Compulsory testing

Compulsory testing is still practised in some prison systems, but has been on the decline.

One of the first prison systems to adopt such as policy was the federal prison service in the United States (Basu et al., 2005). In 1987, the US federal government mandated that prisoners test negative for HIV before release from federal prison. Prisoners who tested positive were detained involuntarily, even after they completed their sentences or met parole eligibility standards for transfer to half-way houses or transitional supervision programmes (Starchild, 1989). These measures had little or no benefit for individual prisoners’ health; they did not guarantee access to care, and no effective antiretroviral treatments were available. Routine prophylaxis of opportunistic infections was not provided. Moreover, this testing method prior to release did not provide an opportunity to implement effective prevention strategies, and was more likely to destabilize patients as they re-entered their communities without employment, money, food, or shelter (Basu et al., 2005). Yet statutes requiring some form of mandatory HIV testing were passed in 15 states during the 1980s and early 1990s, mostly under pressure from correctional officers’ unions (id). Mandatory testing strategies were modified at the federal level and in some states after a wave of lawsuits in the late 1980s and early 1990s. Many of these lawsuits alleged that the testing strategy did not serve a legitimate objective, but had the potential to cause harm. Some correctional institutions shifted from a mandatory testing policy to a strategy of avoiding HIV testing after antiretroviral treatment was shown to be effective (Diamond, 1994), unwilling to pay for such therapy and sometimes requiring prisoners to actively seek to be tested through court order or state-level approval (Currie, 1998). Many systems continue to require testing following an incident with exposure to blood or body fluids (MacGowan et al., 2006). In September 2007, the United States House of Representatives passed a bill that would alter HIV testing requirements for federal prisoners in the United States (Kaiser Daily HIV/AIDS Report, 2007). Current federal law and Bureau of Prisons regulations require people sentenced to six months or more in prison to receive an HIV test if it is determined that they are at risk for the virus. Under the bill passed by the House of Representatives, HIV tests would be required for prisoners entering and leaving prison. Prisoners would be allowed to opt out of HIV testing unless they were exposed to an HIV risk, such as a pregnancy or a sexual encounter, in prison. In these cases, prisoners would be required to be tested.⁵

In Australia, HIV testing of prisoners was authorized in all jurisdictions, either specifically or through general provisions, but New South Wales, for example, repealed the regulation requiring this in 1995 and has since operated an induction programme for new prisoners that offers voluntary HIV and hepatitis testing (Magnusson, 1995). In 1996, the Western Australian Government was found in breach of the federal Disability Discrimination Act 1992 because of prison policies that segregated HIV-positive prisoners and had them imprisoned in maximum-security prisons (The Editor, 1997). As of 2007, only one jurisdiction, the Northern Territory, was still conducting compulsory HIV testing.⁶

In prisons in Europe, including Eastern Europe (see, e.g., Ukraine: Gunchenko and Andrushchak, 2000; Moldova: Pintilei, 2007) compulsory testing has been abandoned in nearly all countries (Harding & Schaller, 1992). However, in some countries, such as in the Russian Federation,⁷ compulsory testing continues, even if it does not represent official prison policy. In some cases, according to the official policy HIV testing is voluntary, but prisoners are subtly coerced into being tested—including by being told that, unless they submit to HIV testing, they will be treated as if they were HIV-positive and denied certain programmes and privileges.

In Asia and the Pacific, the June 2007 WHO/UNICEF/UNAIDS technical consultation on scaling up HIV testing and counselling noted that different countries in the region “have different experiences of HIV testing and counselling in closed settings such as rehabilitation centres, prisons, camps and juvenile institutions”, including “mandatory HIV testing on entry, release, or during the period of detention”. It added that “voluntary counselling and testing remains exceptional and is usually not accompanied by access to appropriate prevention or care-related services” (WHO/UNICEF/UNAIDS, 2007).

One study reported that close to a quarter of participants from a prison with compulsory testing did not report receiving an HIV test, suggesting they may not have been aware that an HIV test was performed. This may be because consent was not obtained for an HIV test, participants were not notified of their test results, or both (MacGowan et al., 2006).

Provider-initiated testing

In a few prison systems, mainly in the United States (Basu et al., 2005), HIV testing is considered a standard part of a medical examination on admission, conviction, or prior to release, and undertaken unless prisoners explicitly refuse to be tested (“opt out” of the test).

In some systems, primarily in high-income countries, HIV testing is offered to all prisoners, most often to new admissions upon entry into the prison system, but is only undertaken if prisoners specifically agree to HIV testing (“opt in” to testing). For example, the Canadian federal prison system “maintains the practice of actively offering voluntary counselling and testing to all inmates”, considering that “testing offered to new admissions upon entry into the federal correctional system may be one of the best opportunities for identifying prevalent infections” (Correctional Service Canada, 2003). In Australia, the National HIV Testing Policy (Commonwealth of Australia, 2006) encourages states and territories “to develop policies that offer HIV testing to inmates on reception and during incarceration and, where appropriate, arrange referrals to community health services for testing following an individuals’ release from prison”. According to the policy, “[o]ffering testing of prisoners on reception, during incarceration and prior to release has the potential to identify new cases of HIV infection, allowing appropriate assessment, treatment and education to be provided to those individuals” (ibid.).

In some systems, the offer of HIV testing may be accompanied by a recommendation to be tested.

Testing on demand

In many prison systems, particularly in low- and middle-income countries, HIV testing is not actively offered to prisoners on admission or conviction, but prisoners can obtain an HIV test if they ask for it. In some systems, access to a test may be relatively easy, and prisoners may receive a test at any time, while in other systems prisoners may have limited access to the test and only be able to obtain it under certain circumstances.

No or little access to testing

Finally, prisoners in some prison systems in low- and middle-income countries continue to have little or no access to HIV testing.

Counselling

Where prison systems have adopted policies on HIV testing and counselling, they generally require that HIV testing be accompanied by pre- and post-test counselling. In practice, however, as in the community, counselling is often not provided or is of insufficient quality. One study found that less than half of the prisoners who were tested for HIV reported receiving counselling (MacGowan et al., 2006). Among the many concerns related to the lack of counselling is that prisoners often are not told when they will receive the results of the HIV test.

Confidentiality

Research has shown that protection of the confidentiality of prisoner medical information is often insufficient, and that policies vary widely from system to system and are often interpreted differently even within one system (MacDonald, 2006).

“Mandatory” and compulsory testing

Those advocating compulsory testing (and, sometimes, segregation) of all prisoners have said that such testing would:

• Allow prison systems to know exactly how many prisoners are living with HIV;
• Provide those living with HIV with necessary care, support and treatment;
• Protect staff and fellow prisoners from contracting HIV in prisons;
• Protect third parties, such as partners and other persons with whom a prisoner is likely to have contact after release from prison, from contracting HIV.

However, no direct comparisons of outcomes data have established that compulsory testing provides a superior form of HIV management to other testing approaches, and efficacy data have not accompanied defences of the compulsory testing approach (Basu et al., 2005). Indeed, most public health officials and disease specialists see policies of compulsory testing and segregation as counterproductive (Hoxie et al., 1990; Jacobs, 1995).

Attempts to identify and segregate known HIV-positive prisoners to “contain” the epidemic will miss seroconverting persons who are in the “window” period (i.e., the period after infection and before antibodies can be detected by current testing methods; this period is also the period when people are most infectious). Correctional-officer unions in several countries have lobbied for disclosure of the HIV status of prisoners, but ignoring universal precautions when interacting with prisoners who are presumed to be HIV-negative may increase the risk of occupational exposure to hepatitis B and C as well as primary HIV infection by providing a false sense of security (Spaulding et al., 2002). HIV is not transmissible via casual contact and therefore compulsory testing and segregation of people living with HIV in prisons is not necessary for public health purposes. Instead of testing without consent—which is unethical and potentially infringes the right to security of the person, the right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment, and the right to privacy (Betteridge and Jürgens, 2004; Canadian HIV/AIDS Legal Network, 2006)—prisoners can be provided with the means necessary to act responsibly and to protect themselves and others from the risk of contracting HIV, such as access to voluntary counselling and testing, education, condoms, bleach, sterile needles and syringes, opioid substitution therapy and other drug dependence treatment (WHO, UNODC/UNAIDS/2007; Jürgens, 2001; Lines 1997/98).

No data are available on the effectiveness of separate housing for HIV-positive prisoners as an HIV prevention strategy. Separate housing of HIV-positive prisoners:

• Does not reduce the spread of other sexually transmitted, opportunistic or blood-borne infections.
• Might increase the risk of tuberculosis outbreaks: tuberculosis outbreaks resulting from the implementation of segregated housing have been documented in California and South Carolina (CDC, 1999; CDC, 2000). In a prison in South Carolina, United States, segregating HIV-positive prisoners contributed to a tuberculosis outbreak in which 71 per cent of prisoners residing in the same housing area either had new tuberculosis skin-test conversion or developed tuberculosis disease. Thirty-one prisoners, and one medical student in the community’s hospital, subsequently developed active tuberculosis (Patterson et al., 2000).
• Raises concerns about disclosure of prisoners’ HIV status and access to prison programmes.
• Does not prevent transmission by prisoners who are unaware that they are infected or by HIV-positive prison staff (CDC, 2006).

Furthermore, inadequacies have been reported in the HIV treatment and care standards of several segregated units, including in high-income countries (Basu et al., 2005). Segregating prisoners provides no conceivable benefit to medical care. As stated by Basu et al. (2005):

In their current form, segregation units ostracize prisoners and exclude them from valued activities ... Segregation has lead to the reassignment of inmates to distant sites that are far from family members — possibly reducing the quality of prisoners’ lives, destabilizing their social support networks, and mixing inmates with different security status.

According to Paris (2006), segregation of HIV-positive prisoners “is not a real option”:

To cohort or segregate so as to ensure the existence of “guaranteed HIV-free prisons,” one would have to consider the very real possibility that in such perceived “HIV-free prisons” inmates may forego precautions and embark in risky behavior because of the assumed safety. It is quite possible that in such facilities introduction of HIV by a single case within the testing window, or by infected staff [...], may spread the virus rapidly and infect large numbers of inmates. In order to guarantee that a prison is “HIV-free,” one would have to test at intake--whether tested previously at another prison or not re-test at the end of the window (e.g., at 6 months) and periodically re-test all inmates, perhaps as frequently as every 6 months. I posit that it would be very difficult and expensive to maintain a “guaranteed HIV-free prison.”

Other forms of testing

Only a small number of studies undertaken mainly in the United States and a few other high-income countries have evaluated voluntary forms of HIV testing and counselling in prison. Therefore, much remains unknown about the effectiveness of various testing strategies in prison, particularly in low- and middle-income countries. The following is a summary of some of the most important findings.

HIV prevention

• Eighteen of the 23 prison systems in the pre-expansion European Union (Stöver et al., 2001), as well as prison systems in Australia, Brazil, Canada, Indonesia, the Islamic Republic of Iran, South Africa, some countries from the former Soviet Union, and a small number of jail and prison systems in the United States, provide condoms to at least some prisoners (WHO/UNODC/UNAIDS, 2007c). However, even in these systems condoms are often not easily accessible to prisoners and/or not available in all prisons. In most other systems, condoms are not at all available.
• Many systems continue to deny the existence of rape and other forms of sexual violence among prisoners and between prisoners and prison staff, and fail to adopt methods to document incidents of prisoner sexual violence, undertake prevention efforts, provide staff training, undertake investigation and response efforts, and provide services to victims, including access to post-exposure prophylaxis (WHO/UNODC/UNAIDS, 2007c).
• Prison systems that offer opioid substitution therapy to at least some prisoners with opioid dependence remain the exception. They include most systems in Canada and Australia, some systems in the United States, most of the systems in the pre-expansion European Union (Stöver at al., 2001), some of the “new” EU member States (such as Hungary, Malta, Slovenia and Poland), a small number of systems in Eastern Europe and the former Soviet Union (such as the Republic of Moldova and Albania) and a few systems in other countries, including Albania, Iran (Islamic Republic of) and Indonesia (WHO/UNODC/UNAIDS, 2007d). However, even in these countries programmes often remain small and benefit only a small number of prisoners in need (MacDonald, 2005). Good coverage has been achieved in Spain, where 18 per cent of all prisoners, or 82 per cent of people with opioid dependence in prison, receive methadone maintenance therapy (EMCDDA, 2005).
• Needle and syringe programmes have been introduced (or are about to be introduced) in only 12 countries in Western and Eastern Europe and in Central Asia. In most of these countries, they are only available in a small number of prisons (WHO/UNODC/UNAIDS, 2007b).
• The most common form of “HIV prevention” in prisons is the provision of some form of information and education about HIV. Such programmes are important. However, most studies have concluded that the effectiveness of current educational efforts in influencing prisoners’ behaviour and in reducing HIV transmission among prisoners remains largely unknown and that simply providing information on HIV and the harms associated with risk behaviours is not enough. In particular, studies have pointed out that education and counselling are not of much use to prisoners if they do not have the means (such as condoms and/or clean injecting equipment) to act on the information provided while they are in prison (WHO/UNODC/UNAIDS, 2007a).

HIV treatment

Antiretroviral treatment has been provided to many HIV-positive prisoners in high-income countries for the last ten years. As a consequence, AIDS-related deaths in prisons in these countries have decreased dramatically (Centers for Disease Control and Prevention, 1999; Mackenzie et al., 1999; Maruschak, 2001; Babudieri et al., 2005). More recently, many low- and middle-income countries have also started making antiretroviral treatment available in their prison systems, demonstrating that it is feasible to provide such treatment in these settings and to achieve satisfactory outcomes (Srisuphanthavorn et al., 2006; Winarso et al., 2006). However, these programmes are often small in scale (Simooya and Sanjobo, 2006; Hassim, 2006) and reach only a small number of those in need. For example, in Ukraine, as of 1 July 2007, 86 prisoners were on antiretroviral treatment (Zhyvago, 2007), although studies have shown very high rates of HIV (Zhyvago, 2005: 16 per cent to 32 per cent) in prisons in which seroprevalence studies have been undertaken and physicians report that many prisoners are dying of AIDS-related causes every months.