Monday, March 2, 2015

Rights to Confidentiality and Privacy – The Law

Dear Alan,
Please accept my apology for missing the group, I really wanted to attend but sometimes the best planned events still get hijacked.

I need some advice that you might be able to help me with.

I’m separated at the moment from my spouse and divorce proceedings are about to start (I’m all fine with that) but my lovely husband has been making gentle and other very clear statements that he will disclose my + status to all my clients and ruin my life if I do anything to upset him. He is a registered 
Dr with the AHPCSA but when I contacted them to ask about Dr/patient confidentiality I was told that it doesn’t extend to spouses and that the law becomes very grey in this matter.

Today he stated that if he finds out I’m having sex he will inform the person that I’m HIV+ and trying to kill them knowingly.

I’m not stupid and know that most of his claims are tactics to keep control over me but we both know that should he go ahead, even if I can prove the contrary, the damage would have been done.

He told his sister about my status as she sent me a SMS today to say she will make it public knowledge should I go against her brother in any way, so the ship has sailed as far as him disclosing my status goes.

I can lose my business and everything if he discloses my status in this way.

Is there any legal protection to stop point in legal action afterwards, I need something that will stop him from disclosing to anyone else.

Sorry for the long message but I think you get the idea of what I mean and need.

If you know of anything or could direct me to a link or anything I will be forever grateful to you.
Kind regards,

Dear P, I look forward to seeing you at one of the support meetings again soon.  It is totally against the law and our constitution to disclose the HIV status of another person without their consent.  The Allied Health Professions Council of South Africa (AHPCSA) is incorrect it is not a grey matter as the rights of people with HIV are clearly defined by the South African constitution, as well as their own guidelines. It is very clear based on the law that even a threat to disclose another person’s status is illegal for the purposes that your ex-partner is threatening to do so. 

I recommend you contact the AIDS Legal Network on 0214478435 or visit their website for more details on also the AIDS Law project now called + Section 27 would be able to assist you. Visit contact details are 011 356-4100.

Also you can contact the Section27 advice centre on 011 356-4117

By doing this now they could assist you to notify your ex that if he continues to threaten you or breaches your right to privacy he will and can face litigation.

To better understand your rights let’s look at what the Laws in South Africa have to say about HIV and confidentiality/privacy;

The South African Constitution
The Constitution of South Africa protects the rights of people living with HIV. It doesn't allow discrimination and protects people’s right to privacy and confidentiality. In South Africa, there aren't any laws that force people to tell others about their HIV status. People who do test positive should tell their partner, so that they can be protected and also have an HIV test. People with HIV/AIDS in South Africa are protected by the Bill of Rights and have the same rights which protect all citizens.
  • There can be no discrimination against anyone who has HIV/AIDS.
  • Test results cannot be shown to anyone else without the permission of the person who had the test.

The Basic Rights of people living with HIV/AIDS

  • People living with HIV infection and AIDS should have the same basic rights and responsibilities as those which apply to all citizens of the country.
  • People with HIV infection or AIDS are entitled to make their own decisions about matters that affect their marriage and having children. Counselling about the consequences of their decisions should be provided.
  • People with HIV and AIDS have the right to confidentiality and privacy about their health and HIV status.
  • Information about a person’s HIV status may not be disclosed to anybody without that person’s fully informed consent.
  • After death, the HIV status of the deceased person may not be disclosed to anybody without the consent of his or her family or partner – except when required by law.
  • Medical schemes may not discriminate against any person on the basis of his or her state of health.
  • People have a moral and legal obligation to tell their sex partners if they are HIV positive.
  • Insurance companies may not unfairly refuse to provide an insurance policy to any person solely on the basis of HIV/AIDS status.
  •  All people have the right to proper education and full information about HIV and AIDS and how to prevent it.

The Basic Rights of people living with HIV/AIDS at Workplace
  • Employers may not discriminate against HIV-positive employees or victimise them in any way.
  • No person may unfairly discriminate against an employee in any employment policy or practice (e.g. recruitment, appointment, remuneration, training and development, promotion, transfer and dismissal) on the grounds of his or her HIV status.
  • No HIV-positive employee has to disclose his/her HIV status to his/her employer.
  • Information and education on HIV and AIDS, as well as access to counselling and referral, should be provided in the workplace.

HPCSA guidelines on patients’ HIV status
Sharing information within the healthcare team about a patient’s HIV status is only permissible if the patient has given consent or if it is clinically indicated.
  • Ethics, the South African Constitution (Act 108 of 1996) and the law recognise the importance of maintaining the confidentiality of the HIV status of a patient.
  • The test results of HIV positive patients should be treated with the highest possible level of confidentiality.
  • Confidentiality regarding a patient’s HIV status extends to other health care practitioners. Other health care professionals may not be informed of a patient’s HIV status without that patient’s consent unless the disclosure is clinically indicated. For treatment and care to be in the best interests of the patient, the need for disclosure of clinical data (including HIV and related test results), to health care practitioners directly involved in the care of the patient, should be discussed with the patient.
  •  The decision to divulge information relating to the HIV status of a patient must always be done in consultation with the patient.

The HPCSA states: “In the management of an HIV positive patient it is important that the health care practitioner gives due consideration to other health care professionals who are also involved in the management of the same patient (eg where necessary, and with the patient’s consent, informing them of the HIV status of the patient).”

HPCSA - Disclosure in the public interest
  • The National Health Act makes an exception to the rule of confidentiality if non-disclosure of a patient’s personal health information would pose a serious threat to public health.
  • HPCSA guidance states that, for disclosure to be justified, the risk of harm to others must be serious enough to outweigh the patient’s right to confidentiality. If you judge that this is the case, you should attempt (if it is safe and appropriate) to obtain the patient’s consent first, but should go ahead with disclosure to the appropriate authorities if this is not forthcoming.
  • Carefully document the reasoning beside your decision to disclose, together with details about any discussions you may have had with colleagues in the course of your decision-making

It is hence clear from all of the above that your ex-partner may not disclose or breach your rights to confidentiality and hence disclose your HIV status to 3rd parties, even if he is a medical practitioner, when the intent or purpose of so doing has but one aim aimed and that is to destroy your rights to privacy and confidentiality. 

He may not disclose your HIV status to persons he suspects you might be engaging with even if the relationship is of a sexual nature unless he has proof that you are engaging sexually without having taken precaution to protect the person from exposure and/or based on the assumption that you are placing the person at risk. He can only do so from a medical practitioner’s responsibility to protect 3rd parties point of view, if he knows for a fact and has evidence that you are not protecting the 3rd party (sexual partner). 

He still can only do that after having discussed the matter with you first and attempted to provide you with counselling aimed at correcting your behaviour and only after providing such counselling, if you still refuse to protect 3rd parties, may he warn you that he has an obligation to breach protect 3rd parties and hence is considering disclosing your HIV status to the 3rd party that he knows, for a fact you are placing at risk. Clearly this is not his intent and hence he is simply doing this, not in his medical capacity, but as an avenging ex-lover/partner. And this is against the law.  

It is also important to always remember that one’s right to privacy does not give one the right to place others at risk and hence, keep secrets or tell lies. Informing your sexual partners of your HIV status is your responsibility and you should always insist on taking precautions not to transmit HIV to your sexual partners.         

Love and light
Alan Brand
Employee Wellness Consultant and Specialist HIV and Employee Wellness Training Provider

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