Few HIV related legal cases

We wanted to find out if a complaint/case  has ever been brought against anyone for disclosure of person’s HIV+ status not only without consent, or informing the individual that the disclosure was about to happen, but also without having any legal reason to do so.

When we asked the NHS, Department of Health and the  Information Commissioner, they all confirmed that THEY HAVE NOT RECEIVED A COMPLAINT/CASE for this specific matter.

A search through the BILII, the legal cases index, did not bring up a single case  brought for this specific matter.

On the internet we found a posting by  Ms Lisa Webley, published in “The Litigator” magazine in 1997. 

It concerns the discrimination against individuals with HIV in respect of assistance with bringing  legal action against  those who have breached the legislation.

We can claim that throughout our investigation and search for legal assistance,   DISCRIMINATION exists on the grounds that F is the affected person.

Had F been a persistent thief, rapist, child molester, illegal immigrant, or anything else,  he could avail himself of proper legal advice, often for free, from many sources.  However, as soon as  HIV+ status matter was mentioned, there  was a deathly silence, or refusal to get involved in the matter.

The matter, is NOT at all that COMPLEX.   In the first instance, disclosure of person’s HIV+ status without his consent, or even knowledge, is a breach of COMMON LAW CONFIDENTIALITY.  In addition, there is the NHS Statutory Restriction on data  handling and Article 8 of the Human Rights Act.

However, nobody would touch the matter with a second hand barge pole.  We can claim that this is an example of OPEN DISCRIMINATION on the grounds that the complainant is HIV+.

We tried to contact Ms Webley who has  since 1997 climbed up the legal ladder.   She did not  respond to our enquiry.

 

Article 8 – Human Right Act 1998

Article 8 of the Human Rights Act also individual’s information.

During our research we came across  two cases in front of the ECHR,  relating to the disclosure of individuals’  HIV+ status without their consent.  Both cases, the Z v Finland and I v Finland happened some time ago in Finland.

More recent case, the Brent Council v  N  P  refers to the Article.

When F considered  handling his case as an LiP,  on 13th October 2016, he asked for advice from the Ministry of Justice Legal Aid Department.

He was told that his case would qualify for Legal Aid and should he wish to apply for it, it must be through a Legal Aid Solicitor.

As he could not find  such a professional, he decided to publish his concerns in this Blog and seek information, advice or just a comment  from the Social Media.

Dept Communities and Local Government

F became aware  that local authorities were obliged to follow the Department of Health’s “Confidentiality – NHS Code of Practice‘,  In order to get a  reassurance of this information, on 25th November 2013, F contacted the DCLG, as it was then.

He was very happy when the Department replied on 19th December 2013, confirming that what he  assumed, was actually true,

The DCLG’s reply is very clear in respect of handling of HIV related information.  It refers to the NHS Code of Practice, where paragraph 46 addresses  this point.   

Therefore, RBKC should have been guided by the provisions of this paragraphs, when considering the disclosure of F’s HIV related information.

F also contacted LIBERTY, the organisation allegedly concerned with individual and the Human Right Act.  F was  told that the “Confidentiality  NHS Code of Practice” applied ONLY to the NHS.   The statement above would  certainly contradict Liberty’s assumption.

 

 

 

Adult Social Care Assessment Guidelines

The  new guidelines for the conduct of Adult Social Care  Assessment, the “Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care Guidance on Eligibility Criteria for Adult Social Care“, must be followed by all local authorities in the conduct of these assessments.

Paragraph 107  provide for the possibility to complain should a service user be unhappy with the conduct of the assessment. When the local complaints process is exhausted, the service user may complaint to the Local Government Ombudsman, or as he is now called the “Local Government and Social Care Ombudsman.” 

F had indeed completed the local complaints process and ended up lodging a complaint with  the LGO, as addressed on the LGO page.

However, there is NO mention of who is responsible for the oversight of the conduct of these assessments and independent external audit of  local authorities’  compliance with the Guidelines.  We could NOT find any information relating to this element of assessment.    This would suggest that local authorities can conduct assessments in a fashion completely suitable to  their agenda.  In order words, assessments could be fixed to suit a particular situation, without  any fear of eventual audit and possible retribution, as none of these exist.

Serious questions exist with the interpretation of paragraph 54, which lists the four Grades: Critical, Substantial, Moderate and Low.  It would appear that each local authority can interpret these as they feel fit.  Therefore, inconsistencies may/do exist and the decision of grading may be a matter of a “postcode lottery”,  devoid of any consistency in social care provision.

One of the conditions of the ‘Critical‘ grading to be satisfied is  if “life is, or will be threatened and significant health problems have developed or will develop...” 

Who is to assess these elements?  A Social Worker, who has no medical qualifications and is expected to assume the role of God, to venture and hazard a guess “when significant health problems will develop?”  Today, next week, next year, when?  This is vague, that, frankly, any member of the human race will in theory qualify for this definition, as eventually, whenever, we will suffer ill health, of some sort.

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