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Public health, ethics and HIV.

In 2007, in what stands as one of the most extraordinary cases of its kind in Australia, Michael John Neal, a 46 year old HIV-positive man from Victoria, was charged with more than 120 offences including deliberately spreading HIV; rape; reckless conduct endangering serious injury; and possession of child pornography. Despite the Victorian Department of Human Services (DHS) issuing several orders restricting his sexual behaviour and requiring him to report to the department on a daily basis, Neal continued to practise unprotected sex and, in defiance of the restrictions placed upon him, flagrantly flouted the orders by allegedly setting about to deliberately infect and spread ('breed') the disease in others. According to a psychiatrist involved in the case, Neal was incapable of practising safe sex and that "the only way to guarantee the public's safety would be to lock this man up for life". The psychiatrist was reported as also stating that Neal "enjoys infecting people" and that he was "the most evil man" he had met in 20 years.

Concerns about Neal were first raised by a doctor in 2003. It took five years however before the case was reported to police. During this period the DHS received 10 complaints about Neal from health care professionals and concerned gay men. These complaints were reportedly dealt with in four formal stages:

1. offering counselling, education and support;

2. referring allegations against Neal to an internal HIV panel;

3. issuing a letter of warning; and

4. issuing an order restricting Neal's sexual behaviour and requiring him to make contact with a DHS officer on a daily basis.

It was only after a year of his failing to comply with the restriction orders that Neal's case was referred to Melbourne's sexual crime squad, raising serious questions about why it took health officials so long to notify the police. Was it because too much emphasis was placed on the principle of voluntarism and protecting client privacy and confidentiality as some media reports have suggested? Or was it because of popular apathy, politics and prejudice, underpinned by moral malaise and complacency about a stigmatised disease and its crushing impact on a minority population about which the public in general cares little; a minority population that was left vulnerable to being spuriously stereotyped by the extraordinary behaviour of this lone individual?

A question of nursing ethics

The Neal case raises important questions about the ethics of privacy, confidentiality, voluntarism, police reporting, and public interest when seeking to interrupt and contain the spread of infectious diseases. It also raises important questions about the risks and consequences of a health issue getting mixed up with a criminal issue, and the adequacy of contemporary nursing ethics to guide nurses on how best to uphold the public interest when things go wrong.

Public health, politics and ethics

Public health ethics by its very nature is challenging and controversial. One reason for this is that the very practice of public health "entails judgments that challenge deeply engrained social attitudes and practices" (Gostin et al, 1999). Even when strategies are informed by research, are evidence based, and known to produce important public health benefits, they may nonetheless engender fear and distrust within the community. This is especially so where public health strategies are perceived by stakeholders as: paternalistic and in breach of individual autonomy; undermining the principle and practice of informed consent invading patient/client privacy and breaching confidentiality; and interfering with the professional-client relationship (Gostin, 2007).

Although public health strategies may indeed intrude on people's rights to informed consent, privacy and confidentiality, and the professional-client relationship, it does not follow that these intrusions are necessarily wrong, unjustified or unethical. They may however be intensely political, making ethical practice more difficult. Three models for conceptualising and progressing public health policies and programs (outlined below) help explain why this is so (Gostin et al, 1999).

Microbial model

Under this model the aim of public health strategies is to kill the pathogen or isolate it from human beings. Political and ethical disputes arise when controlling the pathogen necessitates controlling the person carrying it, since it raises questions about the proper power of the state to interfere in the private lives of individuals.

Behavioural model

Under this model the aim of public health is to examine behaviours that expose the public to pathogens and their consequences. Political and ethical disputes arise when health behaviours are portrayed as a matter of individual responsibility. Health efforts in turn may be rendered controversial by certain sectors of the community, eg if a government advocates safe sex, this could be construed by conservatives as condoning 'deviant behaviour'; conversely if a government bans certain 'autonomous' behaviours (eg smoking), this could be construed by civil libertarians as being unacceptably paternalistic.

Ecological model

Under this model the aim is to reduce or prevent disease by redressing their social causes (such as poverty, racism, income inequity, etc). Political and ethical disputes arise when strategies challenge the status quo and people's moral vision. For example, Gostin et al (1999, p76, 93) suggest that negative social attitudes and social hostility toward gay men have been a key contributor "to the creation of a gay subculture built around non-monogamous sexual relationships" and that "through the social force of stigma, homosexuality was constructed as shameful, but shame coupled with overt oppression to ensure that gay sexual behaviour was secret and furtive". In order to redress this, the authors argue the negative impact of stigma and discrimination on gay men's willingness to engage in protective behaviour needs to be recognised, and social processes and institutions that are supportive of strong gay relationships need to be progressed.

International standards of ethical nursing conduct deplore "the stigma and marginalisation of people living with HIV/AIDS and the disastrous social and health consequences of this stigma". Agreed nursing standards also make clear that nurses at the forefront of health care service delivery to people with HIV/AIDS and other blood born pathogens have a fundamental responsibility to "safeguard and actively promote people's health rights at all times and in all places", including the rights to informed consent, privacy and confidentiality, and voluntarism. The nursing standards in question, however, tend to have as their focus people receiving individualised care, not those who are the targets of public health initiatives aimed at isolating pathogens and interrupting the spread of infectious diseases. As such they offer only limited guidance to nurses working in public health. The need to redress this deficit through scholarly inquiry and research is long overdue and stands as a fertile area for future work.

Gostin, L., Burris, S, and Lazzarini, Z. 1999. The law and the public's health: a study of infectious disease law in the United States. Columbia Law Review, 99(1): 59-128

Gostin, L. 2007. "Police" powers and public health paternalism: HIV and diabetes surveillance. Hastings Center Report. 37(2): 9-10.

MEGAN JANE JOHNSTONE IS PROFESSOR OF NURSING IN THE DIVISION OF NURSING AND MIDWIFERY AT RMIT UNIVERSITY IN VICTORIA PROFESSOR JOHNSTONE HAS EXTENSIVE INTEREST AND EXPERTISE IN THE ARE OF PROFESSIONAL ETHICS IN NURSING.
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Title Annotation:ethics & legal
Author:Johnstone, Megan-Jane
Publication:Australian Nursing Journal
Date:Jun 1, 2008
Words:1178
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