J Indian Acad Forensic Med, 31(4)

Review Article

Ethical and legal issues in AIDS-An Indian perspective

Ashok Kumar Jain*, B.P.Dubey**, S.P.Garg*** & Manish Nigam****

AbstractThe global epidemic of AIDS is "spinning out of' control" and it is reported that the soaring

number of cases of AIDS and of infected with HIV, are alarming in India. The HIV virus has been deeplyrooted and spreading day by day like wildfire and posting a challenge to the medical scientists and thejudiciary in India. Law and medical ethics are two disciplines with a considerable overlap. Law laysdown the established rule for conduct, the violation of which creates criminal or civil liability; ethics ismore about expected conduct that is what ought to be? The two key issues in medical ethics areconfidentiality and consent have great importance in HIV and AIDS. The fact that often patientsconfidentiality and public interest come into conflict further complicates matter. Whether it is with reqardto marriage or employment, there is no national law yet, as to which can be used as a guideline. For thetime being, these state of affairs in India had been managed by the provision of Penal laws andpersonal laws. The issues related to human health to some extend are protected by these statutoryprovision; and more so under the Fundamental Rights and Directive ~rinciples of the Constitution.

Key words: AIDS, HIV, medical ethics &egal issues.

IntroductionThe legal rights of an HIV-infected person

and the ethical duties of the medical professionand general public are not explicitly defined tilldate. An attempt will be made here to focusattention on some of the basic issues likeconfidentiality, consent of the person beforetaking blood sample for HIV test, discrimination inthe employment When a person is tested as HIVpositive.

As per legal provision medical malpracticeis violation of a specific law. A case ofmalpractice resulting in loss or harm to the patient

*Corresponding author-Associate Professor,Department· of 'Forensic Medicine People'sCollege of Medical Scien,ces and ResearchCenter, Bhanpur, Bhopal (M.P.). PIN: 462037e-mail: anushok-jain@yahoo.co.in**Professor and Head, Department of 'ForensicMedicine, Gandhi Medical College, Bhopal.***Assistant Professor & IIC Head., Department of. Forensic Medicine, S.S.Medical College, Rewa(M.P.).' .****Associate Professor, Department of ForensicMedicine, Shree Aurbindo Institute of. MedicalSciences and ResearchCenter, Indore. (M.P.).

qualify as unethical conduct and the doctor liablefor penalty. Today patients are more aware oftheir rights.

The Medical Council of India (MCI) laysdown their ethical guidelines. These ethicalguidelines are a set of principles which doctorsmust apply in each situation, together with theirjudgement, experience knowledge and skills.Code of medical ethics by the MCI was amendedin 2002. It is called Indian Medical Council(Professional Conduct, Etiquette, Ethics)Regulation, 2002. According to aforementionedregulation, consent and confidentiality are the twoimportant issues in connection with HIV infectedpatients in medical practice.

Consent:As per this regulation: Before, performing

an operation the physician should obtain inwriting the consent from the husband or wife,parent or guardian in the case of a minor, or thepatient himself as the case may be. In, anoperation which may result in sterility the consentof both husband and wife is needed.

No act of in vitro fertilization or artificialinsemination shall be undertaken without theinformed consent of the female patient and her

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spouse as well as the donor. Such c0I1S9r.ltshall ,}have r.igl;)tto marry (Mr. X vs. Hospital Z. AIRbe obtained in writing after the patient is 1999 SC PG 295). Subsequently the SC upheldprovided,at herown levelof comprehension,with the right to marry (Mr. X vs. Hospital Z, 2002.sufficient information about the purpose, S~CLCOM701). , . ,methods, risks, inconveniences,disappointtnents' ,I:'. ' There :'i~increased di'scriMination',iagaihstof the procedure and the possible risks and people with HIV which needs a legal and socialhazards. 'response. The World HealthOrqanizatlon (WHO)

A registeredmedical practitioner shall not Global program on AIDS (GPA)and VDT passedpublish photographs or case reports of his/her a resolution on 'Avoidance of discrimination ,inpatients'without.their permission, in any medical relation to Hlv-infected people and people withor other journal in a,mannerin which,their,identity AIDS'. GPA has laid certain principles regardingcould be 'made.out. If the identity is not to be partner notification, as part.of a comprehensivedisclosed, theconsent is not needed. s AIDS prevention and, control program, which

There is no mention that one has to take .must be adheredto.consent beforetaking a blood test for HIV. Partner notification should:

Confidentiality'Another important aspect of' doctor; -

patient relationship is based on doctor's duty ofmaintainingsecrecy.A doctor cannot disclose toa person any information regarding his patientwhich he hasgathered in the course of treatmentnor can the doctor disclose to anyone else themode of treatment or the advice given by him tothe patient. ' '!

The amended code of ethics' of MCIstates,' "Confidential information 'entrusted bypatients to a physicianshould never be revealedunless their revelation is required by the laws ofthe state. However to protect a healthy personagainst a communicable disease to which he isabout to be exposed the physician should act ashe would wish'another to act towards one of hisown' family members in similar circumstances.HThe Registered Medical Practitioner shall notdisclose the secretsof his patient that havebeenlearnt in the exerciseof his/her professionexcept:1. In a court- of law under the orders of the

judge.2. Notifiabledisease.3. In circumstances where there is a serious

and known risk to a specific person and/orcommunity.In 1999, when a hospital in India had

disclosed the patient's HIV status to his fianci'sfamily, the patient challenged' the hospital'saction on the ground that the breach ofconfidentiality had irreparably damaged his rightto marry,and suedfor damages.Thecourt at firstinstanceheldthat HIVpositivepeopledid not

1) 'Respect the human rights and dignity of thepartnersand the index persdn.

2) Be a balanced part' of a comprehensiveAIDS' prevention and control program onsexually ,transmitted diseases' (STD,maternal and child' health, family planning,and substanceabuseprevention)..

3) Be voluntary and not coercive, and indexperson and their partners should have full.access to the available servicesindependent of their willingness tocooperatewith partner notificationactivities.

4) Be confidential, including written records,locating information for partners, and, inprovider referral, the identity of the indexpersonsmay be able to be inferred.

5) Be undertaken only when appropriatesupport services are available to the indexpersons and partners; the minimumrequirements are counselling on theimplications of haying been exposed toinfection, the availability of voluntary,confidential HIV testjng with pre-and pos~-

, test counselling and appropriate healthandsocial services; the quality of these servicesshould be assuredand regularlymonitored.There is thus an apparentconflict between

patient confidentiality and Public Health.We arehappy that the Amended Ethical Code 2002 ofthe IndianMedical Council has taken care of thispoint.Criminal liability for transmission of dangerousdisease

A person who knowingly communicatesthe diseaseof AIDSby sexual relationsor

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otherwise, will be guilty of an offence. undersection 269 or section 270 of the' Indi'an PenalC~de. The" conduct in order t~ be punishablemust be 'malicious or negligent, so, ~:sto causethe spread of an infectious disease dangerous tolife. ' ", .

AIDS and matrimonial law. . ,, ". The fact 'that one' spouse is suffering from

AIDS can have certain 'implications lnmatrlrnoniallaw. Section 13 (1) (iv) of the Hindu marriage act,1955 provides that" either' party to the! marriagemay seek divorce through the court 'on theground that the other party is sufferinq frbm ~venera! disease in a communicable form. "~

'; In:Ms. Rajini's case the court hasmade abig leap while deciding a divorce petition filed bythe aggrieved wife. The husband Mr. KanshiKrishnan married to the petitioner in April 1998,immediately after marriage and before themarriage was consummated, she came to knowthat her husband was infected with HIV positive.The wife wanted to severe the marital tie and filedthis petition in August 1998, i.e. just four monthsafter the marriage. The statutory provisionsrelated to divorce, on the ground that the spousehas developed an infectious or communicabledisease; would be applicable only after thecompletion of one year of the marriage. Thecourt, keeping in view, the gravity of the nature ofthe disease HIV virus and the immediate andfuture health risk likely to be caused to thepetitioner, overlooked the statutory restriction of"one year after marriage" and granted a divorceas requested by the petitioner. By this decision,the court on one hand protected the rights of thewife and on the other prevented the spread of thedisease further in the interest of public health.

Employment and HIV positivityWhile deciding the question of

discrimination in the employment when a personis tested as HIV positive, the courts in India reliedon the findings of the United States' SupremeCourt in MS. Airlines case. In this case, thequestion observed by the court was the "whethera carrier of a contagious disease such as AIDScould be considered to have a physicalimpairment, or whether such a person could beconsidered, solely on the basis of

J Indian Acad Forensic Meci,,31(4),

cO!1tagiousness"a handicapped,-' In a,''land mark judg~ment, the Supreme,Court, of 'India protected the freedom of,employment. and .~eld that "government jobs 'orservices' cannot be, denied .to any person or theqroundthathe/shejs infected with HI\{ yirus". , ", There are many instances, :where

applicants wi,t~,Hlvpositivity are denied jobs. Mr.X 'was. denied a job .by the State Bank of lndiabecause .ge, was' HIV positive. On ~an 16, ,2,004"Bombay High Court upheld employment of..f;lIVinfected person. The court said that protectionand dignity of HIV-infected persons' is 'essentialfor the preventlon.and.control, of Htv!AIOS" .: ' ,t "

The HIV/AIDS Bill 2006There is, however, no :~omprehe~sive

legislation in India addressing HIV/AIDS. Therehave been some court decisions, which also havebeen changing with the better understanding ofthe disease by the public and lawyers.Considering the importance of this subject anadvisory group was set up to initiate the processof creating a legislation in 2002, by Mr. Kapil Sibaland the Project Director of the National AIDSControl Organization (NACO). The presence of anationally applicable statute would lendconsistency, clarity, and predictability for thecourts to effectively pass judgment in HIV/AIDScases. They approached an NGO (LawyersCollective Unit) to draft legislation on HIV/AIDS.The Lawyers Collective HIV/AIDS Unit (LCHAU)has consulted all the concerned organizationsand involved people and drafted legislation. TheUnion Health Ministry has sent the bill for afeedback from the state and union territorygovernments, which have been approved.

ConclusionThe court have always interpreted the law

and applied the law so as to promote the causeof justice to meet the expectations andaspirations of the society as per the mandates ofthe constitution. Similarly, in the absence of anystatute it becomes the binding duty of thejudiciary, under its discretionary powers, toprotect the interest of the society.

Therefore in absence of direct legislation,it becomes the obligation of the judiciary toprescribe guidelines and rules that fill the dearth

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and thus work as an indirect legislation. Theseguidelines would be followed by the Indianjudiciary wheneverany similar matter relating toAIDS/HIVappears before them, and this wouldbecame a 'PRECEDENT' until a wholesoinelegislationon AIDSis enactedby the legislatureinnearfuture.

Although a national initiative hasrequested lawyers to collectively draft a bill, toprovide clarity, consistency and predictability,and the bill preparedin 2006 has beensubmittedto governmentof India.

References (Uncited Readings)1. Articles: 16 (I), 21, 38, 39,42 and 47, The

Constitution of India.

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2. Gostin LO. AIDS Litigation project: Anational review of court and human rightscommission decisions, part II. JAMA 1990;263 : 2086 - 93.Ms. Rajini v. Kanshi Krishnan, News Report.Published in Eenadu daily News - paper dt.20.3.99National e- survey: Business wire Feb.2005Sections: 269, 270, The Indian Penal Code,1860

3.

4.5.

6. Section: 13 (1) (iv). The Hindu MarriageAct, 1955.The HIV/AIDS Bill, 2006.World Health Organization. GlobalProgramme on AIDS: Current and futuredirections of the HIV IAIDS Pandemic,Geneva, April 1991.

7.8.