Module 7

Module 7

LEGAL AND ETHICAL ISSUES IN ART

Module 7

ObjectivesBy the end of the session, the participant should:

Demonstrate the linkages between HIV, Human Rights and Public Health

Describe the ethical and legal issues in HIV/AIDS generally

Identify the ethical and Legal issues which they may encounter in ART

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Objectives (Cont..)

Describe the legal framework in Kenya that addresses legal and ethical issues on HIV/AIDS

Describe how to handle the ethical and legal issues in ART in special circumstances.

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Human Rights Principles Right to non-discrimination, equal

protection and equality before the law

Right to live

Right to the highest attainable standard of physical and mental health

Right to liberty and security of person

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Human Rights Principles (Cont..) Right to work

Right to marry and to found a family

Right to equal access to education

Right to an adequate standard of living

Right to social security, assistance and welfare

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Human Rights Principles (Cont..)

Right to share in scientific advancement and its benefits

Right to participate in public and cultural life

Right to be free torture and cruel, inhuman or degrading treatment or punishment.

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Human Rights Principles

Rights spelt out clearly in the Universal Declaration of Human Rights and Kenyan Constitution

HIV/AIDS initiatives work best where there is supportive legal and ethical environment protective to human rights

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Special features of HIV/AIDS which raise legal and ethical issues

Feature Consequences

New Epidemic infection Fear, misunderstanding and denial

Long asymptomatic period & life long infectivity

Infected often unaware. No action taken until people become ill

No cure, limited expensive treatment

Intensifies fear over testing, burden on family & health services

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Special features of HIV/AIDS which raise legal and ethical issues (Cont..)

Feature Consequences

Associated with stigma and myths

Patients reluctant to come forward for testing/care

Affects young adults Severe secondary costs due to loss of productive years of life and burden on family

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Legal Framework of HIV/AIDS in Kenya Amendment of Public Health Act in 1987

– HIV a ‘notifiable’ disease

Guided by policies and guidelines since then Sessional Paper No. 4 Guidelines on HBC, ART, VCT, Blood Safety

Other sources include: The Constitution (Bill of Rights), Common

law, Relevant Statutes eg: Public Health Act

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Legal Framework of HIV/AIDS in Kenya (Cont…) HIV/AIDS declared a national disaster –

Legal Notice number 170 of 26 Nov 1999

Legal Task force on HIV/AIDS established (2001) – Gazette Notice No. 4015

HIV/AIDS Prevention and Control Bill (2002)

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Non-discrimination and Equality before the law Negative discrimination against persons

infected or affected by HIV/AIDS is not allowable

Every person infected or affected by the epidemic remains an equal member of the society with equal rights

Stigmatization of people with AIDS is equally unlawful and objectionable

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Testing for HIV Mandatory testing for HIV/AIDS should be

prohibited

Prior and informed consent for those being tested with pre and post-test counselling and guarantee of confidentiality

Testing without prior and informed consent may be permissible on grounds of necessity and only for patient’s health interest

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Testing for HIV Negligent testing resulting in misdiagnosis

would invite legal actions for damages against the person and institution

No blood should be transfused or human organ transplanted unless known not to be infected

Anonymous and unlinked testing of populations or groups necessary for epidemiological purposes to enable surveillance and control

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Testing for HIV

All pregnant women or girls should be routinely counselled about benefits of HIV testing

Ensure informed consent is provided and counselling offered

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Ethical and Legal Controversies Testing for HIV and whether it should be

mandatory or voluntary

Confidentiality of HIV test results with ethical dilemmas on doctor/ patient relationship, employer/employee situation, partner notification

Discrimination of PLWHA in employment and provision of services

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Ethical and Legal Controversies

Criminalisation of deliberate infection with HIV

Ethics of research

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Doctor-Patient confidentiality

Confidentiality a must for all health workers

Disclosure only from express consent of patient

Duty of confidence may be waived by public interest if demonstrated that a greater public good would be served by disclosure than by maintaining the confidence

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Doctor-Patient Confidentiality

Information requested by a patient about his HIV status should not be withheld.

PLWHA should be encouraged to share information of their serostatus with their sexual partners and those at risk of infection by them

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Doctor-Patient Confidentiality

If a doctor or other medical attendant reasonably believes that a person living

with HIV/AIDS has failed to inform his/her partner of his/her status and continues

to expose the partner to risk of infection and a reasonable period has elapsed since the date when the PLWA was

requested to share the information, the doctor or medical attendant may be

required to disclose the information to the sexual partner.

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Doctor-Patient Confidentiality

For minors and some patients in an advanced state of AIDS, the doctor or medical attendant may be allowed to inform the closest or most appropriate family member

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Legal and Ethical Aspects of ART Broad Ethical issues that arise in ART are:

Availability Affordability Accessibility

Intense debate on best way to deal with scarcity Principle of justice – effective socially available medical

treatment should not be denied because of inability to pay

Greatest good to the greatest number: interventions that save lives or reduce suffering to the majority have stronger ethical claim than those that benefit few individuals

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Legal and Ethical Aspects of ARTART in special circumstances Occupational Exposure Sexual Assault Expectant mothers Unborn babies

Legal and Ethical questions arising include: Do they need post-exposure prophylaxis How does one deal with issues of consent and

confidentiality of HIV results Do they need to know the HIV status of the

patients and vice versa

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Rights of the Child in the context of HIV/AIDS All children under 18, infected or affected by

HIV/AIDS are recognised by the UN convention on the rights of a child

UN convention states that Children have a right to life, survival and their development should be guaranteed

They should have access to HIV/AIDS prevention, education, information and to the means of prevention

Rights to confidentiality and privacy in regard to their HIV status

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Health Care Workers need not know the HIV status of the patients and must at all times adopt the safety measures

provided by the universal standards.

Equally there is no legal justification for the patient to know the HIV status of

the Health Care Provider

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Case Study 1 Juma lost his job as a truck driver because he could not

keep awake during long journeys. His boss had noted that he had lost weight and said that he coughed a lot. The boss requested that he visits a company doctor who tested him without his knowledge and passed on the results to the boss

Does Juma have any human rights and if so, which ones?

Was the doctor assisting Juma in doing the HIV test without his knowledge?

In which ways would the boss and the doctor have assisted Juma

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Case Study 2 A 32 year old female school teacher comes to the clinic

after she tested HIV positive at a local VCT. She feels fine and has no signs and symptoms of AIDS or any other illness. She is married to a nurse HIV positive too but is in good health. The couple desires to have children

What do the Human Rights Principles relevant to HIV/AIDS state?

Should the couple go ahead and get a baby? As a health worker, what would be the legal and

ethical issues involved?