AIDS Conference 1992 Session 16 – Mr John T. Rush

Mr John T. Rush
Counsel in the Victorian Supreme Court “Mr. PQ v. The Red Cross”

Conference Paper: AIDS – Have we got it Right?

A conference organised by The Australian Doctors Fund Ltd.

Hosted by Professor Fred Hollows & ADF Chairman Dr. Bruce Shepherd

Sheraton Sydney Airport Hilton

May 14th and 15th, 1992

As a Barrister in 1990 briefed to act in the case of “P.O.” v. Australian Red Cross Society & Ors (Victorian Supreme Court) I was required to research the history of AIDS. To go back to the literature and papers of the early 1980’s, to, speak with those involved, to try and divorce the emotion of acting for a person who was HIV positive and then to make an assessment of what had occurred.

It is that assessment that forms the basis of my paper.

If we fail to learn the lessons of history, history tends to repeat itself. Have we learned the lessons of the history of AIDS?

The history of the onset of AIDS in our society has demonstrated that major institutions in this country have ignored the lessons of history. The Government, the medical profession, indeed the community as a whole, have lacked the strength and commitment to answer the challenge of AIDS.

Throughout the AIDS debate the rights of one small yet powerful lobby group, have had priority over the health and welfare of the Australian community as a whole.

Those who have criticised or even questioned the perceived wisdom have too frequently been vilified and belittled.

From the outset for the gay activist the AIDS debate has been a matter of rights. Not our rights, not the rights of the community but of gay rights. In the context of the AIDS debate gay rights has been a persistent crusade. In the early 1980’s the crusade involved the rights of gays to donate blood. To deny this right, it was said, was discriminatory.

In February 1983 the Journal of the American Medical Association reported on a meeting convened by the Centre for Disease Control, U.S. The purpose of the meeting was to discuss the extent, apparent problem and possible ways of preventing further spread of AIDS. The meeting recognised that AIDS was primarily a disease of homosexuals. Further, the disease could be spread by blood and in particular haemophiliacs were at risk. The following discussion on rights from a report of the meeting in the journal is illuminating.

“But the representatives from the national gay task force felt that excluding people in risk groups from donating blood was the wrong course. ‘I don’t think anyone should be screened for donating blood on the basis of sexual preference. I think that is wrong. You would stigmatise at the time of a major civil rights movement a whole group . . . ‘ said Dr. Bruce Voeller.”

The response of Dr. Louis Aledort of the National Haemophilia Foundation was as follows:

“I disagree vehemently with the national gay task force. They may want to protect their rights but what about the haemophiliacs’ right to life”.

It seems extraordinary. A debate about sexual discrimination, about the Gay “right” to donate blood in a situation where that so called right could potentially kill hundreds of innocent people who relied on blood for life. It seems extraordinary that such a debate could be countenanced. It is extraordinary that at a time when prevention of the spread of AIDS was of prize importance the debate was won by those alleging the sexual discrimination and claiming rights.

The editorial of the Australian Medical Journal of June 1983 was written by Professor Ian Gust. It presented the Australian situation.

“Concern over haematogenous transmission of AIDS will create problems f or blood banks. It is now recommended that individuals at risk should not donate blood – while the risk to persons with haemophilia can only be covered by replacing pooled Factor 8 concentrate with single donor cryoprecipitate – a formidable exercise.”

The at risk population identified in that issue of the A.M.J. was Sydney’s large gay community. That issue of the A.M.J. reported on cases of AIDS in Australia. The first person diagnosed with AIDS in Australia was hospitalised in Sydney in 1982. He was a homosexual from New York who averaged six new sexual contacts a month (Pemmy et al 554).

Another paper in the A.M.J. of June 1983 reported on homosexual men with prodromal symptoms of AIDS. It concluded:

“If AIDS represents a syndrome caused by a previously unidentified infectious agent, the cases reported draw attention to the fact that the putative organism is in Australia and may soon become endemic if not epidemic in view of the presence here of the large at risk population.” (Dalgleish et al 558)

AIDS was brought into Australia principally as a consequence of contact between Australian homosexuals and homosexual communities of West Coast U.S.A. (see “AIDS” – C.F. Farthing et al Wolfe Medical Atlases. London 1986) Contact between the groups was common. The gay press of the early 80’s featured advertising for package tours.

No doubt influenced by the Australian situation and guided by his own experience of the international problem, Dr. Gordon Archer Director of the New South Wales Red Cross Blood Bank, made an announcement in May of 1983. Because of the risk of AIDS homosexuals could no longer be accepted as blood donors. He stated that it was his belief AIDS was in the Australian blood supply and this step had to be taken in an attempt to control the spread of AIDS.

In Australia as it had been in the U.S.A. it was recognised that AIDS was a disease of homosexuals. At the time the only cases of AIDS in Australia involved homosexuals. It was appreciated AIDS was transmitted by blood. It was understood there was an incubation period for AIDS – that a person could be infectious but have no side affects and not realise he was infectious. There was no test for AIDS. Cases had occurred in the U.S.A. as a result of blood transfusion.

All this was known in May of 1983 but the battle of rights was waged again. The Sydney Blood Bank was picketed by gay activists. Leaflets were given to donors branding Dr. Archer as a bigot and anti-homosexual. The press and media had a field day. The right of Australians to a blood supply free of AIDS was lost in the allegations. The issue of preventing the spread of AIDS seemed to be ignored. The solution – a change in the announced policy – homosexuals could donate blood as long as they did not have “multiple partners” whatever that means. Gay rights won out over the community’s right to health.

The civil rights/discrimination debate has taken precedence for over a decade. When it was critical the rights of the patient in the h
ospital receiving blood, the rights of haemophiliacs who were incredibly exposed to the risk of AIDS because of the use of Factor 8 concentrate were ignored by the gay activists. People who dared to speak on behalf of the community or in relation to public health issues were roundly condemned. Whats changed?

And what has been the cost of this success of the gay activists? Hundreds of Australians have died or will die of AIDS as a consequence of the backdown by the Red Cross. As a consequence of HIV positive gay donors donating blood after June of 1983, hundreds of people who based their faith on the assurance that the blood supply was safe will die. There is no need here to outline the horrendous death often involved. The disease is a tragedy wherever it occurs. Yet the AIDS debate in this country is so exquisite that one is accused of discrimination even if one is to refer to a 7 year old who has AIDS as a consequence of a blood transfusion given immediately after birth as “an innocent victim”.

The fact –

1. that Australia received the highest rate of transfusion cases of AIDS in the world; (WHO figures).
2. that 80% of severe haemophiliacs in Australia have died or are infected with the AIDS virus;
3. that it has been estimated that one in 450 blood donations in Sydney during the worst period in 1983 were HIV infected;

rarely merits mention by those who run the agenda of the AIDS debate today.

(In relation to (i)-(iii) see evidence Professor J. Dwyer and Associate Professor P. Gatenby in PO v. -Australian Red Cross Society and Ors. Supreme Court of Victoria, September, 1990).

It was said by Mr. Don Baxter Secretary Australian Federation of AIDS organisations and Executive Director of the AIDS council of New South Wales on 14th May 1992 and I quote :

“The experience of the epidemic has in fact demonstrated what at first appears a paradox; that the careful protection of rights of those most at risk advances the public health outcomes – not jeopardises, advances the public health”.

I can only say that those most at risk in 1983 and 1984 were haemophiliacs who relied on blood product, Factor VIII concentrate made from the pooled blood of over 2000 donors. One HIV positive donation infected the batch. They were the people most at risk – they had no access to the press and media – their rights were not protected.

This is the problem with rights – those passionately asserting rights have difficulty understanding or grasping the alternative view – accepting open debate.

The lack of community leadership on the AIDS issue in the 1980’s is revealing. In reading the articles and papers of the time it seems people were almost scared to put their views into the arena for fear of being character assassinated.

The Commonwealth Department of Health in June 1983 took the position that homosexual men should not donate blood. There was no qualification. (See “Medical Practice” June 1983). Unfortunately it took the deaths of three Queensland babies as a consequence of an infected donation given by an HIV positive homosexual man, the last death occurring in October 1984, before the Federal Government acted at all to enforce the recommendation it had given in 1983. Of course by then it was all too late. The Federal Government for over a year was derelict in its duty to oversee a safe blood supply for Australians. It did more to counteract Asian flu than it did to counteract AIDS.

What of the Red Cross? on 2 June, 1983 Professor Pennington, then Chairman of the National Blood Transfusion Committee issued a press statement. He distinguished the position in Australia from that of the United States:

“The situation in Australia is however very different. The Australian Red Cross Society recently convened a meeting of specialists in blood banking, the treatment of blood disorders and the manufacture of blood products to advise on the current position. The Committee noted that no case of AIDS had yet been seen in any recipient of blood in this country, including haemophiliacs who have wider exposure to blood products than any other group in the community.”

Professor Pennington went on to state that the risk of transmission of AIDS in Australia was greatly reduced because of the exclusive use of volunteer blood donors. This statement at least on its face contrasts markedly with that made in May of 1983 by Dr. Archer of the New South Wales Blood Bank and the editorial of Professor Gust in the A.M.J. of June 1983.

I need to exercise some care in what I say concerning the Red Cross. The New South Wales government refuses to discuss reasonable compensation for those with medically acquired AIDS and thus there are over 100 claims pending on behalf of New South Wales residents with medically acquired AIDS.

What I can do is act out some facts without expressing an opinion.

Between June of 1983 and the latter part of 1984 the screening procedure adopted at blood banks in Australia was to produce a leaflet requesting those in high risk groups for AIDS not to donate blood. The risk groups wore defined in the leaflet as follows:

1. “Persons with symptoms and signs suggestive of AIDS.
2. Sexually active homosexual or bisexual men with multiple partners.
3. Present or past abusers of intravenous drugs.
4. Sexual partners of persons at increased risk of AIDS, i.e. persons in the above categories.”

There were no steps taken to ensure persons either read or understood the significant risks involved in persons from high risk groups donating blood.

Contrast this Australian situation with for instance

1. The Red Cross in Hong Kong. From May 1983 all blood donors in Hong Kong had to sign a declaration prior to donating blood that they did not fit into the high risk group f or AIDS (see evidence Dr. Leong PO V. Australian Red Cross Society).
2. The Red Cross in U.K, Germany and Switzerland. Medical examinations were undertaken for all donors prior to donating blood. Early signs of AIDS were specifically looked for. (See evidence of Dr. Z Seidl – Professor Hassig PO v. Australian Red Cross Society).
3. The Red Cross in Germany. In the manufacture of pooled Factor 8 concentrate, no blood was used from recognised “hot spots”. i.e. Cities with large gay communities. (Author’s own conversation with personnel at Behring Werke).
4. From February 1983 U.S.A. donors at Plasmaphersis centres signed declarations that they were not in the high risk groups for AIDS (see Jama February 1983 supra).
5. At voluntary blood banks in the U.S.A. by April of 1983 donors were being specifically questioned by trained personnel to ascertain their risk status for AIDS and were required to sign that their answers to
   the questions were true and correct. (See evidence Dr. M. Sayers of Puget Sound Blood Bank Seattle PO v. Australian Red Cross Society supra).

From my work it has become abundantly clear that persons who have been responsible for providing the HIV positive blood bringing about the infection in the persons receiving such blood have been devastated. Their justifiable claim in that they were never made aware of the risks of donating blood at the time they donated.

I am sure for some this all too brief historical analysis is merely unnecessarily raking over the past. But it does represent what I submit are the facts. It is not set out here for any other reason apart from demonstrating that many lives would have been saved if in May of 1983 common sense had prevailed. It is not set out here for any other reason apart from demonstrating there is another side to the self congratulatory slaps on the back of what seems to be a vast AIDS bureaucracy.

Arguably we still have the same lack of common sense in 1992. The tactics of some gay activists have not changed. Thus the midnight calls of abuse to the barrister representing persons claiming for damages for medically acquired HIV. The threatening correspondence from a particular gay organisation to a television reporter because of the manner in which he reported medical issues in the AIDS debate. The personal attacks on Professor Hollows.

The tactics of the gay activists in the AIDS bureaucracies have changed little. Anyone who has a different perspective or an alternative contribution to the perceived wisdom is “grandstanding”, “posturing”, “divisive”. An alternative view is an “outburst” or “intemperate”. Thus those with something to contribute too frequently are cowered in silence because of this type of assault.

For the gay lobby, rights is still the major issue. It still seems on many occasions it is gay rights above all others, even sensible policy that is to the fore. It is argued that examination of policy and issues is just counterproductive. It is said by apologists for current thinking that Australia is on the right track. Australia has a recent good record in relation to the spread of AIDS. Recent materials suggest a questioning of such views. Recent materials suggest a new risk group. I quote from the Australian newspaper of March 1992. Under the title “Young Gays Risk AIDS for Sex” it was stated :

• “Psychologist Dr. Ron Gold of Victoria’s Deakin University, who carried out the study, said failure to readjust education programs quickly to target those young homosexuals more efficiently could lead to a second big wave in the AIDS epidemic.

The new survey by Dr. Gold and Dr. Skinner of homosexuals in the 15-21 age group who had engaged in unprotected sex shows that knowledge of the dangers of unprotected sex did not deter them from having sex without a condom.

Of the 219 young men who took part in the study and admitted to having had unsafe sex in the previous six months, 84% said they ware aware of the high risks involved.

Half the sample (50.7%) said they had unprotected intercourse with more than one man in the preceding six months while 42% reported having had unprotected sex with three or more men in the preceding year.

The self justification most often used for going ahead with unsafe sex in the heat of the moment included the good physical appearance of the partner, his intelligence, or his appealing personality. Based on these factors alone the conclusion was made that the partner could not have AIDS.”

It is not my area of expertise but I would submit that this type of finding suggests at least the questioning of the targets of the massive public advertising campaign in recent years.

The rights debate even extends to compensation. The settlements to those with medically acquired AIDS made by the Western Australian, South Australia and Victorian governments were condemned by many AIDS organisations. Why? We go back to the 1983 arguments. Such settlements discriminate against homosexuals with AIDS. The argument is there is no distinction to be drawn between those contaminated with HIV through the use of blood products and those that received their HIV by way of consensual anal intercourse.

I would submit that the distinction is obvious. I give the following analogy. An accident in circumstances where a driver is injured as a consequence of driving his car off the road into a light pole will normally occur in circumstances where no one is at fault. On the other hand a person injured in a car as a consequence of someone else driving through a red light can look to the other driver for compensation. The injuries occurred as a consequence of someone else’s negligence. Our law entitles the other person to claim compensation for injuries occurring as a consequence of the other driver’s negligence.

Thus the haemophiliac or the blood recipient who can show HIV infection as a consequence of the negligence, the want of reasonable care, the Red Cross, the CSL, a doctor or anyone else, has a right to compensation upon proving the case. Indeed the gay man who can show his infection is due to the negligence of someone else has the same rights.

In this context to condemn these settlements and to equate a person who has contracted the AIDS virus as a consequence of the receipt of contaminated blood with a person who has contracted AIDS as a consequence of consensual anal intercourse is fallacious.

The condemnation of those with medically acquired AIDS who seek to enforce their legal rights by the gay activists and the AIDS bureaucracies demonstrates the prejudices and lack of objectivity, of those persons, generally taxpayer funded who run the AIDS agenda.

Have we learned the lessons of AIDS? Until it is recognised that a person’s rights in our community carry with them corresponding obligations we will not learn the lessons of AIDS. Until rights match obligations it cannot be said that with AIDS we have it right.