[2014] KEHAT 2 (KLR)

BO v Meridian Equatorial Hospital (Tribunal Case 005 of 2013) [2014] KEHAT 2 (KLR) (30 May 2014) (Judgment)

Neutral citation: [2014] KEHAT 2 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 005 of 2013

JO Arwa, Chair, M Deche, MN Kullow, S Bosire, J Muriuki & J Kyambi, Members

May 30, 2014

Between

BO

Claimant

and

Meridian Equatorial Hospital

Respondent

Judgment

Constitutional Law - fundamental rights and freedoms - violation of fundamental rights and freedoms of persons living with HIV - whether compulsory testing of the Claimant for HIV and AIDS was a violation of the rights of the Claimant - whether disclosure of the HIV status of the Claimant to her mother and the insurance company catering for her medical bills infringed on the Claimant’s constitutional rights - whether disclosure of a patient’s HIV status to the hospital staff infringed on the Claimant’s constitutional rights – Constitution of Kenya, 2010, articles 26, 28, 29, 31, 35 & 43; HIV & AIDS Prevention and Control Act, sections 6, 13, 17, 18, 21 & 22 Brief Facts:On 11 May, 2013, the Claimant had attended the Respondent’s facility complaining of diverse maladies. She was treated and sent home the same day. However, on 12 May 2013, the Claimant returned to the Respondent’s facility because her health condition had not improved. On 13 May 2013, the Respondent’s doctor recommended a HIV test to the Claimant. On that same day, the Claimant’s mother was informed by the Respondent’s matron that the Claimant had tested HIV positive. Later on, the Claimant met with the Respondent’s counselor who stated that a HIV test had already been carried out without her knowledge and she had been found to be HIV positive.On 14th May 2013, the Respondent was discharged and her treatment records, including information about her HIV status were released to Resolution Health Insurance Company who settled her Medical Bills. The Claimant’s complaints were that: the Respondent subjected her to compulsory HIV testing contrary to sections 13 of the HIV & AIDS Prevention and Control Act as read together with article 28 and 29 of the Constitution of Kenya 2010; the Respondent conducted an HIV test on the Claimant without subjecting her to pre and post-test counseling contrary to section 6 and 17 of the HIV & AIDS Prevention and Control Act as read together with articles 26, 35 and 43 of the Constitution of Kenya 2010; the Respondent released the results of the Claimants’ HIV test to its own officers’(including the matron and the finance officer), her mother and the insurer without the Claimants consent contrary to sections 18, 21 and 22 of the HIV & AIDS Prevention and Control Act as read together with article 31 of the Constitution.The Respondent failed to put in place an effective health information management system that was capable of protecting the Claimants rights to privacy under sections 18,21 and 22 of HIV & AIDS Prevention and Control Act as read together with article 31 of the Constitution.The issues that were to be determined by the Tribunal were summarized as follows:i. Whether the Respondent carried out an HIV test on the Claimant without her consent;ii. Whether the Respondent carried out an HIV Test on the Claimant without carrying out pre-test and post-test counseling and what were the consequences of that;iii. Whether it was wrong for the Respondent to disclose the HIV status of the Claimant to her mother without her consent;iv. Whether the Respondent was entitled to disclose the Claimant’s HIV status to the insurance company without the Claimant’s consent;v. Whether the Respondent was justified to disclose the Claimant’s HIV status to its employees, including the matron and its’ staff in the finance office without the Plaintiff’s consent.Held: 1. Section 13 of the HIV & AIDS Prevention and Control Act clearly prohibited compulsory testing or carrying out of any other HIV Tests which by their very nature were compulsory on patients, without their knowledge or consent. The conduct of the Respondent towards the Claimant amounted to mandatory HIV testing and contravened the provisions of section 13 of the HIV & AIDS Prevention and Control Act. Such mandatory HIV testing also violated the Claimants fundamental right to human dignity protected under article 28 of the Constitution as well as her fundamental right to liberty and the security of her person as protected under article 29 of the Constitution of Kenya, 2010.

2. The compulsory HIV testing had violated the Claimant’s right to bodily and psychological integrity including the right to security in and control of her body. The removal of the Claimant’s blood for purposes of conducting an HIV test without her knowledge had violated her right to liberty contrary to article 29 of the Constitution.

3. The defense that the Respondent was ignorant of the existing law on compulsory testing could not hold. The maxim “ignorantia juris neminem excusat” (ignorance of law is no defense) would apply. It was regrettable and shameful that in this day and age, a hospital facility of the status of the Respondent could have advanced such a line of defense.

4. The provision of section 17 of the HIV & AIDS Prevention and Control Act on pre-test and post-test counseling, which was couched in mandatory terms, was extremely important especially in view of the socio-cultural implications of HIV and AIDS in Kenya. It served a very useful purpose and could not be taken lightly by medical and other facilities that conducted HIV testing. Pre-test and post-test counseling were not mere cosmetic requirements.

5. The HIV & AIDS Prevention and Control Act imposed on healthcare providers the duty to provide HIV and AIDS education as part of health care service. That duty was imposed by section 6 of the HIV & AIDS Prevention and Control Act, which provided that HIV and AIDS education and information dissemination was to form part of the delivery of health care services provided by healthcare providers. Such information could only be disseminated during pre-test and post-test counseling.

6. The duty of pre-test and post-test counseling lay squarely on the shoulders of all healthcare providers and had to be complied with. Failure on the part of any healthcare provider to comply with such a duty amounted to a constitutional violation of the right to life as enshrined in article 26 of the Constitution, the right to health under article 43 of the Constitution and the right to access to life-prolonging information under article 35 of the Constitution.

7. The right to life was not confined merely to a right to be alive or to exist; it extended to a right to all facilities that made human life not only possible but also meaningful. That included the right to be given all information that one needed to lead a dignified life as a person living with HIV and AIDS.

8. Article 43(1) of the Constitution clearly donated to all citizens the right to health, which included the right to healthcare services. Section 6 of the HIV & AIDS Prevention and Control Act expressly included HIV and AIDS education and information as part of health care services. Accordingly, every health service provider was bound to offer HIV and AIDS education to those undergoing the test. Failure on the part of a healthcare provider, to carry out pre-test and post-test counseling while conducting HIV testing was a violation of article 43(1) of the Constitution.

9. The failure on the part of the Respondent to provide the Claimant with such information as she needed to live positively with HIV and AIDS, in the form of pre-test and post-test counseling as required by the HIV & AIDS Prevention and Control Act violated the Claimants fundamental right under article 35(1)(b) of the Constitution of Kenya 2010. The Respondent had information which the Claimant needed to prolong her life as an HIV infected person, whereas the Claimant had a right of access such information to protect her fundamental right to life, health and dignity. The Respondent had declined to give such information despite clear provisions of sections 6 and 17 of the HIV & AIDS Prevention and Control Act, hence had violated the Claimant’s right to information.

10. Doctor-patient confidentiality was relevant as a statutory obligation, common law principle and constitutional standard. Article 31 of the Constitution expounded the right to privacy to include the right not to have information relating to one’s private affairs revealed. Furthermore, section 22(1) of the HIV & AIDS Prevention and Control Act prohibited disclosure of information concerning the result of an HIV test or any related assessments to a third party without the subject’s written consent, except where the subject was deceased, a minor, or incapacitated.

11. The Respondent was duty bound to ensure that circulation and exchange of information within its facility was limited to what was needed. All health information had to be documented in trust and protected from unauthorized access, including by members of staff of the health facility. The duty of confidentiality went beyond undertaking not to divulge confidential information; it included a responsibility to ensure that written patient information had been kept securely. Confidential hospital records could not be left where other people had casual access to them and information about patients had to be sent under private and confidential cover, with appropriate measures being taken to ensure that it had not gone astray. It was important to maintain confidentiality of patients’ records even among staff.

12. Hospitals had to establish full proof health information management systems. In cases where their health information management systems had weaknesses that permitted other employees of the medical facility to access such confidential information, the facility would be forever exposed to such suits as may be instituted against them by their patients for breaches of their rights to privacy and confidentiality.

13. The Health Ministry had failed to develop guidelines that would govern the recording, collecting, storing and/or securing of HIV information, recordings and forms to preserve privacy and confidentiality in the context of HIV and AIDS. However, such failure did not mean that the patient’s rights to privacy and confidentiality could be violated through the use of archaic health information systems by healthcare providers. Until such guidelines have been developed, health care providers bore the responsibility of putting in place appropriate health information management systems that met the minimum standards set by the law.

14. The Claimant’s medical records should not have been exposed to anyone who was not involved in her treatment and care, without her permission. The matron and the finance officer’s access to the Claimant’s information should have been restricted to their respective duties. Hence, the Respondent was liable for unlawful disclosure and breach of confidentiality.

15. According to section 18 of the HIV & AIDS Prevention and Control Act the results of an HIV test could only be released to the person tested unless that person was a child or a disabled person. The Claimant was neither a child nor a person with disability who was incapable of comprehending such matters. There was absolutely no social or moral duty to disclose the Claimants HIV status to her mother.

16. The authorization by the Claimant’s mother regarding release of information had not been given to the Respondent but to the insurance company. Additionally, the blanket authorization by the mother was below the minimum acceptable procedural standards for release of patients’ confidential information. It was prudent that a request for release of such information had to be made in respect of each case and every such request had to be expressly authorized by the patient.

17. The Claimant was an adult of sound mind. Although she was a beneficiary of an insurance policy under her mother’s name, the authority to release confidential information ought to have emanated from her, and not her mother. Despite the fact that confidential information had been released pursuant to the health insurance claims process, it was inconsistent with principles of the law of contract as well as the provisions of the HIV & AIDS Prevention and Control Act and the Constitution.

18. The information that had been forwarded by the Respondent to the insurance company had been irregularly obtained since the Claimant had not authorized its procurement. Accordingly, no amount of subsequent consent, genuine or otherwise, could have had the effect of sanitizing or legitimizing an act that was unlawful and irregular ab initio.

19. The disclosure to the insurer was wrongful, unlawful and unconstitutional. The disclosure violated the Claimant’s rights under sections 18 and 22 of the HIV & AIDS Prevention and Control Act as read together with the provisions of article 31(1) (c) of the Constitution.

Kshs. 100, 000/= awarded as damages to the Claimant for violation of her rights as a result of mandatory testing of her HIV Status.

Kshs. 150,000/= awarded as damages to the Claimant for violation of her rights through failure to provide pre-test and post-test counseling.

Kshs, 150, 000/= awarded as damages to the Claimant for violation of her rights as a result of unlawful disclosure and breach of confidentiality.

Kshs 150, 000/= awarded as general damages for violation of the Claimant’s rights as a result of disclosure of the Claimant’s HIV Positive status to her mother without her consent.

Kshs. 150, 000/= awarded as general damages for violation of the Claimant’s rights as a result of disclosure of the Claimant’s HIV Status to the insurance company.

Costs of the suit awarded to the Claimant.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF MAY, 2014. ……………………………………………J. ARWA (CHAIRMAN)……………………………………………M. DECHE (MEMBER)……………………………………………M.N. KULLOW (MEMBER)……………………………………………S. BOSIRE (DR-MEMBER)……………………………………………J. MURIUKI (MEMBER)……………………………………………J. KYAMBI (PROF.-MEMBER)