[2020] KEHAT 40 (KLR)

REPUBLIC OF KENYA

IN THE HIV & AIDS TRIBUNAL

AT NAIROBI

H.A.T. CAUSE NO. 001 OF 2020

JK ...............................................................CLAIMANT

-VS-

AAR HEALTHCARE KENYA LTD.....RESPONDENT

JUDGEMENT

A. Introduction

1. By Statement of Claim dated 6th March 2020, the Claimant seeks judgment against the Respondent for:

a. An award of damages on account of gross violation of her right under HAPCA;

b. An award for damages for emotional distress suffered on account of gross violation of her rights under HAPCA;

c. Costs of this suit together with interest thereon;

d. Any other remedy that this Honorable Tribunal may deem fit to award.

2. The Claimant’s case is that on 19th November 2019, the Claimant, an employee of the N, attended a routine wellness check at the Respondent’s healthcare clinic, courtesy of the medical scheme cover provided by her employer. While undergoing the wellness check, the Claimant was subjected to various medical tests, one of which was the HIV test. The Clamant had explicitly expressed her wishes to the Respondent’s staff member not to be subjected to the HIV test, but was surprised to receive an email on 24th November 2019 containing results of the various tests conducted, including HIV. The Claimant then queried why her explicit instructions had been ignored, but this inquiry, too, was ignored by the Respondent and no response was forthcoming.

3. The Claimant avers that the Respondent’s action of testing the Claimant for HIV in spite of her very clear instructions not to do so have violated the Claimant’s rights under the HIV and AIDS Prevention and Control Act, 2006 (hereinafter HAPCA). In particular, the violations relate to the right to:

a. Give consent to an HIV test contrary to section 14 (a) of HAPCA;

b. Receive HIV pre-test and post-test counselling contrary to section 17 (1) of HAPCA;

c. Not to have an HIV test requested on herself by any other person contrary to section 21 (a) of HAPCA;

d. Have HIV results released to her person only contrary to section 18 (a) of HAPCA;

e. Give consent before HIV results are to be disclosed to a third party contrary to section 22 (a) of HAPCA;

4. The Respondent filed its Statement of Response dated 2nd July 2020, in which the Respondent denies the allegations by the Claimant. The Respondent avers that it prepared the N Wellness Package for the staff of the insurer, N, and upon receiving the green light, proceeded to conduct the exercise on 19th November 2019. The tests conducted a host of tests on the day, including HIV Testing and Counselling. The participants were required to fill in their contact information and bio data on a form, and the results of the tests were communicated to them individually through the email addresses provided.

5. The Respondent denied ignoring the Claimant’s instructions not to conduct the HIV test and avers that the Claimant had knowledge that the HIV test would be conducted. The Respondent further avers that the Claimant voluntarily submitted herself to the wellness screening, which package was communicated well in advance. The Respondent’s position is that the Claimant now wishes to use the provisions of the law to profit from her consensual actions to the detriment of the Respondent.

B. The Claimant’s Case

6. The Claimant began her case on 4th September 2020. She testified that on 19th November 2019, she attended a wellness clinic upon invitation by her employer. As per the invitation letter, the clinic was to be held at the employer’s offices in Nakuru. On the material day, the proceedings began with introduction of the guests followed by a presentation on medical covers by a company called Zamara. A second presentation was done by the Respondent herein, which presentation focused on cancer. A Q & A session followed the presentations, and participants were then handed some mental assessment forms and asked to fill them.

7. It was the Claimant’s testimony that the plenary presentations were then followed by one-on-one sessions between the participants and the Respondent’s representatives. The Claimant was the first participant in for the one-on-one session, where she had a lengthy discussion with a representative from the Respondent. The Claimant was then asked to fill in a form before being subjected to the various tests.

8. It was the Claimant’s testimony that she categorically informed the Respondent’s representative that she did not wish to undertake an HIV test or a pap smear. This was done verbally. The Claimant was then ushered into the makeshift laboratory where she met another representative, who proceeded to draw her blood for the various tests. On cross examination, the Claimant denied having been provided with a list of the tests to be conducted. The Claimant then went home.

9. On 24th November 2019, the Claimant received an email from the Respondent, specifically from one Dr. Mercy. The said email contained results of the various tests conducted at the wellness clinic. The email contained 3 attachments, the first of which contained the results of an HIV test. It was the Claimant’s testimony that she was in shock and went into panic, since she had been categorical that she did not wish to be tested for HIV. She wrote back to the doctor, but the email did not receive any response from the doctor or the Respondent. It was at this point that she proceeded to instruct counsel.

10. The Claimant concluded her examination in chief by adopting her Witness Statement dated 6th March 2020 as part of her evidence.

11. On cross examination, the Claimant stated that she had no knowledge of how many staff members participated in the wellness clinic. The Claimant was also not aware that Jubilee Insurance Company, which provides medical cover for the staff, had engaged the Respondent to organize the wellness clinic. Further, the email address she had provided on the form was for record purposes, as far as the Claimant knew. She did not expect that the results would be sent on email. The Claimant confirmed that the names appearing on the list were those of her colleagues but was not aware whether or not the colleagues had received their results on email, too.

12. It was the Claimant’s testimony that it is the Respondent that caused her emotional distress and not her employer. She furthered testified that she was not aware that her employer had paid Kshs 5,000/- per person for the wellness package. All she knows is that she utilized her medical card at the wellness clinic.

C: The Respondent’s Case

13. In its defence, the Respondent called one witness, Dr. J. S., the head of Clinic Business Operations. RW1 adopted her witness statement dated 2nd July 2020 as part of her evidence in chief. She clarified that the Respondent is not an insurance company but a health service provider, which was acting under the instructions of Jubilee Insurance Company. The Wellness Program was negotiated with Jubilee Insurance Company and the cost per person was Kshs 5,000/-, which amount was paid by Jubilee Insurance Company. As per Respondent’s Exhibit 1, the Well Man and Well Woman Package included the following tests: Breast Examination, BMI/BP, Physical examination, Body Composition, Nutrition Assessment, Total Cholesterol, Random Blood Sugar, Pap Smear/PSA, Urea/Creatine, Full Blood Count, Mental Health Assessment and HIV Testing and Counseling.

14. RW1 testified that the insurance company did not specify which particular staff members were to attend. However, the staff members who did attend the wellness clinic were listed as per Respondent’s Exhibit 4. The insurance company gave specific instructions on how the wellness clinic was to be conducted, which instructions were contained in Respondent’s Exhibit 3. These instructions required the Respondent to provide reports detailing the number of participants, the tests conducted, a breakdown of the results for each test, a list of the persons seen and their contacts, and any recommendations.

15. RW1 confirmed that 6 staff members participated in the clinic. A wellness report was prepared and submitted to the insurance company, but did not indicate the names of the participants. Specific results were sent out to the individuals who had undertaken the wellness program. It is only those individuals who provided their contacts that received their results by email. RW1 further confirmed that the email to the Claimant was not copied to any other recipient. The initial email was forwarded from the Laboratory-in-Charge, Nakuru Outpost to Dr. Mercy, who then sent it to the Claimant. She stated that the results sent to the Claimant tallied with the wellness package.

16. It was RW1’s testimony that she did not receive any report or information that any individual had voluntarily attended the program but failed to undergo the tests. Further, the HIV testing was accompanied by counseling. On cross examination, RW1 admitted that she was not present during the counseling of the Claimant but received information from the team that the same was done. RW1 was not certain who in particular conducted the said counseling.

17. On cross examination, RW1 testified that when conducting the HIV test, the Respondent seeks the consent of the patient. This consent may be verbal or written. The Respondent then offers counseling, conducts the tests and advises the patient on what to expect if the results are positive. After the results are disclosed to the patient, there is further counseling. The results are transmitted from the laboratory to the doctor, who reviews them before informing the patient. If the results warrant further action, then the doctor calls the patient to come in to discuss them. Once the patient has been counseled, then the results are disclosed to the patient.

18. It was RW1’s testimony that the sign-up (attendance) sheet is construed to be consent. This coupled with the fact that the patient agrees to have their blood drawn is sufficient to act as consent for the HIV test.

D: Issues for Determination

19. Having listened to the evidence presented before this Tribunal and read through the submissions by both the Claimant and Respondent, we are of the view that the following are the issues that fall for determination by this Tribunal:

i. Whether the Respondent obtained the prior informed consent of the Claimant before testing her for HIV;

ii. Whether the Respondent conducted the mandatory pre and post HIV test counseling therapy;

iii. Whether the Respondent disclosed the Claimant’s HIV results to a third party;

iv. What remedies the Claimant is entitled to.

E: Legal Analysis

20. The Tribunal has had the opportunity to read through the submissions by the Claimant dated 23rd September 2020 as well as the submissions by the Respondent dated 8th October 2020. We shall now proceed to analyze the issues for determination.

i. Whether the Respondent obtained the prior informed consent of the Claimant before testing her for HIV

21. It is the Claimant’s submission that she never provided written consent for the HIV test to be conducted on her by the Respondent. This act, the Claimant submits, falls short of the conditions provided in section 14 (1) (a) of HAPCA and the precedent established in the case of CNM –vs- Karen Hospital Ltd, HAT No. 008 of 2015.

22. On the other hand, it is the Respondent’s contention that this case does not fall within the applicability of HAPCA, in particular, section 3(b)(i). This section prescribes the primary objectives and purpose of the Act to include extending to every person suspected or known to be infected with HIV and AIDS(emphasis theirs) full protection of his human rights and civil liberties. It is the Respondent’s argument that since the Claimant is not suspected or known to be infected with HIV or AIDS, then the provisions of the Act cannot apply to her.

23. In considering this submission, we call to mind the definition of the word ‘suspected’. To suspect means to think of believe something to be true or probable. This means that the only way to confirm that one is HIV positive would be by conducting an HIV test. Going by the Respondent’s argument, this Act (HAPCA) would only be applicable to persons who are HIV positive. We opine that this argument is misguided. The provisions of this Act apply to all persons regardless of their status hence the use of the word ‘suspected’. After all, the probability of being HIV positive is what informs one’s decision to undergo the test.

24. The Respondent submits that the Claimant voluntarily submitted blood samples for the various tests that were to be conducted. By agreeing to have her blood drawn, the Respondent argues that the Claimant was not compelled to undertake the HIV test. Further, the Claimant was fully aware of the wellness package that was provided, and therefore, this knowledge together with voluntary drawing of blood can be construed to be informed consent by the Claimant.

25. Both parties have referred to the definition of informed consent as was stated in the Karen Hospital case (supra)to mean, inter alia, ‘that the person being tested agrees to undergo the test on the basis of understanding the testing procedures, the reasons for testing, and is able to assess the personal implications of having or not having the test performed.’

26. From the evidence presented to the Tribunal, the Claimant received an email on 24th November 2019 at 2153 hours. This was the email containing the results of the tests, which included her HIV results. The Claimant immediately wrote back at 2158 hours, stating thus:

“ Hi. I have seen the results. However, I didn’t request for a HIV test so I’m somewhat surprised to see the results. Feeling concerned.”

27. To date, there has been no response from the Respondent. With this evidence in mind, it is very clear to us that in this instance, consent was not given. In fact, the Claimant was very deliberate in indicating that she did not want an HIV test conducted on her. Not only did the Claimant not want an HIV test conducted, she also did not want a pap smear done, yet the Respondent did not provide results for the pap smear. We can only venture to guess that owing to the procedure of conducting a pap smear, the Respondent would not have been able to collect samples for testing without the Claimant’s consent and/or knowledge.

28. The Respondent, however, argues that since the Claimant signed the attendance sheet, indicating her name and contact information, that this is construed as consent. In our view, signing an attendance sheet does not in any way signify consent. It is merely a register of the persons who attended an event/activity. The implications of signing the attendance sheet were not explained to the Claimant so as to expect that the Claimant was aware that by signing this sheet, she was consenting to the HIV test. A cursory look at the sheet reveals a rather ordinary attendance sheet with columns for Name, Age, Sex, Height, BMI, Remarks, Phone Number and Email address. The top of the sheet is marked “N WELLNESS. Nakuru Activation/Health Talk”. Nothing on this sheet indicates that the participant is consenting to an HIV test. The Respondent’s argument that the Claimant consented to the test, therefore, fails to meet the legal standard.

ii. Whether the Respondent conducted the mandatory pre and post HIV test counseling therapy

29. On the second issue, the Claimant relies on the provisions of section 17 of HAPCA as well as this Tribunal’s holding in the case of B.O vs Meridian Equatorial Hospital, HAT No. 005 of 2013. It is the Claimant’s argument that since the Respondent did not call any witnesses to testify to having conducted the pre and post-test counselling on the Claimant, then the same was never done.

30. In its submissions, the Respondent relies on the Karen Hospital case (supra) and contends that pre-test counselling is inferred from “informed consent”, which the Claimant gave. Informed consent is given with full knowledge of the risks involved, probable consequences and range of alternatives available. The Respondent contends that the allegations on pre and post-test counselling are an afterthought since the Claimant voluntary took part in the wellness program and had her blood drawn for the tests.

31. Section 17 of HAPCA provides as follows:

Every testing centre shall provide pre-test and post-test counselling to a person undergoing an HIV test and any other person likely to be affected by the results of such test.”

32. This section is couched in mandatory terms, which means that what it prescribes is obligatory on any person or institution that is conducting HIV testing. In this case, the Claimant testified that although the Respondent had provided a list of the tests/services to be provided on the day, she was very explicit that she did not want an HIV test as well as a pap smear. In response, the Respondent argues that since there was a list of the tests/services provided, the Claimant knew very well that counselling was included and that the same was conducted. The Respondent’s witness, however, relied on hearsay to prove that the counselling was conducted. The Respondent did not call any witness who actually conducted the counselling. A perusal of the report presented to Jubilee Insurance Company reveals that the only mention of counselling, with relation to HIV testing, is in the list of tests/services provided. Although the number of persons tested for HIV is provided in the Results Summary, there is no indication anywhere else that pre and post-test counselling was done. In fact, from the introduction, the report clearly indicates that this was a health session on cancer.

33. In the Meridian Equatorial Hospital case (supra), this Tribunal held thus:

“In our view, this provision of HAPCA is extremely important especially in view of the socio-cultural implications of HIV and AIDS in our country. It serves a very useful purpose, and must not be taken lightly by medical and other facilities that conduct HIV testing.

Pre-test and post-test counselling are not mere cosmetic requirements. Many people have committed suicide in this country on learning that they have tested HIV positive. Such unfortunate deaths are easily avoided through pre-test counselling as well as post-test counselling. Moreover, post-test counselling is extremely important since persons who test positive are entitled to be counseled on how to live positively with the virus.

In this country, many HIV positive individuals have lost their lives prematurely simply because they were not counseled on how to live positively with the virus; what to do and what not to do. Many HIV infected people have been prematurely consigned to their graves on account of the failure by those [performing the HIV tests on them to counsel them on the dietary and other lifestyle changes that their new found medical conditions requires of them.

34. We see no reason to depart from this thinking and, therefore, find that the Respondent failed to conduct pre-test and post-test counselling on the Claimant as required under HAPCA.

iii. Whether the Respondent disclosed the Claimant’s HIV results to a third party

35. It is the Claimant’s testimony that on the material day, the two persons involved in the testing of her status were S.M and R. B. The fact that the results were sent to the Claimant via email by one Dr. Achieng means that there was disclosure of the Claimant’s results to a third party, since the results were sent by the Respondent to the said doctor. The Claimant relies on the provisions of section 18 (a), 21 (d) and 22 (a) of HAPCA, as well as the cases of B. O. –vs- Meridian Equatorial Hospital, Cause No. 005 of 2013andCNM –vs- The Karen Hospital Ltd (supra). In the former case, this Tribunal opined that a third party also includes the employees of a health facility who are not part of the need-to-know only category.

36. Further, it is the Claimant’s contention that the Claimant’s HIV results could be inferred by Jubilee Insurance Company since the report required by Jubilee Insurance Company required the Respondent to list all persons that had been attended to at the Wellness Clinic, their contact information and a breakdown of the tests conducted on them as well as the results. The Claimant argues that this is a breach of the provisions of HAPCA since the Claimant did not consent to the disclosure of her status to a third party, in this case, Jubilee Insurance Company.

37. In response to these submissions, the Respondent contends that the trail of emails clearly indicates that the results were sent from the Laboratory to Dr. Achieng, who subsequently released the results to the Claimant. There was no third party involved in the same. The Respondent calls upon this Tribunal to take judicial notice of the procedures in all health facilities where tests are conducted in the labs and the results are transmitted to the attending doctor for diagnosis and onward transmission to the patient.

38. The Respondent argues that the Claimant failed to prove that the results were shared with a third party, namely, Jubilee Insurance Company. The Respondent urges this Tribunal to disregard the Claimant’s allegations since no evidence was adduced in proof thereof, but instead the Claimant makes inferences from the Respondent’s report submitted.

39. Section 18 (a) of HAPCA provides that the results of an HIV test shall be confidential and shall only be released to the tested person. Similarly, section 21 provides that no person shall disclose any information concerning the results of an HIV test or related assessments to any other person except in accordance with privacy guidelines to be developed under section 20. Finally, section 22 provides that no person shall disclose any information concerning the results of an HIV test or related assessment to any other person except with the written consent of that person.

40. The Claimant has adduced into evidence an email dated 24th November 2019 from Dr. Achieng to herself. The said email is not copied to any other person. From this piece of evidence, it is clear that the communication of the results of the test was between the Claimant and Dr. Achieng only. Indeed, this Tribunal takes judicial notice of the ordinary practice in health facilities that when tests are conducted in the laboratory, the results are forwarded to the attending physician, who will then relay the results to the patient. This point is buttressed by the Learned Justice J. A. Makau’s holding in Association of Kenya Medical Laboratory Scientific Officers –vs- Ministry of Health & Another, Nrb H.C. Petition No. 282 of 2017 [2019] eKLRthat non-laboratory staff are prohibited from conducting tests that require high skilled medical laboratory staff such as conducting PCR and confirming HIV status.

41. In this case, the Claimant had a one-on-one session with one Scola, after which she was ushered into the makeshift laboratory and her blood was drawn for a battery of tests. The Claimant did not indicate whether or not the said Scola was a doctor or medical practitioner, but what is clear is that the person who released the results to the Claimant was a doctor. Further, there is no evidence as to whether the results were also communicated to the said Scola. With all this in mind, the Claimant’s contention that there was disclosure of information on the basis that the results were conveyed to her by Dr. Achieng and not Scola or the lab technician is misguided and, thus, must fail.

42. In the Karen Hospital case (supra),this Tribunal opined as follows:

“ … section 22 of HAPCA does not just prohibit disclosure of HIV results of a person, it prohibits any disclosure of anyinformation concerning the HIV results of a person or related assessment. Such information can take any form. It could be 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 be reasonably inferred by a third party.

43. The Respondent presented a report to Jubilee Insurance Company, which report the Claimant contends disclosed her status to Jubilee Insurance Company, a third party. The evidence adduced before this Tribunal by the Respondent shows the list of requirements from Jubilee Insurance Company to the Respondent, which includesthe tests conducted, and, a breakdown of the results for each test i.e number of normal, number of known cases, number of newly diagnosed.In the Result Summary presented, only the figures are indicated, with no names. There were 7 male participants and 5 female participants. From these, 3 males and 3 females were tested for HIV. The report does not indicate the names of the individuals tested, save that all 6 persons had normal results. Based on this assessment, this Tribunal is reluctant to infer disclosure of information to Jubilee Insurance Company on the basis of the report submitted to it.

44. In the case of S.M -vs- E.N.A; HAT NO. 018 of 2018 (unreported), this Tribunal opined thus:

“It is trite Law that the onus of proof is on he who alleges. To obtain relief for violations under HAPCA, particularly that of unlawful disclosure of status, the Claimant must demonstrate the manner in which the Respondent violated these provisions.”

45. Our analysis of the evidence adduced is that there is no sufficient evidence to support a claim for disclosure of status, and therefore, the claim must fail.

iv. What remedies the Claimant is entitled to.

46. The Claimant submits that she suffered emotional distress and anguish on account of the blatant disregard of her rights under HAPCA. The Claimant prays for an award of damages on account of gross violation of her right under HAPCA as well as the emotional distress suffered on account of this gross violation. However, since the Claimant did not submit on the amount of damages, this is left to the discretion of the Tribunal.

E. Determination

47. On the first issue, whether the Respondent obtained the prior informed consent of the Claimant before testing her for HIV, we find that the Respondent violated the provisions of section 14 of HAPCA by conducting an HIV test on the Claimant without her consent. Accordingly, we award the Claimant Kshs 250,000/- for this limb of the claim.

48. On the second issue, whether the Respondent conducted the mandatory pre-test and post-test counselling therapy on the Claimant, we find that the Claimant has proved her case on a balance of probabilities. We award the Claimant herein Kshs 250,000/- for this limb of her claim.

49. On the third issue, whether the Respondent disclosed the Claimant’s HIV status to a third party, we find that the Claimant did not discharge her burden of proof and thus the claim fails.

50. In conclusion, this claim is determined as follows:

i. Judgment is hereby entered in favour of the Claimant against the Respondent in the sum of Kshs 500,000/- by way of general damages;

ii. The above sum shall attract interest at court rates from the date of this judgment until payment in full;

iii. Costs are awarded to the Claimant.

Orders accordingly.

Dated and signed in Nairobi this 6th day of November 2020

Delivered at Nairobi this 6th day of November 2020

Helene Namisi (Chairperson) ………………..…………….

Melissa Ng’ania ………………………….......

Justus T. Somoire ………………………………

Dr. Maryanne Ndonga ………………………............

Abdullahi Diriye ……………………………….

Tusmo Jama ………………………………..