The Amarillo Globe-News has published three articles on the case over the past week or so. The first, published on September 25 and written by Greg Cunningham, is headlined "City sues prostitute to get HIV treatment; issue pits public safety against civil rights." The second, published on September 28, was also written by Cunningham and is headlined "Prostitute may agree to treatment; Officials won't go through with lawsuit if woman cooperates." The third, published on October 2, was written by Jim McBride. The headline: "HIV-infected woman denies suits claims."
This case is important because it appears to be the first time that the Texas Department of State Health Service's rules on recalcitrant transmission have been applied. How they are applied should be of great concern to all in the HIV/AIDS community. And a big caveat to this is the question of whether those rules have been followed in the case at all, since the news reports only cite the statutory authority for the city to sue and not the DSHS rules.
The statutory authority to bring this suit derives from Chapter 81 of the Health and Safety Code (The Communicable Disease Prevention andControl Act). The specific section in operation appears to be 81.083, Application of Control Measures to Individual, which gives the local health authority the power to issue a written order regarding control measures and to back it up with a court order if necessary:
If the department or a health authority has reasonable cause to believe that an individual is ill with, has been exposed to, or is the carrier of a communicable disease, the department or health authority may order the individual, or the individual's parent, legal guardian, or managing conservator if the individual is a minor, to implement control measures that are reasonable and necessary to prevent the introduction, transmission, and spread of the disease in this state.The rules are departmental policy, not formal rules that have been promulgated as part of the Texas Administrative Code. This particular policy (HIV/STD Policy No. 410.003) is called the "Accelerated HIV Intervention Program, Addressing the Potential for Recalcitrant Transmission of HIV in Texas." It begins by saying:
This policy establishes the Accelerated HIV Intervention Program, a program developed by the Bureau of HIV and STD Prevention (Bureau) to address the public health concerns of potential HIV transmission to unsuspecting persons by an individual who is known to have HIV. Any HIV positive individual found to be practicing recurrent behaviors which are known to transmit the virus and who engages in those behaviors with limited regard for the health of another person is considered a threat to public health.
When this policy was under review in 2001, Texas AIDS Network expressed a number of concerns about its wording, its purpose, and its eventual implementation. We were concerned, among other things, about the possibility of community witch hunts to label persons living with HIV "recalcitrant." The need to apply the rules would ordinarily come up in the course of contact tracing and partner notification, a standard part of disease prevention practices, when a single contact might be identified as the partner allegedly "responsible" for one or more other cases. An overzealous or biased investigator, we thought, might be able to use the rules to harass or penalize an HIV-positive person for any sexual activity. (There was some reason to worry about this in some parts of Texas at the time.)
In the Amarillo case, the HIV-positive woman, identified only as "T.T.," was indeed identified in the course of contact tracing and partner notification related to a recently reported case of HIV. T.T. was allegedly the source of that infection. Further investigation appears to have revealed that T.T. knew her status, had been informed of methods to prevent the spread of HIV, and allegedly engaged in prostitution while knowing that unprotected sexual intercourse could spread the virus. As it happens, these are key protections for the accused person: knowing their status and having received counseling about HIV prevention. If either of these things did not obtain, then the person would not need to be hauled through the courts but simply educated about prevention.
What is remarkable about the Amarillo case is that no criminal charges for prostitution or drug use are being brought against T.T. The concern stated by all appears to be getting T.T. into treatment coupled with the belief that all other means for gaining T.T.'s cooperation in preventing the spread of HIV have failed. And it does appear that the case is following the guidelines of the recalcitrant transmission policy, since T.T. received additional counseling about high risk behaviors and allegedly refused to avoid them, due, it would seem, to possible addiction to cocaine. The court case is being used as a "last resort."
Another concern that Texas AIDS Network had with the recalcitrant transmission policy was the potential for this policy to become the springboard for criminalization of HIV transmission. That very issue was raised by Cunningham in his second article. There is some comfort that both public health officials and the legal authorities are treating the case as a public health issue and not a criminal case, but the possibility that criminalization will be introduced in the Texas Legislature now looms large. Texas legislators are well known for legislation by headline, and this story has generated a lot of headlines in Texas.
We should all keep a weather eye out for developments in this case. How it is handled can have important consequences for others besides T.T.