Rights of Prisoners with HIV

Whether or not the government is permitted to force a prison inmate to have their blood tested for HIV and AIDS depends on the laws of the particular state. For example, the state supreme courts in California and Illinois have both ruled that a state can require certain inmates to be tested for HIV and AIDS.

What are My Rights as a Patient with HIV from a Healthcare Provider?

Because individuals and inmates alike will likely need to receive treatment for HIV or AIDS from a healthcare provider, it is important for all patents to be aware of what they are entitled to, including:

• Reasonable care no matter the patient’s:
  • Race;
  • Gender;
  • Sexual orientation;
  • Ethnicity;
  • National origin;
  • Age; or
  • Source of income;
• Request and receive information in a manner the patient can reasonably understand about their:
  • Diagnosis;
  • Treatment; and
  • Prognosis;
• Know the identity of every individual involved in their care, including students and volunteers;
• Discuss and plan out their care with a physician or nurse;
  • A patient can also refuse certain treatment, without fear of retaliation;
• The right to privacy, including all of the patient’s medical records being treated as confidential;
• The right to review the patient’s own medical records and request copies of those records;
• The right to a proper amount of time during medical visits to discuss any medical concerns or questions they may have;
• The right to receive an advanced notice for change of fees or billing practices as well as a reasonable explanation of those charges;
• The right to receive treatment by caregivers who provide medical care to the best of their abilities and in a safe and sterile manner;
• The right to know what kind of relationships their caregivers have with other parties, for example, insurance companies, that might affect your care;
• The right to be informed of available realistic alternatives for care when the current treatment is no longer working; and
• The right for the patient’s caregivers to provide reasonable assistance to overcome language barrier, cultural, physical or communication barriers.

Can Healthcare Providers Disclose my HIV Status to Anyone?

No, a patient’s HIV status as well as their medical records must be kept confidential at all times. Doctors or medical providers should not disclose any type of medical information regarding a patient without that patient’s informed consent.

In no situation can a client’s HIV status be communicated to any other individual without obtaining prior permission from that client.

Can Health Care Providers Refuse to Treat a Patient with HIV?

Under the Americans with Disabilities Act (ADA), a healthcare provider protects individuals with HIV from any form of discrimination. Under the state and local laws, doctors or dentists are not permitted to refuse to treat individuals with HIV.

It is important to note, however, that not all healthcare providers are required to treat HIV patients. If the individual who is seeking medical treatment is outside of the healthcare provider’s specialty, that healthcare provider may refuse the patient and refer them to another doctor or healthcare provider who is experienced in that specific medical field.

Does Forced Testing Violate Inmates’ Rights?

The laws that require inmates to take a blood test have been challenged on many constitutional grounds, including:

• The right against unreasonable search and seizure;
• The right to be free from cruel and unusual punishment; and
• The right to equal protection.

The courts, however, have typically based their decisions on the police power of the state, under which a state has the authority to ensure the public health and safety of its citizens. The main concern of the court is the rapid spread of HIV and the role that blood tests play in protecting the public.

The courts have held that the intrusion on the rights of an inmate who is forced to undergo HIV or AIDS testing is minimal in comparison to the benefits to the public health and safety.

Which Inmates Are Tested for HIV and AIDS?

In the majority of states where blood testing of inmates is conducted, that testing is limited to inmates who were convicted of crimes that pose a high risk of HIV or AIDS transmission, including:

• Prostitution;
• Rape;
• Sodomy;
• Oral copulation; and
• Intravenous drug use.

What Rights Do Prisoners with HIV Have in Prison Concerning Medical Treatment?

Currently, there are not many established rights for inmates who have HIV. There are, however, two laws that may be interpreted as providing protections to prisoners with HIV, including:

• The 8th Amendment Cruel and Usual Punishment Clause; and
• The Americans with Disabilities Act.

The 8th Amendment provides that no citizen shall be subject to cruel and unusual punishment. For a prisoner, this means that prison officials cannot neglect inmates who are in need of medical treatment.

This standard, however, does not provide many protections specifically for medical treatment of prisoners with HIV. Although prison officials are not permitted to let an inmate who is diagnosed with HIV go untreated, no court has interpreted the Cruel and Unusual Punishment clause as mandating that an inmate must be given access to HIV specialists.

The ADA provides a little more protection for an HIV-infected prisoner by stating that the prisoners must be allowed equal access to prison programs for which they are otherwise qualified.

What is the Americans with Disabilities Act (ADA)?

The Americans with Disabilities Act (ADA) was passed by the federal government in July of 1990. The purpose of this act is to combat discrimination against individuals with disabilities.

Specifically, the ADA provides civil rights protections to individuals with disabilities. For example, the ADA guarantees disabled individuals will have the right to equal opportunity in:

• Employment;
• Public accommodation;
• Transportation; and
• Housing.

What Does the Americans with Disabilities Act (ADA) Guarantee Individuals with HIV or AIDS?

The ADA guarantees equal rights and opportunities to all individuals with disabilities, including HIV and AIDS. These equal opportunities include, as noted above:

• Employment;
• Transportation;
• State and local government services; and
• Public accommodations and restaurants.

What Do Prisons Tend to Do Concerning Treatment of Prisoners with HIV?

There are some prisons that use a cluster program. This means that prisons who have HIV are essentially segregated into one part of the prison.

The purpose of this practice is so that certain members of the prison staff may be used exclusively to treat prisons with HIV so that those staff members who are involved in the program can ensure up-to-date treatment. In addition, by segregating these prisoners, prison officials hope to help stop the spread of HIV among the prison population.

Opponents of this program, however, feel that, because of a lack of funding for prisons, the prisoners who have HIV will not get the attention and care promised by the program. In addition, the program may conflict with the ADA because prisoners who are being clustered do not necessarily have equal access to prison programs, for example, work and educational programs.

Do I Need an Attorney?

There has been at least one class action lawsuit filed by prisoners with HIV in the last few years based on unconstitutional medical treatment and living conditions. If you feel you have been subject to these types of violations, it is important to consult with an insurance attorney.

Your attorney can advise you of your rights related to your condition and whether you may be entitled to money damages in a lawsuit against the correctional facility.