How HIV turned  lovebirds into legal adversaries

It was love at first sight for George*. He knew Jackie* was “the one” the very first time he laid eyes on her and he intended to marry her – the love of his life – as soon as they completed their studies.

Jackie on the other hand considered it a fling to while away her university years.

She threw a spanner in George’s plan when she announced that she was HIV-positive. George was consumed by feelings of anger and betrayal. All his good intentions and generosity to prove he was a serious suitor no longer counted for anything.

Jackline should have disclosed her status before he invested his all to prove that he was a serious suitor.

All his good intentions and generosity had been wasted on pursuing Jackie and he wanted recompense. As the lovebirds went their separate ways, George turned to the HIV and AIDS tribunal.

He sued his ex-girlfriend for sleeping with him with the intention of infecting him. He accused Jackie of causing him bodily harm and mental anguish.

LAW ON HER SIDE

Luckily for Jackie, the law was in her corner as she could not be penalised for not disclosing her status to her then boyfriend. The law that would have required her to do that – Section 24 of the HIV and AIDS Prevention and Control Act (HAPCA) – was declared unconstitutional by the High Court.

However, the tribunal awarded George Sh127,500 as general damages for suffering psychiatric harm after being exposed to HIV.

George now wants Jackie to be committed to civil jail, for failing to pay him the money awarded by the tribunal, and she risks having a warrant of arrest issued against her, should the High Court grant such orders when the case comes up for hearing this Thursday.

George and Jackie’s is one of many instances where a HIV-infected partner fails to disclose what would be considered a monumental piece of information – their HIV status – thereby putting the HIV-negative partner at risk of infection.

In dismissing Section 24 of the HAPCA in 2015, High Court judges Isaac Lenaola, Mumbi Ngugi and George Odunga, said it violated the principal of privacy that is enshrined in the Constitution. The case had been lodged by AIDS Law Project, a non-governmental organisation that challenged the lwa saying that it exposed HIV-positive persons to unwarranted disclosure of confidential information.

They contended that whereas those living with HIV are required to disclose their status to their “sexual contacts”, the latter are not under any duty to keep such information confidential.

The judges also found the law vague as it does not say what exactly comprises “sexual contact” and whether it includes kissing, holding hands, exploratory contact or penetrative intercourse, thus leaving the issue to the subjective views of the trial court.

They also directed the State Law Office to take another look at the HIV and AIDS Prevention and Control Act, No. 14 of 2006 with a view to avoiding further litigation surrounding the said piece of legislation.

FALSE SENSE OF SECURITY

The Act had required that where a person infected with HIV/AIDS failed to reveal his or her status, a medical practitioners may disclose such information to the said sexual contact, thus violating right to privacy of the HIV-positive person.

Among the issues raised regarding the controversial law, was that permitting medical practitioners to disclose the HIV status of their patients to other sexual contacts, directly interferes with the delivery of healthcare by keeping  people from coming forward for testing due to fear that information regarding their status would be used against them in the criminal justice system.

It was also likely to promote fear and stigma as it imposes a stereotype that people living with HIV are immoral and dangerous criminals and this would negate the efforts being made to encourage people to be open about their HIV status. A false sense of security would also be created because people would assume that their partners’ HIV status is negative because they had not disclosed their HIV status as required by law, and therefore would not take measures to protect themselves.

Further, the judges ruled that the current HIV Testing Policy that compels pregnant women to undergo HIV tests, endangers, oppresses and prosecutes women because they are more likely to know their HIV status before their partners, and in the event they test positive their partners, partners’ families and their communities would accuse them of bringing HIV into the home, and as such would lead to an increase in HIV-related violence against women.

“The provisions of Section 24 of the Act are likely to undermine the already existing HIV prevention methods because it will discourage people from getting tested and finding out their status as lack of knowledge of one’s status can be used as a defence in criminal cases,” AIDS Law Project had argued.

Section 24 had also been drafted to include mothers who transmit HIV to their child during pregnancy or during breastfeeding, thereby making pregnancy an offense.

However, in relation to hospitals, the HIV and AIDS Tribunal said that where a person who has given blood, which is then used to test for HIV (even without his or her knowledge) would have been subjected to compulsory HIV testing, contrary to the law, especially where it is obvious that the person would not have consented to the HIV test had he or she known that such tests were likely to be conducted.

“Consent to donate blood should not be confused with consent to HIV testing,” the Tribunal noted.

INFORMED CONSENT

Section 14 of the HAPCA provides that, “No person shall undertake an HIV test in respect of another person except: (a) with the informed consent of that other person.”

Informed consent refers to consent given with the full knowledge of the risks involved, probable consequences and the range of alternatives available.

“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 Tribunal said in a recent decision.

And where an adult patient is a beneficiary of an insurance policy under the parents name, the authority to release his or her confidential HIV information to the insurer, “ought to have emanated from the patient and not the parent”.

Even though the hospitals have always been ordered to pay hefty costs and damages, the tribunal regrets that the absence of privacy guidelines contemplated by section 20 of HAPCA is gravely injurious to the interests of medical doctors and medical institutions.

This is because in the absence of such guidelines, it is extremely difficult to share records, documents, forms or any other material from which HIV result or status of a patient can reasonably be inferred, with third parties – either within the hospital or with outsiders – without violating sections 18, or 22 of HAPCA.

Confidential hospital records cannot be left where other people in the hospital (not involved in the treatment of the patient) have casual access to them. Information about patients has to be sent under private and confidential cover, with appropriate measures being taken to ensure that it had not gone astray.

The Tribunal has also challenged medical insurers not to insist on being given information relating to the HIV status of patients (in clear violation of such patients’ rights) as a condition for settling their medical bills.

“The Insurance Regulatory Authority should act fast to outlaw such pre-settlement conditions,” said the Tribunal.

Additional reporting by Elizabeth Merab