Hate Crime

NAT are delighted that after months of campaigning, the Crown Prosecution Services (CPSs) have revised their guidance on disability hate crime to make clear that people living with HIV should receive the same protection as other disabled people. Until recently, there was doubt about whether the definition of disability in the legislation that covers this area (the Criminal Justice Act 2003) included HIV. 

NAT have been actively campaigning on this issue since 2007. We wanted to ensure that any hate crime against people living with HIV was treated as seriously by police, prosecuting authorities and by the courts when sentencing as other hate crime against disabled people. Working with the Equality and Human Rights Commission, NAT raised concerns with the CPS that their disability hate crime guidance excluded people living with HIV.  The stigmatised nature of HIV means it is vitally important that people living with HIV received the same protections as other disabled people.

In May 2010 the CPS responded to evidence submitted by NAT by revising their guidance, stating that people living with HIV are included within the definition of disability.  The change means that if a person is attacked because of their HIV status, this can now be considered an aggravating factor by the courts, leading to enhanced sentences for the perpetrators of such crimes. 

In Scotland, NAT worked closely with Partick Harvie MSP to increase protection against HIV-related hate crime. We were delighted when his Member's Bill on offences aggravated by prejudice, which gives full protection for all people living with HIV from the day that they are diagnosed, was passed in June 2009.

Public health law (Health Protection Regulations)

The Health and Social Care Act 2008 significantly extended coercive powers in England and Wales to protect public health from infection or contamination.  For the first time the powers apply to HIV, in that they apply to any infection or contamination which poses a serious risk to human health. Magistrates now have powers to impose compulsory public health orders (‘Part 2A orders’) on individuals.

NAT has consistently opposed the application of coercive public health powers to people with HIV (or indeed to those with other sexually transmitted infections).  The main reasons not to apply such powers to people with HIV are:

• the impact such actions will have more generally on trust in confidentiality of sexual health services;
• the fact that HIV is avoidable through responsibly acting on safer sex advice (not the case for many other public health risks which are communicable through everyday contact);
• the inappropriateness of short-term coercive powers to address a long-term condition such as HIV;
• and the impact of the use of such powers on HIV stigma and discrimination.

Whilst the powers now exist in law, NAT worked with the Department of Health in England and the Welsh Assembly Government in Wales to ensure that the operational guidance made clear how unsuitable the use of such powers was for HIV and other STIs, except for in the most exceptional of circumstances.

In particular the Guidance makes clear that Part 2A orders 'are not a tool for managing long-term problems' and that the new Part 2A orders:

• are not meant in any way to change the current system and culture of confidentiality within sexual health services;
• are not to be a routine part of managing those with HIV who present with evidence of ongoing unsafe sex (for example by presenting with repeated STI infection);
• are not generally appropriate for contact tracing;
• could have harmful consequences for wider trust in sexual health services;
• and that in the very exceptional circumstances where a Part 2A order might be considered, advice should be sought from the treating clinician and clinic director as to the possible consequences of such an order and confidentiality respected at all times.

Guidance for England is available here.

Guidance for Wales is available here.

Public health law in Scotland

Public health powers have also recently been revised in Scotland by the Public Health etc. (Scotland) Act 2008 and can also now for the first time apply to HIV.  Similar powers to those in England and Wales can be applied to someone who poses a 'significant risk to public health'.  There are some differences in process, duration of orders and appeals systems.

Scotland has also produced Guidance on the use of these powers.  It does not contain a section on HIV and sexual health comparable to that in the English and the Welsh Guidance.  It does however, in defining what might constitute a significant risk to public health, identify criteria such as whether the disease is unusual, whether there is a risk to unusual numbers of people, whether the disease is easily transmissible and there is thus a risk of public exposure to the infection - all of which suggest it is unlikely these powers will be applied to someone with HIV.

Guidance for Scotland is available here.

 

Should anyone become aware of attempts anywhere in the UK to apply these public health powers to someone with HIV, NAT asks that you bring it to our attention as soon as possible.  Please ask to speak to the Director of Policy and Campaigns.