17th April 1998
By Rick Lines in Canadian HIV/AIDS Policy & Law Review (Volume 3 Number 4 & Volume 4 Number 1 - Winter 1997/98). Published by the Canadian HIV/AIDS Legal Network.
Since the beginning of the HIV/AIDS epidemic, some people within governments and some public health officials have demanded the segregation of HIV-positive people. While such demands have become rare with regard to HIV-positive people in the general community, they continue to occur with regard to HIV-positive people living in prisons.
Traditional Segregation
In some prison systems in the United States, mandatory HIV-antibody testing and forced segregation of HIV-positive prisoners is standard practice. In Canada, such measures have been consistently opposed and, instead, it has been recommended that a comprehensive strategy be adopted to respond to the needs of HIV-negative and the ever-increasing number of HIV-positive prisoners. Nevertheless, some within and outside the prison systems continue to discuss segregation as a solution to the HIV/AIDS crisis in Canadian prisons. In November 1996, the Commissioner of the Correctional Service of Canada (CSC), Mr Ole Ingstrup, told the Parliamentary Sub-Committee on HIV/AIDS that CSC does not consider mandatory testing or forced segregation as a useful part of their HIV/AIDS strategy.[1] Still, recent moves by provincial and the federal prison systems toward adopting elements of the US model - and a political climate that continues to scapegoat prisoners for societal woes - have raised concerns among AIDS and prisoners' rights activists about recent rumours within correctional systems concerning HIV and segregation. It seems as if a combination of elements - high rates of HIV prevalence among prisoners, the rising costs of treatment, and government cutbacks - has created a situation in Canadian prison systems where discussions about segregation are again coming to the fore. However, rather than being expressed in terms of a mandatory, forced segregation of HIV-positive prisoners - which would be seen as quarantine and subject to Charter challenge - today's discussions of segregation are framed in a more "benign" fashion.
Segregation in "Specialized" Care Units
Within CSC, the concept discussed most often is the creation of "specialized" care units in one or several of the existing federal prisons. Such units would be specially staffed and equipped to address the health-care needs of people living with HIV or AIDS. HIV-positive prisoners could choose to be "voluntarily" transferred to such units, and thereby access "state-of-the-art" medical care. It is argued that creation of such units would save the prison system money, while at the same time providing prisoners with HIV or AIDS with access to specialized medical, social, and dietary supports.
While superficially this may seem like a good idea, a closer analysis reveals that, however well-intentioned, it has no place in an effective HIV/AIDS strategy. There are at least seven reasons for this.
"Voluntary" Segregation Is Not Voluntary
"Voluntary" segregation at a prison providing specialized care is never voluntary. The very existence of a prison or prisons whose health-care unit(s) provide "specialized" care for prisoners with HIV or AIDS is an admission that other prisons provide less than optimal care. Therefore, prisoners with HIV or AIDS would have to chose between staying at a prison that may be closer to their friends and family, but where they receive less than optimal care, and being transferred to a prison that may be farther away, but where they may obtain "specialized"care. This is not a voluntary choice.
Responsibility to Provide Health Care
CSC has the responsibility to provide consistent and adequate standards of health care in all its facilities. Their responsibility toward prisoners with HIV or AIDS cannot be fulfilled by opening one or a few specialized health units, but rather by ensuring that all health-care staff are trained and equipped to deal with the needs of prisoners with HIV or AIDS, and that prisoners in all institutions have access to care, support and treatment equivalent to that available outside.
It is feared that the existence of "specialized" units would result in the deterioration of the already inconsistent levels of care available to prisoners with HIV or AIDS in other penitentiaries, and would limit avenues for legal redress by HIV- positive prisoners and their advocates. For example, if a prisoner with HIV or AIDS refused the "voluntary" transfer and subsequently received substandard care or died in custody of AIDS-related illnesses, could the prisoner be seen to be at fault for not having "chosen" to access the "best" medical care offered by CSC (rather than the system being seen at fault for failing to provide a consistent and adequate level of medical care across the board)?
Segregation Deters Testing
Fears about loss of confidentiality, stigmatization, and discrimination continue to be significant barriers that deter people from choosing to be tested for HIV antibodies. If prisoners know or fear that they would have to be transferred to another institution in order to receive optimal care if they tested HIV-positive, some prisoners will likely choose not to test rather than "choose" transfer and segregation.
In response to this concern, some people have argued that, in any case, prisoners should be mandatorily tested for HIV antibodies. However, in addition to raising serious Charter and human rights issues, mandatory testing would not allow prison systems to identify all prisoners with HIV: it can take up to one year after transmission of HIV before the antibodies that trigger a positive test result are produced. This means that in any testing program some people would test negative although they carry HIV and are infectious. Therefore, even if we leave Charter issues aside, mandatory testing is not justified because it cannot work in the manner its proponents claim.
Stigmatization
Anyone who would serve time in a prison with a specialized unit would necessarily be "suspected" of being HIV-positive by all staff and prisoners in that prison and in other institutions. This would stigmatize all prisoners in that prison, regardless of their HIV status.
False and Counterproductive HIV-Prevention Messages
The existence of such prisons would create the unrealistic and dangerous assumption among prisoners and staff at other prisons that all prisoners with HIV or AIDS are held in those special facilities. This could easily lead to the further assumption that (1) prisoners held in other prisons need not practise safer sex or safer needle use, and that (2) staff in other prisons do not need to use universal precautions because "there's no HIV"in their institution. Mandatory HIV testing of prisoners would only reinforce this dangerous assumption. Generally, the messages that would be given run counter to effective HIV-prevention education, and could lead to an increase in unsafe behaviours and HIV transmission.
Problems in Security Classification
Federal prisoners in Canada are classified and housed in maximum, medium, or minimum security penitentiaries based upon their criminal records and incarceration history. However, HIV infection does not discriminate between security ratings. If there was only one institution, or few institutions Canada-wide, providing an adequate standard of care for people living with HIV/AIDS, how would they house a population with a variety of security ratings? Experience demonstrates that the institutions with "specialized"health-care units would most likely be classified maximum security, because prison systems are far more likely to hold minimum-security prisoners in a maximum security setting than vice versa (indeed, this is how it is done today in detention centres across Canada).
Housing lower-security prisoners (who are most often incarcerated for non-violent offences) with maximum-security prisoners (who are often incarcerated for violent offences) creates high-stress and potentially dangerous conditions, particularly for the lower-
Respect for rights in the penal system with prison as a last resort.