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HIV Confidentiality in Prison

Question: Is HIV/AIDS status and all information and records pertaining to HIV confidential in Michigan prisons?

Response: Yes. Michigan state law makes disclosure of HIV/AIDS-related information unlawful whether the information concerns an inmate or a Corrections Department employee, but for a limited number of exceptional circumstances. Department of Corrections policies and directives clarify that the law applies to Corrections inmates, employees and contractors. This conclusion is supported by law and MDOC policies as described below.

The Michigan Department of Community Health (MDCH) estimates that approximately three percent of all Michigan Department of Corrections (MDOC) prisoners are HIV-infected. (2004 Profile of HIV/AIDS in Michigan, Michigan Department of Community Health, Bureau of Epidemiology, September 2004.) This is an increase over the one percent reported in 2002.

Stigma about HIV and AIDS are still significant problems facing those people who are infected or affected by HIV, whether as family members, care givers or health care professionals. HIV stigma limits the effectiveness of HIV prevention, testing and care. According to the World Health Organization, stigma may play a significant role as a barrier to those who might benefit from direct and regular medical care, but refuse to seek it for fear of reprisal in their community.

HIV and AIDS-related information is documented in every inmate’s prison file because Michigan law requires that every inmate be HIV-tested as they enter the MDOC system. Michigan Compiled Laws 791.267, MDOC Policy Directive 03.04.120)

Combined with the insular nature of prisons, the increasing HIV infection rate among Michigan inmates makes effective and efficient HIV/AIDS care and prevention programs even more important. The prevalence of HIV in prisons, concerns about the risk of infection, and the potential of violence in interactions among prisoners and prison employees make HIV-related information about prisoners and employees susceptible to disclosure. State and federal law, as well as MDOC policies and directives, prohibit disclosures that are not directly related to treatment of an HIV-positive person or preventing behavior that causes transmission.

Michigan state law includes strongly worded protections for HIV/AIDS-related information. Michigan Compiled Law (MCL) 333.5131 states:

Sec. 1. "All reports, records, and data pertaining to testing, care, treatment, reporting, and research, and information pertaining to partner notification under section 5114a, that are associated with the serious communicable diseases or infections of HIV infection and acquired immunodeficiency syndrome are confidential. A person shall release reports, records, data, and information described in this subsection only pursuant to this section." MCL 333.5131(1)

While the state law contains a short list of exceptions when disclosing another person’s HIV related information may be permitted, none apply in the context of Corrections.

The constitutional right to privacy is "the individual interest in avoiding disclosure of personal matters" according to the U.S. Supreme Court. Whalen v. Roe, 429 U.S. 589 (1977). In his dissent in Olmstead v. United States, 277 U.S. 438, 478, Mr. Justice Brandeis characterized "the right to be let alone" as "the right most valued by civilized men"; in Griswold v. Connecticut, 381 U.S. 479, 483, the Court said: "[T]he First Amendment has a penumbra where privacy is protected from governmental intrusion." See also Stanley v. Georgia, 394 U.S. 557; California Bankers Assn. v. Shultz, 416 U.S. 21, 79 (Douglas, J., dissenting); id. at 78 (Powell, J., concurring).

Federal law supports the conclusion that confidentiality rights exist in prison. In Doe v. Delie, 257 F.3d 309 (3d Cir. 2001) the 3rd U.S. Circuit Court of Appeals held that prison inmates have a constitutional right to "medical privacy" and that prison officials can be sued for failing to protect the confidentiality of an inmate's HIV positive status.

The Michigan Department of Corrections has established several policies that touch on the matter of health care, health information privacy and HIV confidentiality. Those policies include:

PD 03.04.100, requiring the Department to provide prisoners with a continuum of health care services that is accessible, timely, and provided in a humane and cost efficient manner.

PD 03.04.108, providing for the confidentiality of the documents and the information making up a prisoner’s health record, including diagnosis, care and treatment whether released in writing, electronically or verbally. A prisoner’s HIV, hepatitis B and hepatitis C status shall be released to a Department employee who is exposed to the blood or body fluids of the prisoner, subject to PD 03.04.120.

PD 03.04.120, control of communicable bloodborne diseases noting that HIV is not transmitted by casual contact, requiring the use of universal precautions, specifying testing procedures, defining misconduct offenses and defining HIV confidentiality within the Department.

OP 03.04.108-C, stating that "all employees and contractors" are to maintain the confidentiality of all prisoner health information.

Michigan state law and Department of Corrections policies and directives make clear that disclosure of HIV/AIDS-related information in or related to Michigan prisons is unlawful, whether the information concerns an inmate or a Corrections Department employee.

 Answered by Kendra S. Kleber JD

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