[2024] KEHAT 846 (KLR)

JOO v PH & another (Tribunal Case 010 of 2021) [2024] KEHAT 846 (KLR) (31 May 2024) (Judgment)

Neutral citation: [2024] KEHAT 846 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 010 of 2021

Carolyne Mboku, Chair, B.O Yogo, NW Osiemo, W.G Jaoko, J.N Ngoiri, S. Musani & IN Mukui, Members

May 31, 2024

Between

JOO

Claimant

and

PH

1st Respondent

AS

2nd Respondent

Judgment

1. A person’s HIV status is a private affair that should be guarded as so. This privacy is of utmost importance such that consent is needed before one is tested of HIV and before the said results or any related assessment is disclosed to third parties. It is against this back drop that the Claimant has filed a statement of Claim dated 25th October 2021 seeking the following reliefs from the Respondents:a.A declaration that the actions of the Respondents to conduct a HIV test on the Claimant without his consent violates sections 13, 14 (1) (a), 17(1) and 18 of the HIV Prevention and Control Actb.General damagesc.Costs of the suit

2. The 1st Respondent is a health facility that is sued vicariously for the acts of the 2nd Respondent who is a health care worker in the 1st Respondent’s facility and allegedly tested the Claimant for HIV without his consent.

Claimant’s Case 3. The Claimant adopted his witness statement dated 8th October 2021 and list of documents dated 9th March 2022 as evidence and testified that he presented himself to the 1st Respondent’s premises on 17th September 2021 for an annual general medical checkup organized by his employer and it’s insurer. He was attended to by the 2nd Respondent who asked for consent to test him for HIV but he declined to give the same.

4. The 2nd respondent proceeded to take his blood samples to test for the other conditions as agreed between the 1st Respondent and the Claimant’s employer and asked the Claimant to pick the results at noon, when he was given the results in an envelope and asked to take to a Doctor in the facility for explanation.

5. The Doctor informed the Claimant that he was HIV positive yet the Claimant had from the onset declined to take the HIV test. He walked out in protest and went to inquire from the 2nd Respondent why HIV was tested yet he did not consent to it. He was informed that the mistake was from the lab as the system had been programmed to run HIV tests.

6. It was his testimony that no pre-test or post-test counseling was done prior to and after the HIV test was done. The Doctor who received his results did not counsel him. He just read out the results for him. The Claimant suspected that the results were released to his employer and the insurance company as the cover was stopped immediately after the incident.

7. On cross examination, the Claimant stated that he did not have evidence to show that the Hospital made a mistake in testing him for HIV. He also did not have evidence to show that he was called severally to go back to hospital for post test counseling as he walked out before the Doctor could offer post test counseling. He confirmed that among the tests that were to be conducted to his employer’s staff was HIV but consent was required. He was referred to page 7 of the emails he relied on as evidence and confirmed that those emails were correspondences between his employer and the 1st Respondent. He was not copied to the emails.

8. The Tribunal sought for clarity in the matter on whether or not written consent was obtained from the Claimant prior to the tests. The Claimant responded that the consent was requested for verbally for which he declined to give. He never signed a consent form prior to the test. He further stated that the results were given to him in an envelope and would be released to his employer via email.

The Respondent’s Case 9. The 1st Respondent defended the suit. There was no representation for the 2nd Respondent. The 1st Respondent filed a statement of Response dated 3rd July 2023 and list of documents dated 19th July 2023 together with a witness statement signed by KMM the 1st Respondent’s lab manager dated 17th July 2023. The witness statement and list of documents were adopted in evidence.

10. RW-1, testified that he was the 1st Respondent’s lab manager. He confirmed that the 2nd Respondent was an employee of the 1st Respondent at the time and equally confirmed that the Claimant visited the facility on 17th September 2021. He proceeded to give the procedure that was to be followed by the 2nd Respondent while attending to the Claimant as per the 1st Respondent’s policies as follows:a.Patient registers at the cash point and the tests to be conducted are posted in the health management information system and forwarded to the Lab Technician.in this case, the list posted to the system was that which was agreed upon by the Claimant’s employer and the 1st Respondent.b.The Lab Technician confirms the tests to be conducted and counsel’s the patients prior to conducting HIV, DNA and histology tests.c.For HIV tests, the patient fills a consent form prior to testing and counseling is done. If the patient does not consent to the test then the same is checked out from the system by the Lab Technician and the test is not done.d.All results are physically taken to the consulting doctor by the Lab Technician or uploaded in the system and the patient is then called to see the consulting Doctor.e.For HIV, the consulting Doctor offers counseling to the patient before releasing the results.

11. He testified that the results were physically taken to the consulting Doctor by the 2nd Respondent who counseled the Claimant before reading out the results to him and the said results were not shared with the Claimant’s employer or any third party.

12. On cross examination, the Respondent confirmed that he was not an employee of the 1st Respondent when the incident happened. The Claimant ought to have filed a form giving consent to test for HIV before testing but the same was not done. He further confirmed that the tests were requested by the Claimant’s employer but the results were not to be given to them.

13. He could not confirm whether the consulting Doctor counseled the Claimant prior to releasing the HIV test results to him. He also could not prove whether counseling was done to the claimant prior to the 2nd Respondent conducting the HIV test.

Issues For Determination 14. This Tribunal having read through the pleadings filed, heard the evidence of the Claimant and read through the submissions filed by the parties and the cited authorities, has identified the following as issues for determination in this matter:1. Whether the Claimant consented to be tested for HIV?2. Whether the Claimant was compelled to test for HIV?3. Whether the Claimant was offered HIV pre-test and post-test counseling?4. Whether the claimant’s HIV status was disclosed to third parties?5. Whether the Claimant is entitled to the reliefs sought?

Whether the Claimant consented to be tested for HIV? 15. The Claimant’s employer and the 1st Respondent agreed to conduct an annual check up for the Claimant’s employer’s employees. The tests to be conducted were agreed upon on 7th September 2021 as per the email correspondence of the said date between the 1st Respondent and the Claimant’s employer at page 3 of the Respondent’s List of documents. HIV test was among the tests to be done listed at paragraph 13 thereof with emphasis that consent is required.

16. The Claimant testified that the 2nd Respondent asked for verbal consent to test him for HIV which he declined but the 2nd Respondent proceeded to test for the same. The RW-1 during trial gave the procedure that was to be followed by the 2nd Respondent when testing the Claimant to include:a.….b.….c.For HIV tests, the patient fills a consent form prior to testing and counseling is done. If the patient does not consent to the test then the same is checked out from the system by the Lab Technician and the test is not done.

17. On cross examination RW-1 stated that he was not in a position to confirm whether the Claimant’s consent was obtained as he did not have the written consent. In submissions, the 1st Respondent claims that the Claimant gave verbal consent for the test to be conducted and as such, the burden of proof shifted to the Claimant to prove that he did not give verbal consent.

18. It is not in dispute that the 2nd Respondent asked for the Claimant’s verbal consent prior to testing the Claimant. What is in dispute is whether or not the verbal consent was given by the Claimant. Section 13(1)of the HIV and AIDS Prevention and Control Act provides:Subject to subsection (2), no person shall undertake a HIV test in respect of another person except—(a)With the informed consent of that other person;(b)If that person is a child, with the written consent of a parent or legal guardian of the child:Consent has been defined under Section 2 of the HIV and AIDS Prevention and Control Act to mean consent given without any force, fraud or threat and with full knowledge and understanding of the medical and social consequences of the matter to which the consent relates.

19. RW-1 produced in evidence Pathology Department HIV Testing Protocol/Policy at page 1 of the Respondent’s list of documents. Paragraph 2 thereof requires all patients to be tested of HIV to give informed consent and that a HIV consent form MUST be filed and signed by the client or guardian of a minor which is in line with the provisions of the HIV An d AIDS Prevention And Control Act. The policy proceeds to state that consent can either be verbal or written.Written consent of the guardian of a minor is mandatory when testing a minor for HIV. For all other persons the HIV And AIDS Prevention And Control Act requires obtaining informed consent which in the opinion of this Tribunal might be verbal or written as long as the patient has full knowledge and understanding of the medical and social consequences of the matter to which the consent relates. Written consent to test for HIV though not mandatory where adults are concerned is encouraged as good practice and for record purposes.

20. It is trite law that he who alleges must prove. The standard of proof required on the part of the Claimant is that of balance of probabilities. The Claimant herein walked out on the 1st Respondent’s consulting Doctor when he read out his results ostensibly to go find out from the 2nd Respondent why she tested him of HIV yet he had not consented to it. This act by itself raises a probability that consent was not obtained.

Whether the Claimant was compelled to test for HIV? 21. To compel in relations to HIV testing as defined under Section 2 of the HIV and AIDS Prevention and Control Act refers to an HIV test imposed upon a person characterized by the lack of consent, use of physical force, intimidation or any other form of compulsion; Section 13 provides that no person shall compel another to undergo an HIV test.

22. The Claimant Claims that the 2nd Respondent’s act of testing him for HIV without his consent tantamount to compulsion. RW-1 in defending the 1st Respondent testified that the Claimant was not compelled to take the test. He was aware that his employer had approved several tests to be conducted with some like HIV needing consent.

23. There is no evidence placed before us to show that the Claimant was forced, intimidated or in any other form forced to undertake the test. Much as the 1st Respondent agreed with the Claimant’s employer to conduct an annual check up to it’s employees, there was need for the Claimant to give consent before HIV test was done. The Claimant willingly subjected himself to the hospital and consented to testing save for HIV test. In as much as the consent to test for HIV was not given, there was no force or compulsion used by the 2nd Respondent while testing the claimant for the act to qualify as compulsion. As testified by RW-1, the system was programmed to run all the tests. We find this to be a case of human error where the second respondent failed to remove the HIV test from the system rather than compulsion.

Whether the Claimant was offered HIV pre-test and post-test counseling? 24. Section 17(1) makes it mandatory for testing centers to provide pre and post-test counseling to persons undergoing a HIV test. RW-1 on cross examination testified that he could not tell whether the Claimant was counseled prior to the 2nd Respondent conducting the HIV test as there is no record to that effect. The Claimant testified that he was given his results in a sealed envelope to take to the consulting doctor. He walked out before post-test counseling was conducted as he had not authorized the same.

25. In view of the foregoing, we find that the Claimant was not offered HIV pre-test and post –test counseling.

Whether the Claimant’s HIV status was disclosed to third parties? 26. The Claimant testified that his status was disclosed to third parties including the consulting Doctor and his employer. It was his testimony that the consulting doctor did not test him. He did not authorize the 2nd Respondent to release his results to the Doctor. Further, he suspects that the results were released to the 1st Respondent as shortly thereafter the insurance company stopped the cover. The Respondent acknowledged that the results were shared with the consulting doctor but denied sharing the same with the Claimant.

27. There is no proof of the 1st Respondent sharing the results of the patients with the Claimant’s employer even though the annual check up was initiated and authorized by the employer.

28. As for sharing the results with the consulting doctor, this tribunal takes judicial notice of the fact that Section 22 (f) provides exception for non-disclosure of results of an HIV test of a person, to a person approved by the Minister under section 16, who is directly involved in the treatment or counselling of that person. As such, sharing results with the consulting doctor for purposes of counselling cannot be considered unlawful disclosure.

29. We therefore find that there was no disclosure of the claimant’s HIV status to third parties.

Determination. 30. The 1st Respondent is vicariously liable for the omissions and commissions of the 2nd Respondent as the 2nd Respondent is deemed to be working under it’s instructions.

31. On the first issue, whether the Claimant consented to be tested for HIV, we find that the Respondent did not obtain the Claimant’s informed consent thereby violating the provisions of section 14 of HIV and AIDS Prevention and Control Act and accordingly award the Claimant Kes. 400,000.

32. On the second issue, Whether the Claimant was compelled to test for HIV, we find that the Claimant did not meet the threshold for proof of compulsory testing under section 13 of HIV and AIDS Prevention and Control Act, the prayer is dismissed.

33. On the issue, whether the Claimant was offered HIV pre-test and post-test counseling, we find that the Claimant was not offered HIV pre and post- test counseling thereby violating section 17 of HIV and AIDS Prevention and Control Act and award the claimant Kes. 250,000.

34. On the issue whether the Claimant’s HIV status was disclosed to third party, we find that the claimant did not prove this claim and proceed to dismiss it.

35. The Claimant is awarded costs of the suit.

DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF MAY, 2024. HON. CAROLYNE MBOKU - (Chairperson)HON. BRIAN. O. YOGO - (Member)HON. NELSON . W. OSIEMO - (Member)HON. WALTER . G. JAOKO (Prof.) - (Member)HON. JANE. N. NGOIRI - (Member)HON. DR. SOLOMON . K. MUSANI - (Member)HON. DR. IRENE . N. MUKUI - (Member)Delivered virtually in the presence of:Wafula for the ClaimantNatalie for the 1st RespondentYasmin, court assistant