prevention practices. In the absence of a treatment or vaccine, public health strategies focused first on preventing initial infection (primary prevention) by modifying risk behaviors and, for those infected, on preventing further spread of the virus (secondary prevention). Tertiary prevention efforts, focused on limiting the progression of the disease within an infected individual, were for the most part limited to PCP prophylaxis and experimental antiretroviral therapies. As has been extensively documented, since HIV/AIDS raised so many issues of the authority of the public health officials to intervene in the private affairs of selected communities (e.g., gay bathhouse closures, mandatory partner notification) and since there had been sufficient numbers of cases of HIV/AIDS discrimination in housing, public schools, and employment to warrant a genuine concern, public health officials generally believed that the most expeditious prevention strategy had to be voluntarily elicited, rather than coerced or mandated. Furthermore, such an approach followed the principle of the "least restrictive alternative" in gauging appropriate public health action. 1 Particularly given some of the early successes in persuading the homosexual male population to voluntarily reduce risky behaviors, it seemed sensible to public health officials and legislators to pursue measures that educated and engaged the communities most at risk, rather than potentially alienating these communities and driving them away from the health care system.

In keeping with this approach, the state legislature passed New York State's confidentiality statute in 1988, which imposed strict penalties for disclosure of confidential HIV information and required written informed consent prior to any HIV testing. According to one of the key legislators involved in drafting the law, "We recognized that there was an urgent public health need to have people come forward and be tested, to be counseled, and to cooperate, and since there was no lure of treatment we had to offer a guarantee of confidentiality." One key provision of the statute gave physicians treating HIV-infected individuals the "power" to warn others who might be at risk of HIV infection, but not the "duty" to warn. This was in keeping with the balance between prevention and case finding, as was the language of the informed consent. Rather than adopting a "directed" approach that recommended HIV testing, the language of the informed consent was "non-directed,'' spelling out all the potential negative consequences of testing and leaving the formulation of a decision entirely up to the individual. This approach to informed consent was based on 20 years of success in the field of

1  

In one of the most cogent articles examining the legal capacity of public health authorities to constrain individual behavior through the regulation of public meeting places or contact tracing, Gostin and Curran (1987, p. 217) concluded in 1987 that, "even stricter scrutiny will be applied to public health measures which affect liberty, autonomy, or privacy of human beings. These measures should not be promulgated without searching examinations as to public health need, specificity of the targeted population, and adherence to the principle of the least restrictive alternative."



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