A case for mercy
A survey of high-street lawyers indicates that courts are showing sympathy for those with Aids. Robert Verkaik reports
Wednesday 05 February 1997
Professor Avrom Sherr, of the Institute of Advanced Legal Studies, who is coordinating the Europe-wide study, believes that this is the first detailed evidence that proves Aids is being used as a mitigating factor in court.
Professor Sherr said that while there was no doubt that people with Aids and HIV were discriminated against in other parts of the legal system, in criminal courts their HIV status could work in their favour. "It appears that their status weighs in on their favour in the way the legal system works in terms of sentence or punishment," he said. However he stressed his research had come up with negligence cases where a plaintiff's HIV status counted against them. Professor Sherr said a judge had reduced damages awarded to a cyclist who was HIV positive after he was knocked down by a car. In those circumstances it was decided that the full effect of the injury sustained was not a direct result of the accident. In this way the plaintiff was considered to be more vulnerable to injury than someone who was HIV negative and so the damages were reduced.
Further findings reveal the second largest grouping of cases to be fathers, and some mothers, who are being wrongly denied access to their children because of their Aids status. In these cases, Professor Sherr said, where parents do go to see solicitors, there evidence thatthey are getting "slightly better" contact with their children than they had been previously offered.
This is encouraging for the profession which in the early years of the Aids epidemic was not always seen as sympathetic or "having a listening ear". Now, Professor Sherr said, people with Aids and HIV did not appear to have difficulty in disclosing their HIV status to high street practitioners.
The EU project, which began in 1995, is backed by a 186,000 ecu (pounds 137,000) grant and is working with lawyers and Aids sufferers in Italy, France, Germany, Portugal, Norway and the Netherlands. In this country the questionnaire is part of a huge mail drop accompanying cheques being sent out by the Legal Aid Board. The survey's final findings will not be known for several weeks. But Professor Sherr admitted to being surprised by the high number of the criminal cases and child access cases represented in the 400 or so responses so far collected. "We were originally trying to look for employment [discrimination] cases," he said.
Nevertheless, the project, which also involves contacting people with Aids or HIV to get their experiences of the legal system, has thrown up some very sad cases. "It's quite clear that there is a very strong feeling among people with Aids that there is a great deal of discrimination in the way in which they are treated," the professor said.
Cases can take a long time to come to court and many people with Aids or HIV do not want to risk identifying themselves as having aids.
Some employers exploit these prejudices in the knowledge that employees with Aids will not want to take a case to an industrial tribunal. "They give up," Professor Sherr said, "because they just don't feel the amount of energy and patience necessary is worth the actual chance of success."
The Terrence Higgins Trust has had some success in changing this system to make life easier for people with Aids and HIV. It has led medico-legal test cases and sent out 30,000 living wills, a document developed with King's College School of Legal and Medical Ethics. Through its lobbying efforts the trust secured the specific inclusion of Aids in the Disability Discrimination Act. Under the new Act it will be illegal to bar people from pubs just because they are HIV positive.
The trust has 70 solicitor and barrister volunteers which it can call upon to advise people with Aids or HIV. This is important because the trust does not have money to fund cases; its only resource is people.
In 1995 the trust's legal section acted for more than 565 clients and dealt with 4,349 enquiries, many through the successful legal line.
Alice Holt leads a small team of three full-time THT solicitors. The work ranges from advice on probate to applying for restraining injunctions to stop harassment by neighbours, as well as help in criminal matters. In criminal cases, Ms Holt acknowledged, the Aids status of a defendant can be a mitigating factor. But she said that the way it was handled in court still required tact on the part of the lawyer.
"Do you say that someone is positive in open court or do you put it down in writing and hand it to the magistrate?" There had been several cases where defendants charged with minor driving offences had had their HIV status read out in open court, she added. "One poor person found out that they were an item on the local radio news for a very minor traffic offence," Ms Holt said.
The question of anonymity for people with Aids and HIV is an issue the trust is keen to address. In the US applicants can go under the pseudonym of "John or Jane Doe" but here there is no such protection. And in this respect the trust too has to be aware that when issuing proceedings it will be alerting the press to the nature of the case. In many such cases the trust will recommend solicitors who not only "won't panic about HIV" but are also familiar with the local court.
"We can't possibly act for everyone who comes to us," Ms Holt said. "So we have a case management strategy which balances the vulnerability of the client and their illness with the type of help they are requesting."
This is sensitive work requiring specific skills and includes bedside visits as well as the drafting of emergency wills. A rigorous selection process weeds out those lawyers who do not possess the right skills or attitude. Ms Holt explained: "People who only practice in commercial contracts or have experience in money markets probably don't have very much in the day-to-day skill they can offer the clients we see."
All volunteers have to attend at least one training day a year. The days are accredited by the Law Society.
"We are concerned that clients get a high quality service," added Ms Holt. "Doing the work on a voluntary basis doesn't mean people should get a lesser service. Occasionally volunteers are asked to leave the programme if they haven't complied with the trust's group practice procedures."
The profession's approach to Aids may be more enlightened today but there is no doubt there is still some residual prejudice. One of the solicitors, responding to Professor Sherr's survey, argued that there was no reason why only people with Aids should benefit from such specialised research. Another flatly stated that he had not advised anyone with HIV, and then felt it necessary to add the comment, "and I hope I don't have to"
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