Probation officer under investigation for revealing HIV status in spitting case

DENVER– Colorado court authorities are presently investigating whether the HIV positive status of Denver resident William O’Kelly was improperly revealed. O’Kelly was charged with attempted second degree assault with a deadly weapon for allegedly spitting on Jason Arb in an argument. O’Kelly’s probation officer reportedly told Arb after the fact that O’Kelly was HIV positive, a likely legal violation of privacy. The second degree assault with a deadly weapon charge was subsequently dropped but O’Kelly was held in jail on a $250,000 bond for roughly a week. He remains charged with harassment.

Jailhouse web photo of O'Kelly's attempted Assault with a Deadly Weapon charge for spitting while HIV positive.

Jon Sarche, public information coordinator for the Colorado State Court Administrator’s Office, said that the question of whether or not O’Kelly’s privacy was violated is currently under investigation but could not comment further.

Current policy in the matter seems clear, at least on first reading. Related policy forwarded to the Colorado Independent by Sarche reads “probation officers aware of a probationer’s HIV infection, HIV-related illness, or AIDS diagnosis shall not warn any specific third party regarding the potential risk of HIV exposure.”

Officers are instructed to contact “the Department of Health Client Based Prevention Program and provide the name of the probationer who is engaging in high-risk behavior related to HIV/AIDS.”

The state investigation stems from charges brought against O’Kelly after a confrontation with Jason Arb, a technician with the Rocky Mountain Offender Monitoring System. Arb was installing a monitoring system at O’Kelly’s home for a drunk driving offense. During the visit, O’Kelly objected to the price of the system and told Arb to leave the house without installing the device. Arb said he would have to report O’Kelly’s refusal to probation officer Meta Ray. O’Kelly and Arb argued and Arb alleges O’Kelly spit at him in the face.

Arb later related his version of events to Ray, who informed Arb that O’Kelly was HIV positive, at which point Arb filed a formal complaint.

O’Kelly told the Colorado Independent that he never spat on Arb.

Acknowledging that HIV can not be transmitted in saliva, the Denver District Attorney’s office later dropped the attempted assault charge.

O’Kelly this week told the Colorado Independent he was unaware of the state investigation into the possible violation of privacy but that he is considering suing Officer Ray. He said that even if he had spit on Arb, the spit would have posed no threat. HIV is not transferable through saliva and O’Kelly said that his viral load, or the percentage of the HIV virus present in his blood, is imperceptible due to the treatment program he follows.

Physicians in the state are required by Colorado law to report any known cases of HIV to the Colorado Department of Health and Environment . Laboratories and other agencies are also required to report. The reports are considered confidential and are protected from unauthorized disclosure.

Unauthorized disclosure is a misdemeanor in the state and calls for a minimum $500 fine or six months in jail.

From the Colorado Revised Statutes:

(1) Any person who, without proper authorization, knowingly obtains a medical record or medical information with the intent to appropriate the medical record or medical information to his own use or to the use of another, who steals or discloses to an unauthorized person a medical record or medical information, or who, without authority, makes or causes to be made a copy of a medical record or medical information commits theft of a medical record or medical information.

In cases where members of human services and custodial employees of the Department of Corrections come in contact with the bodily fluid of detainees, permission is not required to test fluid samples for viruses.

(8) (a) No health care provider or other person, and no hospital, clinic, laboratory, or other private or public institution, shall test, or shall cause by any means to have tested, any specimen of any patient for HIV infection without the knowledge and consent of the patient; except that knowledge and consent need not be given:(I) Where a health care provider or a custodial employee of the department of corrections or the department of human services is exposed to blood or other bodily fluids that may be infectious with HIV.

Sate laws appear to indicate that disclosure of HIV status is prohibited except in rare cases as listed above.

State Court Memo from 2005 on HIV status disclosure

The law states that even in the case of public safety officers who may have been exposed to infected blood or bodily fluids “communicating relevant information and laboratory test results on the involved persons … to the involved persons [can only take place] if the confidentiality of such information and test results is acknowledged by the recipients and adequately protected, as determined by the state or local health department.”

Mark Salley, communications director for the Department of Public Health and Environment, said that if Arb had come and asked his office to disclose O’Kelly’s HIV status, the department would have flatly refused. Salley added, however, that the Department of Public Health is not responsible for developing policy for probation officers.

It is illegal in the state to not disclose one’s HIV status when soliciting prostitution and it’s a Class 6 felony for knowingly engaging in sexual acts with HIV. Penalties are increased in cases where individuals with HIV commit sex offenses. In rare cases, where a person is considered a danger to society and has threatened others, they can betaken into custody.

O’Kelly said that he hoped Ray would be prosecuted for any laws she may have broken and he hoped a similar experience could be avoided by others in the future.

The Colorado Independent is seeking additional legal review of the case. A spokesman for the attorney general’s office said he would rather not comment on the case at this time as it may be headed to their office for review.

The full text of the state court’s 2005 memo on HIV disclosure is available here as a pdf.

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Joseph Boven

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