[2020] KEHAT 39 (KLR)

REPUBLIC OF KENYA

IN THE HIV AND AIDS TRIBUNAL AT NAIROBI

HAT CAUSE NO. 030 OF 2019

RAO........................................................................................................... CLAIMANT

VERSUS

MGH ...............................................................................................1ST RESPONDENT

MHE................................................................................................2ND RESPONDENT

DR. SPA..........................................................................................3RD RESPONDENT

JUDGEMENT

A: Introduction

1. By Statement of Claim dated 17th December 2019, the Claimant instituted these proceedings against the Respondents jointly and severally, seeking the following reliefs:

(i) Damages for testing the Claimant without her consent;

(ii) Damages for testing the Claimant without pre-test or post-test counselling;

(iii) Damages for the breach of confidentiality, unlawful disclosure, impairment of dignity, emotional and psychological suffering;

(iv) Costs of this suit;

(v) Any other or further remedy that this Court shall deem fit to grant

2. In their defence, the Respondents filed an undated Response to Statement of Claim denying the Claimant’s claim, as well as a Counterclaim seeking the following orders:

(i) Kshs 33,067/-, being the outstanding hospital bill;

(ii) Damages bad publicity of the subject matter;

(iii) Costs of the suit;

(iv) Interests in (a) and (c) above at court rates till payment in full;

(v) Any other or further relief this Honorable Court may deem fit and just to grant.

B: The Claimant’s Case

3. In her Statement of Claim, the Claimant avers that she was employed by the 1st Respondent to work at the 2nd Respondent premises. On or about 25th May 2019, the Claimant fell ill and was admitted at the 2nd Respondent facility. While at the hospital, the 3rd Respondent conducted a series on tests on her, among them being an HIV test. This test was done without her consent. The Claimant further avers that no pre-test or post-test counselling was done.

4. Thereafter, the 3rd Respondent disclosed the results of the tests publicly, despite the Claimant being admitted in a ward with other patients, which caused the Claimant to suffer emotional and psychological distress. The Claimant avers that the 3rd Respondent also disclosed her status to the Human Resource Department of the 1st Respondent without the Claimant’s consent. As a result of these actions by the Respondents, the Claimant suffered physically, emotionally and psychologically.

C: The Respondents’ Case

5. In their Response to the Statement of Claim, the Respondents deny the averments that the 3rd Respondent conducted tests on the Claimant, amongst them an HIV test without the Claimant’s knowledge and/or consent. The Respondents aver that all the tests were conducted with the knowledge and consent of the Claimant to which she consented by appending her signature on the admission/consent form.

6. Further, the Respondents aver that the Claimant’s damages, if any, were caused or contributed to by the negligence of the Claimant or the negligence of others over whom the Respondent had no control and that the Claimant assumed the risk. The Respondents deny any and all liability for breach of the provisions of the HIV and AIDS Prevention and Control Act, 2006(hereinafter ‘HAPCA’).

7. In their Counterclaim, the Respondents aver that the Claimant was admitted at the 2nd Respondent hospital where she underwent treatment and accrued a bill of Kshs 33,067/-. Subsequently, the Claimant went underground and refused and/or neglected to settle the hospital bill, which remains unpaid.

D: The Evidence

8. At the hearing, the Claimant testified that she previously worked at the 2nd Respondent hospital as a [particulars withheld], where she was employed since 26th May 2018. The Claimant presented her Appointment Letter dated 26th May 2018 in her bundle of documents.

9. On 25th May 2019, the Claimant reported to work as usual, but fell ill later that evening. The following morning, when the situation did not alleviate, the Claimant presented herself to the 2nd Respondent hospital, where she used her NHIF card and staff card for treatment at half cost. When the Claimant arrived at the hospital, she was first attended to by Dr. Mohammed, whose shift was ending. The 3rd Respondent then took over the day shift.

10. It is the Claimant’s testimony that once she stabilized, the 3rd Respondent asked her to report to his office, where he informed the Claimant that she would have to be admitted. The Claimant was then admitted and taken to a ward on the 3rd Floor.

11. The Claimant testified that a blood sample was drawn from her for tests, but she was not informed what tests were to be conducted. She was just informed that further investigations would need to be conducted, and she presumed that she had malaria.

12. In the ward, the Claimant only interacted with the 3rd Respondent, the nurse and nurse aid. Later in the day, the 3rd Respondent came into the ward with the Nurse Aid following closely behind. He walked over to the window and loudly declared that the Claimant ought to be on antiretroviral treatment. There were other patients in the ward who overheard the comment. The Claimant testified that the 3rd Respondent went on to inform other parties of the Claimant’s status, including her supervisor, which resulted in the Claimant being reassigned to laundry duty. Further, word got round about the Claimant’s status and pretty soon, even her colleagues found out.

13. The Respondents began their case by calling the 3rd Respondent, Dr. S. P. A, a treating Physician at the 2nd Respondent Hospital. He adopted his witness statement dated 7th September 2020 as part of his evidence in chief. He testified that on 25th May 2019, he received a patient, the Claimant herein, who complained of fever and chills. After examining the Claimant, he admitted her in hospital. He testified that the Claimant signed the admission consent, which included consent to conduct investigative tests, including the HIV test. On cross examination, the 3rd Respondent admitted that he had been informed that the Claimant was a staff member at the 2nd Respondent hospital.

14. It was the 3rd Respondent’s testimony that when the Claimant’s results were ready, he informed the matron and the Medical Director of the same because the HIV test results were positive. The purpose for informing the Medical Director was so that the Medical Director could review the Claimant’s treatment in light of her HIV status, which he did.

15. With regard to the HIV test, the 3rd Respondent testified that the Claimant gave her consent when she signed the consent to admit, and the test was subsequently conducted in the laboratory. The positive result was confirmed with an Elizir test. The 3rd Respondent produced Respondent’s Exhibit 1, which was the Admission/Consent Form dated 24th May 2019. This consent form indicated all the investigative tests that would be conducted on the Claimant.

16. On cross examination, the 3rd Respondent admitted having knowledge of the requirement for consent prior to conducting an HIV test on any patient. He further admitted that the consent form produced did not specifically indicate consent to HIV testing. It was his testimony that it was the nurse who obtained the consent from the Claimant, and all he did was to confirm that the form was signed, although he was not present when the consent was being sought. The 3rd Respondent stated that he was unaware whether or not the Claimant had been counselled prior to her blood being drawn for the HIV test. Similarly, the 3rd Respondent was not present when the Claimant received post-test counselling. He also could not recall the name of the nurse who attended to the Claimant.

17. On further cross examination, the 3rd Respondent admitted that although he had ordered for the HIV test along with the other investigative procedures, he did not inform the Claimant the procedures and tests that would be conducted on her.

18. Thereafter, when making his rounds in the wards, the 3rd Respondent was accompanied by the Matron and a nurse, as per the hospital policy. He denied speaking loudly about the Claimant’s results whilst in the ward. He read the Claimant’s test results in her file, but did not inform the Claimant of her HIV results. He testified that it was the matron and the Medical Director who informed the Claimant of her status. He did, however, admit that he informed the matron of the Claimant’s HIV status. The matron is a counsellor and a counsellor is required in cases of HIV testing. He denied disclosing the status to the Human Resource department.

19. It was the 3rd Respondent’s testimony that upon informing the Medical Director of the Claimant’s results, the Medical Director reviewed and changed the Claimant’s treatment plan for the Claimant’s own benefit. On re-examination, the 3rd Respondent admitted that he informed the Medical Director of the Claimant’s status, for her own benefit, and because the Claimant was not responding to treatment. The Medical Director is a medical specialist.

20. RW2, Mr. A.H.O, a Hospital Administrator, adopted his witness statement dated 17th May 2020 as part of his evidence in chief. He testified that the Claimant was on duty when she complained of a bad headache. He went to elaborate the procedure when a patient is admitted at the 2nd Respondent facility, noting that the doctor normally informs the nurse if there is need for admission. The nurse then accompanies the doctor to his desk, the doctor proceeds to order the tests required, and the patient then signs the consent for admission.

21. It was RW2’s testimony that a patient has to consent to admission and then is taken to the ward, along with the patient file. This consent form indicates consent to conduct all tests required in order for the doctor to continue with treatment. There is an HIV consent form which indicates that one has consented to the HIV test. This, however, was not produced before the Tribunal.

22. Counselling is done before the consent is signed by the patient. If the patient tests positive, then there is post-test counselling. RW2 further testified that once a patient is in the ward, a ward Nurse will inform the Matron, so that the Matron may organize for a counsellor.

23. RW2 testified that the treating doctor must inform the Medical Director if one of the staff members tests positive for HIV. The Medical Director will then advise the Hospital management, which then reassigns the staff member to another department. This is because someone working in the Cafeteria must possess a Food Handling Certificate. For this Certificate to be acquired, HIV is one of the key tests conducted. It is for this reason that the Claimant’s status was disclosed to the Medical Director. In case of any other patients, the positive status would be kept between the patient and his/her doctor. A Food Handling Certificate is renewed every 6 months.

24. It was RW2’s testimony that at the time of applying for the position, the Claimant presented her curriculum vitae and an updated Food Handling Certificate. The Claimant’s position as a waitress was hinged on the fact that she was not HIV positive. On cross examination, RW2 noted that the HIV test is not compulsory for all staff, but is compulsory for staff handling food. He testified that HIV is one of the tests required for the Food Handling Certificate, though he has never applied for the Certificate. He indicated that the certificate is obtained from the City Hall, where one is tested for HIV, tuberculosis and hepatitis B.

25. RW2 testified that the 2nd Respondent facility has a counsellor. In the event that the Claimant sought counselling services, then she did so as an outpatient. The In-house Counsellor does not charge for counselling of staff members. The Claimant herein was counselled by one, Hellen.

26. RW2 further testified that the Claimant was discharged on 28th May 2019, and was supposed to take 5 working days off. The Claimant was to resume her duties on 2nd June 2019, but did not. Since the Claimant had absconded, she was not paid for June 2019. She, however, received her May 2019 salary, although RW2 did not have any proof of the same. Since the Claimant had absconded, then she was not served with a termination letter. It was RW2’s testimony that at the 2nd Respondent facility, duties to the staff are assigned by RW2. He was the head of the department where the Claimant worked

27. On cross examination, RW2 stated that he is the Hospital Administrator, although he did not present any proof of the same. He is, therefore, part of the management of the 2nd Respondent facility. RW2 admitted that it was his boss, the General Manager, who informed him of the Claimant’s status.

28. Additionally, RW2 testified that the Claimant did not pay her hospital bill amounting to Ksjs 33,000/-. The same is still pending. He concluded his evidence in chief by urging the Tribunal for an order that the Claimant settles the outstanding hospital bill, and an award of damages for the bad publicity, as well as costs of the suit and interest thereon.

29. In cross examination, RW2 clarified that the General Manager’s office is located on 4th floor, the Human Resource Office is located on 7th floor, the Claimant’s ward was on 5th floor, while the laboratory is situated on the 3rd floor. The different floors can be accessed by an elevator, which is used by the general public.

30. In response to the issue of testing other members of staff, RW2 admitted that the same was done. Once the Claimant tested positive, it was suspected that the other staff members could be in possession of fake Food Handling Certificates. As a result, the management decided to conduct tests on the other staff members to confirm that the Claimant’s was an isolated case.

E: Issues for Determination

31. We have listened carefully to the evidence presented before the Tribunal and read through the submissions by both the Claimant and Respondents dated 2nd October 2020 and 26th October 2020, respectively. In our view, the following are the issues for determination by this Tribunal:

(i) Whether the 3rd Respondent obtained the prior informed consent of the Claimant before testing her for HIV;

(ii) Whether the Respondents conducted the mandatory pre and post HIV test counseling therapy;

(iii) Whether the Respondents disclosed the Claimant’s HIV results to a third party;

(iv) What remedies the Claimant is entitled to;

(v) What remedies the Respondents are entitled to in their counterclaim.

F: Legal Analysis

32. We shall address each issue separately.

(i) Whether the 3rd Respondent obtained the prior informed consent of the Claimant before testing her for HIV

33. Section 14 (1) (a) of HAPCA provides that no person shall undertake an HIV test in respect of another person except with the informed consent of that other person (emphasis ours). Whilst the Claimant herein avers that she was tested for HIV without her consent, the Respondents aver that the Claimant duly signed a consent for admission, which consent was sufficient since it permitted the 2nd and 3rd Respondents to conduct all necessary tests and investigative procedures, including but not limited to, the HIV test.

34. In his testimony, the 3rd Respondent admitted that ordered a number of tests to be conducted on the Claimant, but did not explain to the Claimant what these tests and/or procedures were. He noted that he is a very busy doctor and treats quite a number of patients daily between 9am and 6pm. However, the 3rd Respondent’s defence was that the Claimant knew what she was signing when she appended her signature on the admission consent.

35. In advancing their arguments, both parties have referred to different parts of the case of CNM –vs- Karen Hospital Ltd, HAT No. 008 of 2015. In the context herein, we refer to the definition of informed consent stated therein as follows:

“Informed consentrefers to consent given with the full knowledge of the risks involved, probable consequences and the range of alternatives available. We hasten to add that there is a big difference between consentand informed consent. A person who has given consent to HIV testing may nevertheless sue on the ground that he did not give “informed consent”. HAPCA does not simply require “consent”. It requires “informed consent”. What then are the ingredients of informed consent in law?”

In medical treatment, requiring invasive procedures, the doctor or health care personnel is required to disclose sufficient information to the patient to enable the patient to give an informed consent. Informed consent for HIV testing means that the person being tested for HIV agrees to undergo the test on the basis of understanding the testing procedures, the reasons for the testing, and is able to assess the personal implications of having or not having the test performed. The requirement of informed consent is intended to uphold the dignity of the patient. It proceeds on the theory that the patient does not lose his dignity simply because he has fallen sick or because he does not know what his treatment will entail, which treatment option is better than the other, or others, and what risks are associated with any or all the available treatment options.”

36. From the foregoing definition and the evidence presented before this Tribunal by the Claimant and 3rd Respondent, it is evident that the Respondents did not obtain informed consent from the Claimant prior to conducting an HIV test on her.

(ii) Whether the Respondents conducted the mandatory pre and post HIV test counseling therapy

37. With respect to the pre-test and post-test counselling, it was the 3rd Respondent’s testimony that the 2nd Respondent facility has employed a Matron, who conducts the counselling. The 3rd Respondent testified that the counselling was done as required, although he was not in the room when the same was done. Other than the 3rd Respondent’s testimony, the Respondents did not call any additional evidence/witness to prove that the counselling was indeed done. There was no documentation of the same in the Claimant’s treatment notes.

38. Section 17 (1) of HAPCA provides that 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. 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.

39. From the evidence before this Tribunal, it appears that the Claimant shifted the burden of proof of the counselling onto the Respondents, who in turn, failed to prove that indeed the pre-test and post-test counselling was done. The Tribunal is left to consider the testimony of the 3rd Respondent, who admitted that he was not present when, or if, the counselling took place. For this reason, we find in favor of the Claimant.

(iii) Whether the Respondents disclosed the Claimant’s HIV results to a third party

40. 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.

41. It was the 3rd Respondent’s testimony that he disclosed the Claimant’s status to the Medical Director. The reason for this was that the Medical Director is a specialist and would then take charge of the Claimant’s treatment, which he did by altering the treatment, for the Claimant’s benefit. It is noteworthy that on cross examination the 3rd Respondent stated that if the Claimant had been any other patient, other than a staff member at the 2nd Respondent, then her status would not have been disclosed to the Medical Director. This begs the question, why would it be necessary to consider and/or alter the treatment of a member of staff and not of any other patient? What type of special treatment is offered to staff members who test positive for HIV that is not offered to any patient? And isn’t such a practice discriminatory in the first place?

42. In his testimony, RW2 admitted that he was informed of the Claimant’s status by his boss, the General Manager. He then went on to instruct the human resource department to reassign the Claimant. It would not be misguided for this Tribunal to assume that while placing the request for reassignment, RW2 had to provide a reason for the same.

43. It is evident from the foregoing is that there was wrongful and unlawful disclosure of the Claimant’s status without her consent, contrary to the provisions of the Act.

(iv)What remedies the Claimant is entitled to

44. Section 3 of HAPCA provides that the object and purpose of the Act is, inter alia, to positively address and seek to eradicate conditions that aggravate the spread of HIV infection. This object is at the forefront of the Tribunal’s operations, which aims to address the issue of stigma within the society.

45. In the report, Confronting Discrimination: Overcoming HIV-related Stigma and Discrimination in Health-care settings and Beyond, launched by the Executive Director of UNAIDS in October 2017, it was noted that people living with HIV who experience high levels of HIV-related stigma are more than twice as likely to delay enrolment into care than people who do not perceive HIV-related stigma. The report states thus:

“When people living with, or at risk of, HIV are discriminated against in health-care settings, they go underground. This seriously undermines our ability to reach people with HIV testing, treatment and prevention services. Stigma and discrimination is an affront to human rights and puts the lives of people living with HIV and key populations in danger.”

46. HIV stigma refers to irrational or negative attitudes, behavior and judgement towards people living with or at risk of HIV. The unfortunate consequence of such stigma is that it discourages some individuals from learning their HIV status, accessing treatment or staying in care. This also leads to negative feelings or thoughts by such persons. Indeed, breaking down HIV stigma is a critical part of ending the HIV epidemic and a fundamental function of this Tribunal.

47. In this case, the Claimant testified that while admitted, her colleagues visited her in the ward on their way to the laboratory. They informed her that following her positive results, the management had directed that the staff be tested for HIV. This testimony was corroborated by RW2, who testified that the staff members were subjected to HIV testing in order to confirm whether the Claimant had a fake Food Handling Certificate or whether hers was an isolated incident. Further, the Claimant was then reassigned from the restaurant to the laundry.

48. It is quite unfortunate that in the year 2020, with the tremendous advancement in treatment and management of HIV, that the 2nd Respondent would resort to such behavior and attitude. Obviously, by mishandling the Claimant in such a manner and the exposition of the Claimant’s status to her colleagues, it is not surprising that the Claimant would not have been comfortable returning to work. The Claimant no doubt suffered emotional and psychological distress following these events. It is these attitudes, behavior and judgement that need to change if the country is to succeed in ending the epidemic.

(v) What remedies the Respondents are entitled to.

49. The Respondents have filed a counterclaim against the Claimant for the outstanding hospital bill of Kshs 33,067/- as well as damages for the bad publicity. Section 26 of HAPCA sets out the jurisdiction of this Tribunal, which primarily, is to hear and determine complaints arising out of the breach of the provisions of the Act. With this in mind, this Tribunal has no jurisdiction to entertain the counterclaim and can only advise the Respondents to seek redress in a court of competent jurisdiction.

G: Determination

50. 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 informed consent. Accordingly, we award the Claimant Kshs 250,000/- for this limb of the claim.

51. 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, and award the Claimant Kshs 250,000/- for this limb of the claim.

52. On the third issue, whether the Respondents disclosed the Claimant’s HIV status to a third party, we find that the Respondents violated the provisions of section 18 (a) of HAPCA by wrongfully and unlawfully disclosing the results of the Claimant’s tests without the Claimant’s consent. Accordingly, we award the Claimant Kshs 250,000/- for this limb of the claim.

53. On the fourth issue, what reliefs the Claimant is entitled to, we find that the Claimant is entitled to damages for emotional and psychological distress as a result of the stigma, and award the Claimant Kshs 150,000/- for this limb.

54. With respect to the counterclaim, we find that this Tribunal has no jurisdiction to entertain the claim, and the Respondents ought to pursue their remedy in a court of competent jurisdiction.

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

(i) Judgement is hereby entered in favour of the Claimant against the Respondents jointly and severally in the sum of Kshs 900,000/- 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) The Respondents’ Counterclaim is hereby dismissed;

(iv) Costs are awarded to the Claimant.

Orders accordingly.

Dated and signed in Nairobi this 27th day of November 2020

Delivered at Nairobi this 27th day of November 2020

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

Melissa Ng’ania .........................................................

Justus T. Somoire .....................................................

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

Abdullahi Diriye ........................................................

Tusmo Jama .............................................................

Dorothy Kimeng’ech ................................................