[2015] KEHAT 10 (KLR)

EMA v World Neighbours & another (Tribunal Case 007 of 2015) [2015] KEHAT 10 (KLR) (18 December 2015) (Judgment)

Neutral citation: [2015] KEHAT 10 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 007 of 2015

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

December 18, 2015

Between

EMA

Claimant

and

World Neighbours & Another

Respondent

Judgment

Constitutional Law – fundamental rights and freedom – privacy - whether the claimant was a victim of discrimination by either the medical facilities or the 2nd respondent, or both - whether the claimant’s right to privacy and confidentiality were violated by the hospital and/or the 2nd respondent contrary to the provisions of the HIV and AIDS Prevention and Control Act – Constitution of Kenya, 2010, articles 27 and 28; HIV and AIDS Prevention and Control Act section 35. Employment Law – termination of employment – discrimination - whether in terminating the claimant’s employment amounted to discrimination against her on the basis of her HIV status – whether the claimant was a victim of discrimination by either the medical facilities or the 2nd respondent, or both. Brief Facts: 1. The claimant filed a statement of claim stating that she was employed by World Neighbours, the 1st respondent, and at the time of employment she was provided with in-patient and out-patient health insurance supplied by the 2nd respondent. Two years into her employment she was admitted to hospital due to bacterial meningitis owing to her HIV sero-status. Consequently, after learning of the claimant’s HIV status, the 2nd respondent declined to pay the claimant’s medical bill to a tune of Kshs. 49,133/=. However, the bill was settled by the 1st respondent on condition that the claimant would settle the amount in 12 months. Several months later the claimant was again admitted to hospital due to jaundice, where her hospital bill accumulated to Kshs. 138,740/=. The 2nd respondent declined to settle the bill albeit the ailment being within the scope of the insurance cover.

2. The claimant was later laid off for reasons that the 1st respondent was undergoing restructuring rendering her position redundant. She claimed compensation from the Respondents on the basis that: her employment was terminated as a result of discrimination based on her HIV status; the 2nd Respondent refused to pay her medical bills based on discrimination as any person could suffer from the illnesses on which account she was hospitalized; she sustained emotional distress and trauma when she was detained in the hospital for lack of funds to offset the bill as well as when her employment was terminated while she was heavily pregnant and could not provide for her children as she used to.

3. The 1st respondent submitted that none of its employees or managers discriminated against the claimant, and that her termination was as a result of financial constraints and not discrimination, which termination was done in accordance with the terms of the contract. Conversely, the 2nd respondent submitted that it did not discriminate against the claimant by virtue of her status but that because the treatment administered fell under the general exclusions of the health insurance cover and further that all actions were taken within the insurance contract.

4. The main issues for determination by the tribunal were:i.Whether terminating the claimant’s employment amounted to discrimination against her on the basis of her HIV status;ii.Whether the claimant’s right to privacy and confidentiality were violated by the hospital and/or the 2nd respondent contrary to the provisions of the HIV and AIDS Prevention and Control Act;iii.Whether the claimant was a victim of discrimination by either the medical facilities or the 2nd respondent, or both.

Held: 5. Although the claimant’s evidence raised suspicion that she may have been dismissed from employment on grounds of her HIV status, the evidence adduced did not demonstrate that that was the sole reason for her termination. Once the 1st respondent gave plausible evidence to the effect that the sole reason for the termination was restructuring caused by liquidity challenges the burden shifted to the claimant to adduce evidence to prove that that was not the case. Thus the claimant failed to discharge the burden of proof to the requisite standard.

6. The 1st respondent’s evidence was credible for the reasons that:a.The 1st respondent did not terminate the claimant’s employment immediately they became aware of her HIV status. She remained in employment for almost two years after that;b.The claimant was not the only person whose job was abolished and other person who was also terminated was not HIV positive;c.The 1st respondent was compassionate enough to settle the claimant’s medical bills when the 2nd respondent declined to do so.

7. Besides, the claimant had been paid all her terminal benefits by the 1st respondent. It would therefore be odd for the claimant to be paid twice for the same alleged wrong. Therefore, the claimant was not dismissed from her employment with the 1st respondent on grounds of her HIV status.

8. The disclosure of patients’ HIV status by hospitals to medical insurers in Kenya was not only discriminatory but had also been subjected to gross abuse. Accordingly, there was need to determine the circumstances in which such disclosures ought to be made, as well as circumstances in which such disclosures could not be made.

9. Article 27 of the Constitution outlawed discrimination on grounds of health status. Discrimination on the basis of health had become so entrenched within the medical practice in Kenya that no one even noticed that they violated the rights of HIV positive patients and entrenched stigma and discrimination against them. Whenever the doctors were questioned on such disclosures, they always hid behind the insurance policy documents signed between the patients and the medical insurers that usually appeared to authorize such disclosures. The Tribunal took judicial notice of the fact that most such contractual clauses were unconscionable. The patients never negotiated with the medical insurance providers on equal terms. Besides the unconscionability, such contractual clauses also violated the provisions of article 27 of the Constitution as well as section 35 of the HIV and AIDS Prevention Control Act (HAPCA).

10. Medical facilities and medical practitioners should only disclose the HIV status of their patients to the medical insurers when it was both necessary and justifiable having regards to the circumstances of the case. Where for example, an HIV positive patient was admitted to a medical facility suffering from cholera, and where the patient’s viral load was still undetectable, it was neither necessary nor justifiable to disclose the patient’s HIV status to the medical insurer.

11. Disclosure was necessary, and should only be authorized where the following conditions were met and not otherwise:a.Where the patient’s viral load was so high that it militated against quick recovery and therefore increased the cost of treatment;b.Where the patient’s HIV status was the sole or primary cause of the medical condition that was being treated;c.Where for any other reason the patient’s HIV status or impact significantly affected on the costs of the medical treatment and therefore directly affected the interests both present and future of the medical insurer;d.Where recurrence of the problem in future was reasonably foreseeable owing, not merely as a matter of pure chance but on account the HIV status of the patient.

12. Such conditions were not met in every case. Where the HIV positive patient’s viral load was still undetectable (as was the case herein) such conditions would only be met with regards to some diseases but not to all.

13. Where such conditions were not met then there would obviously be no justification for disclosing the patient’s HIV status to the medical insurer. Such disclosures would therefore violate the privacy and confidentiality of the HIV positive patients without affording the medical insurers any benefits at all. It would have been senseless and unjust to permit such disclosures since to do so would be to sanction a clear violation of the human rights of HIV positive patients.

14. If the disclosure was not necessary in spite of the patient’s HIV status, then why draw a distinction between HIV positive patients and HIV negative patients, considering that such disclosures were usually considered unnecessary where the patient was negative?

15. Therefore, it was unlawful and unfair for the 2nd respondent to discriminate against HIV positive persons by purporting to develop a different policy for HIV positive persons. Such a policy clearly violated the provisions of section 35 of the HIV and AIDS Prevention and Control Act.

16. It was illegal for the 2nd respondent to create a separate cover for HIV positive persons which required the proposers, such as the claimant herein to disclose her HIV status, prior to obtaining a cover, or even to have two types of medical covers, one for HIV positive persons, and another one for HIV negative persons. Such unjustified, unfair and unnecessary distinctions should not be tolerated in a civilized society.

17. The HIV and AIDS exclusions contained in the medical cover that was purchased by the 1st respondent on behalf of the claimant herein were illegal and therefore null and void. The 2nd respondent thereby openly violated the HIV and AIDS and Prevention and Control Act, and acted unlawfully when they refused to settle the claimant’s medical bills. All such discriminatory policies and exclusions as were contained therein that clearly violate section 35 of HIV and AIDS Prevention and Control Act were illegal and consequently null and void.

18. The 2nd respondent violated the claimant’s privacy and confidentiality in the following manner:a)Requiring the claimant to disclose her HIV status on the proposal form as a condition of giving her a cover contrary to section 35 of HIV and AIDS Prevention and Control Act;b)Requiring the medical facilities to disclose the claimant’s HIV status to them;c)Facilitating unauthorized disclosure of the claimant’s HIV status to third parties to whom the Medical Report from Social Service League were copied.

19. The disclosure of the claimant’s HIV status in these circumstances was unnecessary and grossly unjustified. Besides, the 2nd respondent was not entitled to refuse to settle the medical bill of Kshs. 138,740/=.

Orders: 20. 2nd respondent liable in damages for violation of the claimant’s privacy and confidentiality rights and an award of Kshs. 500,000/= as damages to the claimant; 2nd respondent to refund the claimant the sum of Kshs. 138,740/= which the claimant paid when they refused to settle the hospital bill; 1st respondent was liable to refund the claimant Kshs. 40,133/= and proceed to claim re-imbursement for the same from the 2nd respondent; costs of the suit against the 2nd respondent.

DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF DECEMBER, 2015. ……………………………………………J. ARWA - (CHAIRMAN),……………………………………………A. SIPARO - (VICE-CHAIRPERSON),……………………………………………J. KYAMBI - (PROF.-MEMBER),……………………………………………J. MURIUKI - (MEMBER),……………………………………………M.N. KULLOW - (MEMBER),……………………………………………M. DECHE - (MEMBER),……………………………………………S. BOSIRE - (DR-MEMBER).