How to disclose someone’s HIV status according to the law

To tell or not to tell and who to tell one’s or another’s HIV status?

This is the dilemma healthcare workers face, especially where children are involved, mores o when their ability to deal with the knowledge of the nature of their illness is in question.

The Kenya HIV Testing Services Guidelines highlight how and when a person’s HIV status should be disclosed. 

Sexual partners

When a person tests HIV-positive, the medical practitioner should talk to them  about the importance of disclosing their HIV status to their sexual partners, and give the patient ample time and opportunity for this to happen.

If efforts to encourage the patient to disclose their HIV status to their sexual partner fails, and if they are placing their sexual partner or other people at risk, the HIV Prevention and Control Act allows the physician to disclose that person’s status to the people at risk.

Refusal to notify a sex partner that one is HIV-positive is a violation of their right to health and wellbeing. 

Children

According to the guidelines, HIV test results for children aged 14 years and below are given to the child’s parent or guardian who also gives consent for the HIV test to be done. Children aged 15 years and above can receive their own results and can choose whether they want their parents to be present when this happens.

However, health workers are advised to discuss the benefits of disclosing the teenager’s HIV status with his parents. Proponents of disclosure of HIV status to children bank on Article 17 of the Convention on the Rights of the Child which states: “…the child has a right to access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.”

However, the World Health Organisation recommends that the decision on who reveals the nature of the child’s health condition should be guided by a focus on the child’s welfare without ruining the relationship between the child and the parent or caregiver.

On the other hand, disclosure to a child about their parent’s or caregiver’s status is only necessary if the child is HIV-positive.

The rules state that disclosure to the child about his own HIV status should be delayed if the child becomes too ill, is sitting exams, has just been bereaved or is celebrating an event like a birthday. There is also need to use appropriate language when informing children about their HIV status. 

Third parties

The HIV Prevention and Control Act prohibits the revelation of any information regarding the results of an HIV test without a person’s consent. In the event of death, the results should be made known only with consent signed by the deceased’s partner.

Where the person is disabled and cannot make their own sound decision, a signed approval should be obtained from a parent, legal guardian, partner, adult offspring or a healthcare worker who is directly involved in the treatment or counselling of the person.

If a HIV test is ordered by a court of law, the results can only be given to the person being tested and the person or body that is legally entitled to receive the test results, such as the court. 

Other medical practitioners

A physician is allowed to give information concerning the results of a patient’s HIV test to other medical specialists who are directly involved in treating the patient, if and when it becomes relevant to the clients’ medical diagnosis, care or treatment.  

Death certificate

The law requires proper completion of death certificates with accurate reporting of the cause of death. AIDS-related deaths should be accurately reported in these statutory documents.