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Chapter 9 - HIV and AIDS AND THE LAW

PROBLEM 1: Keeping medical information confidential

Dr Vincent is a doctor at Langa day hospital. He has a patient called Themba who is HIV positive. Dr Vincent tells two other doctors about Themba's HIV status. Themba, is very angry about this. He believes Dr Vincent should have kept his HIV status confidential. Themba wants to take action against the doctor.

What does the law say?

Doctors, nurses, health-care workers, and other medical professionals have a legal and moral duty to keep information about a patient absolutely confidential.

See Confidentiality

What can you do?

• You can refer Themba to a lawyer who will make a civil claim on his behalf against the doctor.

See Steps in a civil claim

• You can also help Themba draw up an affidavit complaining about the doctor's conduct. Send the affidavit to the Health Professions Council of South Africa (HPCSA) (www.hpcsa.co.za) .

See Affidavits.
See Resources: Health Professions Council of South Africa (HPCSA).

PROBLEM 2: Entry to school refused

The principal of the local high school, Mrs Shabangu, refuses to admit a student, Melanie, to the school because Melanie is HIV positive.

What does the law say?

It is an act of discrimination to keep a child out of a school because of their HIV status and every child has a right to education.

What can you do?

You can help Melanie and her parents by first setting up a meeting with the chairperson of the School Governing Board. If this doesn’t help you can write a letter of complaint to the South African Human Rights Commission about the school's actions. The SAHRC must investigate the complaint.

See Problem 1: Taking a case to the South African Human Rights Commission.
See Dealing with HIV/AIDS in schools.

PROBLEM 3: Dismissing a worker who is HIV-positive

Susan is a machine-operator in a factory. She tells her employer that she is HIV-positive. The employer tells Susan that she will have to leave her job, because the other workers will complain if they find out and he doesn't want any trouble in his factory.

What does the law say?

Everyone has the right to be treated equally and fairly at work. There can be no discrimination against a person because they are HIV-positive. The Labour Relations Act and the Equality Act (Promotion of Equality and Prevention of Unfair Discrimination Act, 2000) protect people living with HIV or AIDS from being discriminated against in the workplace.

An employer cannot dismiss a person because he or she is HIV-positive, even if other employees refuse to work with this person.

See Laws that give employees with HIV and/or Aids rights at work.

What can you do?

You can help Susan fill in the correct form for her to refer her case to the Commission for Conciliation, Mediation and Arbitration (CCMA).

See Solving disputes under the LRA.

PROBLEM 4: Refusing to employ an HIV positive person

Brian applies for a job with the South African Police Services (SAPS). On the application form he fills in that he is HIV positive. The SAPS refuses to employ him and give him no reasons explaining their refusal.

What does the law say?

The SAPS must give Brian reasons why he didn't get the job. The Labour Relations Act and the Equality Act say an employer cannot refuse to employ a person because they have HIV. This is discriminating against the person.

See Laws that give employees with HIV and/or Aids rights at work.

See Section 33: Just Administrative Action.

What can you do?

You can help Brian find out the reasons why he didn't get the job. If the SAPS refuses to give the reasons, Brian can complain to the Department of Safety and Security.

If the reasons do not seem valid, and Brian suspects that the real reason he didn't get the job is because he is HIV-positive, he can take up a case of an unfair labour practice involving arbitrary discrimination against the SAPS. You can help Brian fill in the correct form to refer his case to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA will investigate the allegation of discrimination.

See Solving disputes under the LRA.

PROBLEM 5: Making a complaint about being refused medical care

Tina was in an accident and is a patient at the Lagunya Hospital. Tina agrees to an HIV test. The test is positive.

Tina's wounds need to be treated every day, but the nurse treating her finds out the results of the test and refuses to treat her again. She also tells all the other nurses. They too refuse to touch Tina, and she is left in pain, with blood-soaked bandages for many hours. When she recovers she wants to take action against the hospital for the degrading way in which they treated her.

What does the law say?

Everyone has the right of access to health care services. It is against the law for a health care worker to refuse to treat a person because they have HIV, or to treat people with HIV differently to other patients.

See The right to health care and medical treatment.

What can you do?

There are a number of ways to respond to this problem:

1. You can refer Tina to a lawyer to make a civil claim against the health workers or the hospital on behalf of the patient. A High Court can review and set aside the decision of a hospitcal to refuse to treat a patient.

See Civil claims.

2. You can help Tina draw up an affidavit explaining her complaint. Include the names the health workers involved. Send the affidavit to the relevant medical council which can discipline their members. This includes the South African Nursing Council (SANC) if the cmoplaint is against a nurse, or the Health Professions Council of South Africa (HPCSA), if the complaint is against a doctor..

See Affidavits.

See Resources for information on SANC and HPCSA.

3. You can also help Tina send a letter of complaint to the South African Human Rights Commission (SAHRC).

See Problem 1: Taking a case to the South African Human Rights Commission.

4. A letter of complaint can also be sent to the Public Protector

See Making a complaint to the Public Protector

PROBLEM 6: Applying for a disability grant

Nobantu and Sipho are married with three young children below the ages of 10. Both partners are HIV-positive.

Sipho has lost his job because he became too ill to work. The doctor says that he could die within 6 months. Nobantu earns R400 per month doing part-time domestic work but she has also become increasingly ill and her employer has warned her on a number of occasions that she will have to find someone else to do the work.

What does the law say?

Both Sipho and Nobantu are able to apply for a disability grant. The Minister of Social Development has also notified the department that applications from HIV-positive people for disability grants should be 'fast-tracked'. This means that these applications should be given priority and processed faster than any other grant applications. The parents can also apply for Child Support Grants for the 3 children.

See Social grants for adults.

See Social grants for children.

What can you do?

You should find out from the provincial office that processes disability grants what the policy is on ‘fast-tracking’. Then you should write a letter, setting out the particular circumstances of Nobantu and Sipho and ask the provincial office to ‘fast-track’ their applications. You should also help them apply for Child Support Grants for their three children (who all qualify for the grant because of their ages.)