Posted in Legislative Research on May 21, 2020
This bill was submitted by the Ministry of Health and Sports and when it is approved, it will become the first dedicated law in Myanmar to protect the rights of the people living with HIV (PLHIV) (See here). In this piece, the provisions included in this bill are analysed, including its objectives and areas of contradiction with other laws.
Protecting the rights of PLHIV
The bill aims to provide healthcare to PLHIV and protect their rights to life, education and work. Provisions are included in the bill to reach that goal. However, there are some potential weaknesses with the bill, for instance the bill’s objectives seem to exclude the protection of other rights for PLHIV.
Section 7 (a) says that PLHIV have a duty to receive counseling. Counseling can be an extremely important service to help PLHIV understand the nature of the disease, their testing results, their treatment options and infectious risk mitigation measures. It is also often a valuable way to support PLHIV with managing their mental health and coping with possible social stigma in the community. However, the support to manage mental health and cope with possible social stigma should be their choice. This provision should place a duty on public health service providers to make counselling available, rather than as a duty on PLHIV themselves.
Disclosure of HIV positive test results
Section 7 (d) says that it is PLHIV’s duty to disclose their HIV positive test result, if necessary, when they accept healthcare services. The expression “if necessary” should be given further consideration. Who has the power to determine the necessity? Should a healthcare provider be given the power to deny treatment if they suspect a patient has tested positive but has not disclosed this?
Section 9 says that the incarcerated have rights to healthcare services, but only in line with certain prescriptions. The provision may have been included due to other rights given to all HIV-infected patients (except the incarcerated), of access to risk mitigation services for drug users including distribution of needle and injection tube and drug replacement therapy. However, if equal rights to treatment are the underlying premise, it is not necessary to add ‘certain prescriptions’ – which implies discrimination against PLHIV. Also, it contradicts with section 20 (c) which prohibits the rejection and restriction of social and healthcare services in jail and prison.
Section 15 (c) says that if a person tested suffers from disability, a letter of consent has to be secured from their spouses, parents, family members or nearest relatives. A person with disabilities is defined in the Right of Persons with Disabilities Law (2015) as “a person who suffers long-term the physical, visual, utterance, hearing, intellectual, mental, intelligent, one or more sensory impairment by birth or not”. The provision in this bill makes no distinction between physical or mental impairment, and implies that physically disabled people of perfectly sound mind should have decisions taken on their behalf by family members. Instead, the bill should precisely define the circumstances under which other people’s consent is required to get tested.
Disclosure of information
Section 10 (b) and (c) determines the circumstances under which a healthcare provider can disclose information to other healthcare providers. Those circumstances are defined as when it is in the interest of the tested person, such as for the necessity of treatment, care, counselling and other healthcare services, and for the prevention of transmission from mother to children. The bill says that before disclosure, the tested person should be informed. This potentially violates the right to privacy. Thus, this provision should require the permission of the tested person before disclosing information to other healthcare providers.
Section 26 says that disease-related information should not be released without the permission of the relevant committee. The bill defines disease-related information as information regarding HIV positive results of those tested, someone’s gender identity and sexual orientation, and information about whether they are a drug user or sex worker. This also creates a potential violation of privacy. Therefore, the fact that such information can be published and distributed with the permission of the relevant committee is highly alarming.
Creating a good social environment
One of the bill’s objectives is to create a good social environment by including the public along with PLHIV when doing disease prevention and healthcare service. There are weaknesses to this objective and the provisions for its implementation.
Formation of sub-committees
Section 6 (b) is concerned with the formation of sub-committees by the National Committee. At the National Committee, four representatives are to be selected by community-based organisations which are interested in HIV prevention and activities relating to PLHIV, their families and people most at risk of HIV. However, there are no representatives in the sub-committees at Region/State and Pyidaungsu territory level. This is not only a diversion from the bill’s objectives to include the public but also denies PLHIV from influencing local policy implementation. Instead, sub-committees should seek to guarantee seats for PLHIV, their families and people most at risk of HIV.
Right to information of sexual partner
Although section 8 (a) (9) confirms the duty of PLHIV to disclose to their spouses or fiancés, section 11 says that such disclosure to sexual partners should be under prescribed situations. It seems unfair that only spouses and fiancés have the right to information. A more logical balance should be struck between privacy and the health of those concerned. Worse is that the bill defines sexual partner also to include the legal spouses, so these provisions are in contradiction with each other.
Concerned with employment
Section 20 (a) forbids specific actions to PLHIV, their families and people most at risk of HIV, relating to their job. There is an exception for certain employers, determined by the National Committee, implying those employers have immunity from provisions preventing forced transfer, denial of promotion, and other legal protections. Such denials of promotion and legal benefits are a violation of human dignity. This is also against the bill’s objective to create a good social environment.
Provisions which should be checked with other laws
Section 8 (a) and (b) determines “access to risk mitigation services for drug users including distribution of needle and injection tube and drug replacement therapy” as a right of PLHIV, their families and people most at risk of HIV. This provision read alongside the Narcotic Drugs and Psychotropic Substances Law, and if there is contradiction, the existing law should be amended with the aim of rehabilitating drug users.
This provision says that the relevant healthcare provider ought to comply with the Blood and Blood Products Law when testing blood and blood products for donation. This raises the question of which law should be followed in matters of privacy. Is there an obligation to follow this bill? Or the Blood and Blood Products Law? If so, is there any provision to secure privacy in the law?
Section 25 (b)
The bill defines terms such as ‘gender identity’, ‘sexual orientation’ and ‘sex worker’. This gives legal definitions that are helpful in aiding access to rights. On the other hand, there is potential for discrimination.
Section 25 (b) says that those receiving healthcare services should not be arrested, disturbed, stopped and limited, if not within the law, based on their gender identity, sexual orientation and/or if they are a sex worker. This protects rights on one hand, however implies that arrest is allowed while receiving such care. And the phrase “within the law” should be carefully considered in the Myanmar context, where sex workers are criminalised.
It is known that another bill is being drafted concerning sex workers, and this bill can create unwanted consequences if not in line with forthcoming laws relating to sex work. Therefore, this provision should be checked against the Suppression of Prostitution Act and Penal Code, and when necessary, those laws should be amended with the principle of “all are equal”, without any hesitation. This consistency across laws is important and describes a basic function of a legislature and Mps.