HIV-positive: The case for disclosure

Many questions arise from the case of the 40-year-old HIV-positive man charged with wilfully infecting three other men with HIV and attempting to infect a fourth.

Not just why the man, now in custody with name suppression, allegedly did what he did. Or why it took so long for the police to stop him. Or why our laws are so out of date that doctors and other health professionals are uncertain about what to do when they come across such reckless behaviour. Or why HIV is not a notifiable condition.

Puzzling as all that sounds, the greater mystery here is why did the man's sexual partners participate the way they did? Why, after decades of messages honed from the reality of the Aids epidemic 25 years on, did they not practise safe sex?

The slang for engaging is such unprotected sex is "barebacking". As reported on the GayNZ website, there are some - like the man arrested - who have "a strong aversion" to condoms. Some also maintain profiles on international dating websites catering to people specifically seeking unsafe sex.

It's a practice that has Aids Foundation director of HIV prevention and communications Simon Harger-Forde worried: "There is complacency with gay and bisexual men in New Zealand. We would suggest there is a concerning level of non-condom use."

He stresses it's not a trend or that overall the level of condom use isn't dropping, but it is a level of use the Foundation wants to improve.

"From our research and behavioural surveillance and the anecdotes we hear, there are men who are taking pretty huge risks."

Harger-Forde says online dating sites and internet sharing of video pornography are behind what's happening.

"Technology is the perfect tool for the production and reproduction of fantasy and that whole barebacking culture."

The extreme fringe of the subculture has some who deliberately seek to get HIV and spread the infection - involving so-called "bug chasers" and "gift givers".

Why is it happening? Harger-Forde says one of the reasons is possibly due to the success of antiretroviral drugs for treating HIV infections which has changed the perception of HIV from an untreatable terminal illness to a manageable condition. Or it may be a reaction "to being over-messaged and over-health promoted", sometimes referred to as condom fatigue.

Fighting the fantasy and countering these views, says Harger-Forde, is the new challenge facing HIV prevention. One message people need to be reminded about is that HIV is still a highly dangerous and incurable virus. "While it might be manageable, it's not fun to have. It's not something that you want."

The case also highlights shortcomings in our current legislation to deal with reckless or wilful spreading of disease and has renewed calls for the Public Health Bill to be passed.

The bill which would replace the 1956 Public Health Act, would make HIV a notifiable condition and provide health professionals with much needed direction on courses of action when they become concerned about a patient or client putting others at risk.

Some in the gay community had become aware of the arrested man's behaviour more than a month ago and had tried to get officials to act. Frustrated by a lack of response they went public with their concerns on the GayNZ website.

Informed about the situation, the police Adult Sexual Assault Team immediately began to look at the allegations. It was also the website's coverage of the issue - describing the man as an "HIV predator" - which prompted a young man to lay a formal complaint with the police who then launched a full investigation.

"Yes we support a law change that would give, in these exceptional circumstances, HIV skilled doctors who are involved in the case extraordinary powers which they seem to lack at the moment," says Harger-Forde.

But while the Public Health Bill would do just that - making it an offence to recklessly spread a notifiable disease or condition, setting out clear procedures for contact tracing and allowing disclosure of communicable conditions to partners and household members - the legislation is languishing in change-of-government limbo.

The bill, which was introduced by the Labour Government in 2007 and has been through select committee process, is awaiting its second reading. The problem is that at the time it was debated, National, while agreeing with the provisions around communicable diseases, disagreed strongly with other aspects of the bill - especially its proposals for non-communicable diseases like obesity and diabetes.

In December 2007, Tony Ryall, now Minister of Health told parliament; "The National Party has considerable concerns about this proposal [obesity and diabetes]. In particular, we question the so-called voluntary codes, and the sweeping powers to regulate just about everything we do, that are hidden in clause 374. Parts of this bill smack of nanny State gone too far."

Asked about the status of the bill and whether the Government would be seeking changes Associate Minister of Health Tariana Turia, who is responsible for communicable diseases seemed unaware of the extensive work done to date.

"For now, and because there are huge issues involved, there will be no knee-jerk reaction from the Government - this is a matter that needs to be worked through carefully." She said it was important victims were not open to exposure and that their rights were protected and that she would be taking advice from Ministry of Health officials on this matter.

Director of Public Health Dr Mark Jacob told the Herald the Ministry of Health has provided advice to the Government in relation to the Public Health Bill and referred us to Sections 126 and 127 and Subpart 3 of the Bill as the measures that can be taken to prevent the spread of communicable conditions that pose a risk to public health. He said the Ministry did not wish to make further comment "lest this may prejudice a case pending before the courts."

Rigorously protecting the confidentiality of its support work with HIV positive individuals or people seeking HIV tests is a key plank of the work of the Aids Foundation and others involved in HIV prevention. But though the Foundation encourages disclosure of HIV status between sexual partners, it does not believe it should be a compulsory requirement as long as there is consistent use of condoms. But Harger-Forde says the current case shows the point where patient confidentiality should be compromised.

"I think there may well have been professionals who knew some of the stories. The difficulty they have is to balance providing good care to their patient or client and keeping that confidential and safe and making sure there is no significant risk to others from their client's or patient's behaviour."

Meanwhile legal eyes and others will be watching the next court appearance of the man later this month. As discussed on GayNZ by Andrew de Montalk, a law student at Victoria University, the man is charged under section 201 of the Crimes Act 1961 with "wilfully and without lawful justification or excuse causing or producing a sickness or disease, namely HIV". The offence which rarely comes before the court carries a maximum penalty of 14 years imprisonment.

What's significant about this is that the man in custody has not yet been charged with causing reckless grievous bodily harm or criminal nuisance, the charges that have been used in other HIV cases.

As de Montalk points out, the man is charged with an offence that is yet to be successfully prosecuted in New Zealand. It could also be the first time a New Zealand jury has considered a charge of wilfully causing a disease or sickness.


OTHER CASES

1994 Kenyan musician Peter Mwai sentenced to seven years jail for having unprotected sex with five women and infecting two with HIV. Deported in June 1998 having served four years in jail here, Mwai died in Uganda in September 1998.

1999 David Purvis, a 31-year-old Pakuranga invalid beneficiary, sentenced to four months jail for committing a criminal nuisance by having unprotected sex with another man who did not contract HIV. Pleaded guilty.

2001 Former male prostitute Christopher Truscott held in "secure" care (he has escaped many times) in Christchurch after being prosecuted in 1999 for having unprotected sex with four men. Intellectually impaired, Truscott seemed unable to comprehend the implications of his HIV infection.

2004 Zimbabwean Shingirayi Nyarirangwe, 25, was sentenced to three years jail after pleading guilty in the Auckland District Court to four charges of criminal nuisance and three of assault relating to unprotected sex with several women.

2005 Justin Dalley found guilty of criminal nuisance by failing to inform a woman he was HIV positive - sentenced in Wellington to 300 hours' community work, six months' supervision and told him to pay $1000 reparation to the woman to cover her counselling costs and expenses. The woman did not contract HIV. Soon after, Dalley was acquitted on a second, similar charge because on that occasion he did wear a condom - possibly setting a legal precedent that by wearing a condom an HIV positive man is taking "reasonable precautions" against infection and need not disclose his HIV status.

Current A New Zealander originally from the Democratic Republic of Congo awaiting trial on charges that he had unprotected sex with a woman and infected her with the virus. It is possible he also infected other women.