In our last article on medical consent, we examined the repercussions of medical procedure(s)/operation(s) on patients without their informed consent. In this article we shall briefly examine ethical concerns revolving around forceful, mandatory or coerced medical tests. Our focus shall be on patients of HIV/AIDS and more particularly a preview of the recent declared pandemic, COVID-19.
To many, when ailing from any life-threatening disease, it is presumed morally right not to disclose such information to third parties. Research proves that disclosing such medical conditions to third parties could have severe consequences e.g. depression caused by the resulting stigma, disassociation, discrimination, among others things such as suicide. It is why medical professionals have a duty to maintain confidentiality in all medical procedure(s), illness(es) and treatment(s).
Lately, in the wake of the global Pandemic COVID – 19, a lot of medical ethics and laws have taken a back seat. Other than the COVID – 19, the other recent pandemics are H1N1 Virus and the HIV/AIDS. Notably, countries have fought hard to control, prevent and improve the health of those living with HIV/AIDS.
With the COVID – 19 pandemic, the medical world came up with mechanisms to curb the spread, provide treatment of the virus. Some of the methods of prevention are mandatory testing or screening of persons. In most countries, a large number of employers have made it mandatory for employees to get tested before they can physically resume work. Furthermore, passengers travelling to foreign countries must have a recent (valid for only under 48hr) COVID – 19 certificate that confirms that one is tested negative of the virus. With the dawn of the COVID – 19 Vaccines, some institutions have made it compulsory for one to be vaccinated for COVID – 19.
While it is largely a precautionary step to ensure safety of workers, students or travelers, a constitutional question comes to mind. Is it discriminatory to require proof of vaccination/test from a worker, guest, or traveler before they can utilize certain facilities and/or amenities?
Article 27 (4) of the Constitution of Kenya provides that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
However, Rule 11 of Prevention, Control And Suppression Of Covid-19 Rules, 2020 under the Public Health Act (Cap. 242) provides that: –
Any person who is believed or suspected, on reasonable grounds, by a medical officer of health to be a carrier of COVID – 19 shall allow, on request by the medical officer of health, or by any person authorized by the medical officer of health in writing, the medical officer of health to obtain from him or her specimens of blood, excreta, discharges or other material required for examination and investigation.
Back to our earlier question, are such provisions constitutional?
One of the most contentious issues is the mandatory testing of HIV/Aids. Is it lawful?
The HIV and AIDS Prevention and Control No. 14 of 2006 (HAPCA) is the main Act governing the offences related to HIV and AIDS.
Section 13 of the HIV and AIDS Prevention and Control No. 14 of 2006 prohibits compelling a person to undergo a HIV test as a pre-condition to or for the continued enjoyment of employment, marriage, admission into any educational institution, entry into or travel out of the country; or the provision of healthcare, insurance cover or any other service.
Section 14 (2) a) & b) however provides that a person who offers to donate a tissue or blood shall be deemed to have consented to the HIV test.
Section 14 (2) (c) gives a medical practitioner the power to conduct a HIV test without the consent of a person if the person is unconscious and unable to give consent; and if the medical practitioner reasonably believes that such a test is clinically necessary or desirable in the interest of that person.
Section 17 (1) of HAPCA provides that “Every testing centre shall provide pre-test and post-test counselling to a person undergoing an HIV test and any other person likely to be affected by the results of such test”.
Section 25 of the HIV and AIDS Prevention and Control No. 14 of 2006 (HAPCA) establishes the HIV and AIDS Tribunal that hears and determines such cases. Through it, it has made several determinations.
In the case of: CNM v Karen Hospital Limited [2016] eKLR
Stated that, “…….Where a doctor or other medical personnel obliges a patient to give blood for some undisclosed tests, and thereafter proceeds to use the same to test for HIV, then the doctor or other medical personnel will have subjected the said patient to compulsory HIV testing and will have committed the crime as well as the tort of compulsory HIV testing….. Accordingly, we hold that the HIV testing that was done on the claimant herein on 13th April 2015, alongside other tests, violated the provisions of Section 13 of HAPCA…….There is no doubt that section 13 of HAPCA aforesaid creates both a crime and a tort to the extent that it imposes a duty on all persons not to subject any other person to compulsory HIV testing. Breach of a statutory duty is itself a tort which exposes the tortfeasor to an award of damages.”
In this matter the claimant was awarded the sum of Kshs. 1,000,000/- as general damages.
The case goes further to explain about consent. This section (section 13 of the HAPCA) makes it clear that no HIV testing can be done without the informed consent of the person being tested. Informed consent refers to consent given with the full knowledge of the risks involved, probable consequences and the range of alternatives available. We hasten to add that there is a big difference between consent and informed consent. A person who has given consent to HIV testing may nevertheless sue on the ground that he did not give “informed consent”. HAPCA does not simply require “consent”. It requires “informed consent”. What then are the ingredients of informed consent in law?”
In medical treatment, requiring invasive procedures, the doctor or health care personnel is required to disclose sufficient information to the patient to enable the patient to give an informed consent. Informed consent for HIV testing means that the person being tested for HIV agrees to undergo the test on the basis of understanding the testing procedures, the reasons for the testing, and is able to assess the personal implications of having or not having the test performed. The requirement of informed consent is intended to uphold the dignity of the patient. It proceeds on the theory that the patient does not lose his dignity simply because he has fallen sick or because he does not know what his treatment will entail, which treatment option is better than the other, or others, and what risks are associated with any or all the available treatment options.
This was a similar position in JK v AAR Healthcare Kenya Ltd [2020] eKLR where the claimant had attended a routine wellness check at the Respondent’s healthcare clinic, courtesy of the medical scheme cover provided by her employer and was among other tests, tested for HIV/Aids despite the claimant’s strict instructions not to conduct the test.
Chapter 6 of the National Guidelines on HIV Testing and Counselling provides that the Ministry of Health emphasizes that the HIV/Aids test should adhere to the 3 Cs, i.e consent, confidentiality and counselling.
CONCLUSION
Informed consent is mandatory before any medical test can be conducted on a person as discussed on HIV/ Aids. It is unlawful to force one to undergo such tests. However, in our world where every individual elect to protect themselves, mandatory testing could happen in the undertones, e.g., before marriage a fiancé can demand for a HIV test. Also in some government hospitals one is required to submit to undergo such test before giving birth, to prevent the possible spread of the virus to the child. Insurance companies require disclosure(s) and mandatory tests of various diseases to assess the risk and amounts of their premium. Some hospitals require periodic testing of nurses and doctors.
In the year 2004 in Quebec, it was revealed that a surgeon at Montreal hospital had operated on thousands of people had HIV/Aids. The hospital sent letters to more than 2,600 former patients who were treated by the HIV-positive surgeon. The Canadian Medical Association has developed some principles to serve as guidelines for practitioners dealing with HIV/Aids patients such as; Physicians with HIV infection should consult appropriate colleagues to determine the nature and extent of the risk related to their continued involvement in the care of patients.
Back to our earlier question, are such provisions constitutional?
It boils down to the Right to Highest attainable standard of Health vis-à-vis the right to privacy and freedom from discrimination.
