BHIVA position statement on HIV,the law and the work of the clinical team

Intentional and reckless transmission of HIV

There has been one successful prosecution for intentional transmission of HIV. Since the case of R v Dica in 2004, ¹² there have been 26 successful prosecutions for reckless transmission of HIV in England and Wales, ¹³ under section 20 of the Offences Against the Person Act 1861. There have been many more investigations and charges.

For the offence of ‘intentional’ or ‘reckless’ transmission, the prosecution must establish all three of the following (Figure 1): ¹⁴

1. The infliction of harm or the requisite act, conduct or consequence (known as the actus reus).

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Figure 1.

Offences against the persons act 1861 and HIV transmission. Reproduced from Saigal P, Weait M, Poulton M. Sex Transm Infect 2018; 94: 399–400 ¹⁴ with permission from BMJ Publishing Group Ltd.

This means proving that the individual (defendant) is the source of the infection. In other words, that the defendant transmitted HIV to the complainant. The evidence for this is collected through medical and sexual histories and may include the use of phylogenetic analysis. ¹

2. The defendant intended the consequence (section 18) or acted recklessly (section 20) (known as the mens rea).

For section 18 it must be proven that the defendant actively intended to transmit HIV to the partner.

For section 20, the act of recklessness has been defined as conscious risk taking: where a person knows that some harm may arise from their conduct, but they continue to take this risk (R v G). ¹⁵ Therefore, the use of condoms or treatment as prevention (treatment where the primary aim is to prevent the transmission of HIV) would be likely to avert a finding of ‘recklessness’ in the unlikely event that transmission of HIV occurred under these circumstances.

The paramount consideration for section 20 is the individual’s actual understanding around transmission. If they believe that once their viral load is undetectable that they cannot transmit HIV (and believe themselves to have an undetectable viral load), or that condoms make the risk of transmission negligible (both of which the Crown Prosecution Service acknowledges as appropriate safeguards), then the mens rea of recklessness is unlikely to be found.

The act of recklessness also requires that at the time of the alleged transmission the defendant knew they had HIV and understood how HIV is transmitted. This is usually evidenced by confirmation of a medical diagnosis and through clinical notes. There is also the potential for ‘deliberate closing of the mind’ to be considered. This is the circumstance under which someone who has not received a medical diagnosis could nonetheless know or strongly suspect that they have HIV through their own particular circumstances (such as having been advised to take an HIV test by a healthcare professional (HCP) because of concerning symptoms). Evidence of these circumstances may be sufficient for the court to decide that the defendant had the required degree of knowledge to have acted recklessly.

3. The absence of a valid defence.

In the case of reckless transmission (section 20), consent to sex (or condomless sex) is insufficient as a defence. Instead, it must be demonstrated that the complainant actively consented to the risk of HIV transmission, i.e., they made a ‘conscious’ decision to put themselves at risk of acquiring HIV (R v Konzani). ¹⁶ This would require them to be informed of the defendant’s HIV status, either directly or indirectly, prior to the alleged occurrence of transmission. There is no legal requirement for a person to disclose their HIV status to sexual partners, but this appears to be the only means of securing a defence of consent where the court has found the requisite mens rea and actus reus.

For the crime of intentional transmission (section 18), consent to the risk of HIV acquisition on the part of the partner is not a valid defence.

The Crown Prosecution Service has provided guidance regarding what may and may not be mitigating factors in considering whether a decision to prosecute would be in the public interest. ¹⁷

Attempting to intentionally transmit HIV

It is also possible to be prosecuted for attempting to intentionally transmit a serious sexually transmissable infection under the Criminal Attempts Act 1981. This requires the prosecution to prove that it was the defendant’s intention to transmit HIV, but does not require transmission to have occurred.

The question of the known presence of a sexually transmitted infection cancelling out the consent to sex (and therefore causing consideration of rape) sometimes arises. This has been clearly addressed in law, in that a person who does not disclose the fact that they have a sexually transmitted infection and then has consensual sexual intercourse with another, without informing that person of their infectious state, is not guilty of rape. ¹⁸

The impact of HIV criminalisation

The courts appear to place the burden of reducing HIV transmission on the person living with HIV. This approach is inconsistent with public health initiatives aimed at reducing HIV transmission, such as pre-exposure prophylaxis (PrEP), which promote and enable individual responsibility within the HIV-negative population. As a result, it is considered by BHIVA that prosecution for reckless transmission promotes stigma and may be counterproductive with regard to public health aims. It has also been shown that prosecution for reckless transmission is associated with harms. ¹⁹

Strategies to reduce the risk of prosecution for reckless transmission

Despite the majority of people living with HIV in the UK being virally suppressed, people living with HIV remain at risk of allegations of criminal transmission, and sometimes prosecution. People at particular risk include:

1. Individuals who have recently been diagnosed with HIV but who have either not yet started treatment or who do not yet have an undetectable viral load;

Alternative measures to reduce the risk of HIV transmission must be considered in these circumstances, including the use of condoms with water-based lubricant. In the event of a split condom, disclosing HIV status to their sexual partner to facilitate post-exposure prophylaxis (PEPSE) would reduce the risk of HIV transmission. In addition, PrEP is now available throughout the UK, and so a person at risk of acquiring HIV can consider taking this to mitigate the risk of HIV acquisition. It is recognised that there are populations that are underserved with regard to supported access to PrEP, and there is further work to be done to ensure equitable access for all those in need of PrEP.

For those choosing not to take ART, their choice should be respected and explored carefully to ensure that the risks and benefits of this option are understood in terms of their health and public health implications. There are a number of strategies that may help individuals in this situation including peer mentorship, support from a specialist pharmacist or a psychologist, adherence support and education to ensure all options for a tolerable drug regimen have been explored.

Adolescents and young adults may experience a range of additional needs that are different from those of adults. For young people requiring support around HIV knowledge sharing and sex, we recommend referring to guidance from the Children’s HIV Association.

Sharing information about legal issues with a person living with HIV

Informing patients about potential criminal culpability is arguably part of our professional clinical duty. A person who is newly diagnosed with HIV needs an understanding of the legal risks around transmission of HIV in order to be able to protect themselves from liability. This information is likely to be of less relevance for someone who becomes fully suppressed on successful ART. Information should be shared sensitively and supportively. This aligns with the public health agenda of preventing further infections. ²⁰ It may be stated that:

1. People have been convicted of transmitting HIV in the UK and of intentionally attempting to transmit HIV.

Confidentiality and information sharing for HCPs

HCPs can feel concerned that they are aware of someone’s HIV status when a sexual partner is uninformed. Once a person is on ART and has an undetectable viral load, there is no ongoing risk. The evidence base for U = U provides full reassurance that if someone’s viral load is undetectable on ART, there is no need, in terms of legal responsibility or risk to the sexual partner, to disclose their status as they cannot transmit the virus. There may be benefits in discussing their status with a partner, such as the potential for support through shared knowledge and care.

Where there is retrospective risk, or a patient continues to have a detectable viral load, GMC guidance stipulates that a doctor may disclose someone’s potential to transmit HIV if they believe that an identifiable individual is at risk of serious harm and the patient cannot be persuaded to inform them. ²³ Of note, there is no duty to disclose (hence the GMC’s use of the word ‘may’). Furthermore, a duty to justify any disclosure would fall on the clinician. The Irish courts examined the issue in 2018 (The Child and Family Agency v A.A. & Anor) ²³ and reasoned that acquisition of HIV was not a serious enough harm to justify disclosure. Part of the reasoning centred on the fact that HIV is now a manageable chronic disease. Although in a different jurisdiction, and not a binding precedent in the UK, this case demonstrates how the view of the courts may evolve over time along with advances in medical care. Thus, the HCP must be confident that there is a risk of transmission and, in the case of ongoing risk, that the person living with HIV cannot be persuaded to inform their partner of their HIV status.

A person living with HIV may have a number of concerns about the sharing of this information such as fear of abandonment, stigma from family or community, potential for domestic violence, or loss of control of their personal information. It is therefore of paramount importance that this issue is dealt with sympathetically and supportively and with regard to the safety and security of the individual. The issue should be reviewed in context, and should be seen as a process and not a singular event. ²⁵ Preferably, a member of the team experienced in supporting individuals around information sharing of HIV status should lead on this. The member of the team should be familiar with and able to access the full range of strategies to provide testing without specific disclosure (such as anonymous partner notification or provider referral via Sexual Health clinics).

Only after all opportunities for support and guidance have been exhausted, and an HCP has genuine concerns that someone is at heightened risk of HIV acquisition, should information sharing by an HCP be considered. Ultimately, HCPs should remember that the sharing of someone’s HIV status is to encourage another person to test for HIV, something that the other person may choose not to do. Sharing does not guarantee a positive outcome.

If an HCP decides that in light of their circumstantial knowledge information sharing should be pursued, the case should first be discussed at an HIV multidisciplinary team meeting; it should not be a unilateral decision. If the decision is supported, the case should be discussed with the Caldicott Guardian who is responsible for confidentiality of patient identifiable information. The HCP should check that the Guardian has experience of advising on such cases; if they do not, they should be asked to contact BHIVA. Before proceeding with sharing, the HCP is advised to have discussed the case with their medical defence organisation. Again, the HCP should check that the advisor with whom they speak has experience in such cases as there have been occasions when advice has not acknowledged the nuances of this issue. As per the GMC guidance, the decision should then be shared with the person whose HIV status is going to be disclosed against their will, along with the justification. It would be good practice to follow this up in writing.

Request by another agency for an HCP to disclose HIV status

If someone has been accused of reckless or intentional transmission of HIV, there may be a request from the police for access to their medical records. There is no legal duty to comply with this without either the person’s consent or a court order. Any request should follow local protocols. It is important to note that a police request does not need to be answered immediately, although there may be an impression that it should. A request should also evidence a legitimate need for the police to access the information requested, in line with legal and investigational advice relating to the criminal transmission of HIV. ¹⁷

Where possible, HCPs should ask the person about whom information has been requested for permission to share their information and obtain written consent. The person sharing this information should be reasonably assured that consent is not obtained under duress, such as while someone is in police custody. Ultimately, the police may apply for a court order. The court order must be complied with and will normally be dealt with by the legal team of a trust or hospital. Notes should be reviewed in advance to redact information with regard to any further identifiable individuals to avoid inadvertent disclosure of any information relating to others.

There have been cases in which requests have been made to share information around HIV where reckless or intentional transmission were not the alleged crimes under investigation. Such requests should not normally be complied with unless there is a court order. BHIVA, NAT and THT all have resources available to support decision-making in complex situations.