HIV AND SUBSTANCE ABUSE:
A LEGAL GUIDE FOR SOCIAL WORKERS
As of June 1997, over 25% of all reported cases of HIV infection in the United
States were transmitted by injectable drug use. Here in Louisiana, injectable
drug use accounted for 19.1% of all new cases reported in the first five
months of 1998. There have been over 1,700 reported cases of intravenous
drug transmissions in Louisiana between January 1, 1997, and May 13, 1998.
In addition, a large part of the growing infection rate of HIV among women
can be attributed to trading sex for drugs. Drug and alcohol intoxication
contributes to the growing rate of HIV infection by clouding judgment and
reducing inhibitions in the users, often leading to participation in high-risk
sexual activities. Many clients seen by social workers in a substance abuse
treatment setting will be HIV-positive. This guide looks at some of the most
common legal issues facing both HIV-infected clients and treatment professionals.
Confidentiality, Privileged Communications, and the Duty to Disclose
Louisiana Revised Statutes 40:1300.14 et seq., known as the HIV Testing &
Confidentiality Statute, specifically states that "Except as otherwise provided
by law, no person who obtains, retains, or becomes the recipient of confidential
HIV test results in the course of providing any health or social service
... may disclose such information" except under certain specified circumstances.
In addition to this, Louisiana Revised Statutes 37:2714(B) also addresses
issues of confidentiality. This statute applies only to social workers, which
by extension includes substance abuse counselors and case managers, and prohibits
disclosures of a client's statements without the client's written consent.
There are exceptions to these duties not to disclose a client's HIV-status.
Louisiana Revised Statute 37:2714 (B) allows disclosure by a social worker
when a client has made a statement that "reveals the contemplation of a crime
or a harmful act." It is important to note that this exception is not an
absolute "duty to warn", but merely allows a social worker to decide whether
to disclose a client's HIV-positive status if the client has directly stated
that he or she intends to engage in harmful behavior with a clearly defined
third person. In addition, while this statute may allow disclosure to ongoing
contacts, it specifically does not authorize disclosure to any past contacts.
The disclosure exception contained in the HIV Testing & Confidentiality
Statute is more specific, and illustrates the factors that need to be weighed
when making a decision about disclosure. LA R.S. 40:1300.14 (E) allows a
physician, to disclose confidential HIV test results in limited situations
if all of the following conditions are met: 1) the disclosure must be made
to a contact, or to a public health officer for the purpose of making the
disclosure to said contact; 2) The physician reasonably believes disclosure
is medically appropriate, and there is a significant risk of infection to
contact; and 3) The physician has counseled the patient regarding the need
to notify the contact, and the physician reasonably believes the patient
will not inform the contact.
If these conditions are met, the physician may tell the contact that he or
she has been exposed to HIV. The physician or public health officer "shall
not disclose the identity of the patient or the identity of any other contact."
This statute, like the one that applies to social workers, does not create
any affirmative "duty to disclose" and, in fact, states that "a physician
shall have no obligation to identify or locate any contact." The physician
needs to carefully assess the degree of risk to a clearly identified third
party, and balance this against the potential effects of disclosure.
There is no clear-cut rule about disclosure by social workers, case managers,
nurses, counselors, or psychologists in Louisiana. Both the "duty of
confidentiality" and the "duty to warn" are relatively new concepts in Louisiana
law, and the scope and details of these concepts have not been clearly defined
by the Louisiana legislature or courts. In addition to this, there are two
prevailing views about the best way to prevent the spread of AIDS and HIV.
One calls for mandatory testing, reporting and contact tracing. Although
perhaps valid, this would no doubt end up compromising Constitutional guarantees
of a "right to privacy" under both due process and equal protection clauses.
In addition, this kind of aggressive contact tracing and reporting may drive
the disease underground making it even harder to control. The second view
calls for education and voluntary disclosure. These very contradictory views
have both, to some extent, been incorporated into Louisiana law, making the
line between the "duty of confidentiality" and the "duty to disclose" even
more unclear. The only way these issues will be resolved is through the courts
or by passing more specific legislation.
Intentional exposure to AIDS virus
There is a different legal area where the law is quite clear. Louisiana Revised
Statutes 14:43.5 states that "no person shall intentionally expose another
to any acquired immunodeficiency syndrome (AIDS) virus through sexual contact
without the knowing and lawful consent of the victim." It further goes on
to state that "no person shall intentionally expose another to any acquired
immunodeficiency syndrome (AIDS) virus through any means or contact without
the knowing and lawful consent of the victim."
For the purposes of this statute, "any means or contact" is defined as "spitting,
biting, stabbing with an AIDS contaminated object, or throwing of blood or
other bodily substances." Intentional exposure is a felony offense which
carries a fine of up to five thousand dollars, imprisonment with or without
hard labor for up to ten years, or both.
This is a very narrowly written law, and the district attorneys in Louisiana
parishes use it both as an additional crime if committed while another illegal
activity is occurring, and as a separate charge when people accuse others
of exposing them to HIV without their knowledge or consent. It is especially
important that people with substance abuse problems are aware of and protect
themselves from committing this criminal offense. Sharing contaminated needles
falls into the category of "any means or contact."
This statute may present a special problem for sexually active substance
abusers who may trade sex for drugs or money, and are more likely to have
impaired judgment while intoxicated with alcohol or other substances. It
is not enough to merely use condoms, or other safer sexual practices. The
partner must have prior knowledge of HIV infection and consent to engage
in sex. The only real way to prove this would be a written affidavit signed
by a potential sexual partner, something that is unrealistic for prostitutes,
and anyone whose judgment has been impaired by drugs or alcohol to the point
where they are unable to give legal consent. The safest way to obey this
law is not to expose anyone to HIV.
If you receive information that a client has exposed others to HIV, it is
crucial to urge the client to inform their contacts of the exposure. This
is important both to monitor the health status of the contacts, and to prevent
the inadvertent transmission of the virus. If clients will not or cannot
tell partners directly, a physician or public health officer can do this
without identifying the particular client.
Other Legal Problems for the Substance Abuser
HIV-positive clients who use illegal drugs must also be aware that criminal
penalties for intentional exposure to HIV are not the only legal consequences
of illegal drug use. There are, of course, both state and federal legal penalties
for drug possession, use, and sales. (Uniform Controlled Dangerous Substances
Law; Louisiana Revised Statutes RS 40:961 et seq.) In addition, any property,
or interest or security in any property or enterprise used or intended to
be used in any manner to facilitate the manufacture or sale of illegal drugs
is subject to forfeiture under both federal "zero tolerance" statutes, and
the Louisiana Seizure and Controlled Dangerous Substances Property Forfeiture
Act of 1989 (Louisiana Revised Statutes 40:2604 et seq. This can include
money, cars, businesses and residences. Both the state and federal forfeiture
laws permit forfeiture of property if there is probable cause to believe
a connection exists between the property seized and a violation of narcotics
laws. This "probable cause" has been allowed by the Louisiana courts to be
established by circumstantial evidence or even evidence that is otherwise
inadmissible at trial.
Illegal drug use and sales have other tragic and costly effects not only
on the abuser's mental, physical and spiritual health, but on the financial
and emotional stability of both the substance abusers and their families.
Drug intoxication can lead to unwanted pregnancy which can have adverse effects
on the HIV-positive mother's health, in addition to exposing the newborn
child to risk of infection. There is also a much higher incidence of domestic
violence and neglect in families where one or both parents abuse drugs or
alcohol . In treating the HIV-positive substance abuser it is important to
address these and other family issues. Any claim or potential claim that
an HIV-positive client has for SSI or SSDI can be denied by Social Security
if drug or alcohol addiction is perceived to cause the inability to work,
even if the claimant has other, more "legitimate" causes of disability.
In addition to these legal consequences, Louisiana Revised Statutes 14:03.1
defines second degree murder as "the killing of a human being: ... when the
offender unlawfully distributes or dispenses a controlled dangerous substance
listed in Schedules I or II of the Uniform Controlled Dangerous Substances
Law (LA R.S. 40:961 et seq.) which is the direct cause of the death of the
recipient who ingested or consumed the controlled dangerous substance." It
is not necessary that there be any intent to cause harm.
Needle Exchanges
Presently federal regulations prohibit the use of funds allotted for AIDS
services to be spent on needle exchange programs despite numerous studies
showing that it is an effective way to prevent the transmission of HIV. There
are no programs of this type in Louisiana, where it is unlawful for people
who do not fall into specifically defined classes to have or possess a hypodermic
syringe or needle at any time unless such possession is authorized by the
prescription or certificate of a physician.
It is also illegal in Louisiana "for any person or corporation, knowing,
or under circumstances where one reasonably should know, to sell, lend, rent,
lease, give, exchange, or otherwise distribute to any person any drug
paraphernalia," which is defined as anything used "to plant, propagate,
cultivate, grow, harvest, manufacture, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest,
inhale, or otherwise introduce into the human body a controlled substance."LA
R.S. 40:1033
Furthermore, direct or circumstantial evidence of the intent of an owner,
or of anyone in control of the object, to deliver it to persons whom he knows,
or should reasonably know, intends to use the object in violation of the
Uniform Controlled Dangerous Substances Law, even without direct knowledge
of such a violation, shall not prevent a finding that the object is intended
for use or designed for use as drug paraphernalia. There are very serious
consequences to these violations, and it is not advisable for any person
to participate in needle exchange, regardless of intent. Although studies
show that clean needle exchange can help prevent the transmission of AIDS,
good intentions have never been an effective defense to a legal offense.
The first violation of or failure to comply with any provision of this law
will subject the offender to a fine not in excess of five hundred dollars,
or imprisonment of not more than six months, or both. On a third conviction,
the offender shall be fined not more than five thousand dollars, or imprisoned,
with or without hard labor, for not more than five years, making this a felony
offense. In addition, "if the second or subsequent conviction is by any person
licensed under the occupational license tax law, as provided in LA R.S. 47:341,
et seq., or by such person's manager, agent, servant, or employee, then such
person shall forfeit the right to any permit issued thereunder and such permit
may be suspended or revoked." LA R.S. 40:1032 et seq. It is important for
any professional social worker or licensed health professional to make sure
that any agency they are employed with is not engaged in needle exchange.
As the HIV epidemic continues to grow and change, there will be other legal
issues that arise. The problem of active substance abuse in the HIV-positive
population will no doubt increase as people are living longer lives with
the new medications. It is important for people who work professionally in
the substance abuse field to be aware of both legal and other issues that
affect clients who are HIV-positive, and it is also essential for AIDS-service
providers to learn about the physical, emotional, and social effects of substance
abuse as we all continue to work together until there is a cure.