Chapter 9 - HIV and AIDS AND THE LAW
Many people living with HIV or AIDS complain that they are treated badly at hospitals and clinics. Sometimes medical staff even refuse to treat patients who have HIV or AIDS. People also complain that information about their illness is not kept confidential.
Health care workers also have rights, including the right to a safe working environment, while patients have rights to:
Confidentiality means that doctors, nurses, psychologists, dentists and other health care workers have a moral and legal duty to keep all information about patients confidential. Any information about the patient's illness or treatment cannot be given to another person unless:
Some rules about confidentiality
Telling other health care workers - A health care worker must get a patient's permission before giving any of that patient's medical information to another health care worker or to another health care centre.
Telling a patient's sexual partner - A health care worker may not tell the patient's sexual partner that the patient has HIV, unless the partner appears to be at risk because the patient refuses to practise safer sex. The health care worker must counsel the patient on the need to tell their sexual partner and to practise safer sex. The health care worker must then warn the patient that if he or she does not tell their sexual partner or practise safer sex, then the health care worker will have to tell the partner about the person's HIV status.
Telling a court - A court can order a health care worker to give them confidential information.
Confidentiality and openness
HIV/AIDS is not an open issue mainly because people living with the disease fear the prejudice and discrimination they will suffer if they are tell people about it. Communities need to be educated about HIV and Aids and the supportive role they can play in the lives of people living with the disease. In this way people may be encouraged to be open about their HIV status. Some people choose to be open about their status to certain people but this does not mean they lose their right to confidentiality with a doctor, nurse, health care worker, employer or friend. A person’s personal right to privacy and confidentiality must always be respected.
What can you do if a health care worker abuses your right to confidentiality?
You can complain to the Health Professions Council of South Africa (HPCSA). You can also make a civil claim for damages (compensation) against the health care worker, hospital or clinic, or any member of the public who has abused your rights.
HIV testing and informed consent
With an HIV test, you must know what the test is, why it is being done and what the result will mean for you before you agree to the blood sample being taken. This is called pre-test counselling. After the HIV test results have been received you must be counselled again to help you understand and accept the effect that a negative or a positive result will have on your life. This is called post-test counselling.
Some rules about HIV testing and consent
Here are some rules to remember :
Exceptions to the rule of informed consent
These are the only exceptions to the rule that a person must give their consent to treatment or an operation:
Who can give consent?
Adults who are of sound and sober mind can give consent to medical treatment. Children over 14 years can also give their own consent to medical treatment.
What can you do if an HIV test was done without your consent?
If an HIV test was done without consent, your rights have been abused. You can complain to the Health Professions Council of South Africa (HPSCSA). You can also bring a civil claim for invasion of privacy, and a criminal charge of assault against the health care worker or the person they were acting on behalf of.
Everyone has the right of access to health care services and medical treatment, including access to affordable medicines and proper medical care. The right to access to health care services includes the right to proper care from a health care worker which means it is against the law for a health care worker to :
If a hospital or clinic refuses to treat someone living with HIV/ AIDS, they can be reported to the Department of Health, the Public Protector or the South African Human Rights Commission.. The case can also be taken to the High Court, which can review and cancel the hospital's decision to refuse to provide treatment.
The right to health care includes the provision of medical treatment to people in need. The government has committed itself as part of its strategic plan, to making antiretroviral treatment available to all people who have reached a certain stage of the illness. Roll-out of the treatment has begun in most provinces. A person who wants to receive antiretroviral treatment must be medically certified by a state doctor.