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Chapter 9 - HIV and AIDS AND THE LAW

Health and Medical Rights

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
  • testing for HIV and informed consent
  • medical treatment.

Confidentiality

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:

  • the patient consents (agrees) to this
  • the information is about the illness or treatment of a child - then health workers can tell others but only with the permission of the child's parent or guardian
  • the patient is dead - then the doctor must get permission from the next-of-kin (the person's closest family)

EXAMPLE

In the McGeary case, the Supreme Court of Appeal said that a doctor cannot tell other doctors about the HIV status of a patient without the patient's consent.

Mr McGeary applied for a life assurance policy. The insurance company told him to have an HIV test before they could approve his application. The doctor got the results of the test told McGeary that he was HIV positive.

The next day the doctor played golf with another doctor and a dentist. During the game they discussed AIDS and McGeary's doctor told the other two that McGeary was HIV positive.

The news of McGeary's condition spread around the small community. McGeary began a civil claim to get compensation from his doctor for breaking his rights to confidentiality. The Court said the doctor had to pay McGeary compensation for breaking his right to confidentiality.

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.

See Resources

HIV testing and informed consent

  • Everyone has the right to make their own decisions about their body so no patient can be given medical treatment without their consent. Consenting to medical treatment has two parts to it: information (understanding) and permission (agreeing).

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.

EXAMPLE

Thami is a care-giver in a children's home. The matron informs him that all staff in the hospital must have a Hepatitis B test.

Thami agrees to this. But, the hospital does an HIV test too, saying it saves time and money to do both tests at the same time. The matron tells Thami he is HIV positive. Thami is furious because he only gave permission for the Hepatitis B test.

The matron did not have a right to do the test. She should have discussed it with Thami first and obtained his consent.

Some rules about HIV testing and consent

Here are some rules to remember :

  • You can give verbal or written consent to have an HIV test
  • If you go to hospital, you cannot be tested for HIV without your consent

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:

  • if a patient needs emergency treatment
  • testing done on blood donations
  • mentally ill patients - in this case the mental hospital must get permission from one of the following people: the patient's husband or wife, parent, child (if the child is 21 or older), brother or sister.
  • HIV tests are routinely done on the blood of all pregnant women for health research, but the name of the woman is not attached to the blood sample, so no-one knows whose blood it is.

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.

Children and youth and HIV/AIDS

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.

CASE STUDY

In the case of 'A' v South African Airways (SAA), in the Johannesburg Labour Court, 'A' had applied for a job with SAA as a cabin attendant. He was asked to sign a consent form for an HIV test, but the test was not explained to him.

'A' was therefore tested without informed consent and without any pre- or post-test counselling.

SAA admitted that they had not followed the rules regarding testing and informed consent. The court ordered them to pay compensation to 'A'

The right to health care and medical treatment

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 :

  • refuse to treat a person because they have HIV
  • treat people with HIV differently to other patients.

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.

Protecting human rights.

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.


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