In December 2015 the Chithuen Phendey Association, a Civil Society Organization without revealing any names or identity talked of three destitute HIV positive women in Thimphu, who at different points were being exploited by men on the streets and bars, unaware of their HIV status.
The women were also going with men to their cars and nearby hotel rooms. All three knew about their HIV status.
In one case despite repeated interventions from Chithuen Phendey one woman refused to cooperate and undergo alcohol rehabilitation and still engaged in unsafe practices in addition to being exploited.
The case sent shockwaves and generated debate on legal provisions in such cases.
It has been learnt that recently one of the women despite interventions has relapsed and hit the streets again engaging in the same unsafe practices.
Coincidentally while an average of 90 to 100 people come forward for voluntary HIV testing at HISC in Thimphu, that number shot up to 159 in December 2015 and 123 in January 2016 due to the media stories on the issue.
Now, the National HIV Commission which is the highest multi-sectoral government body on combating HIV in its recent 16th meeting has recommended penalty provisions for those intentionally spreading AIDS.
The exact nature of the penalty provision is yet to be decided but it will be incorporated in the draft National Health Bill currently being drafted by the Ministry of Health.
The Chairman of the Commission and Health Minister Lyonpo Tandin Wangchuk said, “The Commission decided that people living with HIV should be responsible and so those who are knowingly spreading it should be held responsible.”
Lyonpo said that even the CSO Lhaksam which enjoys an observer status in the Commission supported the penalty.
However, the minister clarified that the provision in the Bill will not mention HIV per say but put it under the category of communicable diseases as there are other communicable diseases as well. Lyonpo also said that in today’s era other issues like transfer of harmful biological and chemical agents must also be factored in.
Namgay Tshering of the Department of Public Health said that the issue had been discussed in the earlier 14th round of the Commission meeting as well.
He said that the HISC and Lhaksam had rehabilitated one of the women in both Bhutan and India but she had relapsed. He said that Chithuen Phendhey only got associated with the woman later through Alcohol Anonymous and an anonymous complaint.
Namgay said such a similar issue existed not only in Thimphu but also Samdrup Jongkhar.
He said there was a need felt for a law and so the HIV Commission was working with the Policy and Planning Division and the Legal Unit of the Health Ministry to integrate the penalty provision in the Bill.
The Health Ministry is studying existing laws and also international conventions. Currently many countries especially in the west have specific laws against people intentionally spreading communicable diseases.
“People infected with communicable diseases have rights and respect and right to privacy but they must also be responsible,” said the minister.
Lyonpo said that internationally a person should declare his or her HIV status before engaging in certain activities.
He said that the section will first covers the rights and responsibilities of the person before going into the penalty provision.The Act will give legality to the penalty provisions.
The minister pointed out that currently there was a legal provision in the penal code which can be used but does not go into details and so is not adequate by itself.
Section 410 under ‘Criminal Nuisance’ says, “A defendant shall be guilt of the offence of criminal nuisance, if the defendant knowingly or recklessly creates or maintains a condition including spreading of dangerous disease that injures or endangers the safety or health of the public.”
Criminal nuisance is graded as a misdemeanor which has a minimum sentence of one year and a maximum of less than three years. It is a bail-able offence for which thrimthue can be paid instead of serving prison term.
The minister said that the three women’s case had required the need to bring about more details in this part of the National Health Bill.
The provision, however, will be ready only after 2018 as the National Health Bill will be brought into Parliament only after 2018.
Lyonpo said that there is not enough time to bring in the Bill earlier as any bill requires at least three sittings and so it would be left to the next government to introduce into Parliament to make it into law.
The Health Ministry clarified saying that most HIV patients are very responsible but this legal provision is only to handle certain rare cases.