UPDATE – Canada: Gay man acquitted of HIV exposure in Vancouver, risk not significant enough for liability

Update: May 12th

Yesterday, the Canadian HIV/AIDS Legal Network issued a press statement on the case, available here.

The reasons for judgment in the case (R. v. J.A.T., 2010 BCSC 766) were made public on June 2nd.

Today, aidsmap.com published a news story that I wrote last night highlighting the most salient points. Read the full story here

The case before the courts in Vancouver, British Columbia hinged on how many times an HIV-positive gay man’s boyfriend had insertive, unprotected anal sex with him, and whether the risk of him acquiring HIV was ‘significant’.

[…]

Both sides accepted that the accused had failed to disclose his status, although there had been several discussions around HIV-related risk and an agreement to practise safer sex from the start of the relationship. The accused testified that he had been diagnosed HIV-positive two weeks prior to meeting the complainant and hadn’t been ready to disclose his status at that point.

“I was still dealing with social stigma, personal prejudice; I was mentally a mess,” he told the court.

The prosecution’s expert witness, Dr Richard Matthias, testified that the per-act risk of HIV transmission for the insertive partner was similar for both unprotected anal and vaginal intercourse and estimated the risk to be 0.04%, or 4 in 10,000.

Justice Lauri Ann Fenlon ruled that unprotected sex took place three times, and that the cumulative risk – 12 in 10,000 – did not reach “the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault.”

An equally important part of Justice Fenlon’s decision was that she found the harm of HIV infection to be less than it was perceived to be in 1998.

“It’s no longer the case that people infected with HIV will develop AIDS and die prematurely,” she said. “HIV, while still a deadly virus, can generally be treated and held in check.”

This is relevant, explains the Canadian HIV/AIDS Legal Network, which worked closely with defence counsel Jason Gratl, and provided expert testimony at trial, “because, as the severity of the possible harm decreases, the higher the risk of harm must be in order to warrant criminal prosecution.”

Original post: May 7th

In a groundbreaking ruling for Canada, Justice Lauri Ann Fenlon today ruled that the risk to the insertive partner during anal sex without a condom is not ‘significant’ enough to be considered either aggravated sexual assault nor sexual assault in the absense of disclosure.

Her ruling, reported in Vancouver’s daily paper, The Province, and Canada’s gay paper, Xtra, was based on expert evidence that the per-act risk of acquiring HIV via insertive anal sex was 4 in 10,000. Of interest, the defendant had been recently diagnosed (within the previous six months) and was not on treatment but the expert witnesses’ testimony did not draw attention to the possibility of a higher risk due to higher viral load during early infection.
Full details of each day of the court case have been painstainkingly reported in a blog by Nathaniel Christopher on Xtra.ca. This report of the expert witness statement is below

An expert witness said an HIV-positive man on trial for aggravated sexual assault had a 0.04 percent chance of infecting his partner every time they had sex. Dr Richard Mathias told the court he believed HIV transmission rates in anal intercourse are comparable to those in vaginal intercourse. He explained that a penetrative partner in anal sex is at risk of contracting HIV through anal fluid, which can travel up their urethra. He mentioned that in the case of uncircumcised men the risk is even higher as the fluids can infect the insertive partner through the tissue beneath the foreskin.

Crown counsel Brendan McCabe asked Mathias if he was aware of any individual incidents in the gay community of the virus going from an HIV-positive receptive partner to a negative partner. “No,” said Mathias, who has worked in public health for 35 years and conducted research on HIV and AIDS in the early days of the disease. He explained that the risk in the case of the accused would be 4 in 10,000 per act but that number would multiply with each encounter.

McCabe suggested that if the accused and complainant had had five unprotected encounters then the risk would be 20 in 10,000. Mathias said the risk is comparable to protected sex between an HIV-negative bottom and an HIV-positive top.

The complainant testified that he had engaged in insertive anal sex a total of five times with his former partner; the defendant testified that this happened only once, and that he had thought his partner was wearing a condom at the time. Justie Fenlon ruled that unprotected anal sex had taken place three times, but that a 12 in 10,000 risk was not significant enough to be considered a criminal act. Transmission did not occur.

I have concluded that the Crown has failed to prove that the risk of HIV transmission here — 12 in 10,000 sexual encounters or 0.12 percent — meets the standard of significant risk of serious bodily harm that must be met to turn what would otherwise be a consensual act into aggravated sexual assault.

This verdict should not be understood to mean that the court condones the behaviour of the accused. He had a moral obligation to disclose his HIV-positive status to his partner so that the complainant could decide whether he wanted to take the risk of engaging in unprotected sexual activity with the accused, no matter how small that risk. But not every unethical act invokes the heavy hand of the criminal law.

A previous posting yesterday, reposting an excellent article from Xtra, highlighted the potential significance of the case. It will be interesting to see what others make of it. More on Monday.

Canadian HIV law at a crossroads (Xtra.ca)

Reposting this article from Xtra.ca published online today. Tomorrow’s verdict (due to be issued 9am Vancouver time) will be as important to people living with HIV – and public health – in Canada as the outcome of UK’s general election. Will provide full details of trial and commentary on Monday.

Canadian HIV law at a crossroads
CRIMINALIZATION OF HIV / Vancouver, Edmonton and Hamilton cases could affect future police & crown decisions
Nathaniel Christopher & Neil McKinnon / Toronto / Thursday, May 06, 2010

Cases in three provinces could shape the way HIV non-disclosure is treated by the courts in this country.

In Vancouver, an HIV-positive man awaits a verdict after a lengthy trial. He and his boyfriend had unprotected sex very rarely — possibly just once — and the poz partner was always the bottom. The trial judge has ordered a publication ban on both men’s names.

In Hamilton, a poz guy had charges against him stayed because the complainant and accused only engaged in oral sex.

And in Edmonton, a straight man in his 50s is facing an assault charge for HIV non-disclosure, but police — who have a history of splashing names and photos around in the media — are refusing to release his name.

Although there is no HIV law on the books, Canadian police have, since the mid-’90s, been charging people with offences — ranging from assault to murder — for failing to disclose their health status before having unprotected sex. HIV activists have long said that transmission should be a public health matter, not a criminal one.

In Vancouver, Justice Lauri Ann Fenlon was, as Xtra goes to press, expected to render a verdict on May 7. But she has already hinted that the case could be appealed on constitutional grounds.

The defendant is represented by BC Civil Liberties Association lawyer Jason Gratl. Gratl called Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, to the stand to testify about the adverse effects of HIV criminalization.

At the trial, Fenlon said Elliott raised important policy issues that an intervener might put before the appeal courts or the Supreme Court of Canada, but that his testimony was not relevant to the issue before her.

The court, consequently, did not consider Elliott’s testimony, but if the accused is convicted, they may end up making their case in appeals.

Elliott testified to the challenges of requiring disclosure in all circumstances, saying that approximately one quarter of all people in Canada infected with HIV don’t know they have it.

“I think people recognize challenges of HIV disclosure, including stigma and negative consequences that can very easily flow from their HIV status,” Elliott told the court. “Rather than expect people to overcome those barriers in every circumstance and impose a criminal penalty when they don’t, the emphasis should be on personal responsibility and risk reduction, a sensible prudent strategy in the ability of all people.”

He told the court that the stigma associated with HIV could be a disincentive to disclosure.

“People, quite legitimately, have concerns over employment, housing, loss of personal and other social rela-tionships, ostracism in community and denial of service by service providers,” Elliott testified. “Although we only have limited systemic research on HIV stigma, we certainly do have enough to document that there is still a pervasive stigma associated with HIV.”

He stressed the need for clarity in the law to better define what sexual activities between HIV-discordant couples constitute “significant risk” of serious bodily harm as set out in the 1998 Supreme Court of Canada case R v Cuerrier.

***

In the Vancouver case, the issue of what constitutes significant risk is paramount, because the defence is arguing that the risk of HIV transmission was as low as 1 in 2,500. In none of the three cases did transmission occur.

Dr Richard Mathias told the court he believes HIV transmission rates from anal intercourse are comparable to those from vaginal intercourse. He explained that a penetrative partner in anal sex is at risk of contracting HIV through anal fluid, which could travel up the urethra. He mentioned that in the case of uncircumcised men, the risk is higher as the fluids can infect the insertive partner through the tissue beneath the foreskin.

Crown counsel Brendan McCabe asked Mathias if he is aware of any incidents in the gay community of the virus going from an HIV-positive bottom partner to a negative top.

“No,” said Mathias, who has worked in public health for 35 years and conducted research on HIV and AIDS in the early days of the disease. He explained that the risk in the case of the accused would be 4 in 10,000 per act, but that number would multiply with each encounter.

McCabe suggested that if the accused and complainant had had five unprotected encounters, then the risk would be 20 in 10,000.

Mathias said the risk is comparable to sex between an HIV-negative bottom and an HIV-positive top when a condom is used.

The definition of “significant risk” was also at the heart of the Hamilton case, where the prosecution stayed an aggravated sexual assault charge in April. A gay man was charged in February 2009 after an ex-partner alleged they had oral sex without his disclosing that he had HIV. The charges were based on the accused’s performing oral sex, rather than receiving it.

The ex-partner has since been tested and is HIV-negative.

Elliott said in a statement:

“There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

***

In the Hamilton case, the name of the man who was accused is public, but, at his request, Xtra chooses not report it. In the Edmonton case, police declined to release the accused’s name. And in Vancouver, the judge ordered a publication ban on the accused’s identity.

In all three cases, the complainant’s identity cannot be disclosed by law, akin to the way the identities of rape victims are protected.

Police across the country often disclose the names of people accused of sexual assault for HIV-nondisclosure, which, among other things, outs them as HIV-positive.

The Edmonton case is unusual because, from the outset, the name of the accused has been kept under wraps.

The charge follows a March 31 police complaint by a woman claiming she slept with an Edmonton man who failed to disclose that he has HIV.

An RCMP spokesperson, Jodi Hei-denger, says the move has nothing to do with public disclosure of the health status of the accused, and everything to do with protecting the identity of the alleged victim.

“Releasing any details would without a doubt identify the victim. We are not releasing the name of the accused strictly to protect the identity of the victim,” says Heidenger.

Which could mean that the Vancouver case, where at trial the accused’s name is protected, could be more precedent-setting. The move, however, may have come too late, since the publication ban came only after the name had been bandied about in media reports and police press releases.

The Hamilton case, because it never went to trial, will likely have the least impact on jurisprudence.

The Vancouver case, with the spectre of a Supreme Court challenge hanging in the air, could be one of the most important in a decade.

US: Padieu case gets the 20/20 treatment; phylogenetic analysis totally misrepresented

The case of Philippe Padieu, the French-born Texan found guilty in May 2009 on six counts of aggravated assault with a deadly weapon and sentenced to 45 years for five counts and 25 years for the remaining count – all of which run concurrently – was featured last Friday night on US ABC TV’s tabloid-style news magazine, 20/20.

Five and half million viewers watched as Mr Padieu faced trial by media yet again. All six parts of the one hour show (actually 39 minutes minus commercials) are available to watch online.

Part 1: Women recall HIV criminal’s allure
Part 2: HIV diagnosis rocks women’s lives
Part 3: Women take matters into own hands
Part 4: HIV serial dater faces victims in court
Part 5: Man convicted of HIV crime speaks
Part 6: Women want case known to protect others

It’s basically sold as the story of a group of scorned women uniting to put Mr Padieu behind bars, summarised beautifully by the accompanying story on the ABC news website headlined, ‘How Women United to Stop HIV-Positive Man, Women’s Horror at Diagnosis Replaced With Mission: Stop Man From Infecting Others.’

There’s so much I could say about the show, which is something of a milestone in criminal HIV transmission reporting in the mainstream media, but I’m going to limit my comments about the very worrying misrepresentation of phylogenetic analysis as ‘proof’ that Mr Padieu was the source of all the women’s HIV infection. Perhaps blog readers could fill in the comments sections with insights and criticisms of their own about this programme.

[Update: Catherine Hanssens of The Center for HIV Law and Policy has some terrific comments and insights in her Sept 29th blog post.]

In Part 4 of the show, presenter/journalist Elizbeth Vargas says that it was Mr Padieu’s “own DNA” that proved he was guilty. But phylogenetic analysis is all about testing the genetics of HIV, not the individual. They then showed one of the US’s foremost experts in HIV forensics, Dr Michael L Metzker, of Baylor College of Medicine, Houston, Texas, who testified for the prosecution that Mr Padieu’s virus was extremely similar to that of the six women. Except here he says definitively that Mr Padieu was “the source” of the six women’s HIV. I’ve written about the limitations of phylogenetic analysis many times: the issues are summarised here.

In the final part of the show, we are introduced to ‘Lisa’ who dated Mr Padieu in 1997, and was diagnosed HIV-positive that same year. The show gives Dr Metzker a sample of Lisa’s blood and he says that “preliminary analysis” suggests that Mr Padieu was the source of all seven women’s HIV infection. The show concludes that Mr Padieu “gave Lisa HIV in 1997” and goes on to suggest, without a shred of evidence, that he had been diagnosed earlier than 2005 and knowingly infected Lisa and possibly hundreds of other women.

I’m extremely disappointed in Dr Metzker for totally misrepresenting what phlyogenetic analysis can prove. It is impossible to conclude, given the many limitations of phylogenetic analysis, that Mr Padieu infected Lisa in 1997. It is, in fact, just as possible that Lisa infected Mr Padieu.

I don’t expect 20/20 to explain the science (in fact, I expect them to get it wrong), but I do expect Dr Metzker, who is (was?) considered to be a respected scientist, to be less definitive about his conclusions. Maybe Dr Metzker would like to explain how he could be so sure – it would be very helpful to know if he has developed new, as yet unknown, techniques in phylogenetic analysis that can definitively pinpoint timing and direction of transmission.

Canada: Johnson Aziga and questions about the virological evidence

Here’s an excellent piece analysing flaws in the recent Johnson Aziga trial by Chris Morley, HIV Policy, Information and Publications Coordinator at George House Trust in Manchester, England. He writes this in a personal capacity.

He has had first-hand experience with some UK criminal HIV transmission cases, and contributed significantly to the HIV Forensics chapter of my book. He originally wrote this as a comment on my posting about the scientific evidence in the trial, but I thought it deserved a posting in its own right. He’s also written about the trial on the GHT website.

Johnson Aziga and questions about the virological evidence
by Chris Morley

Call a virologist

The defence lawyers failed to follow a key lesson from some recent English cases – which is to call a virologist, expert in HIV, as an expert witness, or at the very least commission an expert HIV virologist’s report to use as evidence.

Because the state called Dr Paul Sandstrom, director of the Public Health Agency of Canada’s national HIV and retrovirology laboratories as its scientific witness, there was a critical need to have an internationally respected independent expert HIV virologist giving evidence for the defence.

In well represented recent English cases, some level of expert HIV virologist involvement has led to a not guilty verdict, acquittal, case dismissed, and cases being abandoned. It makes a crucial difference to the outcome. It may not always cast enough reasonable doubt on all prosecution claims, but the English experience so far is all of prosecution failures where this is used, and usually of prosecution successes when it isn’t used.

From my reading of reports about the scientific evidence an expert virologist would have been able to question, or even demolish the assumptions and conclusions put forward by the prosecution.

Here’s the report, from The Hamilton Spectator, of the testimony of Dr Sandstrom:

“We were able to determine that all of the complainants and Aziga had a phylogenetically distinct form of HIV and that Mr. Aziga had the virus prior to contact with any of the women,” Sandstrom said. …..

Aziga and the women in the Hamilton infection cluster all had Clade A, which is rare in North America but endemic in Aziga’s native Uganda.

In this country, fewer than 2 per cent of those newly diagnosed with HIV have subtype A.

Phylogenetic analysis examines small differences in HIV genes by coding sequences of the HIV genome and comparing them to other HIV sequences in public databases.

HIV virologists can only determine the degree of similarity between two samples. They can’t produce a definitive match because unlike human DNA, HIV is not unique to an individual.

The analysis is also unable to determine the direction of transmission, Sandstrom said. So, theoretically, one of the women could have infected Aziga, instead of the other way around.

To resolve that issue, Sandstrom obtained a frozen blood-plasma sample drawn from Aziga after his HIV diagnosis 12 years ago. The specimen — collected before Aziga met any of the women — was phylogenetically analyzed and found to be nearly identical to the Hamilton infection cluster, comprising Aziga and the seven HIV-positive women.

“It means Mr. Aziga did not become infected by any of the women and that he had already been infected prior to contact with any of the women,” Sandstrom said.

No Proof

This does not fully address or prove transmission from Johnson Aziga at all – other explanations are at least a possibility, and need to be ruled out. Mr Aziga and the women complainants are not the only people in Canada with subtype A – there are over 1000 other people diagnosed with it and more who are undiagnosed. One or more of the others with HIV-A might have been the source of one or more women’s HIV.

Sandstrom did not consider it part of his job to explore this, or try to exclude this as a possibility. As the leading state HIV virologist he had a professional obligation to attempt to resolve this uncertainty and present the full picture. It would either have strengthened or weakened the prosecution case. Either way it needed checking.

Not my job to check

He was cross examined about this by the defence who argued that although Aziga and the women share a related virus, that did not mean that other persons, still unknown, might not also be carriers and part of the same transmission network. “It still remains, that your investigation does not rule out the possibility that there are other people ‘out there’ who are a part of the same infection cluster,” suggested the lawyer. Sandstrom said his investigation was “not directed at finding additional complainants or additional suspects,” but at providing confirmatory evidence for the footwork done by Hamilton police.

And the police, under cross examination, said it wasn’t their job either, to look for other possible sources of the women’s HIV.

Miscarriage of Justice and reversed burden of proof

This leaves me with serious concerns that there has been a miscarriage of justice. The defence is left to carry out an investigation, without police powers or resources, requiring the taking and testing of blood samples and complex and expensive scientific analysis, in an attempt to show there are other credible explanations. Does this not unfairly reverse the legal burden of proof?

Sexual history of complainants must be a central part of all transmission investigations

With HIV transmission cases, the proper police investigative practice of not looking into a rape complainant’s own sexual history, is often adopted. A woman’s sexual history is irrelevant to whether she was forced to have sex by someone; however it is critical to establishing which of her partners might have been the source of HIV in a consensual encounter. To attempt to prove X did it, you have to at least rule out A, B, C etc. And this at least can be proved conclusively with virology (HIV virology can prove someone didn’t transmit that HIV, but it can’t prove who did).

Rarely are the circumstances such that a complainat can be absolutely sure which of several partners might have been the source. The police are used to checking statements and seeking corroboration for everything. Why are claims about who transmitted HIV treated as if they cannot and must not be questionned? Why don’t the police routinely seek, and prosecutors demand, corroboration by ruling out all other possibilities?

For example, one of the women who died (H.C.) had three previous partners in recent years, two of whom were also migrants from Africa and, if HIV positive, likely also to have HIV-A. And an earlier date of infection from one of these men would better explain her surprisingly rapid development and death from Burkitt’s lymphoma, all apparently within 3 years or so of her supposed infection by him. (Reported here based on reports in The Hamilton Spectator )
And regarding the other women, see for example this article in The Hamilton Spectator.

Reasonable doubt opportunity wasted

With prosecution and defence expert witnesses contradicting each other, reasonable doubt would be raised far more strongly. Instead of calling an expert in HIV virology, the defence called Rafal Kustra, an associate professor of biostatistics with the Dalla Lana School of Public Health at the University of Toronto. He was not able to make much of an impact, saying he was “underwhelmed” by the level of analysis used by Ottawa scientists who concluded that Johnson Aziga and seven HIV- positive women carry viruses that are so closely related they can be described as a single “Hamilton transmission cluster.” He criticised the method used by Sandstrom and that was about it. He didn’t produce any new evidence, and wasn’t even invited by the defence to offer a different interpretation of the same facts, or say what further evidence was needed, and which questions need to be answered, before the prosecution’s case can become credible scientifically.

The defence barrister did criticise the prosecution’s scientific claims and failure to eliminate other potential sources of HIV. This does not carry any real weight with judge and jury – in legal terms it is not evidence, more an argument. The defence lawyer is not a scientific expert who can credibly contradict Canada’s head of HIV virology, no matter how right he may be. He tried, but didn’t call an expert virologist as a witness who could have made the argument convincing with fresh evidence and interpretation based on professional expertise.

An independent expert virologist might have been able to show, for one or more of the infected, scientific reasons why the prosecution are drawing the wrong conclusions and missing out vital evidence.

Establishing reasonable doubt is the job of the defence. Succeed, and the judge would then have pointed this out to the jury. The judge’s response to reasonable doubts should lead to a not guilty verdict, or acquittal, on one or more of the charges.

Not guilty verdicts and acquittals might not have produced justice, but there doesn’t seem to be much certainty of justice in this verdict, from what I have seen reported.

No-one knows for a scientific fact whether or not he did transmit HIV to the 7 people whom the prosecution claim he infected. This can never be proved with current scientific techniques. The essential virological analyses and testing of other partners, that might have shown the virological connections between the HIV samples could have more than one credible explanation, seem to have been omitted.

The apparent failure to eliminate from suspicion the women’s other / previous partners raises serious doubts about any scientific claims made that he was the source, because those claims seem based on only some of the potential scientific evidence.

Herd mentality

A herd mentality can develop in big trials and high profile cases. The pressures to secure a conviction are huge. In cases involving HIV transmission, some of the media behave like a baying mob. Police and prosecutors may become convinced they have their man and be unable to entertain any other possibility. We’ve much experience of this in England and this case has the hallmarks of another, but in Canada.

Dysfunctional justice?

It’s a case that shines a light on the Canadian justice performing badly in a major trial. It seems there are errors as much in the prosecution, police investigation and justice procedures, as well as tactical mistakes by the defence. He’s been five years in prison awaiting trial and this was his 6th team of lawyers. This case makes the Canadian justice system look dysfunctional. I hope it redeems itself at the appeal stage.

Sweden: Health agency criticised for not co-operating with police

The Swedish Institute for Infectious Disease Control has revealed in an article in a medical journal that they have refused to co-operate with police in tracking down individuals who may have broken Sweden’s draconian public health and criminal HIV exposure and transmission laws. Following a public furore, they have now backtracked somewhat.

Articles from the Associated Press and The Local.se below.

Swedish health agency blasted for HIV stance

By LOUISE NORDSTROM

Associated Press

22nd October

STOCKHOLM, Sweden (AP) — A Swedish health agency revealed in an article published Wednesday that it had refused to help police track down people who knowingly infect others with HIV.

The revelation triggered harsh criticism and the government agency, the Swedish Institute for Infectious Disease Control, agreed later in the day to resume helping police.

Officials for the agency were quoted in a medical newspaper as saying they had declined to cooperate with police because they disagreed with current legislation that criminalizes the willful spread of the AIDS virus.

The report in the Dagens Medicin weekly sparked anger among prosecutors, police and government officials, who accused the institute of placing itself above the law.

The institute backtracked and its officials also clarified their position, saying they had no problem with the law itself, but believed the penalties for spreading HIV were too severe. The willful transmission of the virus is punishable by a maximum 10 years in prison.

Jan Albert, an expert at the agency, said the threat of imprisonment harms prevention efforts because some people who suspect they may have the virus refrain from getting tested for fear of prosecution.

Albert said the agency had declined to help police on many occasions, “but we’ve come to the understanding that we’ll resume work with the police.”

‘Decriminalize spread of HIV’: agency
Published: 22 Oct 08 11:38 CET

A Swedish government agency is refusing to assist the police in an ongoing investigation concerning a person suspected of infecting a woman with HIV.

Under current legislation, a person with HIV risks spending one to ten years in jail on assault charges if he or she knowingly has unprotected sex with another person.

“The criminalization of HIV makes preventive work more difficult. Also, sentences are very tough,” Ragnar Norrby, director-general of the Swedish Institute for Infectious Disease Control (SMI), told newspaper Dagens Medicin.

In a reversal of its previous policy, the disease control institute has recently refused to cooperate with prosecutors who requested information on a person suspected of spreading HIV.

“It is now our view that spreading HIV should not be classified as an offence,” Jan Albert, SMI head physician and regional manager, told Dagens Medicin.

“It is at least as much the responsibility of the individual person to understand that unprotected sex involves risks,” he added.

According to Ragnar Norrby, the threat of prosecution leads many people infected with HIV to remain anonymous, making it more difficult to trace the spread of the virus.

SMI also notes that the development of antiretroviral drugs has meant that HIV can no longer be equated to a death sentence.

Is having HIV ‘like a death sentence’?

This is an amended version of a blog entry originally entitled ‘Canada: Expert doctor defends his statements on HIV life expectancy’. I was forced to remove the original posting to which this entry refers due to a threat of legal action.

I have now included the news article from the original posting (about the Owen Antoine case in St. Thomas, Ontario, Canada) in this fuller entry on Mr Antoine’s trial.

The offending post dealt with the reported statements of Dr Anurag Markanday, the expert witness for the Crown in an article on the case from the St Thomas Times Journal, with which I strongly disagree.

Dr Anurag Markanday told the jury there’s no cure for HIV, but drugs do slow the process of the disease. “It’s like a death sentence … while we can keep the virus suppressed, we are going to run out of options.” Once diagnosed, the average lifespan of a person is eight to 10 years, he testified.

For someone with access to HIV treatment – as is the case in Canada – HIV is now a chronic, manageable condition.

In subsequent email correspondence, Dr Markanday again asserted his opinion that, “in the absence of a cure, I would still label it as “death sentence” for someone not on therapy (when clinically indicted) [sic] or in heavily treatment experienced patients with multiple drug mutations and limited options.”

Of course if someone is not on treatment when they should be (in most cases when they have a CD4 count below 350 cells/mm3) then they are more likely to get sick and die. But that is focusing on the exception and not the rule.

And yes, if someone was diagnosed in the 80s or 90s and burned through every class of drug they may well have multiple drug mutations, but there are now many options for what used to be known as ‘salvage therapy’, including the amazing new drugs and new drug classes that Dr Markanday says he is working with.

Consequently, I really must question his focus on worse-case scenarios and his use of the emotive phrase, ‘death sentence’.

Dr Markanday then points out “the effects from other co-morbidities such as hepatitis co-infection with early cirrhosis and mortality, hyperlipidemia/CV events have also increased. (In terms of number of years one could safely say at least ten years since the diagnosis).”

Again, I wonder why Dr Markanday focuses on hepatitis coinfection – which certainly does increase the likelihood of illness and death in someone with HIV? I have no idea whether the complainant was already infected with viral hepatitis before she was allegedly infected with HIV, but if this is not the case, how is it relevant?

As for lipid increase and cardiovascular events, the latest word from the D:A:D study, which looks at these events, is that “there does not seem to be an epidemic on the horizon – simply a risk that needs to be managed.”

So, yes, remaining on suppressive anti-HIV treatment, giving up smoking, exercising and eating well, and taking lipid-lowering drugs if indicated, may be necessary to reduce the risk of an HIV-positive person succumbing to a heart attack, but the increased risk of treated HIV infection itself is not considered something that dramatically alters life-expectancy.

Why could Dr Markanday not have said that with treatment, someone diagnosed with HIV infection today is expected to have, more or less, a normal lifespan? That is what Italy’s Dr Stefano Vella – one of the most respected HIV clinicians in the world – said at the 2006 International AIDS Conference in Toronto, and many expert HIV clinicians agree.

Solid data backs up Dr Vella’s assertion. In 2006, researchers from the United States calculated that someone who was provided with anti-HIV drug combinations according to 2004’s US treatment guidelines would benefit from these treatments for between 21 and 25 years before they finally stopped working. Their estimate included four separate attempts at suppressing HIV to ‘undetectable’ levels, from first-line therapy to ‘salvage’ therapy. (Schackman BR et al. The lifetime cost of current HIV care in the United States. Medical Care 44(11); 990=997, 2006.)

Last year, a large Danish study concluded that a 25 year-old diagnosed with HIV and treated with the anti-HIV drugs available then could expect to live well into their mid-sixties . The Danish study found that the average 25 year-old who remained HIV-negative could expect to live until they were in their mid-seventies. Consequently, successfully treated HIV infection appears to reduce life-expectancy by about ten years. (Lohse N et al. Survival of persons with and without HIV infection in Denmark, 1995-2005. Annals of Internal Medicine:146: 87-95, 2007.)

However, anti-HIV treatments – and knowledge about how to best use them – continue to advance at a rapid pace. As time goes on, experts believe that is very likely that other ways of treating HIV will be discovered that will mean that successful outcomes from the use of anti-HIV treatment could last even longer.

Certainly, HIV can lead to some serious illnesses if untreated. In 2006, around 100 out of the 400 deaths reported in HIV-positive people in the UK were due to their being diagnosed with HIV too late for effective anti-HIV treatment, highlighting the importance of HIV testing in order to make the most of the latest advances in anti-HIV therapy.

Another third of these 400 deaths were not considered related to HIV at all. Consequently, most HIV-related deaths are preventable if HIV is diagnosed early enough and treated succesfully. (Johnson M et al. BHIVA Mortality Audit. BHIVA Autumn Conference, London, 2006.)

Ultimately, anti-HIV treatments have greatly improved the life expectancy of people with HIV, as long as they:

• Know their HIV status early enough to get timely and effective treatment
• Have access to good quality HIV treatment and care
• And take anti-HIV drugs regularly and on time.

Finally, as for life expectancy for someone not on treatment, there are new data from UNAIDS and WHO which finds that, as a result of a better understanding of the natural history of untreated HIV infection, the average number of years that people living with HIV are estimated to survive without treatment has been increased from nine to eleven years.