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HIV and the law -

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Norman Swan: A paper published today in the Medical Journal of Australia argues that the criminal justice system in Australia should be very careful about prosecuting cases alleging deliberate transmission of HIV. The science and treatment have moved on to such an extent that the risk of sexual transmission has become much lower, says the paper. The lead author is Mark Boyd who is Professor of Medicine at the University of Adelaide. Welcome to the Health Report.

Mark Boyd: Thanks for the invitation Norman.

Norman Swan: So what's the typical story here?

Mark Boyd: Look, let me answer you in general terms, Norman, because it's certainly not our intention of the authors or of the statement to directly critique the evidence presented in the past in such cases, in the trials, or to suggest a miscarriage of justice in any of those trials. But having said that, in general terms what we are addressing in the statement are court cases in which there is an accusation by one individual that another person, the defendant, has deliberately infected the complainant with HIV infection and had not disclosed before engaging in sex their HIV status and had not taken adequate precautions to minimise the risk of transmission.

Norman Swan: Are there still many of those cases around? There used to be a few, but are there still many around?

Mark Boyd: There aren't that many. Look, overall in the 30-odd years since the epidemic was first called I guess in the early '80s there has been about 40, I think 38 cases overall in Australia. And they still do occur.

Norman Swan: You're trying to say here that the evidentiary position has changed over the years and the law needs to catch up a bit.

Mark Boyd: That's absolutely right. I think our intention really was to in a sense bring the ever evolving science of HIV…and it is a field in which clinical science and basic science moves incredibly rapidly…to try and appraise the criminal justice system of the situation with HIV at the present time. And I think there are two important aspects that we want to highlight. One is that in previous times the notion that someone became infected with HIV was essentially thought of as a 'death sentence', it was a heinous illness which would shorten people's lives substantially and may well lead to a fairly unpleasant death as a result of immunodeficiency. And in the past 20 years, particularly in 20 to 30 years, where there has been an enormous effort to try and treat HIV, we've now got to a situation in which the great majority of people infected with HIV, particularly in a country like Australia where there is a universal healthcare system and access to therapy, most of those people are now seen as outpatients, lead extremely healthy and productive lives, and we believe and there is certainly plenty of evidence now that they really could be expected to live the same kind of life in terms of quality and duration.

Norman Swan: So that argument goes to damages, if you like.

Mark Boyd: Indeed. So it is now no longer such a terrible diagnosis, it's completely compatible with a reasonable life if you simply…

Norman Swan: Well, it's still a pretty rotten thing to deliberately infect somebody if you know that you've got it and you haven't taken precautions.

Mark Boyd: Absolutely, that's quite true. But I think what's important is that it's quite unusual to have cases in which people have deliberately gone out and infected people. These are very unusual cases. The great majority of transmissions are simply unfortunate and an accident.

Norman Swan: So then you go to the science of transmission.

Mark Boyd: Right. So in that regard we've also got a much better handle I think now on the sort of risks of transmission for any given act for a person with HIV infection, whether they be on treatment or not and whether they are using barrier protection, for instance, condoms or not.

Norman Swan: And you argue that the risk these days is incredibly low for sexual transmission.

Mark Boyd: It is incredibly low, yes, and in fact there have been some really fantastic studies that have been published only in the recent past, and this has all come out of an understanding that we probably needed to find other tools other than condoms, whether they be male condoms or female condoms, to try and limit transmission even more. So in the last 5 to 6 years we've seen studies, very good robust, randomised clinical trials that have demonstrated if you give people prophylaxis, so using a component of that combination antiretroviral therapy which can be taken at one pill daily, and that person takes that pill daily, then the chances of transmission to that person, even if they are exposed to someone with HIV, with whatever viral load you like, so quite high levels of HIV in the body, is pretty much zero.

Norman Swan: So you're arguing that because of this that in fact many of these cases should not go to trial because the risks are low and maybe a public health approach is a more appropriate way to go.

Mark Boyd: Absolutely. We think that a public health approach can be adapted to these people, people who are even deliberately infecting people. It's much better to try and treat them with a public health framework in which they can be counselled and followed up, and if necessary isolated, but we don't believe that necessarily incarceration and criminal prosecution is appropriate. It's not good for the individual and it probably doesn't improve the public health.

Norman Swan: And the burden of proof for lawyers is much higher than it used to be.

Mark Boyd: Yes, we believe so.

Norman Swan: Thank you very much indeed, Mark Boyd, for joining us.

Mark Boyd: It's a pleasure.

Norman Swan: Mark Boyd is Professor of Medicine at the University of Adelaide.

I'm Norman Swan and this has been the Health Report. I hope you can join me next week.