HALS Final
KF/LP
5-4-01
HIV/AIDS Legislation Score(HALS)
An indicator for discrimination provisions in national or sub-national legislation impacting HIV/AIDS
Orientation
This is an indicator for discrimination provisions in national or sub-national legislation impacting HIV/AIDS (HIV/AIDS Legislation Score, or HALS). HALS classifies legislative intent as enabling (promoting reduction or elimination of discrimination)[1] or restrictive (discriminating against those infected with HIV.)
Legislation is one type of policy. It constitutes a public endorsement of the goals and methods of programs for dealing with serious public health problems, including HIV/AIDS. Legislation reflects the intent of members of the legislature when the legislation was enacted. Legislation adopted and promulgated by a properly constituted legislative body provides guidance as to what is expected in relations between people and institutions.
HALS is composed of three parts: (1) classification of legislative objective; (2) a priority (top-ten) list of issues in HIV/AIDS and Human Rights; and (3) an annex, giving examples of enabling legislation and examples of restrictive legislation.
HIV/AIDS Legislation Score
I. Classification of Legislative Objective
Threshold rating:Classify the legislative objective as +1 (Enabling), 0 (No mention),
or –1 (Restrictive). Legislation may be both ‘Enabling’ and ‘Restrictive’ if different provisions have different objectives. The phrase ‘legislative objective’ encompasses legislative intent, i.e., what the legislature intended to accomplish when it enacted the legislation.
Enabling:Enabling legislation includes: (a) public health legislation consistent with international human rights obligations; as well as (b) anti-discrimination and other protective legislation (covering vulnerable groups, such as persons living with asymptomatic HIV infection, persons living with AIDS, or those suspected of HIV or AIDS, and persons with disability.)
Enabling legislation may be stated either in the positive (“All persons, without regard to their HIV/AIDS status, are guaranteed…”) or in the negative (“No person shall be denied on the basis of HIV/AIDS status …”).
No mention:No explicit mention of the situation subject to potential discrimination (e.g., access to housing) with regard to HIV/AIDS status is made in legislation enacted in the jurisdiction being surveyed. Lack of mention should not be interpreted either as positive nor as negative.
Restrictive:Legislation is restrictive if -- on the basis of their HIV/AIDS status -- it arbitrarily denies a benefit or prescribes a punitive action to a class of individuals (“… shall not be provided to any individual who is HIV positive or who has been diagnosed with AIDS”; “mandatory quarantine shall be required of all individuals with clinically-diagnosed AIDS”.
Legislation is also restrictive if it explicitly denies protection on the basis of HIV/AIDS status (“HIV/AIDS status is not grounds for ...”).
HIV/AIDS status:HIV/AIDS status may be referred to explicitly. HIV/AIDS status may also be referred to implicitly, as a sub-category of the wider classifications STD/STI and/or contagious diseases. Any mention of STD/STI or contagious diseases in the legislation can be interpreted as including HIV/AIDS unless there is any explicit statement to the contrary
in the legislation (“For the purposes of this law, HIV/AIDS status shall not be construed to mean …”).
II. Top-Ten Issues in HIV/AIDS and Human Rights[2]
Stigma (Social ostracism leading to deterioration of civil, economic, or political rights)
Stigma is not an issue addressed in legislation, although it is related to HIV/AIDS anti-discrimination legislation.
- Information (Dissemination and free exchange of HIV/AIDS prevention and treatment information)
Dissemination and free exchange of information
Enabling“The State shall place no restriction on the dissemination and/or exchange of information concerning HIV/AIDS prevention and treatment…”
Restrictive“Only physicians shall be permitted to provide information concerning HIV/AIDS prevention and treatment”
- Testing (Protection of right to privacy and confidentiallyofHIV status in government or private sectors)
Enabling “No jurisdiction may impose testing for the presence of HIV antibodies or virus as a mandatory pre-condition for the issuance of a marriage license…”
Restrictive “ Individuals seeking a marriage license must submit to testing for infectious diseases or present a medical certificate attesting to the absence or such diseases…”
- Gender (Control over one’s reproductive health, equal access to information and resources, family and interpersonal rights)
Enabling “Women shall have control over and decide freely and responsibly, free of coercion, discrimination and violence, on matters related to their sexuality, including sexual and reproductive health…”
Restrictive “Mandatory pre-and post-natal testing to be followed by mandatory abortion or sterilization for HIV positive pregnant women….”
- Employment (Equal employment requirements and procedures (testing, confidentiality, workplace, benefits, dismissal)
Employment requirements--
Enabling“HIV/AIDS status shall not be used as a precondition for employment…”
Restrictive“…Persons shall be excluded from employment if found to be infected with HIV or have AIDS……”
Employment procedures--
Enabling“Demonstration of negative HIV status shall not be a condition for continuing employment…”
Restrictive“The State may require periodic testing for contagious disease of all essential personnel…”
- Health services (Equal management of services, e.g., access, testing, reporting, coverage)
Enabling“All citizens have the right to public health services regardless of HIV/AIDS status…”
“No individual shall be denied public health services on the basis of his or her HIV/AIDS status…”
Restrictive“Public health facilities are hereby instructed to implement separate treatment facilities for individuals shown to be HIV-positive…”
- Social welfare and insurance (Equal application of social welfare or social security services, benefits, and administration systems otherwise universally entitled; no restrictions on indemnity insurance or life insurance coverage.)
Enabling“Social security benefits shall not be denied or abridged to any otherwise eligible individual solely on the basis of his or her HIV/AIDS status…”
Restrictive“Under the regulations concerning mandatory notification of contagious diseases, private insurance providers are not required to extend benefits
to persons shown to be HIV-positive, regardless of whether or not their condition is a consequence of their HIV status…”
- Housing (Equal public and/or private accommodations).
Enabling“No landlord may refuse to rent or lease to any otherwise qualified person or family on the basis of HIV/AIDS status of the head of family or any family member…”
Restrictive“In order to promote public order, landlords are permitted to exclude or terminate the lease of any individual who is a carrier of an infectious disease until such time as he or she provides a certificate of good health…”
- Migration (Freedom of movement or stay).
Movement across borders--
Enabling“Entry visas shall not be denied solely on the basis of HIV/AIDS status…”
Restrictive“The application for a tourist visa must be accompanied by medical certification of HIV/AIDS status…”
Stays within jurisdictions--
Enabling“Extension of a tourist or work visa shall not be denied solely on the basis of HIV/AIDS status…”
Restrictive“Any resident or visiting alien testing positive for the HIV virus must be immediately repatriated to his/her country of origin…”
- Legal System (Equal legal system application of substantive and procedural criminal and civil law)
Enabling“Right to counsel shall not be conditioned or denied on the basis of HIV/AIDS status…”
Restrictive“ Prisoners with HIV or AIDS are to be segregated in correctional facilities”
Annex A: Examples of Enabling and Restrictive Legislation
I. Enabling
A.Enactment of Anti – Discrimination and Protective Legislation—Information
[Information: Dissemination and free exchange of HIV/AIDS prevention
and treatment information]
Argentina
1. Law No. 23,798 of 16 August 1990 declaring the control of acquired immune deficiency syndrome to be of national importance (IDHL[3] 43(3): 502-504 (1992))
Sets forth the framework for AIDS control in Argentina (provisions are included to ensure that the standards of human rights are maintained). Details are given of the range of activities and programmes to be developed by the health authorities. Measures are to be initiated aimed at raising awareness of the population concerning the characteristics of AIDS, modes of transmission and infection, and recommended methods for prevention and treatment. Various implementing measures are to be issued. (WHO Directory[4], at 3)
2. Decree No. 1244/91 of 1 July 1991 promulgating Regulations for the implementation of Law No. 23,798. (IDHL 43(3): 504-506 (1992))
AIDS prevention to be incorporated within teaching programmes at primary, secondary, and tertiary levels. Anti-discrimination measures to be taken. Physicians and other professionals not to divulge knowledge of HIV-infected persons or persons with AIDS, except to specified persons (the patient, hospital director, etc.). Scientific and Technical Advisory Group established to cooperate with National AIDS Control Commission. Physician to determine diagnostic measures and guarantee confidentiality. Patient to keep original of notification. Only non-personalized data to be kept for epidemiological surveillance programmes. Biosafety measures to be laid down by Ministry of Health and Social Welfare.. (WHO Directory, at 3)
B.Repeal of Discriminatory Legislation and Regulations — Migration
[Migration: Freedom of movement or stay]
Costa Rica:
Decree No. 17624-S of 26 June 1987 promulgating Regulations on epidemiological surveillance and the control of communicable diseases, as amended by Decree No. 17760-S of 16 September 1987. (IDHL 40(1): 52-53 (1989))
Sec. 18 required all crew members of ships docking in Costa Rican ports to have a certificate issued by a competent authority indicating that they carried no antibodies to the AIDS virus. Persons not complying with this requirement were not permitted to disembark and were subject to quarantine. This Section was repealed[5]by Decree No. 18189 –S of 20 June 1988. (WHO Directory, at 37) (emphasis added).
South Africa
Government Notice No. R 2439 of 30 October 1987 (IDHL 40(1): 59-60 (1989)
AIDS and HIV were included among the diseases that rendered a person a prohibited person for the purposes of the Admission of Persons to the Republic Regulation Act, 1972.
AIDS and HIV were deleted by Government Notice No. 2247 of 13 September 1991) (IDHL 43 (1): 38-39 (1992) (WHO Directory, at 154) (emphasis added).
II. Restrictive
A. Retention of Discriminatory Legislation and Regulations — Migration
[Migration: Freedom of movement or stay]
Iraq
Resolution No. 229 of 16 April 1987 of the Revolutionary Command Council. (IDHL 38(3): 489 (1987).
Aliens and returning nationals to be screened within five days of entry; tests carried out abroad not acceptable; “confirmed health certificate” issued where appropriate. (WHO Directory, at 101)
Israel
The Public Health (Medical Examinations and Instructions in Regard to AIDS) Order, 1987 (15 November 1987). IDHL 39 (4): 832-833 (1988).
Requires persons in categories defined by Director General of Ministry of Health as likely to carry HIV to: (1) be examined once every six months at specifically recognized laboratories; and (2) if found to carry antibodies, to comply with directives given to him by the physician in charge of the laboratory. The Director General has proclaimed that persons engaging in prostitution are likely to carry HIV. (WHO Directory, at 101)
B.Enactment of Discriminatory Legislation and Regulations —Testing
[Testing: Right to confidentiality and voluntary testing]
Lebanon
Law No. 334 of 18 May 1994 amending Legislative Decree No. 78 of 9 September 1983 on the compulsory presentation of a pre-marital medical certificate. (IDHL 46(2): 175 (1995)
The medical certificate, which may not have been issued more than three months
prior to its presentation, is to contain the results of all the analyses specified by the Ministry of Public Health. (WHO Directory, at 118)
Lebanon
Decision No. 857/1 of 29 August 1994 of the Directorate-General of Health implementing Law No. 334 of 18 May 1994 concerning the compulsory presentation of a pre-marital medical certificate. (IDHL 46(2): 175 (1995)
In addition to clinical examinations, various tests are considered to be compulsory, including testing for AIDS. (WHO Directory, at 118).
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KF/LP
5-4-01
1
[1]. The first step to creating anti-discriminatory measures is to enact enabling legislation. However, enabling intent alone is not sufficient to ensure reduction or elimination of discriminatory barriers. An assessment of provisions in national or sub-national legislation impacting HIV/AIDS (HALS quality assessment) is necessary to determine if the legislation is properly drafted; a requirement to fulfill objectives stated in the legislation. Specification of the quality assessment parameters will be incorporated in the POLICY Project framework analysis of legal and regulatory provisions.
[2] Text in quotations indicated as enabling and restrictive is intended to represent examples of legislative objectives; not necessarily the text of any particular extant legislative provision.
[3]IDHL means the International Digest of Health Legislation, published by the World Health Organization.
[4]WHO Directory means the Directory of Legal Instruments Dealing with HIV Infection and AIDS (jointly prepared periodically by the WHO Health Legislation Unit in cooperation with UNAIDS); covers all countries and jurisdictions which have reported to WHO. The WHO Directory is cumulative, contains brief summary abstracts of HIV/AIDS legislation enacted in over 125 countries (and in numerous sub-national jurisdictions). It provides references to more detailed legislative summaries published quarterly in the WHO International Digest of Health Legislation (IDHL).
[5]Repealed means the legislation or regulation containing the discriminatory provisions was revoked by subsequent legislation or regulations.