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Study guide

Legal Problems of HIV and AIDS (RHV 410)

Module Coordinator: Prof A G Nienaber Last revision: July 2016 © Copyright reserved

Department of Public Law

LEGAL PROBLEMS OF HIV AND AIDS (RHV 410)

I GENERAL INFORMATION

1. Department of Public Law

The module Legal Problems of HIV and AIDS 410 (RHV 410) is presented by the Department of Public Law.

The module co-ordinator for RHV 410 is:

Prof Annelize Nienaber Law Building Room 4-45 Tel (012) 420 5778

Consulting hours: Tuesdays 09:30 – 12:20 Thursdays 09:30 – 12:20

The lecturers in the module are Prof Annelize Nienaber, Prof Frans Viljoen and Prof Anton Stoltz.

Departmental administrator: Ms JM Larkin Law Building 4-61 Tel: (012) 420 2415 General information can be obtained from the departmental administrator and messages for lecturers may be left with her. Academic associate: Ms Tracy Muwanga Office: Law Building 4-46 Tel: (012) 420 3848 Email: [email protected] Her consultation hours will be announced in class and on ClickUp.

2. Lectures in the module 2.1 There are two compulsory lectures per week:

Group Day Times

English/Afrikaans Fridays 11:30 – 13:20 Law 2-9

2.2 Five lectures are presented by the lecturer and guest lecturers. After these lectures, students choose and prepare topics to present to their fellow students during seminars. Please consult the dates indicated in this study guide for each

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seminar – students need to thoroughly prepare responses to the prescribed reading for each seminar.

2.3 A time-table containing dates and topics for students to choose from will be placed

on ClickUp. Each student must choose two topics to present to the class. Where students work on the same topic they are advised to consult one another so that no overlapping takes place. The lecturer fulfils the role of facilitator during these seminars, and will sum up and add information at the end of each seminar. It is therefore essential that students prepare for seminars so that they may be actively involved. Seminars progress in three phases: the lecturer introduces the topic; the student makes a presentation and other students participate by asking questions and by making comments; the lecturer concludes by placing the topic under discussion in a broader context and by concluding the discussion.

3. Evaluation

The semester mark is made up of the following:

Assignment 1 40% Assignment 2 40% Class participation 20% Assignments: Students prepare essays or opinions on two of the lecture themes and present them orally (between 2500 and 3000 words, all text included, please indicate word count). A mark will be awarded for each of these essays, which will then each count 40% towards the semester mark (10% for the oral presentation; 30% for the written assignment). Class participation: 20% of the semester mark is composed of class participation (sharing of views, intelligent interaction with prescribed work and fellow students, etc.) and class attendance is therefore compulsory. 4. Examination A date for an open-book take-home (24/48-hour) exam will be arranged with students (most likely the 3rd week of October 2016 – around 21 October 2016). Receipt of papers and submission of answers takes place at Law 4-61 (Mrs Larkin‟s office, 4th Floor, Law Building). 5. Work programme

Date Topic Lecturer

Lectures

22 July Module introduction & overview

Prof Annelize Nienaber

29 July No class ------

5 August The origin, demographics and spread of HIV and AIDS

Prof Annelize Nienaber

12 August The politics of HIV and AIDS Prof Annelize Nienaber

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in South Africa

19 August The scientific context of HIV en AIDS

Prof Anton Stoltz: Head: Infectious diseases unit, Steve Biko Academic Hospital

26 August HIV, AIDS and key populations

Prof Frans Viljoen

Seminars

2 September Seminar 1 Prof Nienaber





14 October Seminar 6 Prof Nienaber

21 October Examination Examination

6. Basic texts

WITS AIDS Law Project HIV/AIDS and the Law (2001)

Barnett, T & Whiteside A AIDS in the twenty-first century (2002)

Van Niekerk, AA and Kopelman, LM (eds) Ethics & AIDS in Africa: The challenge to our thinking (2005)

Viljoen, F (ed) Righting Stigma: Exploring a rights-based approach to addressing stigma (2005)

Viljoen, F & Precious S (eds) Human rights under threat: Four perspectives on HIV, AIDS and the law in Southern Africa (2007)

Whiteside, A & Sunter, C AIDS: The Challenge for South Africa (2000)

Fourie, P The political management of HIV and AIDS in South Africa: One burden too many? (2006)

Klinck, E (for South African Medical Association) Human Rights and Ethical Guidelines on HIV: A Manual for Practitioners (2001)

Ngwena, C “Legal responses to AIDS: South Africa” in Frankowski, S (ed) Legal responses to AIDS in comparative perspective (1998) (344.4369792 LEGAL)

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LECTURE 1 MODULE INTRODUCTION & OVERVIEW (PROF ANNELIZE NIENABER) (22/07) Lecture themes: 1. Module introduction & overview 2. What is expected of students

PLEASE NOTE THAT THERE IS NO CLASS ON 29 JULY 2016. LECTURE 2 THE ORIGIN, DEMOGRAPHICS AND SPREAD OF HIV AND AIDS

(PROF ANNELIZE NIENABER) (05/08)

Lecture themes: 1. The origin of HIV 2. The demographics and spread of HIV and AIDS 3. Reasons for prevalence patterns 4. Which age group in South Africa is affected most? What are the implications? 5. The debate regarding reliable statistics Preparation and sources: Visit at least the following three websites: <http://www.unaids.org>, <http://www.mrc.ac.za>, <http://www.gov.za> (South African Department of Health), and HSRC South African national HIV prevalence, HIV incidence, behaviour and communication survey <http://www.hsrc.ac.za/Document-3238.phtml> Hunt CW “Social vs Biological: Theories on the Transmission of AIDS in Africa” (1996) Social Science Medicine 1283 (available on ClickUp). 1. What do the most recent statistics show about the prevalence of HIV and AIDS

a) globally b) in Africa c) in South Africa? Provide details.

2. Which factors lead to the high prevalence of HIV and AIDS in a) Sub-Sahara Africa, generally, and b) South Africa, specifically?

LECTURE 3 THE POLITICS OF HIV AND AIDS IN SOUTH AFRICA (PROF ANNELIZE NIENABER) (12/08) Lecture themes: 1. A discussion about aspects of the sociological context of HIV/AIDS (eg

stigmatisation, the Nkosi Johnston saga) 2. What has the government‟s response to HIV/AIDS been? Why? 3. Growing questioning of so-called „AIDS exceptionalism‟. What are the arguments

against „AIDS exceptionalism‟? Why is HIV still treated differently? Sources:

Marais H To the edge (AIDS Review 2000), esp pp 30-41

Fourie P (2006) The political management of HIV and AIDS in South Africa One burden too many?

Smith J and Whiteside A „The history of AIDS exceptionalism‟ (2010) 13 Journal of the International AIDS Society 47

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Cameron E „Stigma, human rights, testing and treatment - time for action‟ Ruben Sher Memorial Lecture, 26 November 2009 (2010) SA Journal of HIV Medicine 10

Elbe, S “AIDS, Security, Biopolitics” (2005) 19 International Relations 403 – 419

Lecture notes LECTURE 4 THE SCIENTIFIC CONTEXT OF HIV AND AIDS (PROF ANTON STOLTZ – HEAD: INFECTIOUS DISEASES UNIT,

STEVE BIKO ACADEMIC HOSPITAL) (19/08) Lecture themes: 1. How is HIV transmitted? What is the likelihood of each mode of transmission, and

what are the implications for the law? 2. What is the difference, medically speaking, between HIV and AIDS? How is each

medically defined? What is the clinical image of each? 3. What is a CD4 count and a viral load and their relevance to HIV/AIDS? 4. What is the implication of the "window period" on criminal liability? 5. Show some of the implications of the targets of the HIV virus on employment policy

and law. 6. What medical treatment is available? How does it work, and how costly is it? 7. What is a vaccine and what difference can it make? Sources and preparations:

Class notes

Whiteside A & Sunter C AIDS: The challenge for South Africa (2000) ch 1

Hoffmann v SAA 2000 (11) BCLR 1211 (CC), esp paras 11 to 15 LECTURE 5 HIV AND AIDS AND SO-CALLED KEY-GROUPS

(PROF FRANS VILJOEN) (26/08) Lecture themes, content & sources will be placed on ClickUp. SEMINAR 1 HIV, AIDS AND NATIONAL AND INTERNATIONAL HUMAN

RIGHTS LAW (02/09) Lecture themes: South African law: 1. Bill of Rights: which rights are affected? 2. The principle of non-discrimination: Are HIV and AIDS included as a “disability” or

otherwise in the list of prohibited grounds in section 9(3) of the Constitution, 1996? What are the implications of this?

3. Other legislation: Which Acts deal specifically with HIV/AIDS? What other legislation is of relevance? What are the implications of a supreme constitution for legislation which deals with HIV and AIDS?

4. What is the impact of African culture and customary law on the spread of HIV? 5. How effective is the law in curbing stigma and altering attitudes? International law: 1. International Guidelines on HIV/AIDS and human rights: what is its status? 2. What place does international (human rights) law have in the South African legal

system? 3. What are the international obligations arising from: International Covenant on Civil

and Political Rights; International Covenant on Economic, Social and Cultural Rights;

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Convention on the Rights of the Child; Convention on the Elimination of All Forms of Discrimination against Women?

4. What are the obligations arising from regional human rights instruments: The African Charter on Human and Peoples‟ Rights; the African Charter on the Rights and Welfare of the Child and the Protocol to the African Charter on Human and Peoples‟ Rights on Rights of Women in Africa?

Sources and preparation:

Constitution of the Republic of South Africa, 1996

HIV/AIDS and the Law (ch 3)

AIDS and Human Rights Research Unit Human rights protected? Nine Southern African country reports on HIV, AIDS and the law (2007) (http://www.chr.up.ac.za/images/files/research/ahrru/publications/ahrru_human_rights_protected.pdf)

Kissoon C et al Whose right? (Aids Review 2002)

Annas GJ "Protecting patients from discrimination - the Americans with Disabilities Act (1998) 739 Legal Issues in Medicine 1255

On "disability" - see also section 15 of the Employment Equity Act 55 of 1998 and section 34 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

Any compilation of international law instruments or <www.unhchr.ch>; for African regional instruments see www.up.ac.za/chr/ahrdb

Pieterse M “Beyond the reach of law: HIV, culture and customary law” (2000) TSAR 428

Mswela M ”Cultural practices and HIV in South Africa: A legal perspective” (2009) 12 PER 172

Eba P Stigma[ta] (AIDS Reveiw 2007) SEMINAR 2 HIV, AIDS AND THE LIMITS OF PRIVACY (09/09) Lecture themes: 1. Should AIDS be made a notifiable disease? What about HIV? 2. Should there be a legal duty on medical personnel to disclose the status of HIV-

positive person to immediate family/sexual partners/spouse? 3. Should there be a legal duty on medical personnel to disclose his or her HIV positive

status to patients? 4. Should there be a legal duty on HIV positive persons to disclose their status to sexual

partners? Can the uninformed partners sue for damages (compensation)? What about those who have been informed?

5. What is routine testing, and what are the implications? Is routine testing constitutional, and should it be encouraged?


Amendment to Regulations as proposed by the Minister of Health (SK/GG 23 April 2000)

Venter v Nel 1997 (4) SA 1014 (D&C)

Ethical Guidelines: Health Professions Council of South Africa (HPCSA)

NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA 250 (CC)

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Slabbert MN “Parental access to minors‟ health records in the South African health care context: Concerns and recommendations” (2004) 2 PER 165

Nienaber AG and Van der Nest D “An exploration of the impact of a claimant‟s HIV/AIDS status on a personal injury claim” (2002) 2 TSAR

Blackbeard M “HIV/AIDS: The right to privacy vs the right to life” (2002) 65 THRHR 232

Slabbert MN “Liability for the transfusion of blood in South Africa” (2006) 69 Journal for Contemporary Roman Dutch Law 29

Van Wyk C “Pregnancy and HIV in South Africa: Women‟s right to be informed” (2007) THRHR 584

SEMINAR 3 HIV, AIDS AND ACCESS TO MEDICAL CARE (16/09) Lecture themes: 1. Does a HIV positive person, in general, have an enforceable right to anti-retroviral

treatment at state expense? What is the present policy of the Department of Health? 2. Do HIV positive mothers and their children have a right to Nevirapine at state

expense? 3. Do HIV positive mothers have a right to continuous treatment after the birth of their

children, at state expense? 4. Do mothers have the right to refuse such treatment for themselves/their children? 5. Do rape victims have the right to anti-retroviral treatment at state expense? 6. May medical aid schemes take into account HIV/AIDS in their policies? 7. Does greater access to medication justify “routine testing”? Why would it / could it? 8. Has human rights undermined an effective public health response? 9. Does the intellectual property regime contribute to the lack of access to affordable

medicines? Sources and preparation:

Berwick D “„We all have AIDS‟: Case for reducing the cost of HIV drugs to zero” (2002) British Medical Journal 214

Bollyky TJ “Balancing private rights and public obligations: Constitutionally mandatedcompulsory licensing of HIV/AIDS related treatments” in South Africa” (2002) SAJHR 530

Cameron E “AIDS denial and Holocaust denial: AIDS, justice and the courts in South Africa” (2003) SALJ 525

Heyns A “Risk of transmitting HIV and other diseases with a blood transfusion in SA” (1999) CME: Transfusion Medicine 854

Ngwena C “Access to health care as a fundamental right: The scope and limits of Section 27 of the Constitution” (2000) Journal for Juridical Science 1

Ngwena C “AIDS in Africa: Access to health care as a human right” (2000) SA Public Law 1

Pieterse M “The potential of socio-economic rights litigation for the achievement of social justice: Considering the example of access to medical care in South African prisons” (2006) Journal of African Law 118

Soobramoney v Minister of Health KwaZulu/Natal 1998 1 SA 765 (CC)

Van Biljon v Minister of Correctional Services 1997 4 SA 441 (C)

Medical Schemes Act 131 of 1998

Minister of Health v Treatment Action Campaign (1) 2002 (10) BCLR 1033 (CC) (see also www.tac.org.za)

Applicant v Administrator Transvaal 1993 4 SA 733 (W)

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De Kock et al “Shadow on the continent: public health and HIV/AIDS in Africa in the 21st century” (2002) 360 The Lancet 67

Roundtable on scaling up HIV testing (2005) 8 Health and Human Rights 1

Cheritich, P, Bunnell, R & Mermin, J HIV testing: Current practivce and future directions 2013(1) Current HIV/VIGS Reports 134

SEMINAR 4 HIV, AIDS AND CRIMINAL LAW (23/09) Lecture themes: 1. Is the common law adequate in regulating criminal liability relating to the sexual

conduct of people with HIV/AIDS? 2. May (and should) a convicted rapist be compelled to undergo an HIV test? Even as

a suspect? What about those suspected and convicted of other crimes? 3. Should the law recognise an “AIDS panic” defence (eg to a charge of murder)? 4. Does the law have a role in addressing HIV-based stigma? Sources and preparation:

De Jager "VIGS: Moontlike grondslae vir strafregtelike aanspreeklikheid van HIV-draers" (1991) TSAR 547

De Jager "VIGS": Die rol van die strafreg" (1991) TSAR 212

Partazis A "Against the criminalisation of HIV-related sexual behaviour" (1996) 62 THRHR 439

Van Wyk C "The need for a new statutory offence aimed at harmful HIV related behaviour: The general public interest perspective" (2000) 41 Codicillus 2

Viljoen F “Stigmatising HIV/AIDS, stigmatising Sex? A reply to Professor Van Wyk” (2000) 41 Codicillus 11

Le Roux J “Die toepassing van strafregbeginsels op HIV–oordrag: „n Diagnose‟ (2000) De Jure 293

SA Law Commission Discussion Paper 80: Aspects of the law relating to AIDS (The need for a statutory offence aimed at harmful HIV-related behaviour)

R v Cuerrier (1999) 127 CCC (3d) 1 (SCC)

S v Moses 1996 (1) SACR 701 (C)

Viljoen F (ed) Righting Stigma

Dwyer JM “Legislating AIDS away: The limited role of legal persuasion in minimizing the spread of HIV” (1993) J of Contemporary Health Law and Policy 167

Grace D “Reconceiving the „Problem‟ in HIV Prevention: HIV Testing Technologies and the Criminalization of HIV Non-Disclosure” (http://www.sfu.ca/iirp/documents/IBPA/8_HIV%20Testing%20and%20Criminalization_Grace%202012.pdf)

Phiri v S [2013] ZAGPPHC 279 (8 August 2013)

Nienaber A “The intentional sexual transmission of HIV: A note of caution in light of Phiri v S” (2014) 29 Southern African Public Law

SEMINAR 5 HIV STATUS AND HIV TESTING (30/09) Lecture themes: 1. Is it an offence for mothers with HIV/AIDS to breast-feed their babies? If not, should

this conduct be criminalised? 2. Should HIV status play a role in adoption, child custody and access to fertility

treatment? 3. Does the law deal appropriately with the situation of orphans?

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4. May an employee ever be compelled to undergo an HIV test? 5. Can a prospective employee be compelled to undergo an HIV test? (The legal

position in respect of HIV/AIDS in the workplace) 6. May insurance companies require HIV tests? May insurance companies exclude

benefits on the basis of HIV status or AIDS death? 7. How should the results of such a test be treated? 8. Critically analyse the South African HIV/AIDS educational policy. 9. May an HIV positive student be excluded from bursary and loans schemes at

universities? Sources and preparation:

Basson AC et al Essential labour law 5th ed (Labour Law Publications 2009) (ch 7)

Joni J Irvin & Johnson Ltd v Trawler & Line Fishing Union & Others (2003) ILJ 24 771

Rycroft A en Louw R “Discrimination on the basis of HIV: lessons from the Hoffmann case” (2000) 21 ILJ 856

Bragdon v Abott 118 SCt 2196 (1998)

Doe v University of Maryland Medical System Corporation 50 F3d 1261 (4th Cir 1995)

Irvin & Johnson Ltd v Trawer & Line Fishing Union & Others (2003) 24 ILJ 771-773

Joy Mining Machinery, a Division of Harnischfeger (SA) (Pty) Ltd v NIMSA & Others (2002) 23 ILJ 391 (LC)

PFG Building Glass (Pty) Ltd v CEPPAWU & Others (2003) 24 ILJ 974 (LC)

Department of Education National Policy on HIV/AIDS for Learners and Educators, issued in terms of section 3(4) of the National Education Policy Act 27 of 1996

Prinsloo J and Beckman J “HIV/AIDS and the learner” in Davel CJ (ed) Introduction to child law in South Africa 317 – 339

C v Minister of Correctional Services 1996 4 SA 292 (T)

Jansen van Vuuren v Kruger 1993 4 SA 842 (A)

Van Wyk C “Regsaspekte van HIV in skole” in Suprema Lex: Opstelle oor die Grondwet aangebied aan Marinus Wiechers (red Carpenter) (1998) 217 – 235

Van Wyk C “A reply to „Some comments …‟” (1998) THRHR 677 – 683

Watt B & Hamilton C "The High Court's failure to intervene to prevent an HIV positive mother breast feeding her baby" (December 1999) Child Right 16

African Charter on the Rights and Welfare of the Child

Lyerly AD & Anderson J “HIV and assisted reproduction, reconsidering evidence, reframing ethics” (2001) 75 Fertility and Sterility 843 -858 (on file)

Committee on the Rights of the Child General Comment no 3 (32003)

Hoffmann v SAA 2000 (11) BCLR 1211 (CC)

The Employment Equity Act

AIDS Law Project The case of “A” v South African Airways

Department of Health National Policy on Testing for HIV

Smit N “Some observations regarding the occurrence and management of HIV/AIDS in South African workplaces” 2005 TSAR 358

SEMINAR 6 HIV, AIDS AND MEDICAL EXPERIMENTATION (14/10) Lecture themes: 1. Which human rights and ethical problems arise when HIV/AIDS medication or

vaccines are tested on humans? 2. Have the rights of subjects in developing countries been violated through HIV

research?

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3. Is there an obligation on pharmaceutical companies who conduct trials involving experimental medication on subjects to provide these subjects with the successfully developed medication free of charge?


Dickens M "Research ethics and HIV/AIDS" (1997) 16 Medicine and Law 187

Van Oosten F “The law and ethics of information and consent in medical research” (2000) 63 THRHR 5

World Medical Association (1975 – 2002) Declaration of Helsinki

Van Wyk C “Guidelines on medical research ethics, medial “experimentation” and the Constitution” (2001) 64 THRHR 3

Nienaber AG “The researcher‟s liability for HIV-related clinical research without the participant‟s informed consent: South Africa‟s common law, case law and legislation” THRHR (2008) 346

Nienaber AG “The utility of international human rights law on informed consent in the protection of clinical research participants in Africa: „The road less travelled‟” (2007) 22 SA Public Law 422

Nienaber AG “The accountability of states for human rights abuses by non-state actors during preventive HIV vaccine efficacy trials in Africa” (2007) 32 South African Yearbook of International Law 429

Nienaber AG “The statutory regulation of children‟s participation in HIV-related clinical research: More questions than answers” (2008) 4 Journal for Contemporary Roman Dutch Law

Nienaber AG “The protection of participants in clinical research in Africa: Does domestic human rights law have a role to play?” (2008) 8 African Human Rights Law Journal 138

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