Health insurers may have to rethink their policy of offering different medical covers depending on whether or not a person has HIV/Aids or not, following a definitive ruling by the HIV and Aids Tribunal, demonstrating that it is unlawful and unfair for a medical insurer to discriminate against patients living with HIV, by purporting to develop a special policy for them.
Section 3 of the HIV and Aids Prevention and Control Act (HAPCA), which came into force in 2009, outlaws discrimination in all its forms and subtleties, therefore creating two different insurance products, one for HIV-negative individuals and another for HIV-positive persons clearly violates the law, observed the tribunal. Moreover, the HAPCA also protects the privacy and confidentiality rights of people with HIV.
Therefore, a policy which permits violation of privacy and confidentiality rights as a condition for enjoying the right to access medical insurance is grossly defective.
“It’s virtually impossible for a person living with HIV to benefit from the insurance policy reserved only for HIV-positive individuals without exposing themselves to the risk of violation of their privacy and confidentiality rights. It is impossible to purchase or benefit from such a policy and at the same time keep one’s HIV status private,” stated the tribunal in their decision.
The tribunal noted that patients must enjoy their right to access medical insurance as well as their right to privacy and confidentiality without compromising or jeopardising the commercial interests of medical insurance service providers.
This, the tribunal observed, is the delicate balance that has been achieved in Section 35 of HAPCA.
The case arose from an employee of World Neighbours who was covered under the employer’s corporate medical cover from Resolution Health Insurance Ltd. However, upon falling sick and being admitted to a local hospital, the employee was informed that the insurance would not pay the medical bill because the employee was ailing from HIV, a sickness that was not covered by the medical card the employee had.
The insurer had thus failed to comply with Section 35.
“Any persons living with HIV, who did not wish to be tested for HIV, or who wished to keep their HIV status private and confidential therefore had no cover that they could benefit from in spite of the fact that they were tricked into buying medical insurance policies which, unknown to them, was virtually worthless to them owing to their HIV status. This, in our view is a clear violation of section 3 as read together with section 35(1) of HAPCA,” read the judgment of the tribunal dated January 12, 2018.
The High Court in a judgment delivered on March 9, 2018 also declined to set aside or disturb the contents of the decision by the HIV and Aids tribunal, as had been requested by Resolution Health Insurance Ltd, thus leaving the findings intact.
The medical insurance contract entered into between the employer and the employees, had required the employee to indicate whether, he or she, or any of his or her dependents had been treated or sought counselling in connection with HIV/Aids infection.
It had an exclusive clause which provided that, “All expenses associated with HIV/Aids related medical conditions (are excluded).”
The tribunal in their judgment, however, said it is common knowledge, that HIV infection is not a disease for which a person can seek treatment. According to them, HIV infection is not a disease, and accordingly no expense can be incurred by reason only of the fact that a person is infected with HIV.
HIV infection is merely a condition that increases a person’s susceptibility to infections. It does not follow that a person who is not infected with HIV is not susceptible to infections. The only difference is the degree of susceptibility, it being a fact, that a person living with HIV has a higher probability of catching an infection, compared to a person who is not infected with HIV.
“These facts notwithstanding, both persons are at the risk of catching the same infection. There is therefore no such thing known to law or medicine as, HIV/Aids-related medical condition,” observed the tribunal.
Besides, no evidence was given to demonstrate why Resolution Health believed that the expenses incurred by the employee at Nairobi Women’s Hospital belonged to the category of medical conditions that were not covered. The position by the employer that the aggrieved employee was HIV-positive and was therefore not entitled to any benefit under the cover was not just preposterous, but discriminatory.
The tribunal also said it is inconceivable that Resolution Health could undertake to offer, for valuable consideration, medical insurance services to the employee, only to exclude liability to offer all such services to her.
“This is analogous to the case of a party who contracts to sell a car to another person who, as known to him, is either a resident or non-resident, and who proceeds to receive the purchase price, only to subsequently refuse to deliver the vehicle citing an exclusion clause which purportedly excluded liability to sell to a non-resident. That is fraud not a contract,” said the tribunal.
Nairobi Women’s Hospital had on their part, argued that the disclosure of the HIV status to Resolution Health was justified on the following grounds. Firstly, that it is a settled practice in the insurance industry that all medical expenses incurred pursuant to a medical insurance policy have to be paid for by the medical insurer, who is therefore entitled to know how the expenses arose, and this cannot be done without sharing patient’s medical information with the medical insurer.
Secondly, the service level agreement signed between Nairobi women’s Hospital and Resolution Health authorised the disclosure, and finally, the claimant signed the admission form which also expressly authorised the disclosure.
But the tribunal pointed out that, however entrenched, and whatever the economic justification, no rule of practice can override an express provision of a legislation.
Section 22 of HAPCA is very clear that no disclosure of a person’s HIV status can be done except with the person’s written consent (save as may be permitted by the Privacy Guidelines to be issued under Section 20 of HAPCA, which unfortunately have not been developed).
Similarly, a service level agreement signed between Nairobi Women’s Hospital and Resolution Health Insurance Ltd, purporting to authorise the disclosure of the claimant’s HIV status, and to which the claimant was not privy, cannot override the express provisions of section 22 of HAPCA and must therefore be ignored.
Nairobi Women’s Hospital was found to have violated the claimant’s right to privacy and confidentiality when it disclosed the HIV status to Resolution Health Insurance Ltd. It was therefore directed to pay the claimant Sh750,000 for violation of privacy and confidentiality. On the other hand, Resolution Health was ordered to pay the claimant Sh1.5 million for discrimination, and a further 750,000 in damages for the violation of privacy and confidentiality.
Mr Nelson Wanyonyi Osiemo, the claimant’s lawyer, believes that the judgment has clarified a lot of issues that were previously contested by claimants, insurers, hospitals and employers. It will therefore guide the various players in issues that revolve around protection of the rights of persons living with HIV.
Section 14 of HAPCA also provides that: “No person shall undertake an HIV test in respect of another person except: (a) With the informed consent of that other person.” According to the tribunal in another suit pitying a claimant against the Karen Hospital Ltd, the tribunal held that 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, adding that the requirement of informed consent is intended to uphold the dignity of the patient.
They added 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 of compulsory HIV testing.
“In our view, where a person is induced to donate blood under the mistaken belief that it will be used for other tests (apart from HIV testing) and it is used for HIV testing then that patient has been compulsorily tested for HIV,” said the Tribunal.
Karen Hospital had sent the patient’s medical bills to UAP Insurance for settlement. The hospital had argued that the patient should have been grateful for having been treated well, ethically, professionally and with dignity and in the process saving her life and the lives of her spouse and loved ones.
The hospital therefore added that, “It would still have been lawful even if no consent was obtained prior to the tests because they were in the patient’s best interest.”
CONTRARY TO THE LAW
The tribunal found this to be contrary to the law. They said that Section 22 of the HAPCA does not just prohibit disclosure of HIV results of a person, it also prohibits any disclosure of any information that can take the form of, “a letter, an invoice, a bill, a receipt, or any other document whatsoever containing any information from which the HIV status of a person can reasonably be inferred by a third party.”
A number of hospitals and insurance companies always have a service level agreement that if an insured patient has been admitted, the insurer has to be informed within 24 hours, regarding who the patient is, where he or she has been admitted and the nature of ailment, so as to authorise and process payment.
“Forwarding an invoice or bill to a medical insurer therefore violates Section 22 of HAPCA if the HIV status of the patient can reasonably be inferred from such an invoice or bill,” ruled the Tribunal.
Likewise, the tribunal faulted Meridian Equatorial Hospital for releasing a patient’s information to Resolution Health Insurance Ltd, who settled the bills. Since the patient was an adult, although she was a beneficiary of an insurance policy under her mother’s name, the authority to release confidential information relating to her HIV status ought to have emanated from her, and not her mother.
Despite the fact that confidential information had been released to the insurer pursuant to the health insurance claims process, it had been irregularly obtained since the patient had not authorised its procurement.
Further, that all health information have to be documented in trust and protected from unauthorised access, including by members of staff of the health facility. The duty of confidentiality goes beyond undertaking not to divulge confidential information; it includes a responsibility to ensure that written patient information have been kept securely.
“Confidential hospital records cannot be left where other people have casual access to them and information about patients have to be sent under private and confidential cover, with appropriate measures being taken to ensure that it has not gone astray. It is important to maintain confidentiality of patients’ records even among staff,” Tribunal.
Interestingly however, the tribunal has held that in suits filed before it by spouses or lovers, public policy considerations require courts and tribunals to adopt a much more cautious attitude when dealing with cases that involved the recovery of damages for emotional distress deriving from alleged fear of AIDS.
This is because decisions that prioritised the rights of HIV-negative individuals over those of HIV-positive persons, could discourage people from subjecting themselves to HIV testing, with far reaching public health consequences.
“Accordingly, by glorifying fear of Aids through hefty awards of damages in Aids phobia cases, or by making it very easy for plaintiffs in Aids phobia cases to recover damages, courts and tribunals would simply be creating conditions favorable for the spread of HIV related prejudice, stigma, discrimination, ostracization and bastardization,” the tribunal.
The observation was made in a suit where a man had alleged his HIV positive girlfriend had concealed the intention to infect him with the virus, and therefore sought Sh1.1 million damages for the events which he said caused him bodily harm, psychological and mental anguish. The tribunal however awarded him Sh127,500 as general damages for suffering psychiatric harm due to HIV AIDS exposure.
The girl could not however be penalized for not informing him in advance about her HIV status because the law which required her to do that, Section 24 of the HIV and AIDS Prevention and Control Act (HAPCA), had been declared unconstitutional by the High Court.
1.6 million Kenyans live with HIV
Sh42,000 per person per year – amount of money it would take to incorporate HIV treatment in NHIF
Sh7 out of every 10 set aside to address HIV is provided by donors
Sh87 billion – amount of money needed every year for HIV treatment
Sh600 million – amount of money allocated for recurrent HIV budget in 2017/18
Sh75 million – amount of money allocated for development HIV budget in 2017/18
75% Kenyans do not have health insurance
15% of Kenyans are covered by NHIF
2% of Kenyans have a private health insurance scheme
Kenyans pay 1/3 of healthcare costs from out-of-pocket (cash)
16% of Kenyans do no seek treatment while ill due to financial constraints
38% of Kenyans have to sell their assets or borrow money to pay medical bills
NHIF – 6.9 million
Private health schemes – 1.5 million
Community based health financing – 470, 550
Proposed NHIF comprehensive HIV package will cover:
HIV testing and counselling
Pre-exposure and post-exposure prophylaxis
Tuberculosis prevention and care
Hepatitis B and C immunization
Depression and alcoholism treatment
Law governing disputes arising from health insurance
Section 35(1) of HAPCA declares that, “no person shall be COMPELLED to undergo an HIV test or to disclose his/her HIV status for purposes of gaining access, to among others, medical insurance.”
What this means is that persons living with HIV should have reasonable access to a medical insurance policy which will not require them to be tested for HIV or to disclose their HIV status to anybody, whether the medical insurer or to the treatment facilities.
Section 35(2) of HAPCA takes care of the commercial interests of the medical insurance service provider. It enjoins the medical insurance provider to devise reasonable limit of insurance policies which can serve EVERYONE irrespective of his/her HIV status.
The provider may devise two policies; one that does NOT require HIV testing or disclosure and the other which requires HIV testing and disclosure. Both policies are accessible to HIV-positive persons as well as HIV-negative persons equally, without any discrimination. HAPCA therefore guarantees the HIV infected person’s right to access medical insurance as well as his right to privacy and confidentiality, without sacrificing and/or jeopardising the economic rights of the medical insurance provider.
It enables the insurer to protect himself against the risk of loss on account of HIV infection, without limiting or constraining the HIV infected person’s rights to privacy and confidentiality.
Section 35(3) of HAPCA addresses the quality of the medical insurance service by permitting medical insurance service providers to set an upper limit cover (beyond which no access is provided unless on condition that the patient is subjected to HIV testing) and a lower limit cover which is accessible to everyone and which does not require testing.
Again, a person living with HIV has the option of purchasing the lower limit cover (which does not require testing) if he wishes to keep his HIV status private and confidential.
But he also has the liberty to purchase the Upper limit cover (which will give him more benefits) if he is willing to volunteer his HIV status to the medical insurance service provider and also to the medical service providers that will be used to render service under the scheme.
Sections 35(4) and (5) of HAPCA deal with the cost of the medical insurance to be provided as well as the range of services to be provided (and how the premium should be fixed) in situations where a person who chooses to purchase the upper limit cover and therefore VOLUNTARILY ELECTS to undergo HIV testing as a condition for accessing an upper limit cover and tests HIV-positive.
Section 35(6) of HAPCA gives the HIV and AIDs Tribunal jurisdiction to determine disputes that may arise under Section 35(5).