[2016] KEHAT 22 (KLR)

CNM v Karen Hospital Limited (Tribunal Case 008 of 2015) [2016] KEHAT 22 (KLR) (At Nairobi) (13 May 2016) (Judgment)

Neutral citation: [2016] KEHAT 22 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

At Nairobi

Tribunal Case 008 of 2015

JO Arwa, Chair, S Bosire, Vice Chair, C Maringo, V Awori, N Otuoma & M Gethoi, Members

May 13, 2016

Between

CNM

Claimant

and

The Karen Hospital Limited

Respondent

Judgment

Constitutional Law –breach of right to privacy –whether there was breach of confidentiality from the unlawful disclosure of the claimant’s HIV status by the respondent –whether the claim was merited. – Testing without consent – whether the claimant’s rights were violated by the actions of the respondents of conducting an HIV test on her without her informed consent – whether there was informed consent. Brief facts:The Claimant visited the Respondent hospital to seek treatment for severe diarrhoea. She was subsequently subjected to a HIV test without her informed consent which test indicated that she was HIV positive. Later, she was tested with her husband and the results revealed that while she was HIV positive her husband was HIV negative. The Claimant was soon to learn from her attending Doctor that information of her HIV status had been shared with her Insurance Company. After the claimant was discharged, she filed a complaint at the Customer Service Department of the Respondent Hospital about how she had treated. After investigations, the customer service department found no wrongdoing on the part of the hospital.The claimant thus filed a claim at the Tribunal for breach of confidentiality and abuse of her right to human dignity & privacy by the Respondent for having tested her for HIV without her consent. She claimed that the Respondent had violated her rights in the following manner: testing her for HIV without her informed consent; failing to provide her with pre-test and post-test counseling; and breaching her confidentiality and privacy rights as enshrined in Article 31 of the Constitution of Kenya.In their response, the Respondent alleged that before and after admission of the Claimant, several tests were carried out on her and among them was HIV testing which complied with the National Guidelines for HIV testing and counseling in Kenya. The respondent claimed that it conducted itself professionally and in full compliance of professional ethics. The Respondent further denied informing the claimant’s insurance company of her status but maintained that they only sent medical bills to UAP insurance for settlement.The main issues for determination by the tribunal were:i.Whether the claimant was compelled to undergo HIV testing without her informed consent;ii.Whether the aforesaid tests were preceded by pre-test and post-test counselling as required by law;iii.The legal status of HIV testing conducted as part of routine medical care and whether HIV testing can lawfully be done without informed consent and without pre-test and post-test counseling;iv.Whether there was a breach of the claimant’s right to confidentiality and/or privacy as provided either in HAPCA or in the Constitution of Kenya 2010 or both.Held:i.That 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. Therefore, the HIV testing that was done on the claimant, alongside other tests, violated the provisions of Section 13 of HAPCA.ii.That the claimant was compelled to undergo HIV testing without her consent and also without her informed consent. Therefore, the Respondent was found liable to the claimant for the tort of compelling her to undergo HIV testing without informed consent contrary to Sections 13 and 14 of HAPCA. The claimant was accordingly awarded the sum of Kshs. 1,000,000/- in damages.iii.That the Claimant failed to strictly prove that she was not given pre-test and post-test counselling. The claimant’s allegations to the effect that she was not given pre-test counselling or post-test counselling were dismissed.iv.That the contention by the Respondent that the HIV tests conducted upon the Claimant would still have been lawful even if no consent was obtained prior to the tests because they were in the patient’s best interest was clearly mistaken, besides being preposterous. Accordingly, the Tribunal held that a medical practitioner can only conduct a test on a person without that person’s consent under sub-paragraph (ii) of Section 142(2) (c) if that person is “unconscious and unable to give consent”, as prescribed under sub-paragraph (i) of Section 14(2)(c) of HAPCA. No evidence was given by the respondents to prove that the claimant was unconscious and was therefore unable to give consent.v.The Tribunal accordingly held and found that all HIV testing carried out in the course of normal treatment procedures (whether before or after the onset of HIV-related symptoms) must be conducted only after the patient has given his or her informed consent thereto and all other provisions of HAPCA must be strictly complied with.vi.That forwarding an invoice or bill to a medical insurer violates section 22 of HAPCA if the HIV status of the patient treated can reasonably be inferred from such invoice or bill, and whether it is possible to infer the patient’s HIV status from such invoice or bill is a question of fact that varies from one case to the other. Consequently, the Tribunal held and found that the Respondent violated the claimant’s right to confidentiality as protected under Section 22(1) of HAPCA. The Tribunal directed and ordered that the claimant be compensated by an award of damages amounting to Kshs. 1,500,000/-.vii.The claimant was further awarded costs.Claimant awarded Kshs. 2,500,000/= general damages for HIV testing without informed consent and breach of confidentiality.

DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF MAY, 2016. ……………………………………………J. ARWA (CHAIRMAN)……………………………………………S. BOSIRE (VICE CHAIRPERSON),……………………………………………C. MARINGO (MEMBER),……………………………………………V. AWORI (MEMBER),……………………………………………N. OTUOMA (MEMBER),……………………………………………M. GETHOI (MEMBER).