Sherry-Ann McGregor, Contributor

MCGREGOR

The battle to reduce the impact of HIV/AIDS in the global community is fought in many arenas. More often than not, the focal points relate to education to increase awareness as to modes of transmission and methods of prevention. However, there are also frequent reports about court actions related to HIV/AIDS.

In Jamaica, there have been several cases involving persons who have sued medical institutions on allegations that they have become infected during the course of treatment. Most of these cases are supported by allegations that employees of the institution acted negligently and caused injury to a patient. Many of these cases have been settled.

In other jurisdictions, many other issues related to HIV/AIDS have been litigated. Below are some examples of the types of cases:

Diau v Botswana Building Society - The Industrial Court of Botswana ordered the reinstatement of the claimant whose employment was terminated because she refused to submit to HIV testing. The court ruled that Diau's right not to be subject to inhuman and degrading treatment had been infringed and stated that punishing an employee with termination for failing to take an HIV test was "a form of economic death". Diau was awarded four months' pay as compensation.

Botswana's National HIV/AIDS Policy was used to assist in constitutional interpretation although the policy itself is not binding as law.

Attorney-General v Thwaites - After serving more than nine years in the Canadian Armed Forces (CAF), the complainant was medically discharged for being HIV-positive. He sued for an order that the CAF had unlawfully discriminated against him and he sought compensation for lost wages. The Federal Court of Canada ruled that there was discrimination contrary to the Canadian Human Rights Act and that the CAF had failed to accommodate the complainant's disability or assess his capabilities before dismissing him.

He was awarded lost wages as well as future payments.

R v Secretary of State for the Home Department ex parte Glen Fielding - The applicant was a gay man who had been incarcerated in a correctional facility where he was refused access to condoms in accordance with the Home Department's policy. He brought an action to challenge that policy, and it was determined that condoms would be available only through a prison doctor's prescription. The court justified this decision on the grounds that the real issue was health and not the right to have sex.

Limiting prisoners' access to condoms is criticised for being contrary to the United Nations International Guidelines on HIV/AIDS and Human Rights, which recommend the provision of condoms in prison.

These issues have not yet been tested in our courts, but there is an expanding body of jurisprudence which makes very interesting reading.

Sherry-Ann McGregor is a partner and mediator in the law firm of Nunes, Scholefield, DeLeon & Co. Send feedback and comments to lawsofeve@ yahoo.com. The information related to the cases cited in this article was taken from the UNAIDS publication - 'Courting Rights: Case Studies in Litigating the Human Rights of People Living with HIV'.