We all know the risks of unprotected sex, thanks to public education campaigns. And there have also been efforts to encourage people to seek an STD test, notably for chlamydia, which can cause infertility: another 200,000 people were diagnosed with it in the UK in 2008. Yet important elements in our society seem to encourage people not to find out whether they have an STD. Their sexual partners, meanwhile, would prefer not to contemplate it. So STDs are transmitted to people who have not had the opportunity to consent to that risk of infection. Draconian as it may sound, the only way around this might be mandatory testing for STDs.
Private medical coverage has become widespread, and companies often encourage members to improve their health, such as by using a gym regularly, through discounts on their premiums. Yet those same companies are effectively discouraging STD testing by the way they treat potential customers who have been infected. Health insurance is particularly difficult to obtain for those with HIV. Premiums may be greatly increased for those with other STDs. A person who has engaged in risky behaviour is incentivised not to discover his or her status for fear of falling foul of these companies.
Criminal law offers similar disincentives. A person may be prosecuted if, knowing they have a disease, they engage in unprotected sexual intercourse and infect his or her partner. Prosecution will depend on whether the other party was told of the STD before intercourse took place, giving them the choice to consent to risk of infection. Failure to disclose may result in a charge under the Offences Against the Person Act 1861. Spreading diseases requires heavy sentencing, for both deterrent and punitive reasons. Criminal law becomes asinine where it deals with diseases spread by a person ignorant of his or her status. Such persons can defend a charge on the basis that lack of knowledge negates the duty to disclose.
In the event of an epidemic, various methods are used to contain the threat and prevent its spread. Isolation, mandatory treatment and other measures may be introduced. The spread of sexually transmitted diseases – including HIV, which is again on the rise in England – can be classed as an epidemic. Mandatory testing, knowledge of status and the legal incentive to pass on that information, would limit that spread. Tests could be carried out at annual GP check-ups, or when a person seeks other medical treatment from doctors or in hospitals, and the results kept on their confidential NHS records.
Mandatory testing would not necessarily mean that STD carriers cannot engage in unprotected sex. It would result in carriers knowing their status, and requiring them to tell the other person of, and obtain their consent to, the risk of infection. Informed consent may allow unprotected sex depending on the STD's classification under the different criminal "harms", as serious diseases like HIV cannot be consented to under current law. Criminal convictions would deter failure to disclose, and punish those ignoring that duty.
An individual's right to decide whether to find out their status is trumped by other people's rights to know the risk of infection. Would compulsory tests be unpopular? Probably. But while insurers continue to discriminate against people with STDs, and advertising and educational campaigns will only go so far in preventing further infections, mandatory testing would enable people to stop infecting others without realising it.
