We present qualitative
research findings about how perceptions of criminal prosecutions for the
transmission of HIV interact with the provision of high-quality HIV health and
social care in England and Wales. Seven focus groups were undertaken with a
total of 75 diverse professionals working in clinical and community-based
services for people with HIV.
Participants’ understanding of the law in this
area was varied, with many knowing the basic requirements for a prosecution,
yet lacking confidence in the best way to communicate key details with those
using their service. Prosecutions for HIV transmission have influenced, and in
some instances, disrupted the provision of HIV services, creating ambivalence
and concern among many providers about their new role as providers of legal
information. The way that participants approached the topic with service users
was influenced by their personal views on individual and shared responsibility
for health, their concerns about professional liability and their degree of
trust in non-coercive health promotion approaches to managing public health.
These findings reveal an underlying ambivalence among many providers about how
they regard the interface between criminal law, coercion and public health. It
is also apparent that in most HIV service environments, meaningful exploration
of practical ethical issues is relatively rare. The data presented here will
additionally be of use to managers and providers of HIV services in order that
they can provide consistent and confident support and advice to people with HIV.
...Understanding the law
Accurate understanding of and
ability to communicate about the law are two important and distinct skills for
those who inform service users about the criminal law or are expected to field
questions on the topic. Many participants had a basic understanding of the
conditions that could lead to a prosecution.
I think the
important thing is that transmission actually has to take place. So it is not
just about unsafe sex - it is about transmission essentially happening.
Somebody has to become positive. (Clinical service provider)
However, many participants
expressed confusion about the technical legal meaning of recklessness, and
what a sufficient defence might be against such a charge. Arriving at a
mutually agreed legal definition of reckless grievous bodily harm was far from straightforward, with
many participants struggling to find accurate and concise means of
distinguishing between common-sense uses of recklessness and this particular form of criminal
liability.
So the way I
understood it was, that the law is defined into an act and a mental state. And
the original law applied to intention, which is to intentionally and to
wilfully desire to do it. And it’s kind of flowed out into recklessness, which
is sort of omission, or by not caring, or not caring if you transmit. But not
taking reasonable precaution, or by not telling people it’s kind of involved
wider of what my understanding about what the original law was meant to be?
(Community service provider)...
aSigma Research, London School of Hygiene and Tropical
Medicine, London, UK
bSchool of Law, Birkbeck College, London, UK
cDepartment of Sociology, University of Copenhagen, Copenhagen, Denmark
