First Clinical Guidelines on HIV Criminalization Unveiled

Heather Boerner

November 11, 2016

ATLANTA — Laws that prosecute people living with HIV who allegedly have sex without disclosing their status, widely known as HIV criminalization laws, can place healthcare providers in an ethical bind.

This issue is at the heart of what are potentially the first clinical guidelines on HIV criminalization. They were released by the Association of Nurses in AIDS Care (ANAC) here at the ANAC 2016 conference, and are supported by the American Nurses Association.

Such laws can feed stigma by turn people living with HIV into people who should be feared, said Carole Treston, RN, ACRN, MPH, chief nursing officer at the ANAC.

"For us as clinicians, the impact of perceived stigma turns into internalized stigma [for patients] and affects engagement in healthcare," she explained. "How do we start to think about retention in care, adherence, and a lifetime of wellness when we're battling internalized stigma?"

Nurses must operate within the framework of local and state laws and reporting regulations, but they have room to comply with the law while caring for their patients, Treston told a packed audience.

The idea behind these laws is that someone living with HIV could be a predator and infect others maliciously. In practice, the laws have convicted people who have not transmitted the virus and who, in fact, have undetectable viral loads and cannot pass HIV on to others, Treston reported.

 
These laws are based on 35-year-old information, fears, and an environment that just doesn't exist any longer.
 

"These laws are based on 35-year-old information, fears, and an environment that just doesn't exist any longer," she told Medscape Medical News. "We have to take a moment to reflect on what is mandated, what might be recommended, and what might rub us morally and ethically the wrong way. That's a decision that each one of us has to make. It might be a decision that changes over time as we understand that undetectable viral load equals uninfectious."

More than 32 states have laws that criminalize HIV exposure, and the states that do not use general criminal laws, such as assault and attempted murder laws, to prosecute people living with HIV, said Treston.

Education, Disclosure, Documentation

The guidelines consist of seven steps for discussing HIV criminalization with patients, but boil the issue down to three main points: providers should educate themselves on the laws and reporting regulations in their states; they should talk to patients about HIV disclosure in the context of HIV criminalization laws in their areas; and they should document visits in a way that protects patients from undue criminalization.

"We know as nurses that disclosure is a very personal thing," Treston said. The guidelines don't suggest any one approach to disclosure; instead, they suggest talking to patients about how they can broach the subject of their HIV status with partners.

"When and if appropriate, encourage clients to bring partners to provider visits for disclosure and risk reduction counseling and documentation," the guidelines state.

And encouraging a patient to bring in his or her partner so the nurse can document disclosure can help patients in case of HIV criminalization charges, said Jonah Pierce, RN, ACRN, from the University of North Carolina at Chapel Hill.

"If there's documentation in the chart that a patient has disclosed, that could be helpful," he said during a lively discussion after the presentation.

In some cases, patient records can be subpoenaed, and must be provided in full, said Treston. However, you don't need to document everything a patient tells you, she noted.

"Nurses like to write tomes," she acknowledged to laughter from the audience. "What we suggest you write is exactly what's relevant to the case. If a patient brings in a partner to disclose his or her HIV status, write that down, but writing down details of what the partner does on a Saturday night is not relevant and can be dangerous."

The guidelines suggest that if you do receive a subpoena, reach out to your facility's attorney, as well as legal groups such as Lambda Legal, which works with the gay, lesbian, bisexual, and transgender communities, and the Center for HIV Law and Policy. Those groups can inform providers what they're legally required to release, and what they're not.

Safety Always Comes First

There was tremendous excitement in the crowd about the guidelines.

The focus always needs to be on safety, said Nancy Murphy, NP, PhD, from Howard University in Washington, DC, who teaches an interdisciplinary ethics course.

For instance, she explained, if a patient is having unprotected sex, a clinician might want to talk to him or her about disclosing. But if that patient says that he or she will be beaten by a partner for disclosing, the allegiance needs to be to the safety of the patient. Safety "always comes first," she emphasized.

The "role confusion" that many providers have about HIV reporting are emphasized in the guidelines, said Dr Murphy. "While I think this is great," she said she would like to see the guidelines become more granular. When it comes to patient disclosure and criminalization by state, providers need an easy way to distinguish between what they are mandated to do and what is recommended, she pointed out.

She said she often tells students that "they are not the police. They have an obligation to put the patient first."

That sentiment was echoed by Treston. "I'd love to be in this room next year and be able to say that the first thing a student talks about is how to get a patient to undetectable," she said.

The guidelines were developed with a grant from the Elton John AIDS Foundation. Ms Treston, Dr Murphy, and Mr Pierce have disclosed no relevant financial relationships.

Association of Nurses in AIDS Care (ANAC) 2016: Abstract C-1. Presented November 10, 2016.

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