The issue of routine provider – initiated ‘opt-out’ HIV testing approach lies at the cross- roads of the public health goal to prevent HIV transmission and protecting human dignity as a human rights goal. Human rights seeks to protect individuals from coercive and non voluntary HIV testing while public health goals aspire to protect the collective good by detecting as early as possible those infected by HIV with the aim of prevention, treatment and care. The definition for public health has changed as public
141 Csete & Elliott above n 38 at 5 8.
115 health has evolved, but common to most definitions is a sense of the general public interest, a focus on the broader determinants of health and a desire to improve the health of the entire population.143 Generally through social, rather than individual actions, public health seeks to improve the well-being of communities.144
As indicated in chapter one, the ‘pro’ and ‘anti’ debates on the adoption of routine opt- out HIV testing approaches are discussed in a rather polarized way, where the human rights requirements are seen to be contradictory to the public health requirements. However, increasingly, as shown below public health practitioners and human rights activists are arguing that the goal of both public health and human rights is to contribute to the advancement of human well being. The aim of this section is to show that despite their different approaches, public health and human rights imperatives can be complementary and mutually supportive in the fight against the AIDS epidemic, including in the case of HIV screening schemes.
Traditional public health measures have generally focused on curbing the spread of the disease by imposing coercion, compulsion and restrictions on the rights of those already infected or thought to be most vulnerable to becoming infected.145 However, over time, human rights and public health are increasingly recognizing the vital role of the societal environment to the realization of both health objectives and human rights.146 As Gostine and Lazzani argue a human rights approach is important not
143 R Beaglehole, et al., ‘ Public Health in the New Era: Improving Health Through Collective Action’ (2004) 363 The Lancet 2084.
144 N Kass ‘An Ethics Framework for Public Health’ (2001) 19(11) American Journal of Public Health 1776. 145 S. Gruskin and D Tarantola ’ Health And Human Rights Overview ‘ in K Heggenhougen and S Quah (eds)
International Encyclopedia of Public Health (Academic Press Vol. 3, 2008) pp. 137-146 , 316.
146 International Federation of Red Crescent Societies and Francios- Xavier Bagnoud Center for Health and Human Rights ‘The Public Health – Human Rights Dialogue’ in JM Mann et al., Health and Human Rights: A Reader ( New York : Routledge , 1999) 46- 53.
116 only because it promotes respect for individuals, but also because such respect is indispensable to improve public health.147
Prevention of the transmission HIV/AIDS, which is communicable, incurable and especially in the developing world often a fatal disease, is a public health objective of vital importance. From the human rights perspective, this can best be accomplished by promoting and protecting the rights and dignity of everyone. The protection and promotion of human rights are necessary both to the protection of the inherent dignity of persons affected by HIV and to the achievement of the public health goals of reducing vulnerability to HIV infection, lessening the adverse impact of HIV and AIDS on those affected and empowering individuals and communities to respond to HIV.148
In 1997 Jonathan Mann (the first director of WHO’s Global Programme on AIDS) called for public health officials to go beyond the traditional public health approach (education and service-based efforts) to recognize that lack of respect for human rights as a societal level risk factor for vulnerability to HIV/AIDS.149 Similar remarks were recently made by Clayton who argues that respect for human rights protects those who are vulnerable and marginalized, establishes trust for efforts to access populations that are hard-to-reach, promotes confidence in health services, and secures the cooperation necessary for preventing further transmission.150
147 Gostin and Lazzani above n 58 at 43. 148 OCHCR/ UNAIDS above n 50 at 77.
149 See generally J Mann ‘Medicine and Public Health, Ethics and Human Rights (1997) 27 (3) Hastings Centre Report 6-13. 150 S Clayton ‘Public Health Law, Human Rights and HIV: A Work In Progress’ (2010) 21(3-4) Public Health Bulletin 97.
117 However, concerns were aired that discovery of a biomedical intervention with substantial potential to prevent HIV infection, such as zidovudine treatment during pregnancy to reduce the risk of prenatal transmission, has provoke calls for routine HIV testing of all pregnant women and mandatory treatment of infected women.151 As Gruskin argues the debate about the correct approaches to HIV
testing needs to be re-centred onto something that moves strategies forward towards sound public health and human rights practice, and away from a framing of public health and human rights as diverging or even antagonistic concepts.152 In recognition of this fact the UNAIDS/WHO state that, ‘... the global scaling up of the response to AIDS, particularly in relation to HIV testing as a prerequisite to expanded access to treatment, must be grounded in sound public health practice and also respect, protection and fulfilment of human rights standards.153 Integrating human rights principles in the HIV screening schemes can complement rather than contradict the public health objective of prevention of HIV transmission.
HIV testing and counselling can be implemented in a manner that realizes the mutually reinforcing objectives of public health and human rights which ensure both human dignity and social justice. Public health objectives of preventing mother-to-child transmission can be achieved not by forcibly testing the pregnant women for HIV but on securing the women’s understanding and a significant degree of cooperation. This can only be secured properly through respecting their human rights. Prevention of vertical transmission involves an extended period of treatment before, during, and after child birth. It requires the HIV positive woman to follow up the medications of the child after birth; return to the health facility for further testing of their new born child; as well as their adherence to formula feeding
151 Gostin and Lazzani above n 58 at 71.
152 S Gruskin, Its Time to Deliver Right! HIV Testing in the Era of Treatment Scale Up: Concerns and Considerations’ (2006) (A Publication of the AIDS Legal Network September )11.
118 or exclusive breast feeding.154 Taking note of these facts it has been argued that, conducting HIV testing in an environment that does not enable pregnant women to make their decisions regarding HIV testing and treatment could decrease the program's effectiveness since such practices discourage cooperation and trust between pregnant women and health care providers or causes women to avoid pre- or postnatal care.155