HIV Testing Policies

HIV in prisons raises a number of issues that do not exist for the general community; one of these is mandatory HIV antibody testing. The earliest public policy debates on HIV in prisons focused not on care and prevention but on whether to mandate testing. In 2003, 19 state prison systems and the Federal Bureau of Prisons had mandatory HIV screening policies for their incoming inmates.(54)

Prisoners cannot give true, free informed consent. In every area of life, inmates bargain for privileges, better conditions, and, ultimately, release. Where HIV testing is not mandatory, prisoners require more information than others to make informed decisions about taking the test. To give informed consent, prisoners must understand the institutional consequences of a positive HIV antibody test result, such as segregation and loss of access to activity programs, visitation, and jobs. Even this information may not permit prisoners to make a free choice about testing, as many prisons have policies of segregating prisoners who refuse testing with the policy that they can join the general population only after they have been "medically cleared."

HIV testing has benefited inmates in institutions that offer antiretroviral therapy and prophylaxis against opportunistic infections. Voluntary testing increasingly has become available to prisoners since early medical intervention has been offered. A review of HIV infections identified through voluntary counseling and testing programs for prisoners in 48 project areas in the United States between 1992 and 1998 found a steady increase in the use of testing services. There were 16,797 reactive tests (3.4%), 56% of which involved individuals who had been unaware of their serostatus at the time of testing.(55) Acceptance rates for seroprevalence testing by new inmates in Maryland and Wisconsin have been reported at 47-83%.(48) In 2003, 45 of 49 responding state prison systems and the federal prison system reported testing for HIV at inmates' request.(3)

Confidentiality

Confidentiality of medical information in the prison setting is virtually impossible to maintain. Where quarantines exist, confidentiality cannot. Persons other than medical staff members may handle medical records, and medical personnel may not be meticulous about protecting privacy. Once information is released in a prison, it travels rapidly. Many people in the prison setting believe they have a particular need to know who in the institution is infected with HIV. It has been argued that prisoners have a greater need for privacy than those outside because they live in a closed community where violence is common.

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Prison policies vary in regard to disclosure of test results. Fear of disclosure and its consequences may discourage voluntary testing. Prison officials use HIV antibody test results to make decisions about housing and segregation, work assignments, and visiting privileges, among other matters. It has been common practice to bar inmates with HIV (or AIDS) from kitchen work. In some jurisdictions, results of HIV tests go directly to the prison staff. In 1988, California voters passed Proposition 96, an initiative authored by the sheriff of Los Angeles County requiring prison and jail physicians to give lists of known or suspected HIV-infected prisoners to custodial staff members. Such policies reflect the fear and misinformation prevalent in many prisons, and undermine the message and practice of universal precautions.