Powers to regulate people with HIV

The Health and Social Care Act 2008 made significant changes to public health powers in England and Wales (adding a new Part 2A to the Public Health (Control of Disease) Act 1984). The Act introduced what is known as the 'all hazards' approach in relation to public health powers. This means that instead of specifying in law a list of infections to which public health powers can be applied, any infection could be subject to public health powers if the infection 'presents or could present significant harm to human health' and if the infected person 'might infect others' [Part 2A section 45G].

The new and broader application of public health powers is designed to ensure flexibility and a prompt response to public health threats, including to newly emerging infections. A large number of sexual health organisations (including the British Association for Sexual Health and HIV, the British HIV Association and the Children’s HIV Association, representing clinicians) argued that whilst reform of public health powers might be necessary it was a mistake to apply such powers to sexually transmitted infections (STIs).  

The main arguments against the use of public health powers for HIV and other STIs were the fact that they would involve breaching a person's medical confidentiality. This could jeopardise trust generally in the confidentiality of sexual health services and deter others from accessing clinics for testing and treatment. Stigma around HIV and STIs could well distort judgements by authorities as to what is genuinely a risk to human health and what is necessary by way of response. Coercive powers used against individuals with HIV (and subsequent media reports) might also increase such stigma, which so undermines an effective response to the epidemic. Targeting people with an HIV diagnosis ignores shared responsibility for sexual health and the fact that people can avoid infection by adhering to safer sex advice (whereas drug-resistant TB, for example, might be transmitted through everyday contact and could be difficult to avoid).

Whilst these and other arguments did not succeed in removing HIV and other STIs from the scope of these powers, they have had an important influence on the guidance published by the Department of Health on how the new powers should be applied in practice.¹ 

The Health and Social Care Act 2008 and consequential regulations contain a number of public health powers and legal requirements, for example around notification of diseases or powers of local authorities. This section focuses on those powers most relevant to people living with HIV, the power of a Justice of the Peace (JP) to make an order (known as a 'Part 2A order') requiring action of someone living with an infectious disease.^2,3 

A local authority can apply to a JP for a Part 2A order which imposes restrictions or requirements on a person. The person must have an infection which presents or could present significant harm to human health, and the action ordered must be considered necessary to reduce or remove that risk to human health.

Possible orders include:

• Submitting to medical examination

• Removal to a hospital

• Detention in hospital

• Isolation or quarantine

• Requirement to be disinfected

• Requirement to wear protective clothing

• Requirement to answer questions about one's health or other circumstances (including about possible contacts)

• Monitoring of a person's health and the results reported

• Attendance at training/advice sessions on reducing transmission risk

• Restrictions on where the infected person goes or whom s/he has contact with

• Requirement to abstain from work or trading.

Orders can include one or more of the above requirements, and can apply to individuals or to groups of identifiable individuals. Failure to comply with an order may result in a fine of up to £20,000. 

Ordinarily an individual should first be asked to comply voluntarily with any action proposed. They should also receive notice of any application to a JP for an order so they can attend the hearing and, if desired, arrange legal representation. Exceptions to these rights of notice would, however, be made for urgent cases or where there is a fear that an individual might abscond.

Orders can only ever last for a maximum period of 28 days, at which point they need to be renewed with a further application from the local authority to the JP.

The Department of Health (DH) has produced guidance on how to apply Health Protection Legislation in England. Similar guidance has been produced in Wales.⁴ Although in theory Part 2A orders can be applied to people with HIV or other STIs, the DH guidance is so framed as to deter the use of these powers for HIV/STIs except in the most exceptional of circumstances.

The guidance makes clear that Part 2A orders 'are not a tool for managing long-term problems’.⁵ It is made clear⁶ that the new Part 2A orders:

• Are not meant in any way to change the current system and culture of confidentiality within sexual health services

• Are not to be a routine part of managing those with HIV who present with evidence of ongoing unsafe sex (for example by presenting with repeated STI infection)

• Are not generally appropriate for contact tracing.

It is made clear that in judging whether an order is appropriate, any possible benefit has to be weighed against the possible harmful consequences for wider trust in sexual health services. The guidance also states that in the very exceptional circumstances where a Part 2A order might be considered, advice should be sought from the treating clinician and clinic director, and that confidentiality should be respected at all times.

It is therefore expected that there will be few if any cases where these powers would be used in relation to HIV or another STI. 

There is a legal requirement that a local authority report any application for a Part 2A order to Public Health England who will present an annual report of all cases to the Secretary of State for Health. The information will be made public and will be a chance to monitor use of these powers. In addition it is hoped that anyone made aware of an attempt to use such powers in relation to HIV or an STI will contact NAT (National AIDS Trust) immediately to get advice.

According to Public Health England, these powers were used nine times in 2010-2011 and six times in 2011-2012. With two exceptions, all cases related to individuals with tuberculosis.

One other case related to an individual with HIV, in May 2010 in the East Midlands. There was one reapplication for the order to be extended, suggesting that the individual was subject to regulations for no more than two months. Further details of the case have not been made public.

One other case concerned disinfecting or decontaminating dirty premises.

Public health powers in Scotland have also recently been revised by the Public Health etc. (Scotland) Act 2008⁷ and can apply to HIV and other sexually transmitted infections. Implementation guidance has been published by the Scottish Government.⁸ 

Similar powers to those in England and Wales are made available in relation to individuals with an infectious disease who pose 'a significant risk to public health'.  Powers include, and are limited to:

• public health investigations (which include where necessary a requirement to answer questions),

• exclusion from a place,

• restriction from an activity,

• quarantine,

• medical examination,

• removal to and detention in hospital.

There are similar rights of notice and appeal to those in England and Wales, and also powers to vary and extend orders. There are however differences both in duration of orders and in the process of making an order. 

Orders for quarantine, detention or examination last for up to three weeks and can be renewed up to a twelve week maximum duration. But a long-term detention order of up to twelve months is possible in certain exceptional circumstances. Exclusion and restriction orders do not have a maximum time limit though they do need to be reviewed at three-week intervals to determine whether they are still necessary, and must also be reviewed if so requested by the person to whom the order applies.

Exclusion and restriction orders are made by a 'health board competent person', and must be the least restrictive necessary to protect public health. Public health investigations will usually be initiated by a ‘health board competent person’, a ‘local authority competent person’, or both acting jointly. 

Orders for quarantine, detention or medical examination must be made by a sheriff on application from a local health board. They must be considered ‘as a matter of last resort’. Medical examinations must be the least intrusive and invasive practicable.

Scottish Government guidance on use of these powers does not currently contain comparable content on sensitivities around HIV and STIs to that in the English operational guidance. There are however a range of safeguards in the guidance aimed at ensuring the process protects human rights. For example, there is a duty of explanation to the person to whom the order applies, and requirements on the evidence necessary for an order to be made.

It should be noted that the language in the Scottish law is of risk to ‘public health’ whereas in England and Wales the phrase ‘human health’ is used. This has an impact on how the Scottish guidance addresses the concept of significant risk.  Issues to be considered include whether the disease is unusual, whether the risk is to large numbers of people or to unusual numbers of people in a particular locality, and whether there is a substantial risk of public exposure because the disease is easily transmissible between people (paragraph 6 of the guidance). These criteria suggest it is unlikely that orders would be applied to an individual with HIV.