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Lecturer in Law
University of Essex
Copyright © 1997 Bob Watt.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
This book is a collection of articles dealing with all aspects of the US law of HIV/AIDS. Why should a UK reviewer trouble with this book? Or, rather more to the point, why should a UK reader interested in the legal protection of people with AIDS turn to this book? There are two reasons. First, it is clear that there are approximately fifty times as many people diagnosed with HIV/AIDS in the USA than in Britain, furthermore, a LEXIS search with the term 'HIV' yields 1675 federal and state cases in the USA and 68 cases in the UK. Thus, the USA is the source for legal materials on HIV/AIDS because they have many more medical cases and litigation is much more common. The second of these points is especially noteworthy and I shall return to it later in this review.
Furthermore, this book is superb. It is packed with fully referenced information presented in a highly readable fashion.
Unusually, the foreword, written by Joycelyn Elders MD is worthy of more than passing note. Ms Elders was the US Surgeon General until she was dismissed by President Clinton for making what seemed to be sensible suggestions for controlling the HIV/AIDS epidemic. In two short pages Ms Elders makes a powerful plea for a proper political understanding and programme for halting the AIDS epidemic. She also makes some useful comments concerning the control of the disease which are taken forward by Howe and Jensen in their chapter which focuses upon the medical aspects of HIV/AIDS.
This valuable chapter contains an overview of the medical understanding of HIV/AIDS which is invaluable for advocates who need a background of the medical condition of their clients. It is clearly written and readily understandable even by those with little scientific training. Unfortunately it does not contain very much information upon the newer combination therapies which are proving potent in the treatment of HIV/AIDS. I understand that a supplement to the book will be available in the autumn and it is to be hoped that such detail will be added. Webber points out in his introduction that the underlying theme of the book is the 'risk of HIV transmission in...varying contexts'. The influence of therapy upon transmissibility is a point upon which we all need to be better informed. It may be that if bloodstream viral loads are reduced by combination therapy workers in occupations where there may be is a risk of transmission may not need to be transferred to less risky duties. I have discussed this point in some detail elsewhere (Watt 1997).
David Webber's chapter on public health law is interesting from a comparative perspective. As Webber says 'In context of the HIV epidemic (US) public health law can generally be understood as the set of legal rules concerned with infection control'. In Britain, we have no such body of law. For example, in the body of cases concerned with the regulation of 'sex encounter establishments' (see the Local Government (Miscellaneous Provisions) Act 1983) there are no cases which discuss the risk of the virus spreading in or around such establishments. Webber discusses a number of such cases. Whether it is simply that entertainment is much more up-to-date in Kansas City (Rogers and Hammerstein 1937) or whether it is that litigation driven by AIDS-phobia is more highly developed in the USA is unclear. A comparison between the litigation of UK and the USA and the legal strategies adopted in the respective jurisdictions will, I suggest, expose the real value of this book. I shall undertake this comparison in my discussion of the succeeding chapter.
David Webber also provides us with this succeeding chapter. Here he discusses HIV/AIDS in the workplace. In my view his discussion of 'alternative dispute resolution' or ADR is or ought to be, for a UK audience, the most significant part of this scholarly book. It underscores the message implicit in the entire work that legislation and litigation are highly effective means for protecting the rights of people living with HIV/AIDS. I argue that the excessive reliance of British agencies upon alternative means of resolving disputes ('deals', for want of a better word) seriously damages the rights and interests of people living with the virus in Britain. The reason I think this is well set out by David Webber. After discussing the advantages of ADR he sets out its primary disadvantage.
'[T]he most significant is the interest of individuals with HIV in establishing legal precedents of widespread application regarding the rights of such individuals. ... As the legal principles regarding HIV in the workplace become more clearly established, the perceived need to establish these precedents may wane.' (p 107)
The lack of helpful precedents in Britain is due to the fact that there is little litigation about the matter. There are only two or three reported cases which squarely address the matter of the rights of people at work affected with HIV/AIDS, and these are not wholly helpful. Buck v The Letchworth Palace (see Watt 1992) which was withdrawn on the steps of the Employment Appeal Tribunal had a great deal of potential for establishing the rights of people with HIV/AIDS and thus was not fully litigated. A development of the doctrines set out in Cain v Hyatt 734 F Supp 671 (ED Pa 1990) would have fully supported Mr Buck's case and provided both Mr Buck with a far larger settlement than the miserly £1000 he received and, more importantly, established a valuable precedent. The X v Commission of the EC case [1995] IRLR 320 ECJ likewise has great potential, but upon a difficult jurisdictional base. If this is compared with the situation in the USA where there are many more people willing to litigate, often in situations of great personal danger (see Support Ministries for Persons with AIDS Inc. v Village of Waterford 808 F Supp 120 (NYDY 1992)), the reader is left with considerable unease. The strength and utility of Webber's book now becomes apparent. Whilst the cases discussed may not be used as exact precedents before the UK courts, the thrust and direction of the arguments may be borrowed and adapted to developed, helpful, British legal doctrines. The only puzzle here is why the, otherwise excellent, British agencies providing support for people with HIV/AIDS shrink from aggressive litigation using the provisions of the Disability Discrimination Act 1995 and the Employment Rights Act 1996.
Julie Shapiro and David Webber contributed the fourth chapter to the book. It is entitled 'Access to public services and accommodations'. It deals with Title II and Title III Americans with Disabilities Act applications and some applications under the 1973 Rehabilitation Act and state disability discrimination law. These applications concern matters outside the sphere of employment:- denial of public services, transportation, health care, funeral services and leisure facilities amongst others. Experience with the foundational British anti-discrimination legislation, the Sex Discrimination Act 1975 and the Race Relations Act 1976 leads one to believe that the main use of the Disability Discrimination Act 1995 will be in the field of employment. The examples of litigation pointed out by Shapiro and Webber show that there is no reason why the other parts of the 1995 Act should not be used.
There follow two chapters on the provision of education facilities and housing which cover material so far in advance of the British legal response to HIV/AIDS as to defy comment on their use as law. That is not to deny the academic merit of the two chapters, written by Linda Headley, and Karen Black and David Webber respectively. In particular Black and Webber's discussion (p 250) of 'pretextual' discrimination is invaluable and demonstrates that the disparate areas of discrimination law may be used to cross-fertilize one another. Arguably the lack of a corpus of HIV discrimination law in the UK is inhibiting the development of discrimination law more generally.
This point may be made in a different way, and context, in the course of a consideration of the next chapter written by McColgin and Hey. They discuss the impact of HIV/AIDS upon the criminal law. The discussions of the laws of homicide and assault are particularly useful. Certainly this reviewer will not hesitate to incorporate these sections in a course on legal philosophy dealing with the vexed issue of intent. What does a HIV+ seroconvert who, knowingly, has unprotected sexual intercourse intend to do? Have sex, murder his partner? The discussion of the cases of State v Hinkhouse 912 P 2d 921, modified 915 P 2d 489 (Or Ct App 1996) and Smallwood v State 680 A 2d 512 (Md 1996) bears favourable comparison with the best writing in this difficult area. The law of HIV/AIDS must not remain in isolation.
Similarly the chapter by Jean Sternlight on 'Negligence and Intentional Torts' raises a number of issues which are valuable both in a discussion of international comparative law and in the area of comparing HIV/AIDS law with torts in general.
I must confess that I am largely unable to evaluate the ninth chapter of this book which deals with the complexities of US social security law. I have commented upon the academic merits of the book in number of places in this review, and upon its utility to practitioners on both sides of the Atlantic. Irwin Keller's chapter has a quite distinct aim. It is designed as an overview for practitioners who need to advise people with HIV/AIDS on their eligibility for welfare benefits. It states from the outset that it is a guide to the most important federal benefits programmes. Assuming that this is so, and I should emphasise that the high quality of the rest of the book leads me to think that it is so, the chapter is plainly an important component of the book. Certainly it is clearly written, it has a number of worked examples and leaves the general reader in the position of some familiarity with the general principles of US social security law. Any failings in this review lie with the reviewer rather than the reviewed.
Mark Wojcik's chapter on the global aspects of AIDS returns this reviewer to more familiar ground. I must confess to being somewhat disappointed with this chapter. Wojcik points out, at the outset, that an estimated 30.6 million people have been infected with the virus, this number may grow to 40 million by the year 2000. He goes on to tell us that the incidence of AIDS may seem to be decreasing in industrialised countries and some 90% of new infections can be localised in developing countries. Remembering these undoubted facts, it is a pity that Wojcik presents us with what to my mind is a guided reading list. His treatment of the major global human rights instruments is short and interspersed with some discussion of American regional instruments. He fails to address European developments. What is more important, considering my report of his earlier comments, he fails to comment upon the work done in Africa, notably in South Africa. His work in this important area seems to be centred around his footnote 75. The Indian sub-continent receives better treatment, in particular, his guide to the Indian Law Institute sponsored New Delhi Declaration is useful. However, his commentary is short and uncritical. On the other hand, much of the material referred to in his footnotes is invaluable. It may be that Wojcik has been unfavourably served by the editor's demands on space, because his works published elsewhere are excellent. If the editor and publishers wish to keep this important chapter in succeeding editions they must give Mark Wojcik much more space in which to develop his arguments. Clearly too this chapter needs to be updated in light of the Second International Consultation on HIV/AIDS and Human Rights held in Geneva in September 1996 (E/CN 4/1997/37 of 20 January 1997).
If Mark Wojcik is to be given, in accordance with this reviewer's hopes, much more space to develop his arguments, the following chapter by Ignatius Bau provides an excellent model. Bau gives a lucid account of US immigration law and policy in general and its effect upon people with HIV/AIDS in particular. Bau briefly charts the history of the exclusion of people suffering from 'loathsome or dangerous contagious diseases' and speedily moves to the grounds upon which people with HIV/AIDS may be excluded from immigration into the USA. The fact that this ban now has a statutory basis, and is unlikely to be repealed, leads Bau into a valuable discussion of the treatment of Haitian refugees. This is followed by a detailed description of the exclusion procedures and medical examinations which would-be immigrants and others might face. This account has sufficient practical detail for advice workers in, for example, Britain to give intended immigrants or visitors to the USA authoritative advice concerning their application. One of Ignatius Bau's footnotes is pleasingly disingenuous and must be repeated:
"One of the ironies of the mandatory HIV testing of immigrants is that the opportunity to provide HIV prevention education to millions of immigrants is being missed by the failure to provide pre- and post-test counselling about HIV infection. Those who test negative on their INS medical examination are not provided any information about HIV or how they might prevent becoming infected in the future". (p 495 n109)
The point is, of course, that the establishment's real fear always has been of alien sexuality. This point has been made over the years in a variety of ways, perhaps most vividly in Richard Kluger's discussion of Southern fears of alleged black sexuality in 'Simple Justice' (Kluger 1975). The point is that the cruder the method of imparting a message, the more effectively it is transmitted. Giving immigrants the message that AIDS is something which they might bring into the country, rather than encounter once within the borders, is effective in emphasising their inferior and supplicant nature.
The book ends with a useful summary of State HIV statutes, a reprint of the Occupational Health and Safety Administration's Bloodborne Pathogens Guidance, and the Centers for Disease Control's Recommendations for Preventing Transmission of HIV and HBV to Patients During Exposure-Prone Invasive Procedures.
So, in well over six hundred pages of text and materials, there is very little that falls short of exemplary standards of scholarship. There is a vast amount of information included in the book, which is vital to academics and practitioners alike. The message to Britain implicit to the book is clear, LITIGATE!
Kluger, R (1975) Simple Justice (London: Andre Deutsch)
Rogers, R & Hammerstein, O (1937) 'Everything is up-to-date in Kansas City' from Oklahoma!.
Watt B (1992) 'HIV, Discrimination, Unfair Dismissal and Pressure to Dismiss' 20 Industrial Law Journal 280
Watt B (1997) 'The Legal Protection of HIV+ Health Care Workers and the Human Rights Jurisprudence of the European Court of Justice" (Manuscript submitted).
