Multi-Country Review of Laws and Policies on HIV Testing and Counseling in Select Countries in East Asia and the Pacific

1. Multi-Country Review of Laws and Policies on HIV Testing and Counseling in Select Countries in East Asia and the PacificbyManuel M. Goyena for UNICEF EAPRO

2. Acknowledgements Due recognition and sincerest appreciation for the time and effort generously given by : Fu Hualing, (Doctor of Jurisprudence, MA, LLB), Associate Professor & Director, Centre for Comparative and Public Law, Faculty of Law, University of Hong Kong � review of China Karsta Straub, (LLM, MPH), Consultant, UNICEF EAPRO � review of Hong Kong Indrajit Pandey, (MBA, LLB, BSL), UNAIDS RST � review of Thailand Manuel Goyena, (LLB), Consultant, UNICEF EAPRO � review of Philippines Puravalen (LLB), Consultant, UNICEF EAPRO � review of Malaysia

3. Rationale for the Review 1. To review laws, legal frameworks, where such exist, underpinning HIV testing in select countries in Asia and the Pacific (China, Hong Kong SAR, PR China, Thailand, Philippines, Papua New Guinea, Malaysia) with focus on children, adolescents, pregnant women and their partners 2. To review national policies on HIV/AIDS, and HIV testing policies, where such exist, in select countries in Asia and the Pacific, with focus on children, adolescents, pregnant women and their partners 3. To analyze possible implications, if any, of current the legal and policy environment currently in place in these select countries on expanding HIV testing and counseling

4. Methodology To achieve uniformity in the conduct of the review, a Questionnaire identifying concerns and issues subject of the review was developed and distributed for comments to the individual lawyers prior to its finalization A desk review of the existing laws and policies, guidelines, national reports, jurisprudence, memorandum circulars, administrative orders, and national strategy papers issued by the relevant authorities involved in the national response to HIV/AIDS Interview of key stakeholders responsible for implementing these laws and policies, as well as, opinions of other key informants Review of publications, articles, reports from civil society organizations

5. Key Findings National Context The People�s Republic of China and the Philippines were the two countries covered by this Review which had in place a HIV-specific legislation which specifically included their countries policy and guidelines in the conduct of HIV testing. Both legislative enactments make reference to Voluntary Counseling and Testing (VCT) as the approach to HIV Testing. In the absence of HIV-specific legislation, Thailand and Hong Kong rely on national policy guidelines regarding HIV testing issued by the appropriate authority within their respective governments. The policy emphasizes VCT. A host of other laws and policy guidelines, directly and indirectly, impact upon certain aspects of HIV testing (rights to privacy or autonomy, consent, confidentiality, approaches to specific populations, among others)

6. HIV Testing and Counseling the Three C�s (Consent, Counseling, and Confidentiality) Consent All countries covered by this review uniformly note that VCT is the predominant approach to HIV testing and that informed consent is required prior to HIV testing. In Thailand and the Philippines, informed consent is manifested in a written document. In the Philippines the current law requires prior written informed consent which could potentially hamper implementation of a PITC with an �opt-out� approach unless the law is revised In the absence of a law that will bind the private sector, compulsory (involuntary) testing of certain population groups (foreign domestic helpers) has been practiced by the private employers in Hong Kong Instances of provincial-level provider-initiated mass testing or compulsory HIV testing of populations considered most-at-risk have been mentioned in the review of the People�s Republic of China.

7. Counseling Pre-test and post-test counseling is required in the conduct of HIV testing in all countries under review. Group pre-test counseling by accredited clinics providing HIV testing services to Overseas Filipino Workers has been allowed by law. The same practice has been allowed for post-test counseling for those individuals found negative, but in case of a positive test, individual post-test counseling is always required. Mass pre-test counseling has been practiced by institutions that have adopted the PITC testing approach in the People�s Republic of China.

8. Confidentiality In all of the countries under review, there are existing legislation, policy guidelines, institutional procedures, manuals, medical codes of conduct, and code of ethics of the medical profession that recognize confidentiality of medical information and data shared between a health professional and a patient. In the case of the People�s Republic of China, persons seeking VCT are not required to provide their real name. However, if after the 2nd HIV screening test (confirmatory test) the person is confirmed to be positive : the person is required to provide his real name when completing the Infectious Diseases Report Card (under the provisions of the Proposal for the Implementation of Work VCT [Trial] issued by the General Office of the Ministry of Health) his/her spouse will be informed of this result; if single, his/her present and former sex partners, including the doctor treating his/her infections and pathogenesis

9. HIV Testing Policy on Specific Populations Minors (Below 18 yrs. of age) In all countries under review, persons, 18 years and over, are considered as having the capacity to enter into all forms of civil acts, thus are qualified to give their consent to medical interventions such as HIV testing. Also, their laws and policy guidelines state that minors below the age of 18 must be accompanied by a parent, the legal guardian, or next of kin who is of age, who shall give consent to the HIV testing of said minor. In the People�s Republic of China and in Hong Kong, the concept of a �mature minor� is accepted as an exception to the above rule. However, there are no legal provisions or policy guidelines regarding the HIV testing of unaccompanied minors (or those whose parent, legal guardian, or next of kin cannot be located), abandoned, orphaned, street children, or minors engaged in prostitution who are not in the custody of the appropriate government authority.

10. Pregnant Women and their Partners In the People�s Republic of China, Hong Kong, and Thailand, HIV testing is routinely offered to pregnant women. Testing should be done on a voluntary basis, accompanied with pre and post test counseling. There is no specific legislation/policy mentioning HIV testing and counseling for partners of pregnant women in China. However, an administrative regulation, �Proposal for the Implementation of the Work of Prevention of the Maternal-Infant Transmission of AIDS�, issued by the Ministry of Health states that partners of pregnant women would be advised to receive HIV testing and counseling. In case of a positive HIV test result for pregnant women, the guidelines on partner notification apply whereby the woman is obliged to notify her partner of her status. This obligation of partner notification is incorporated in the HIV laws of China and the Philippines. In Thailand, there is no written guideline or policy dealing with the issue of partner notification.

11. Sexual Abuse Survivors Except for the Philippines were by virtue of a court order an accused in the crime of rape or seduction can be compelled to undergo HIV testing, there is no law or policy guideline, in the other countries reviewed, regarding HIV testing of sexual abuse survivors, or, the perpetrators of such crimes who are in the custody of police authorities In the Philippines, when rape or the seduction is attended with knowledge by the perpetrator that he is HIV positive and as a result of that crime he transmits the virus to the survivor, this is deemed as an aggravating circumstance which increases the imposable penalty for the crime. There are, however, no guidelines for the conduct of HIV testing of the survivor or the perpetrator in order to apply this provision.

12. Orphans and Children in Institutional Settings In the reviews submitted, it is apparent that there are no national statutory provision or national policy guideline regarding HIV testing of orphans or children in institutional settings. In the Philippines, the HIV law makes reference of the HIV testing of minors (those below 18) in the context of capacity to give written informed consent. In China, Hong Kong, and Thailand, reference instead is made to civil code provisions regarding the age when a person is capacitated to engage in civil activities. The China Review made reference to a report that in July 2006, the Chonqing City Children�s Welfare Institution announced it would conduct HIV testing of all newly admitted children, the first time in China that HIV testing is to be carried out for children in orphanages.

13. Recommendations Towards Uniformity and Clarity of the National Policy on HIV Testing and Counseling. 1. Draw-up a single comprehensive and uniform national policy document clearly stating the policy on HIV Testing and Counseling and providing clear guidelines and procedures for implementation that will bind all government health institutions providing HIV testing services, as well similar institutions in the private sector in the exercise of the regulatory functions of the appropriate government department or office. 2. Develop specific uniform guidelines for HIV testing applicable to the identified population groups with participation from representatives of these groups and/or reputable civil society organizations.

14. 3. Develop specific and uniform policy and guidelines on HIV Testing and Counseling of the population groups which have been left out in previous policy and guidelines, such as: 3.1 Minors 3.2 Minors unaccompanied or without a parent, legal guardian, and next of kin 3.3 Orphans and Minors in Institutional Settings 3.4 Partners of Pregnant Women 3.5 Sexual Assault Survivors

15. Reasserting the Critical Role of Counseling in HIV Testing, Ensuring the Availability and the Capacity of Counselors to function in Different Settings 1. Observe strict compliance with the requirements of pre and post test counseling in HIV Testing by all health institutions providing such service through regular monitoring and the establishment of national or local complaints� bodies within government offices performing regulatory functions over such institutions. 2. Ensure that the content of pre and post test counseling is in accordance with the minimum content requirements set by WHO and UNAIDS. Consistent with this, adjustments can be introduced in counseling to fit the needs of populations most-at-risk. 3. Provide counselors with avenues for continuing education and skills building.

16. C. Re-newing Commitment to the Principle of Confidentiality 1. On the national level, the appropriate government department must issue a clear policy pronouncement reminding all health institutions, public and private, and particularly those providing HIV Testing services, of their responsibility to strictly observe the principle of confidentiality. 2. Ensuring observance of confidentiality within health institutions by reviewing or incorporating in their institutional code of ethics and manual of operations emphasis on confidentiality in the handling and management of HIV related procedures and identity of individuals who are HIV positive. Copies of said code or manual shall be posted in plain view of the patients of said institution or made available to them on request for photocopying.

17. 3. Establishment of a complaints� board within health institutions or designating a committee in smaller health centers that will address complaints from patients regarding instances of violations of their rights, and violations of provisions of their institutional code of ethics and manual of operations, particularly those regarding their responsibilities to strictly observe confidentiality.

18. Thank You!