Can a Judge Order People to Take HIV Medication?

The story of a Seattle man with HIV who was ordered by a judge to attend medical visits has stirred HIV community anxiety about coerced treatment. But can people with HIV be mandated to take antiretroviral medication to reduce the likelihood that they will transmit the virus to their sex partners?

In September, the HIV-positive Seattle man was linked to eight new infections over the last four years. He was ordered by public health authorities and a Superior Court judge to attend counseling sessions and medical appointments or face escalating fines or jail time.

The court's order was based on research showing that, when people with HIV reduce their viral loads to undetectable levels with antiretroviral treatment for their own health, the likelihood of viral transmission is virtually eliminated.

Matthew Golden, M.D., the director of public health for the Seattle & King County HIV/STD Program, has been careful to emphasize that the department is not criminalizing people with HIV or their behaviors.

Nor is the man, identified only as AO, required to actually start treatment. "He can go to the doctor and not take the pills," Golden told the Seattle Times in September. As noted by, AO has now started antiretroviral treatment.

"This is the first time we've had to go this far," Golden said of the court order. "Our goal is the least coercive solution. This is a good example of the patients' interests and the public health coinciding."

However, in 2009, a 28-year-old pregnant woman from Cameroon was held in a county jail in Maine, ostensibly to facilitate her treatment with antiretrovirals to protect the fetus. She had been arrested for allegedly having false immigration documents and learned she was HIV positive and pregnant after her arrest. As noted by National Advocates for Pregnant Women:

Instead of sentencing her to "time served," which was consistent with the federal sentencing guidelines and the recommendations of her attorney and the United States Attorney's Office, United States District Court Judge John Woodcock extended Ms. T's sentence to 238 days, making clear that the sentence was calculated specifically to ensure that she remained incarcerated for the duration of her pregnancy.

After six months, she was freed on bail, with support from local HIV groups and legal advocates.

People with tuberculosis, which is airborne and highly contagious, can be required to participate in directly-observed therapy. Scott Schoettes, the HIV project director at Lambda Legal, said he knows of no comparable efforts to force adults with HIV to take meds in order to prevent sexual transmission.

The Seattle health authorities' behavior modification strategy, Schoettes said, is preferable to the criminalization of people and communities associated with diseases. But he emphasized that mandating treatment for prevention (rather than mandating medical appointments) is legally unacceptable and ethically irresponsible. Among other reasons, prescribing antiretrovirals to someone unwilling or unready to take them is likely to backfire, with inconsistent use resulting in the emergence of resistant strains of the virus.

HIV activist Tim Horn, the HIV project director at Treatment Action Group, agrees:

Mandating counseling and medical appointments is not without some civil liberties concerns, but it is certainly better than prison or other disciplinary measures. It's important that the mandated medical care ends with those requirements -- court-ordered antiretroviral therapy will not work to achieve personal or public health gains. Hopefully, with strong medical support and care, AO will understand the various benefits of HIV treatment.

Awareness of the preventative value of antiretroviral treatment for people living with HIV is due in large part to the PARTNER study, which earlier this year reported that there were no cases of transmission among 1,100 serodiscordant couples (where the partners have differing HIV status, and the HIV-positive partner is on antiretrovirals and has no detectable virus).

Jens Lundgren, the principle investigator of the PARTNER study, said he knows of no jurisdiction anywhere that is trying to impose antiretroviral treatment in order to prevent transmission to others. "Hopefully we will never get to that," he said. "It's an important ethical point: the Nuremberg trials established that medical treatment that is not in the interests of the patient is unacceptable, and this has been further refined in terms of basic human rights."

But leaders of the Positive Women's Network of the USA (PWN-USA) raised concerns about stigma and coercion in the Seattle case.

Executive Director Naina Khanna noted that stigma is often the biggest barrier to engaging in HIV care, adding "We hope that the health department will partner with people living with HIV to determine the best ways to reduce stigma and engage PLHIV [people living with HIV] in effective, compassionate, and culturally relevant care."

Her colleague at PWN-USA, Nerissa Irizarry, questioned the Seattle public health authorities' distinction between ordering counseling and medical appointments and mandating antiretroviral treatment itself:

This can so easily turn into coercion. What is the content of those counseling and medical appointments? There is a long history of public health measures being used to harm vulnerable people. The Seattle case could have been an opportunity to educate the public about HIV treatment and prevention, and to reduce HIV stigma, but look at the comments about the case on the Seattle Times: people are calling for this man to be locked up forever.

Golden told that he is confident that there is no danger of mandated antiretroviral treatment of HIV-positive people for purposes of preventing sexual transmission of HIV. From a practical perspective, he explained, it'll never happen, because unlike directly-observed tuberculosis treatment, which is time limited, antiretrovirals are a life-long therapy.

He added that the main barrier to care in King County is the misperception that people with HIV can't be insured. "We provide HIV/AIDS care for anyone and everyone who needs it," he said.

Jeanne Bergman is an HIV and climate change activist in New York City. She has a Ph.D. in anthropology from Berkeley and is interested in how scientific evidence is transmitted, interpreted and politically manipulated in the U.S.