A problem has arisen in respecting individual patients in this way in that it makes charting the progress of the disease very awkward. To remedy this what is known as anonymous testing has been introduced, initially in the United States and more recently in the United Kingdom as well (26). By this patients are tested for the virus without giving their consent, but this does not allow either doctors or patients to discover whether a test was positive and while certain information about the patients is retained, their identities remain secret. Although this poses a number of moral problems (27) it would be difficult to allege any legal wrong, particularly if such testing proves successful in charting the spread of the disease and thus facilitates the limitation of that spread.

Criminal law Perhaps predictably the emergence of the disease has been accompanied by calls for the stricter enforcement of the criminal law, so that laws against prostitution and commercialised sex and prohibitions on ‘sex facilitating emporia’ should all be vigorously upheld (28). Such initiatives are unlikely to check the AIDS epidemic as they are unlikely to bring those afflicted into the open. Others have argued that the role of the criminal law in the AIDS crisis should only be a minor one: in areas such as prostitution and drug abuse the criminal law does not really manage to change behaviour and the existence of too strict laws can be damaging to respect for the law and legal institutions.

However, if a person knowingly transfers the virus to another, or knowingly puts another at risk through sexual intercourse, then that person may have committed a crime. While reference must be made to this, it is highly dubious whether such an action can be used as a means of preventing the spread of the disease. In the United States it has been argued that passing on the virus might be homicide or attempted murder, or criminal assault. Yet, all of these present a number of difficulties if they are to be fitted within the existing legal framework; if it is desired to make such conduct criminal, it may be better to consider legislation. In the United Kingdom, the criminal law of Scotland diverges from that of England and Wales. For the latter, the highly criticised R v Clarence (29) decision held that a man who passed on gonorrhoea to his wife was not guilty of assault under S20 or S47 of the Offences Against the Person Act 1861. But a prosecution may be brought under S23 of the Act which prohibits maliciously administering any poison or other destructive and noxious thing (30). The 1861 Act does not apply in Scotland, where it has long been recognised that ‘all intentional infliction of physical injury is criminal’. This was relied on in a recent decision that held the sale of ‘glue sniffing kits’ to children to be criminal (31). It may, therefore, be possible to prosecute someone for assault by alleging that he or she had wilfully and recklessly infected another with the virus by sexual intercourse. A major caveat must be stated here; it may well prove impossible to show in court that a particular person transferred the virus to another, given the latency period of the virus and the possibility of other contacts. As a footnote it is worth noting that the AIDS virus may well prove to have an impact on other areas of criminal law. For example, AIDS and fear of the disease may be used as a ‘defence’ to a criminal charge (32) or to aggravate a criminal offence (33). How the criminal law will react to these developments will depend on the circumstances of the different cases.

Tort law Instead of relying on the criminal law, a ‘wronged’ individual might consider turning to tort as a means of redress for having contracted the virus. There are a number of different heads under which a tort action for sexual transmission of the virus could be raised (34) but the most significant are those of negligence or battery. If one is to succeed in a negligence action then one must prove three things. Firstly, there needs to be a legal duty owed by the defendant to the plaintiff, which must have been breached. However, the exact legal standing of sexual partners - particularly if they are not married - is very uncertain (35). Secondly, there needs to be a causal connection between the act or omission complained about and any resulting damages claimed. Given that there could well be other sexual contacts before symptoms manifest themselves proving this could be almost impossible. And thirdly, there must have been damages or loss resulting from the breach of

AIDS: Society, Ethics and Law AIDS symposium: Legal AIDS: implications of AID S and H IV for British and American Law

duty. Here questions of contributory negligence and voluntary assumption of risk can be raised, together with any time restrictions that may be imposed on raising an action under the legal doctrine of limitation. One can, therefore, readily appreciate that the chances of success in such actions are likely to be very low indeed. A battery action could circumvent many of these difficulties, but in order to show the requisite intention for this ‘unlawful touching* it would probably be necessary to show that the defendant knew about his or her infectious condition and this could be awkward to prove. Additionally, as with criminal law, punishment or compensation is scant redress for those who have acquired a potentially lethal condition. Particularly in the civil action there is a danger, given the protracted nature of such legal proceedings and the length of time that the condition takes to manifest itself, that either the victim or the culprit will have died and so little beneficial vindication will be secured. In America there has also arisen the question of whether liability could be attached to any party where blood products transmit the AIDS virus or other similar diseases (36). But as nearly all jurisdictions have taken the opinion that the supplying of blood is a service and not a product, and hence a successful claim must meet the rigours of proving fault rather than relying on strict product liability, one’s chances of success in such an action are very slim.

Debilitating effects of the virus As the incidence of the disease increases there will be a concomitant increase in legal attention as to how people with AIDS look after their affairs. Without wanting to appear morbid, this should open up a ‘new market’ for the lawyer - not only in the control of the patient’s financial matters, but also in directing the patient’s medical management. People with AIDS are usually comparatively young and may well not have considered how to distribute their estates on death. Homosexuals may need to make greater efforts to ensure that their estates are passed on to those closest to them after their deaths. To discuss these issues is hardly cheering, but many may feel happier for having organised their affairs responsibly. Additionally, the disease is known to affect brain tissue and while the extent of this is, at present, uncertain, it could mean that AIDS victims can only play a gradually decreasing role in the conduct of their affairs. Regarding medical matters, there is in California the Durable Power of Attorney for Health Care Act 1984 which allows patients of sound mind to designate others to make their health-care decisions for them if they should become incompetent. In the United Kingdom, several recent cases (37) have pointed to the inadequate provisions for the giving of consent to medical treatment when a person is incapable of giving that consent personally. At present, victims would be well advised to talk matters through with their doctors and inform them in advance, perhaps even in writing,

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about how they would like to be treated.

Employment law Testing a workforce can arouse strong ethical objections (38) but it may be justified in economic terms. In the United States, the issue of employment discrimination against those seen as being at risk of AIDS or HIV has hinged on the issue of whether AIDS can be classified as a ‘handicap’ or ‘disability’ under federal law and, in particular, whether it comes within the terms of the Rehabilitation Act of 1973. Shuttleworth v Broward County (2) held that the dismissal of an employee because he had AIDS constituted discrimination against a handicapped person, which was unlawful. More recently, the Supreme Court held that a teacher who suffered from tuberculosis and was dismissed from her job could be considered as handicapped under the 1973 Act and was protected from discrimination (39). Although the court said that the ruling did not touch the question of whether AIDS would be covered by the Rehabilitation Act, this could provide a legal precedent to do just that. It should be noted that the 1973 Act only covers those employed under federal programmes and so its application is limited. In the United Kingdom AIDS is not a notifiable disease. Consequently there is no obligation on an employee to report to his employer that he has the virus or the syndrome. UK Department of Employment guidelines state there is no risk to the public where there is no contact with bodily fluids of an infected person, that few jobs involve such contact and that the majority of employees are therefore safe from infection at work. On the other hand, some employers might feel that because AIDS is not a notifiable disease and because their employees are under no general obligation to disclose their antibody status there is sufficient reason for demanding such a test (41), although employers should inform their employees in advance about such tests. Should an employee be dismissed, either because he is perceived as being at risk of AIDS or the virus, or because he has been shown to be seropositive, then he may have a claim for unfair dismissal. To counteract this, an employer could either rely on a defence that the employee’s sickness and absence from work justified dismissal or that there was ‘other substantial reason’ for ending employment. There would be difficulty in upholding the latter defence, unless a group of employees were refusing to work with the particular individual. In such a case, it may be better to refer the matter to a recognised industrial reconciliation procedure. Limits on testing within employment are inappropriate when an applicant presents himself for a new appointment. A limited degree of protection may be available under legislation preventing indirect discrimination on the grounds of sex (42) but there is significantly greater danger of discrimination at this

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66 Alistair Orr stage rather than in continuing employment, and fewer* reduction in one’s freedoms and it is easier to permit safeguards to tackle it. testing and segregation in these circumstances. Nevertheless, it should be official policy not to test Insurance those who are detained awaiting trial, but only those The matter of insurance has considerably greater* who have been found guilty. importance in America than it does in Britain, because Prostitutes and intravenous drug users health insurance schemes are relied upon to meet American hospital fees whereas British hospitals are[ It is often claimed that prostitutes and intravenous publicly funded. When one looks at the heavy costs ofr drug users are the means through which AIDS will be caring for the AIDS patient, it appears that if these heterosexually transmitted to the general public. A people can be successfully excluded by the insurance 1987 study suggests that it is, in fact, intravenous drug companies, Medicaid will be forced to shoulder an use which poses the vastly greater risk (49). The law overwhelming financial burden (43). Some states, must prevent further spread of the virus, and it may prohibit insurance companies from requiring well be feasible to contain the spread of infection from applicants to take the antibody test, but, even where prostitutes. Prostitution could be de-criminalised and this does happen, the insurance companies are using registration introduced but this is an unrealistic substitutes for these tests or else denying new policies suggestion. Instead, prostitutes should be encouraged on social grounds. It may be that steps should be taken to accept regular screening for sexually transmitted to prevent discrimination against sufferers where diseases and attempts should be made to satisfy the health insurance is concerned (44) but, given that a prostitutes’ desire for more comprehensive health level of discrimination is the essence of insurance, it education. Intravenous drug users pose more will be difficult to exclude testing from life insurance complicated problems. Drug addicts are among the matters (45). Efforts should be made to prevent most difficult people to educate and many of them will insurance companies from having access to have reconciled themselves to the fact that their habit is confidential records, and those who are concerned by going to kill them anyway. A worthwhile effort can still such developments should be informed of other be made to help this group and this should take a threepronged approach, with the backing of the law where financial protection they can use. necessary. Firstly, sterile equipment should be made Children at school available; secondly, health education should be Many parents are very worried by the AIDS virus and targetted on those groups who need it; thirdly, infected will go to great lengths to prevent their children being users should be identified and then diverted into exposed to it. In America District 27 Community School treatment. Board v Board of Education (46) held that children with Conclusion AIDS should not automatically be excluded from How will the law continue to treat this disease? Firstly, school. Overwhelming medical evidence that AIDS was not transmissible in the classroom setting mention has only been made here of a few areas of the suggested that a policy of excluding all children with law on which AIDS and HIV have had an impact, there AIDS from school would violate federal law and the are bound to be many more legal issues that will arise in children’s rights to equal protection. However, some the future. Secondly, knowledge of the disease and its local school districts in America have barred entry of effects on people is rapidly expanding. The law must children with AIDS, even in states that have issued reflect this developing understanding and move forward with medical and social sciences. To achieve guidelines against exclusion. In Britain, a similar policy has been adopted (47); this it is essential that a high level of inter-disciplinary emphasis has been placed on the fact that the benefits dialogue is encouraged. Throughout this period of of schooling for the child far outweigh any risk of change, the courts must endeavour to protect the transmission and those involved in education should be interests of public health and of the afflicted or at-risk aware of the potential isolation of a child known to be individual. Too strident a line on public health will infected. At present this appears to have been prevent those at risk coming forward; too strident an approach favouring the individual may put more successfully implemented in practice (48). people at risk of the disease. As prevention must Prisoners remain the overall strategy both of these interests must Prisoners on both sides of the Atlantic are separated be assessed against the other and a compromise from others on the basis of their HIV status. Can this reached. policy of interfering with this aspect of individual These equitable considerations are reflected in the liberty be justified in prison? It is known that both leading British case concerning the disease X v Y (50), intravenous drug use and sex, sometimes forced, do which held that the public interest in preserving the occur in prison. Condoms may be introduced to confidentiality of hospital records identifying people prisons but they are hardly likely to be used in forced with AIDS outweighed the public interest in the sex and sterile syringes and needles are even less likely freedom of the press to publish such information. The to be freely distributed in prisons. The institutional reasoning behind this was that those with the disease nature of prison already represents a substantial should not be deterred from going to hospital to seek

AIDS: Society, Ethics and Law AIDS symposium: Legal AIDS: implications of AID S and H IV for British and American Law

treatment because of a fear of discovery and that free, informed debate about the disease could take place without publication of this confidential information. It is to be hoped that future litigation involving the disease will maintain this enlightened approach. Alistair Orr LL B, Diploma in Legal Practice, Balliol College, Oxford 0X1 3BJ. Mr Orr is currently working on a doctoral thesis, Giving Consent to Medical Treatment.

References (1) Banks T L. The right to medical treatment. In: Dalton H L, Burris S, eds. A ID S and the Law. New Haven and London: Yale University Press, 1987:176. (2) Matthews G W, Neslund V S. The initial impact of AIDS on public health law in the United States - 1986. Journal of the American Medical Association 1987; 257:344-352. (3) Milne S. Nurses ordered to care for AIDS victims. Guardian 1986 Dec 3. (4) Smith T. AIDS: a doctor’s duty, [editorial] British medical journal 1987; 294:6. (5) Gillon R. Refusal to treat AIDS and HIV positive padents. British medical journal 1987; 294:1332-1333. (6) Cotton D J. The impact of AIDS on the medical care system. Journal of the American Medical Association 1988;260:519-523. (7) Anonymous. The constitutional rights of AIDS carriers. Harvard law review 1986; 99:1274. (8) Merritt D J. The constitutional balance between health and liberty. In: AID S, public health and civil liberties. A Hastings Center Report special supplement. 1986 Dec 2. (9) 466 F Supp 487 (1978). (10) Frank C. AIDS data-sharing: help sought to combat bias. American Bar Association journal 1986; 72:22. (11) Roden R. Educating through the law: The Los Angeles discrimination ordinance. UCLA law review 1986; 33:1410. (12) S I 85/434. (13) United Kingdom - Public Health (Control of Diseases) Act 1984; United States - Jacobsen v Massachusetts 197 US II (1905). (14) For example Korematsu v US 323 US 214 (1944). (15) Parmet W E. AIDS and quarantine: the revival of an archaic doctrine Hofstra law review 1985; 14:53. (16) La Rocca v Dalsheim 120 Mise 2d 697 (1983) and Cordero v Coughlin 607 F Supp 9 (1984). (17) Hansen O, McFadyean M. AIDS in prison. The Observer 1987 Nov 1:53. (18) Gleason J A. Quarantine: an unreasonable solution to the AIDS dilemma. Cincinnati law review 1986; 55:217. (19) R o evW a d e410US 113(1973). (20) Tarasoff v Regents o f the University o f California 551 P 2d 340(1976). (21) Weldon-Linne M M, Weldon-Linne C M, Murphy J L. AIDS virus antibody testing: issues of informed consent and patient confidentiality. Illinois bar journal 1986; 75:206.

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(22) SI 74/29. (23) Gray J N, Melton G B. The law and ethics of psychosocial research on AIDS. Nebraska law review 1985; 64:637. (24) Sherrard M, Gatt I. Human immunodeficiency virus (HIV) antibody testing. British medical journal 1987; 295:911-912. (25) Anonymous. AIDS monitor. New scientist 1987 Jul 23:23. (26) Cook S. Go ahead for mass AIDS tests. The Guardian 1988 Nov 24. (27) Gillon R. Testing for HIV without permission. British medicaljournal 1987; 294:821-823. (28) Robinson D J. AIDS and the criminal law: traditional approaches and a new statutory proposal. Hofstra law review 1985; 14:91. (29) (1888) 22 QBD 23. (30) Farlin G, Wauchope P. AIDS and the criminal law. Law Society’s gazette 1987 Mar 25:884. (31) Khaliq v HMA 1984 SLT 137. (32) D P P v Fountain [1988] Crim LR 123 and R v Fisher [1987] Crim LR 334. (33) R v Malcolm [1988] Crim LR 189. (34) Hermann D H J. Torts: private lawsuits about AIDS. In: Dalton H L, Burris S, eds. A ID S and the law. New Haven and London: Yale University Press, 1987:153. (35) Hegarty v Shine (1878) 4 LR Ir 288 Cf Kathleen R v Robert B 150 Cal App 3d 992 (1984). (36) Franklin M A. Tort liability for hepatitis: an analysis and a proposal. Stanford law review 1972; 24:439. (37) The most recent decision is Re F . The new law journal 198?! 139:183. (38) Bayer R, Levine C, Wolf S M. HIV antibody screening. Journal o f the American Medical Association 1986; 256:1768-1774. (39) School Board o f Nassau County v Arline 107 S Ct 1123 (1987). (40) Department of Employment/Health and Safety Executive. A ID S and employment, 1986. (41) Fagan N , Newell D. AIDS and employment law. New law journal 1987; 137:752. (42) Southern C, Howard G. A ID S and employment law. London: Financial Training Publications, 1988: 46-49. (43) Iglehart J K. Health policy report: financing the struggle against AIDS. New England journal o f medicine 1987; 317:180. (44) Shatz B. The AIDS insurance crisis: underwriting or overreaching? Harvard law review 1987; 100:1782. (45) Clifford K A, Iuculano R P. AIDS and insurance: the rationale for AIDS-related testing. Harvard law review 1987; 100:1806. (46) 130 Mise 2d 398,502 NYS 2d 325 (1986). (47) Department of Education and Science and Welsh Office. Children at school and problems related to AID S, 1986. (48) Steele D. Scots AIDS girl backed on first day at primary. Glasgow Herald 1988 Aug 19:3. (49) For example Moss A R. AIDS and intravenous drug use: the real heterosexual epidemic. British medical journal 1987; 294:389. (50) [1988] 2 A ll ER 649.

[1 1 ] HIV/AIDS, sex and the criminal law Helen Power The British press recently reported on two cases involving the transmission of HIV/AIDS diiring consensual sex. In the first case, a British woman, Janette Pink, has succeeded in persuading the Cypriot authorities to prosecute her ex-lover, Paul Georgiou, for infecting her with HIV during their consensual sexual relationship.1 Georgiou, who, like Pink, has developed AIDS, is to be tried in May 1997 on a charge of having negligently committed an act which carried the risk of trans­ mitting a life-threatening disease. In the second case, Finnish authorities are to try an American, Steven Thomas, in June 1997 on several charges of attempted manslaughter as a result of his allegedly having had unprotected sex with between 100 and 200 women after he became aware that he was infected with HIV.2 The Daily Express's claim that the Georgiou case ‘will be studied around the world’ misrepresents the significance of the case in so far as the use of the criminal law in cases of sexual transmission of HIV/AIDS is not novel: there have been prosecu­ tions in the USA and Canada,3 albeit with varying degrees of success from the prosecution’s point of view. Nevertheless, this and the Thomas case do raise issues with which the Law Commission for England & Wales is currently grappling4 and on which a final Commission report is expected within the next year. The Canadian HIV/AIDS Legal Network’s joint project with the Canadian Aids Society on legal responses to HIV/AIDS has generated a number of valuable discussion documents, and is due to publish its final report on HIV/AIDS and the criminal law shortly.5 The central issues facing both the Commission and the Canadian team are, of course, first, whether the sexual transmission of HIV/AIDS should be criminalized at all and, if so, in what circumstances - should criminalization be confined to the deliberate transmission of HIV/AIDS or should it extend to cases of reckless, or indeed, as in Cyprus to cases of negligent transmission? Should consent to the risk of contracting HIV be a defence? This article briefly describes the epidemiology of HIV/AIDS before moving on to consider modes of criminalization and whether criminalization is an appropriate response to the spread of HIV/AIDS. The conclusion reached, on a number of grounds, is that criminalization is both inappropriate and dangerous.

HIV/AIDS: epidemiology HIV (human immunodeficiency virus), identified as the cause of AIDS (acquired immune deficiency syndrome) in 1983,6 is transmitted through the exchange of blood, semen and cervical and vaginal fluids and works by attacking the infected person’s immune system, leaving the person susceptible to infections which would not be serious in an uninfected person but which in a person with HIV can kill.

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Journal of Social Welfare and Family Law 19(3) 1997

People with HIV can live healthily for prolonged periods, and it is only when they develop certain symptoms and infections that they are said to have developed AIDS. The array of symptoms and infections which amount to the syndrome include kaposi’s sarcoma (skin cancer), pneumonia, dementia and others (it is pneumonia which most frequently kills). As currently understood, whilst the trans­ mission of HIV to another during unprotected sex is by no means inevitable, it does appear to be inevitable that once infected, a person with HIV will develop AIDS and die. By the end of September 1996,7 a total of 27,791 cases of HIV were recorded for the UK, of whom 16,909 (i.e. over 60 per cent) were gay men; by the same date, there were 13,394 recorded cases of AIDS, of whom 9,603 (i.e. nearly 72 per cent) were again gay men. Since the first death in the UK (that of Terence Higgins in 1982) definitely attributable to AIDS,1* a total of 9,447 people with AIDS have so far died (most of these since 1990).v Given that the figures for HIV are confined to those who have tested positively for the virus and that people are able to live with AIDS for years, the real incidence of HIV/AIDS is clearly much greater than the figures suggest - indeed, an authoritative source projects that by the year 2000, there will be nearly 2,000 AIDS-related deaths annually in the UK.10 If, as seems to be the case, a majority of these deaths will be amongst gay men, the issues raised by the criminalization of sexual conduct risking HIV/AIDS trans­ mission, and the criminalization of its actual transmission, are of particular (though not exclusive) significance to the gay community in the UK which is likely to bear the brunt of prosecutions and convictions. Criminalization: targeting HIV/AIDS transmission The fact that no one in the UK has so far been prosecuted for the sexual trans­ mission of HIV/AIDS is a result of at least two factors: first, the current criminal law is widely believed to make a prosecution impossible where the sexual encounter is consensual;" secondly, evidential difficulties make prosecution timeconsuming and costly. A likely third factor - the negative impact of criminalization on effective strategies for responding to the disease - is discussed further below. This is not the place to discuss at length the legal possibility of utilizing the current criminal law in the UK in cases of consensual sexual transmission;12 it is sufficient to say here that, in the author’s opinion, charges could be brought under the Offences against the Person Act, 1861 (OAPA): s. 18 (causing grievous bodily harm - GBH - with intent to cause it), s.20 (maliciously inflicting GBH) or s.47 (assault or battery occasioning ABH), the charge of course depending on whether the defendant transmitted the disease intentionally or recklessly. Alternative charges could be brought under ss.23 or 24 OAPA (respectively, maliciously administering a noxious substance to another, thereby endangering life and admin­ istering a noxious substance to another with intent to injure, aggrieve or annoy). The Law Commission for England & Wales, as part of its ongoing review of the law governing offences against the person,11 is tentatively suggesting that the inten­ tional or reckless causing of seriously disabling injury should be crimes, whether or not the victim consents to the risk of such injury.14 Liability for recklessly causing such injury would be dependent on the defendant’s awareness of the risk of such injury and on its being ‘contrary to the best interests of the other person’ for the defendant to have taken that risk. It would seem to be the case that these new offences would embrace disease transmission. The evidential problems in

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bringing such charges (both under the current law and under the Law Commission’s proposals) would, however, be considerable, especially in relation to the issue of causation: the prosecution might well founder over the difficulty of proving that it was the defendant, and not someone else, who transmitted HIV to the ‘victim’, or indeed that HIV was transmitted during sex, and not as a result of some other risky activity (e.g. needle-sharing) not involving the defendant. Difficulties of this kind will doubtless face the prosecution in the Thomas case, given the charges against him (attempted manslaughter). Such difficulties have not deterred some Australian states from criminalizing the transmission of disease, the state of Victoria having gone so far as to create an offence of intentionally causing a ‘very serious disease’, exclusively defined as HIV.15 Nevertheless, the response in other jurisdictions has been to criminalize conduct which carries the risk of HIV transmission, rather than to criminalize the result (HIV transmission) of such conduct. It is worth noting here that the charge against Georgiou is essentially a conduct crime which was put on the Cypriot statute book fifty years ago in a bid to check the spread of venereal disease. Criminalization: targeting risky conduct In the USA, following a 1988 presidential commission report recommending HIVspecific statutes requiring disclosure, consent and the taking of precautions,16 several states have criminalized sexual conduct involving the risk of HIV trans­ mission by adopting one or other, or both, of two strategies: first, there are those states which have made it a felony for a person who knows (s)he is HIV-positive to have sexual intercourse with another without first warning the other that (s)he is infected (in some states, the offence is subject to a defence of informed consent). Secondly, there are those states which have created crimes targeted principally at prostitutes: persons convicted of prostitution and other sexual offences are subjected to testing for HIV - anyone testing positive commits a felony or high misdemeanour if (s)he is later caught engaging in prostitution whether or not protective measures are used on the later occasion.17 The Canadian response, until recently, has been to use result crimes, with very mixed success, most legal diffi­ culties having centred on the familiar problem of causation and on whether a disease amounts to ‘bodily harm’.18 To overcome the latter, though not the former, problem, in 1995 the Canadian Minister of Justice declared that he was considering amending Canada’s Criminal Code to make it a crime to ‘knowingly communicate* HIV.19Events overtook him when a Reform Party MP introduced an amending bill which would have created two serious offences: the first offence - ‘criminal infection’ - would lead to life imprisonment, and the second - ‘reckless infective behaviour’ - would carry up to seven years. Central to both crimes was a requirement for the prosecution to show that the person with HIV knew or should have known their HIV status at the time of the ‘infective act’, defined so as to include sexual intercourse with or without protective measures. The Bill received its first reading in October 1995 and, although it fell when the Canadian Parliament was prorogued in February 1996, the MP apparently intends to reintroduce it.20 As one commentator has suggested,21 these offences would come close to criminal­ izing HIV-positive status per se, an alarming prospect. The Law Commission for England & Wales has turned its attention to sexual conduct carrying the risk of HIV transmission in its second consultation paper on the effect of consent on criminal liability.22 In its general discussion of fraudulently-

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induced consent, the Commission provisionally proposes that there should be a new general offence of procuring by deception another person’s consent to an act which would be an offence if done without that person’s consent.23Clearly, non-consensual sexual intercourse amounts to rape, with the result that if A agrees to have sex with B because B has fraudulently told A that (s)he is HIV-negative, B would be guilty of a distinct offence. The more difficult (and more likely) type of case in the Commission’s view is where B knows (s)he is HIV-positive but also knows that A is assuming, without having been told, that B is HIV-negative: ‘[s]hould the defendant [B] be under a duty not only to correct positive mistakes on [A’s ]. . . part but also to disclose facts whose possible existence [A] . . . has not even considered?’24The Commission goes on to ask: ‘A person who knows that he or she is HIV-positive might be required to disclose that fact before having unprotected sexual intercourse; but would it make any difference if the intercourse were not unprotected? Or if the other party were believed to be HIV-positive too?’25 In view of the Commission’s obvious concern about these issues, it is not even provisionally proposing criminalization of non-disclosure, but is seeking people’s views.26 Should HIV/AIDS transmission, or conduct risking its transmission, be criminalized? The Law Commission’s discussion of criminalization is disappointingly narrow: it fails altogether to address the wider issues raised, concentrating instead on the minutiae of potential criminal provisions relating to HIV/AIDS. The wider issues, however, include the likely impact of use of the criminal law on strategies for dealing with the spread of HIV/AIDS, its likely impact on persons living with AIDS and its likely impact, in the UK at least, on the gay community. Impact of criminalization on strategies for dealing with HIV/AIDS

As many commentators have noted, criminalization of disease transmission may well prove counter-productive and positively dysfunctional: most obviously, it is likely to undermine public health measures by deterring people from undertaking HIV testing and counselling with the possible result that even greater risks are taken. Mr Justice Kirby, President of the New South Wales Court of Appeal, believes that ‘[w]inning the support of those with the burden of infection and modifying their behaviour, is the strategy that offers most promise .. .’.27 He suggests that we need to draw on historical precedents: Attempts to deal with syphilis punitively, by stigmatisation, contact tracing and the rounding up of prostitutes provided no effective protection for society. . . . Over-enthusiasm in enacting laws on AIDS may make some people feel better. But it will have precious little impact on controlling the spread of this epidemic.28 Not only is criminalization likely to deter testing and counselling, it is quite likely to induce complacency on the part of those perceiving themselves to be unaffected by the epidemic. Respondents to the joint Canadian HIV/AIDS Legal Network-Canadian AIDS Society consultation were concerned that criminal laws would send the message that the uninfected are potential innocent ‘victims’.27 Chambers makes the same point: ‘they’, the infected, are criminals and ‘we’, the uninfected, are innocent victims.30 One consequence of this is likely to be that ‘we’ the uninfected do not take responsibility for taking protective measures against

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infection. Yet, as Davies et al. suggest, risky sexual behaviour ‘can neither be understood nor accounted for by looking at one person alone.’'1 Another way of making the same point is to say that the criminal law’s focus on the alleged recklessness of the person with HIV shifts attention from the arguable recklessness of the ‘victim’ - in short, unsafe sex in the late twentieth century is risky and everyone (except the recluse) knows this. Chambers notes that gay men in the USA have, in effect, come to terms with this by adopting, informally of course, the ‘code of the condom’: in sexual encounters there is an awareness and acceptance of the risks being taken by both partners without the need for overt knowledge on either party’s part of his and his partner’s HIV status (this is not to suggest that American gay men do not discuss and practise safe sex - far from it).32 It is not clear from media accounts of the Georgiou and Thomas cases how the defendants themselves became infected with HIV, but whatever the aetiology, the criminal-victim dichotomy should lead to their being viewed as having once been victims themselves. What closes off this reading of their personal histories, however, is their being presented to us (the innocent) as promiscuous, predatory lovers. The Daily Express headline over the Georgiou story refers to Georgiou as a ‘Romeo’, with all the racist fears that conjures up concerning the dirty sexual habits of dusky southern Europeans.31 The Guardian's account of Thomas’s behaviour includes commentary by those involved in dealing with Finland’s HIV/AIDS problems to the effect that his being both black and a foreigner has contributed to the decision to prosecute him.34 The criminal law is a very blunt instrument indeed with which to attribute responsibility for the spread of HIV/AIDS. Impact of criminalization on persons living with AIDS

Persons living with AIDS already live with discrimination in terms of their access to goods and services and, of course, have to live with the knowledge that, unless a cure for HIV/AIDS is produced, they will die as a result of the disease. If the sexual transmission of HIV/AIDS, or conduct risking transmission, is criminalized, they will also have to live without sex unless they are prepared to accept such health care as prison can offer, despite the fact that they can have long periods of being well and thus are capable of having an active sex life. It is difficult to know what goal of punishment would be served by this, unless it is incapacitation and/or retribution. In the former, public health legislation in the UK affords more than adequate protection against the extremely rare person who chooses to spread HIV/AIDS deliberately. 35As to the latter, retribution is a poor foundation on which to increase awareness of HIV/AIDS and its social consequences. People living with AIDS desperately need the uninfected to understand the disease - the last thing they need is to become the targets of blood-lust and outrage. Criminalization singles out the already-infected for blame; as Horder puts it when discussing the ‘principle of fair (or representative) labelling’: [C]onviction for a specific offence stands as an enduring feature of moral and legal record, as a testimony to the precise respect in which the defendant failed in his or her basic duties as a citizen. When the definition of an offence gives us this grasp of what the defendant has done, it embodies the virtue of what we may call ‘moral nominalism’: the naming of one’s wrongdoing that is at the heart of the principle of representative labelling.36 Focusing on conduct which carries the risk of HIV transmission is particularly dangerous for people with HIV/AIDS precisely because it is labelling with a vengeance - it is redolent of the leper’s cry of ‘unclean’. In the words of the House

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of Commons Social Services Select Committee, ‘AIDS has become the hook on which to hang the paranoias of late twentieth century life.’17 Impact of criminalization on the gay community

We are entitled to ask how any law criminalizing risky sexual conduct or its results would be enforced. There would be a simple and stark problem of detection: what scale and kinds of resources would be required to detect risky sexual conduct or, yet more problematic, HIV transmission itself? There are obvious limitations on police and prosecution resources, which have to be targeted: a police force strapped for cash and personnel is highly likely to focus its attention on epidemiologically high-risk groups and behaviours, with all that that entails for discriminatory practices. As we have already seen, in the UK it is gay men who are epidemiologically at greatest risk. It does not take much imagination to realize that enforcement of HIV-specific criminal laws would fall disproportionately on gay men, who are already the subject of discriminatory criminal laws and enforcement practices in the UK.1*The upshot would be the further stigmatization and marginalization of an already stigmatized and marginal community, a community whose marginal status has been publicly proclaimed in s.28 of the Local Government Act 1988,19itself the product of the'thorough, mid-1980s media-bashing directed at the carriers of the ‘gay plague’/40 Conclusions Janette Pink and numerous Finnish women will doubtless feel some relief if the men with whom they had risky sex are convicted. However, whether the trials of Paul Georgiou and Steven Thomas will achieve any lasting impact on sexual behaviours and thereby contribute to a reduction in the spread of HIV/AIDS, has to be open to serious doubt. The more likely outcome is, as argued in this article, wholly negative impacts on public health strategies, on persons living with HIV/AIDS and on the gay community. Helen Power Senior Lecturer in Law University of Glamorgan Notes 1 See, e.g., The Guardian, 18.3.97; Daily Express, 29.3.97. 2 See The Guardian, G2, 17.4.97. 3 For discussion of the American legal response to HIV/AIDS, see Chambers, ‘Gay men, AIDS and the code of the condom’ (1994) 29(2) Harvard Civil Rights-Civil Liberties Law Review 353 (Symposium: Stonewall at 25); for the Canadian response, see Holland, ‘HIV/AIDS and the criminal law’ (1994) 36 Criminal Law Quarterly 279. 4 The LC has published two consultation papers on the issue of consent in the criminal law. In the first paper (Consent and Offences Against the Person 1994, Law Com CP No. 134 - hereinafter CP 134), the consensual sexual trans­ mission of HIV/AIDS received very little attention. The second paper (Consent in the Criminal Law 1995, Law Com CP No. 139 - hereinafter CP 139) devoted

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fairly detailed attention to the issues and sought responses to specific proposals - see below, pp. 344 and 345-6. 5 See the documents listed by the Canadian HIV/AIDS Legal Network on its Website, particularly Criminal Law and HIV/AIDS: A Discussion Paper (April 1996) and the Final Report (April 1997). 6 HIV was identified in 1983 and publicly announced to be the cause of AIDS in

April 1984: see Connor and Kingman, The Search for the Virus: The Scientific Discovery of AIDS and the Quest for a Cure (1988). There is a small minority still maintaining the view that HIV does not cause AIDS: for discussion, see Weiss, ‘How does HIV cause AIDS?’ (1993) Science 5112, 1273-9. 7 The UK’s statistics relating to HIV/AIDS are generated by the Public Health Laboratory Service and published annually; the year for these purposes is 1 October to 30 September. 8 There is some controversy surrounding this fact, as it has been suggested that

the first AIDS-related death in the UK may have been in the 1950s: see Garfield, The End of Innocence: Britain in the Time of AIDS (1994, Ch. 1). 9 See King, ‘Current perspectives on HIV and gay men’ (speech written for the launch of the report, ‘Moving Target’, Enfield and Haringey, 30.10.96) for a detailed discussion of the disproportionate concentration of HIV/AIDS cases amongst gay men living in London. 10 Report of an Expert Group (Chairman: Professor N. E. Day) convened by the Director of the Public Health Laboratory Service on behalf of the Chief Medical Officers: ‘The incidence and prevalence of AIDS and prevalence of other severe HIV disease in England & Wales for 1995-1999: projections using data to the end of 1994’, Communicable Disease Report 6(1), 5 January 1996 (cited in King, op. cit., n. 9). 11 If sex is non-consensual - i.e. if it amounts to rape (s.I, Sexual Offences Act 1956 as amended by s. 142, Criminal Justice & Public Order Act, 1994) - there is no legal difficulty in prosecuting D for an offence under the Offences against the Person Act, 1861 if, in the course of raping P, D infects P with HIV. 12 For the view that extant criminal offences could be charged even in cases of consensual sex, see Power, ‘Consensual sex, disease and the criminal law* (1996) JCL 412. For a similar view, pre-dating HIV/AIDS and discussing the spread of venereal disease, see Lynch, ‘Criminal liability for transmitting disease’ [1978] Crim LR 612. For a contrary view, see Bronitt, ‘Spreading disease and the criminal law’ [1994] Crim LR 21 and Ormerod and Gunn, ‘Criminal liability for the transmission of HIV’ [1996] 1 Web JCLI 1. 13 See Legislating the Criminal Code: Offences Against the Person and General Principles (1993) Law Com No. 218, Cmnd 2370; CP134 and CP139. 14 CP 139, paras 4.47 and 4.48. 15 S.19A, Crimes Act 1958 as amended by Crimes (HIV) Act, 1993. For full discussion, see Bronitt, ‘Criminal liability for the transmission of HIV/AIDS’ (1992) 16 Criminal Law Journal 85.

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16 Report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic, US Government Printing Office, 1988. 17 For discussion, see Chambers, ‘Gay men, AIDS and the code of the condom’ (1994) 29(2) Harvard Civil Rights-Civil Liberties Law Review 353 (Sym­ posium: Stonewall at 25). 18 See Holland, ‘HIV/AIDS and the criminal law’ (1994) 36 Criminal Law Quarterly 279 for a survey of the Canadian case-law. 19 Bindman, ‘Rock pondering stepping into debate over medical records’, Law Times, 23-29 January 1995. 20 The information on the Bill was obtained from the Internet Website of the Canadian HIV/AIDS Legal Network, where the Network reports on the joint Project on Legal and Ethical Issues Raised by HIV/AIDS being conducted between the Network and the Canadian AIDS Society. 21 Jurgens, ‘HIV-specific criminal offence proposed’, Canadian HIV/AIDS Policy & Law Newsletter 1996, 2(2) 22 CP 139. 23 CP 139, para. 6.81. 24 CP139, para. 6.29. 25 CPI39, para. 6.31. 26 CP139, para. 6 .86 . 27 Mr Justice Kirby, ‘Legal implications of AIDS’ (1990) 16 Commonwealth Law Bulletin 620, p. 623. 28 Op. cit., n. 27, p. 627. 29 Op. cit., n. 20. 30 Op. cit., n. 3, p. 382. 31 Davies, Hickson, Weatherburn and Hunt, Sex, Gay Men and AIDS, 1993, p. 48. The authors suggest an alternative model for analysing risky sexual behaviour: the SIGMA model. SIGMA (Socio-sexual Investigation of Gay Men and AIDS), funded by the Department of Health and the Medical Research Council, is one of the largest and most detailed studies of gay men’s sexual behaviour ever undertaken. 32 Op. cit., n. 3. 33 Op. cit., n. 1. The headline reads, ‘She is suing [sic] me out of hate, says the Romeo who gave lover AIDS’. 34 Op. cit., n. 2. 35 Public Health (Control of Disease) Act, 1984. 36 ‘Rethinking non-fatal offences against the person’ [1994] 14 OJLS 335. 37 Problems Associated with AIDS, 1987, vol. 1, p. lvii, para. 165 cited in Moran.

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‘Illness: a more onerous citizenship?’ [1988] 51 MLR 343. 38 Offences unique to gay men’s sexual conduct are buggery and gross indecency under ss. 12 and 13, Sexual Offences Act 1956 and, in effect, soliciting under s.32: see Power, ‘Entrapment and gay rights’ [1993] NL/47-9, 63. 39 S.28, LGA 1988, inter alia, makes it unlawful for a local authority to promote homosexuality as a ‘pretended family relationship’: for discussion, see Thomas and Costigan, Promoting Homosexuality: Section 28 of the Local Government Act 1988, 1990, Cardiff Law School. 40 Media coverage in the UK of HIV/AIDS, especially in the early to mid-1980s, targeted gay men as being responsible for the ‘gay plague’ (indeed, in the early days in the USA the disease was known as GRID - gay-related immune deficiency) and, later, carried claims that heterosexuals were not at risk: see Garfield, op. cit., n. 8 .

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Second International C onsultation on HIV/AIDS an d H um an R ig h ts a d o p ts International Guidelines8 (Geneva, 23-25 September 1996) Editor

The C onsultation, organized jointly by the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS (UNAIDS), adopted Guidelines on HIV/AIDS and human rights, their purpose being to translate international hum an rights norms in to p ractical o b se rv a n c e in th e co n te x t o f HIV/AIDS. The Guidelines consist of two parts. The first, w hich c o n c e rn s th e h u m an rights principles underly in g a positive re sp o n se to HIV/AIDS, comprises 12 guidelines intended to assist States in implementing an effective, rightsbased response. They are summarized below: a T he full te x t oF th e G u id e lin e s an d th e “R e c o m m e d n a tio n s fo r d iss e m in a tio n an d im plem entation o f th e G uidelines on HIV/AIDS and hum an rig h ts” are p re se n te d in a b o o k let en titled “HIV/AIDS an d H u m an R ights: In te rn a tio n a l Guidelines”, published in 1998 by the United Nations on th e occasion o f th e F iftieth A nniversary o f the Universal D eclaration o f H um an Rights 1948-1998 (HR/PUB/98/1); ISBN 92-1-154130-1.— E d .

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“GUIDELINE 1: S tates sh o u ld estab lish an effective n ational fram ew ork for th e ir response to HIV/AIDS which ensures a coordinated, participatory, tran sp aren t and accountable approach, integrating HIV/AIDS p o licy an d p ro g ra m m e resp o n sib ilities across all b ran ch es o f government. GUIDELINE 2: States should ensure, through p o litical an d fin an cial s u p p o r t, th a t c om m unity c o n su lta tio n o c cu rs in all p h a se s o f HIV/AIDS p o licy d esig n , p ro g ra m m e im p le m e n ta tio n an d ev alu a tio n an d th a t co m m u n ity organizations are enabled to carry o u t their activities, including in the field o f ethics, law and human rights, effectively. GUIDELINE 3: States should review and reform public health laws to e n su re th at they adequately address public health issues raised by HIV/AIDS, that their provisions applicable to casually transmitted diseases are n o t in a p p ro p ria te ly a p p lie d to HIV/AIDS and th at they are co n sisten t w ith in te rn a tio n a l h u m a n rig h ts obligations. GUIDELINE 4: States should review and reform criminal laws and correctional systems to e n su re th a t th e y a re c o n s is te n t w ith in ternational hum an rights obligations and are n ot m isused in th e co n tex t o f HIV/AIDS or targeted against vulnerable groups. GUIDELINE 5: S ta tes s h o u ld e n a c t o r strengthen anti-discrimination and o th er protective laws th at p ro tect vulnerable groups, people living with HIV/AIDS and p e o p le w ith d isa b ilitie s from d iscrim ination in b o th th e public and p riv a te s e c to rs , e n s u re privacy an d co n fid en tiality and eth ic s in re se a rc h involving h u m an su b jects, e m p h asize education and conciliation, and provide for speedy and effective adm inistrative and civil remedies. GUIDELINE 6: States should enact legislation to provide for the regulation of HIV-related goods, services and information, so as to e n s u re w id e sp re a d av ailab ility o f qu an titativ e p rev en tio n m easu res and services, ad eq u ate HIV prevention and care inform ation and safe and effective medication at an affordable price. INTERNATIONAL DIGEST OF HEALTH LEGISLATION, 1 9 9 8 , 4 9 (4)

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GUIDELINE 7: States should im plem ent and support legal sup p o rt services that will ed u cate p eo p le affected by HIV/AIDS a b o u t th e ir rig h ts, p rovide free legal services to enforce those rights, develop expertise on HIV-related legal issues and utilize means of protection in addition to the courts, such as offices of ministries of justice, ombudspersons, health complaint units and human rights commissions. GUIDELINE 8: States, in collaboration with and through the community, should promote a supportive and enabling environm ent for women, children and other vulnerable g ro u p s by a d d re ssin g u n d erly in g p re ju d ic e s an d in e q u a litie s th ro u g h community dialogue, specially designed social and health services and support to community groups. GUIDELINE 9: States should promote the wide an d o n g o in g d is trib u tio n o f creativ e e d u c a tio n , tra in in g an d m edia programmes explicitly designed to change a ttitu d e s o f d isc rim in a tio n and stigmatization associated with HIV/AIDS to understanding and acceptance. GUIDELINE 10: States should e n su re that g o v e rn m e n t an d th e p riv ate se c to r d e v elo p co d e s o f c o n d u c t re g a rd in g HIV/AIDS issues th at tran slate hum an rig h ts p rin c ip le s in to c o d e s o f professional responsibility and practice, w ith acco m p an y in g m e ch a n ism s to implement and enforce these codes. GUIDELINE 11: S tates sh o u ld e n su re monitoring and enforcement mechanisms to guarantee the protection of HIV-related human rights, including those of people living with HIV/AIDS, their families and communities. GUIDELINE 12: S tates sh o u ld c o o p e ra te th ro u g h all relev an t program m es and agencies of the United Nations system, including UNAIDS, to share knowledge and experience concerning HIV-related hum an rights issues and should ensure effective mechanisms to protect human rig h ts in th e c o n te * 1- o f HIV/AIDS at international level.” The second part concerns action-oriented measures to be employed by Governments in the areas of law, administrative policy, and practice

,

INTERNATIONAL DIGEST OF HEALTH LEGISLATION 1 9 9 8 , 4 9 (4)

that will protect human rights and achieve HIVrelated public health goals. With reference to law review, reform , and support services (Guidelines 3-7), the measures recom m ended in connection with Guideline 5 (A nti-discrim ination and protective laws) are reproduced below:" “(