Track B: Voluntary HIV/AIDS Counseling and Testing at Work April 10, 2008

1. Track B: Voluntary HIV/AIDS Counseling and Testing at Work April 10, 2008 Notes From The Field Botswana-Tanzania- Uganda Lane Porter, J.D., M.P.H. HIV/AIDS Law and Practice:From Local Client to Global WorkforceApril 9-10, 2008Hilton Anatole HotelDallas, Texas

2. Presentation Reflects - References • Declaration of Commitment on HIV/AIDS for UN General Assembly Special Session on HIV/AIDS (UNGASS, 2001) • WHO and UNAIDS guidance on provider-initiated HIV testing and counseling in health facilities, 2007 • UNAIDS Reference Group on HIV and Human Rights statement and recommendations on scaling up HIV testing and counselling, 2007 • Country Progress Reports for Upcoming (2008) UNGASS review meeting • In country business association activities • Partnerships with The Private Sector: A Collection of Case Studies from UNAIDS • THE HIV and AIDS (Prevention and Control) Act, 2007 [proposed Bill under review in Parliament of Tanzania] • Porter technical legal assistance in country

3. WHO & UNAIDS guidance on HIV testing and counseling in health facilities, 30 May 2007 WHO/UNAIDS statement: ‘New recommendations aim for wider knowledge of HIV status and greatly increased access to HIV treatment and prevention ‘Today, approximately 80% of people living with HIV in low- and middle-income countries do not know that they are HIV-positive. ‘Recent surveys in sub-Saharan Africa showed on average just 12% of men and 10% of women have been tested for HIV and received their test results. ‘Increased access to HIV testing and counseling is essential to promoting earlier diagnosis of HIV infection, which in turn can maximize the potential benefits of life-extending treatment and care, and allow people with HIV to receive information and tools to prevent HIV transmission to others ‘Until recently, the primary model for providing HIV testing and counseling has been client-initiated HIV testing and counseling - also known as voluntary counseling and testing (VCT) - in which individuals must actively seek an HIV test at a health or community-based facility.

4. WHO & UNAIDS guidance on HIV testing and counseling in health facilities, 30 May 2007 WHO/UNAIDS statement (continued 2): ‘But uptake of client-initiated HIV testing and counseling has been limited by low coverage of services, fear of stigma and discrimination, and the perception by many people - even in high prevalence areas - that they are not at risk. Current evidence also suggests many opportunities to diagnose HIV in clinical settings are being missed, even in places with serious HIV epidemics. ‘While, therefore, expanded access to client-initiated HIV testing and counseling is still necessary, other approaches are also required if coverage of HIV testing and counseling is to increase and, ultimately, universal access to HIV prevention, treatment, care and support is to be achieved. ‘New recommendations aim for wider knowledge of HIV status and greatly increased access to HIV treatment and prevention

5. WHO & UNAIDS guidance on HIV testing and counseling in health facilities WHO/UNAIDS statement (continued, 3): ‘The new WHO/UNAIDS guidance was prepared in light of increasing evidence that provider-initiated testing and counseling can increase uptake of HIV testing, improve access to health services for people living with HIV, and may create new opportunities for HIV prevention. ‘Provider-initiated HIV testing and counseling involves the health care provider specifically recommending an HIV test to patients attending health facilities. In these circumstances, once specific pre-test information has been provided, the HIV test would ordinarily be performed unless the patient declines. ‘Provider-initiated HIV testing and counseling has already been implemented in a range of clinical settings in several low- and middle-income countries, including Botswana, Kenya, Malawi, Uganda and Zambia, as well as in pre-natal settings in parts of Canada, Thailand, the United Kingdom, and the United States. ‘In all cases of HIV testing and counseling, the 3 Cs - that is consent, confidentiality and counseling –are to be respected

6. UNAIDS Reference Group on HIV and Human Rights Statement and recommendations on scaling up HIV testing and counselling On 30 May 2007, WHO and UNAIDS issued guidance on provider-initiated HIV testing and counselling (PITC) in health facilities. ‘This statement by the UNAIDS Reference Group on HIV and Human Rights is issued in response to the Guidance, recognizing that the Guidance is having a big impact in shaping policy and practice on HIV testing and counselling in countries around the world. It is crucial that HIV testing and counselling be implemented in ways that maximise benefits to individuals and public health and respect, protect, and fulfil human rights. ‘The statement is addressed to WHO and UNAIDS, national governments, donors, health care providers, NGOs and others involved or interested in efforts to expand access to HIV testing and counselling as part of global efforts to achieve universal access to HIV prevention, treatment, care and support by 2010. ‘The Reference Group welcomes the new WHO/UNAIDS Guidance and calls for rapid action to scale up access to HIV testing and counselling, with full funding and programmatic attention to the protections to patients provided in the Guidance. In this spirit, the Reference Group raises the following concerns, makes a series of recommendations, and urges WHO, UNAIDS, national governments, donors, and others concerned to move quickly to address them.

7. UNAIDS Reference Group on HIV and Human Rights1Statement and recommendations on scaling up HIV testing and counselling ‘Efforts to increase access to HIV testing and counselling are not occurring in a vacuum. Rather, they take place in an environment in which evidence-informed and human rights-based policies and responses to HIV are being widely undermined. Furthermore, even as vastly increased funding for HIV has become available, those most vulnerable to HIV and its impact continue to receive the least access to HIV prevention, care and treatment services. ‘As elaborated below, the Reference Group asks that UNAIDS/WHO and governments fully honour this part of the Guidance by assessing the situation in country, and where necessary, putting in place sufficient measures prior to and during implementation of provider-initiated testing and counselling to ensure that the three prerequisites, outlined by the Guidance, for provider-initiated testing and counselling are indeed in place: • access to HIV prevention, care and support services, including a reasonable expectation that access to antiretroviral therapy will become available in the near future as part of a national plan to achieve universal access to antiretroviral therapy; • sufficient capacity of health care providersto implement provider-initiated testing and counselling under the conditions of informed consent, confidentiality and counselling, and • sufficient programmatic attention to protecting people from stigma and discrimination.

8. UNAIDS Reference Group on HIV and Human Rights Statement and recommendations on scaling up HIV testing and counselling Human rights and the “Three Cs”: counselling, informed consent, and confidentiality ‘In order to make it feasible for health-care providers to offer HIV testing and counselling to all their 10 patients, in some settings it may be justified to relax, to some extent, pre-test counselling requirements. Human rights and public health do not require cumbersome procedures for pre-test counselling. ‘But human rights – and public health imperatives – require that, regardless of whether persons are routinely offered an HIV test in a health care setting or whether they initiate HIV testing themselves, they can seek and receive sufficient information to enable them to give informed and truly voluntary consent to testing. ‘They also require that people receive post-test counselling and that confidentiality of test results and of the fact of seeking a test are guaranteed.

9. UNAIDS Reference Group on HIV and Human Rights Statement and recommendations on scaling up HIV testing and counselling Human rights and the “Three Cs”: counselling, informed consent, and confidentiality ‘WHO and UNAIDS, in their Guidance on PITC, acknowledge that patients need to be able to make a voluntary and informed decision about whether to be tested or not, and specify the minimum information for informed consent that health care providers should provide patients when recommending HIV testing and counselling. ‘However, the Reference Group remains concerned that adoption of an “opt-out” approach to testing (under which people are tested unless they clearly opt out and refuse to be tested), as recommended by WHO and UNAIDS,5 may in practice result in a greater number of people being tested without their informed and voluntary consent. ‘In settings where there is a power imbalance between test provider and client, the voluntary nature of HIV testing may be compromised, as the client may feel compelled to consent to the provider’s offer.

10. UNAIDS Reference Group on HIV and Human RightsStatement and recommendations on scaling up HIV testing and counselling Human rights and the “Three Cs”: counselling, informed consent, and confidentiality ‘One way of rapidly scaling up access to HIV testing that may be as effective as a matter of public health and more respectful of human rights would be to routinely offer and recommend “opt-in” HIV testing and counselling, rather than “opt-out” testing. ‘With an “opt-in” approach, testing is initiated by the provider, who offers an HIV test as a routine part of discussions with all patients in a given setting or meeting certain criteria (e.g., all pregnant women, all patients using STI health services), but the client must specifically agree to the test, rather than merely not decline it. ‘With “opt-out”, the default is testing; with “opt-in”, the default is no testing. This is an important distinction that the Guidance fails to make by in some places equating provider-initiated testing and counselling with “opt-out” testing. ‘Where implementation of an “opt-in” approach is adequately supported, it may be as successful or nearly as successful in increasing the number of people who test for HIV as adopting an “opt-out” approach. It also has the potential to have an impact on access to care and treatment, prevention, and stigma similar to that of PITC using an “opt-out” approach.

11. Botswana UNGASS Report Example of a Best Practice under workplace: Debswana Workplace Program ‘The Debswana Workplace AIDS and Awareness Program was first introduced in 1991 and 1992 in the diamond mining towns of Jwaneng and Orapa, respectively. ‘The program sensitises staff on issues of HIV and AIDS through education with the main aim of promoting prevention of new infections, and controlling of the epidemic for the benefit of employee as well as the company. ‘The program started providing free Antiretroviral Therapy (ART) to HIV infected employees in May 2001 thus making Debswana the first mining company in Southern Africa to provide ART to its employees. Source: Botswana 2008 Progress Report to the UNGASS Declaration of Commitment on HIV/AIDS

12. Botswana UNGASS Report Example of a Best Practice under workplace: Debswana Workplace Program ‘Key elements of the program include-a clearly defined Workplace Policy, an AIDS Management System HIV and AIDS awareness programs, HIV/AIDS education and training,counseling support, voluntary counseling and testing,condom distribution, and treatment for HIV and AIDS infected workers, their registered spouse and children. ‘The prevention aspects of the program are extended to the community and surrounding villages. ‘The mine hospitals also operate the MASA program (National ARV program) on behalf of the Government of Botswana. This benefits members of the community and surrounding villages who are not employed by the mines. Source: Botswana 2008 Progress Report to the UNGASS Declaration of Commitment on HIV/AIDS

13. Botswana UNGASS Report Example of a Best Practice under workplace: Debswana Workplace Program (cont) Strengths ‘The program is highly relevant in terms of the NSF goals of prevention, and care and support. Efficacy has clearly been demonstrated in the successful development of a workplace program that brings huge benefits to employees and their families, as well as the communities in which the mines operate. ‘The provision of free ART treatment to employees, their spouses and families renders the program highly accessible to its target beneficiaries. ‘The Public Private Partnership formed in 2003 between Debswana and the Government of Botswana that provides for the government MASA program to be operated from the mine facilities has been instrumental in bringing treatment to the people. In particular it has enabled government to increase ARV access to citizens in surrounding communities without incurring infrastructural and staff costs. ‘The development of a workplace policy that clearly defines everyone’s roles contributes amongst other things to the well being of the employee, protection of the rights of the employee and is an effective management tool. Source: Botswana 2008 Progress Report to the UNGASS Declaration of Commitment on HIV/AIDS

14. Botswana UNGASS Report Example of a Best Practice under workplace: Debswana Workplace Program (cont) Strengths ‘ The implementation of the AIDS Management System is a very important aspect of the HIV and AIDS program. The system promotes quality of program management and delivery, and allows for the organization to be audited in terms of management practices. ‘The mines’ community outreach programs further strengthen the accessibility area of best practices. In Jwaneng and Orapa the HIV/AIDS coordinating facilities is situated within easy access to the community. The services provided include VCT, capacity building through training for counseling, education and presentations and workshops. ‘Debswana has established a Corporate Social Investment (CSI) Fund as part of their outreach activities. The mines are responsible for their own budgets in this regard. ‘Through these funds a variety of groups who have benefited include support groups, youth groups, and individual members of the community and surrounding areas identified as needy. Source: Botswana 2008 Progress Report to the UNGASS Declaration of Commitment on HIV/AIDS

15. Botswana UNGASS Report Example of a Best Practice under workplace: Debswana Workplace Program (cont) ‘Challenges ‘Although Debswana has not undertaken any study on the topic, behavior change is viewed as a significant challenge particularly in the mines. Debswana plans to embark on more evidence based research to gauge risky behavior and respond accordingly. Source: Botswana 2008 Progress Report to the UNGASS Declaration of Commitment on HIV/AIDS

16. Tanzania UNGASS Report HIV Workplace Programs (i) Public sector: There is a HIV focal person in each of the Ministries, Departments and government Agencies. (ii) Private Sector: The AIDS Business Coalition of Tanzania (ABCT) which represents businesses, private sector institutions and labor organizations in matters relating to HIV & AIDS, offers services and advice and lobbies for private sector interests to facilitate the introduction of HIV workplace Programs. (ii) TOMSHA HIV M&E routine monitoring system reports from 500+ organization for the April to June 2007 quarter indicated that 747 organizations had an annual work plan for HIV workplace programs; 371 approved budgets for the work plans; 231 organizations had funds available for implementing and coordinating the activities; and 292 organizations were already implementing their work plans. (iii) A comprehensive status of HIV Workplace program is yet to be known. The government plans to undertake workplace survey of 30 largest employers, 25 from the private sector, and 5 from the public sector. Source: Tanzania UNGASS Progress Report

17. Tanzania UNGASS Report Counseling and Testing ‘Tanzania is currently implementing a national HIV testing campaign that was inaugurated by His Excellency, President Jakaya Mrisho Kikwete on 14th July 2007. The president, other top government leaders, members of the community as well as people from the community of development partners took the test on the launching day of the campaign. ‘The inauguration was followed by campaigns allover the country to open new testing sites and to encourage people to go for VCT using the media and posters. By the end of December 2007, a total number of 3.2 million people had already undergone the testing. This is 78% of the targeted number of 4.2 Million people by the end of the year (Table 10). The number of VCT sites increased from 1,027 in 2006 to 1,981 by end November 2007. ‘Voluntary Counseling and Testing (VCT)is the predominant approach in HIV testing in Tanzania Mainland. “Provider Initiated HIV Testing and Counseling” (PITC) is provided in the public health care facilities using the WHO developed package of interventions to reduce the burden of HIV among TB patients. Source: Tanzania UNGASS Progress Report

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20. Review and Assessment of Laws Affecting HIV/AIDS in Tanzania, Report to USAID, POLICY Project, 2004 3.5 Issue Areas that Deserve Special Examination 3.5.1 HIV testing and counselling • Need for standard criteria, requirement to ensure uniform quality of counselling services • Need for proper coordination of the results amongst institutions. • Need for monitoring and control of manufacturing, sale, importation, and usage of quality • Accessibility to VCT services Source: Review and Assessment of Laws Affecting HIV/AIDS in Tanzania, Magdalena K. Rwebangira & Maria B. Tungaraza, USAID, POLICY Project, Tanzania Women Lawyers Association, 2004

21. THE HIV AND AIDS (PREVENTION AND CONTROL) ACT, 2007[proposed Bill under review in Parliament of Tanzania]Web link --http://www.parliament.go.tz/bunge/bunge.asp 3. In this Act unless the context otherwise requires –…"HIV testing" means any laboratory procedure done on an individual to determine the presence or absence of HIV infection PART IV: TESTING AND COUNSELLING 13.-(1) For the purposes of facilitating HIV testing, every public health care facility and voluntary counselling and HIV testing centre recognized by the NACP shall be an HIV testing center for the purpose of this Act. (2) The Private Health Laboratory Board may, by Order published in the Gazette accredit any private laboratory to be an HIV testing center. (3) Every health practitioner performing or otherwise involved in the performance of an HIV test shall take all measures to ensure that- (a) the testing process is carried out promptly and efficiently; and (b) the result of the HIV test is communicated in accordance with this Act. (4) A person shall not undergo HIV testing except in a center provided for under this Part. (5) For the purposes of this section HIV testing centre includes any centre established in any place for the purposes of HIV testing. 14. Any person who is the owner, manager or in charge of a testing center shall ensure that there is a trained and authorized person to provide pre and post HIV test counselling to a person undergoing HIV test, and where feasible, to any other person likely to be affected by the results. Source: THE UNITED REPUBLIC OF TANZANIA BILL SUPPLIMENT No. 9 21sth September, 2007 to the Gazette of the United Republic of Tanzania No. 38 Vol. 88 dated 21st September, 2007 Dar es Salaam

22. THE HIV AND AIDS (PREVENTION AND CONTROL)ACT, 2007 [proposed Bill under review in Parliament of Tanzania] PART IV: TESTING AND COUNSELLING 15.-(1) Every person residing in Tanzania may on his own motion volunteer to undergo HIV testing. (2) A child or a person with inability to comprehend the result may undergo HIV testing after a written consent of a parent or recognized guardian. (3) A person shall not be compelled to undergo HIV testing. (4) Without prejudice to the generality of subsection (3), no consent shall be required on HIV testing- (a) under an order of the Court; (b) on the donor of human organs and tissues; and (c) to sexual offenders. (5) Every pregnant woman and every person attending a health care facility shall be counseled and offered voluntary HIV testing. (6) All health practitioners, traditional and alternative health practitioners, traditional birth attendants and any other person attending patients shall be encouraged to undergo HIV testing. (7) Any health practitioner who compels any person to undergo HIV testing or procures H IV testing to another person without the knowledge of that other person commits an offence. Source: THE UNITED REPUBLIC OF TANZANIA BILL SUPPLIMENT No. 9 21sth September, 2007 to the Gazette of the United Republic of Tanzania No. 38 Vol. 88 dated 21st September, 2007 Dar es Salaam,

23. THE HIV AND AIDS (PREVENTION AND CONTROL)ACT, 2007 [proposed Bill under review in Parliament of Tanzania] PART IV: TESTING AND COUNSELLING 15 … (8) Without prejudice to the preceding subsections, a medical practitioner responsible for the treatment of a person may under take HIV test in respect of that person without the consent of the person if- (a) the person is unconscious and unable to give consent; and (b) the medical practitioner reasonably believes that such a test is clinically necessary or desirable in the interest of that person. 16.-(1) The results of an HIV test shall be confidential and shall be released only to the person tested. (2) Notwithstanding subsection (1), the results of an HIV test may be released to- (a) in case of a child, his parent or recognized guardian; (b) in case of person with inability to comprehend the results, his spouse or his recognized guardian; (c) a spouse or a sexual partner of an HIV tested person; or (d) the court, if applicable. Source: THE UNITED REPUBLIC OF TANZANIA BILL SUPPLIMENT No. 9 21sth September, 2007 to the Gazette of the United Republic of Tanzania No. 38 Vol. 88 dated 21st September, 2007 Printed by the Government Printer, Dar es Salaam, by Order of Government

24. THE HIV AND AIDS (PREVENTION AND CONTROL)ACT, 2007 [proposed Bill under review in Parliament of Tanzania] PART IV: TESTING AND COUNSELLING PART V CONFIDENTIALITY 17.-(1) All health practitioners, workers, employers, recruitment agencies, insurance companies, data recorders and other custodians of any medical records, files, data or test results shall observe confidentiality in the handling of all medical information and documents, particularly the identity and status of persons living with HIV and AIDS. (2) A person who received results under section 16 shall be obliged to observe confidentiality in respect of the HIV result received by him under that section. 18. The medical confidentiality shall not be considered breached in- (a) complying with reportorial requirements in conjunction with the monitoring and evaluation programmes; (b) informing other health practitioners directly involved or about to be involved in the treatment or care of a person living with HIV and AIDS; (c) responding to an order of the Court over legal proceedings where the main issue is HIV status of individual Source: THE UNITED REPUBLIC OF TANZANIA BILL SUPPLIMENT No. 9 21sth September, 2007 to the Gazette of the United Republic of Tanzania No. 38 Vol. 88 dated 21st September, 2007 Printed by the Government Printer, Dar es Salaam, by Order of Government

25. THE HIV AND AIDS (PREVENTION AND CONTROL)ACT, 2007 [proposed Bill under review in Parliament of Tanzania] PART VI: HEALTH AND SUPPORT SERVICIES 19.-(1) The Government shall, where resources allow ensure that, every person living with HIV and AIDS and orphans are accorded with basic health services. (2) Every CBO, Private Organization and FBO dealing with HIV and AIDS matters shall in consultation with the local government authority in the area of its jurisdiction, provide community based HIV and AIDS prevention and care services. 20. The Ministry shall, in collaboration with other relevant ministries prepare programmes and conduct training for persons living with HIV and AIDS on- (a) their survival needs; (b) life skills; and (c) formation of support groups for the purpose of providing palliative services and care. Source: THE UNITED REPUBLIC OF TANZANIA BILL SUPPLIMENT No. 9 21sth September, 2007 to the Gazette of the United Republic of Tanzania No. 38 Vol. 88 dated 21st September, 2007 Dar es Salaam

26. AIDS is Everybody’s Business- Partnerships with The Private Sector: A Collection of Case Studies from UNAIDS ‘The ILO and the Agriculture/Transport Sectors in Uganda: Addressing HIV in the World of Work ‘To be effective, HIV education and services must go to where the people in need are. Harvest season brings thousands of workers to the vast tea and sugar plantations of Uganda. The International Labour Organization (ILO) is there as well and through its tripartite structure is working with employers and trade unions to implement the ILO Code of Practice on HIV/AIDS and the World of Work to reach at-risk migrant and mobile workers in the agricultural and transport sectors. ‘The ILO works with private enterprises to ensure the availability of free services such as voluntary counseling and testing, care to prevent the transmission of HIV from mother to- child, and condom availability for workers and for members of the surrounding communities. ‘As a result, workers in locations such as the Uganda tea and sugar plantations are increasingly accessing counseling and testing services and medical support and care, including antiretroviral therapy. Source: UNAIDS/ L. Alyanak AIDS is Everybody’s Business Partnerships with the Private Sector: A Collection of Case Studies from UNAIDS

27. AIDS is Everybody’s BusinessPartnerships with The Private Sector: A Collection of Case Studies from UNAIDS The ILO and the Agriculture/Transport Sectors in Uganda: ‘Addressing HIV in the World of Work ‘ILO efforts to increase private sector recognition of the impact of HIV have also led to the development of sustainable prevention and impact mitigation measures, such as staff recruitment and personnel practices that help to reduce HIV vulnerability. These include minimizing family (spouse) separation by instituting flexible housing provisions that enable workers to live with spouses at the workplace; enabling families to seek appropriate housing in the vicinity of the estates; and targeting worker recruitment to nearby villages, rather than outsourcing casual employees from distant districts. ‘The ILO also works to ensure social protection through the development of peer-support groups of workers with HIV and small credit financing to facilitate the establishment of micro-business projects among workers with HIV. It continues to identify, document and share good practices to increase the profile of innovative and effective private sector contributions to the AIDS response. Source: UNAIDS/ L. Alyanak AIDS is Everybody’s Business Partnerships with the Private Sector: A Collection of Case Studies from UNAIDS

28. AIDS is Everybody’s BusinessPartnerships with The Private Sector: A Collection of Case Studies from UNAIDS The ILO and the Agriculture/Transport Sectors in Uganda: Addressing HIV in the World of Work ‘With its social partners, UNAIDS and Uganda’s National Chamber of Commerce, the ILO is working to mobilize the private sector and identify the extent of workplace implementation of HIV responses. ‘The Federation of Ugandan Employers has been a leader and champion in the development of workplace responses for nearly 20 years. ‘Challenges and opportunities– Complicating these efforts is the fact that the ILO frequently works in situations in which workers’ remuneration is tied to the day’s output. Pressure to produce in seasonal businesses such as agriculture and related transport can constrain the effectiveness of workplace HIV programs, as most employers will not pay for time spent on HIV-related activities. ‘Building the commitment and support of management–which is crucial to ensuring sustainability of workplace interventions–is a continuing challenge for the ILO and its partners. Source: UNAIDS/ L. Alyanak AIDS is Everybody’s Business Partnerships with the Private Sector: A Collection of Case Studies from UNAIDS

29. Summary…and …commentary Provider-initiated HIV testing and counseling (PITC) is designed to increase coverage of HIV testing and counseling –to achieve, ultimately, universal access to HIV prevention, treatment, care and support. Can in all PITC cases of HIV testing and counseling, the 3 Cs – i.e.- consent, confidentiality and counseling –actually be respected? Policies and programs for testing and counseling can include individual initiated ‘Opt In’ as well as provider initiated ‘Opt out’ testing. Legislation on HIV/AIDS (e.g. Tanzania Bill) is being drafted in several countries, and includes provisions on counseling and testing. Workplace policies, e.g. Botswana, Tanzania,Uganda, involve an interlinking range of activities - counseling support, voluntary counseling and testing, condom distribution, and treatment for HIV and AIDS infected workers. AIDS Business Coalitions, e.g. in Tanzania, play an increasing role in supporting business/workplace access to testing and counseling on HIV/AIDS

30. Lane Porter, J.D., M.P.H. lporterconsult@aol.com