By
Bakampa Brian Baryaguma
1.
Introduction
The importance of the
right to health need not (and cannot) be overemphasized, for the simple reason
that everything else about the person hinges on that right, so much so that in
the past, courts, in exercise of their inherent jurisdiction,
have even intervened to circumvent individual interests, where such interests
were considered to be adverse to the health and wellbeing of the person
concerned, or of another dependent person.[1] For example, an unhealthy
person may not fully enjoy his or her right to education, as he or she would
not comfortably attend school; the same person would thereby live in a state of
compromised dignity, which is an affront to the inherent human right to live a
dignified life; last but not least, that person would not fully enjoy his or
her civic, cultural or economic rights.
It is for these and
more reasons that national objective and directive principle of state policy
XX, of the 1995 Uganda Constitution, states that, ‘The State shall take all
practical measures to ensure the provision of medical services to the
population.’ The state has gone a step further to enact specialized and
enabling legislation to achieve this objective. A case in point is The HIV Prevention and Control Act, 2014,
assented to by H.E. the President on 31 July, 2014. According to its long
title, the Act is meant, ‘… to provide for the prevention and control of HIV
and AIDS, including protection, counseling, testing, care of persons living
with and affected by HIV and AIDS, rights and obligations of persons living
with and affected by HIV and AIDS; to establish the HIV and AIDS Trust Fund;
and for other related matters.’
This Act is undoubtedly
well intentioned, but its provisions pose serious challenges especially, when
viewed from the interrelated, interdependent and indivisible perspectives of
health and human rights, as shown in the following discussion.
2.
Critical
Analysis of the Act from a Health and Human Rights Perspective
A.
The
Title of the Act
The title of the Act is
problematic. The Use of the words prevention
and control makes the Act somewhat coercive and rather stigmatizing, due to
the effect of portraying HIV and AIDS victims as undesirable members of the
society.
I think the word Management would have been a more
nuanced alternative for the words prevention
and control, such that the final text would have read as, The HIV and AIDS Management Act. The
element of coerciveness and stigmatization, currently inherent in the Act,
undermines the human rights approach to fighting HIV and AIDS, thereby
impairing the health of the very people it is meant to serve.
B.
Reasonable
Care to be Taken to Avoid Transmission of HIV
Section 2 of the Act
requires a person to take reasonable steps and precaution, and also use
protective measures to protect him or herself and others, against HIV infection, during sexual intercourse.
From a health point of
view, it is difficult to see how possible it is to protect others, since, logically, the duty to protect oneself against
diseases and infections primarily lies with the individual especially, for a
disease or infection like HIV and AIDS that involves willful and personal
sexual associations between people. The scope of others is too wide and places an onerous burden on the person to
protect a potentially limitless number of people. Such an overly extensive duty
is in itself potentially an abuse of the human rights of the person bearing the
duty to protect.
C.
Persons
Incapable of Giving Informed Consent to HIV Testing
Section 10 permits
parents, guardians, persons next of kin, caretakers or agents, of persons who
are incapable of giving informed consent to voluntary HIV testing, to give such
informed consent on their behalf. Under sub-section (2)(d), those envisaged
include anybody suffering from any impairment rendering him or her incapable of
giving his or her informed consent.
The wide scope of this
section and the overreaching power it gives those specified to give informed
consent on behalf of those incapable of giving it, render the section highly
susceptible to abuse, to the detriment of the concerned person’s right to
privacy, and indeed, personal integrity, as enshrined under Articles 27 and 24
respectively, of the 1995 Uganda Constitution.
D.
Dispensing
with Consent to Test for HIV
Under Section 11,
consent to test for HIV may be dispensed with, where it is unreasonably
withheld, or in situations of an emergency due to grave medical or psychiatric
condition; and in both instances, if the medical practitioner reasonably
believes that such test is clinically necessary or desirable, in the interest
of the person to be tested.
Unfortunately, however,
the phrases, unreasonably withheld, an emergency due to grave medical or
psychiatric condition, clinically
necessary or desirable and the
interest of the person to be tested are not defined, which leaves a lot of
room for potential abuse, thereby clearly posing serious threats to the
concerned person’s right to privacy and personal integrity, as enshrined under
Articles 27 and 24 respectively, of the 1995 Uganda Constitution.
E.
HIV
Testing of Persons Charged with Sexual Offences
Section
12 provides that a person apprehended for a sexual offence should be tested for
HIV, for purposes of criminal proceedings and investigations.
This
section is highly problematic, from a health perspective, because it may not
serve any meaningful purpose. Imagine a situation where a wrong person is
apprehended for commission of a sexual offence, is mandatorily tested for HIV,
against his or her will, and it emerges for instance, that he or she is HIV
positive and this is inevitably revealed to him before or during trial. That
person can easily commit suicide because he or she was not psychologically
ready to receive the bad news; no matter the amount of counseling given, since
the mind may not be “forced” to adapt to a given situation. The traditional
emphasis on voluntary HIV testing proves more useful.
This
involuntary testing would also be tantamount to violation of the person’s right
to privacy and personal integrity. It also undermines the person’s dignity, and
borders on cruel and degrading treatment, contrary to Article 24 of the
Constitution.
F.
Routine
HIV Testing
Section
13 provides for routine HIV testing of victims of sexual offences, pregnant
women and their partners, for purposes of preventing HIV transmission.
Such
mandatory testing is counterproductive both from public health and human rights
perspectives especially regarding partners of married women, many of whom may
find little incentive to test, since they are neither victims, nor carriers of
the pregnancy.
From a
public health perspective, it may lead people to shun public health centers, in
favour of informal and usually unqualified establishments, and thus seriously
impede the public health response to HIV that has been very successful in the
past, based on voluntary counseling and testing.
From a
human rights perspective, it violates the rights to privacy and dignity of the
persons identified, and may also amount to degrading treatment, contrary to Articles
27 and 24 of the 1995 Uganda Constitution.
G.
Disclosure
or Release of HIV Test Results
Section
18(2) of the Act allows medical practitioners to disclose or release results of
an HIV test to a number of people, including sexual partners of the tested
person, and medical practitioners or qualified officers directly involved in
the treatment or counseling of that person.
Whereas
the section pertinently captures instances where HIV results may be justifiably
disclosed to third parties, it nevertheless, poses subtle dangers especially,
from a public health perspective. There is a risk of it serving to drive a
number of people away from getting tested for fear of their results being
disclosed to third parties without their knowledge, which will be a significant
impediment to the ability of the state to have accurate data upon which to rely
in crafting effective public health responses. Public health interest demands
sensitivity to the concerns of those tested, offering them all opportunities in
the first case, to make such disclosure themselves.
H.
State
Obligations in HIV Control
Section
24(1) calls upon the state to ‘devise measures’ to control the spread of HIV.
While this is an important provision especially, in terms of ensuring a human
rights based approach to the response to HIV in Uganda, the language used –
devise measures – is however, extremely non-committal and may weaken the
obligations thereby imposed. A more mandatory phraseology such as ‘ensure’
would have been more appropriate to uphold and safeguard the human rights of
those living with and affected by HIV and AIDS.
I.
Attempted
and Actual Transmission of HIV
Section
41 deals with attempted transmission of HIV. It states that a person who
attempts to transmit HIV to another person commits a felony, punishable with
utmost five years imprisonment, a fine, or both.
Section
43(1) addresses actual transmission of HIV. It stipulates that willful and
intentional transmission of HIV to another person is an offence, punishable
with imprisonment of not more than 10 years, a fine, or both.
From a
public health perspective, these sections are very problematic, because any
punitive provisions in a public health law, moreover one with the expressed
intention of promoting human rights, are counterproductive. Besides, the
offences also carry with them the dangers of misuse for blackmail and extortion.
Consequently, from a legal perspective, they will also present formidable
difficulties of proof and related matters that would be involved in prosecuting
such crimes, culminating in increased stigmatization of people living with HIV
and AIDS.
3.
Conclusion
The HIV Prevention and Control Act,
2014,
it must be noted, is by and large, a good law, although it faces its own
peculiar challenges, both from a health and human rights perspective, as
discussed above. Apparently, the rights to privacy and personal integrity, as
enshrined under Articles 27 and 24 respectively, of the 1995 Uganda
Constitution, are the most assaulted by this law.
It
is therefore, hoped that in performance of their respective duties, even with
this law in place, the public health and legal authorities will endeavour to
perform their duties with utmost diligence, giving full efficacy to the Act and
the Constitution, by holding dearly, the best interests of people living with
and affected by HIV and AIDS, whom this law is principally designed to benefit,
in
full compliance with medical law and standards to act in accordance with
practices that are accepted as proper, by a responsible body of skilled medical
personnel.[2]
[1] See,
for instance, Re S (Adult:
Refusal of Medical Treatment) [1992] 4 All ER 671, where a health authority applied for a
declaration to authorise the surgeons and staff of a hospital, under the
authority’s control, to carry out an emergency caesarean section operation upon
a 30-year-old woman patient, who had been admitted to hospital with ruptured
membranes and in spontaneous labour with her third pregnancy, and who had
continued in labour since then. She was six days overdue beyond the expected
date of birth and had refused, on religious grounds, to submit herself to such
an operation, supported in this by her husband. The surgeon in charge of the
patient was emphatic in his evidence that the operation was the only means of
saving the patient’s life and that her baby could not be born alive if the
operation was not carried out. It was held that the court would exercise its
inherent jurisdiction to authorise the surgeons and staff of a hospital to
carry out an emergency caesarean section operation upon a patient, contrary to
her beliefs, if the operation was vital to protect the life of the unborn
child. Accordingly, a declaration was granted that such an operation and any
necessary consequential treatment which the hospital and its staff proposed to
perform on the patient was in the vital interests of the patient and her unborn
child, and could be lawfully performed despite the patient’s refusal to give
her consent to the operation.
[2] This is the professional
standard required of medical practitioners. In the
case of Bolitho
(Administratrix of the Estate of Bolitho (Deceased)) vs City and Hackney Health
Authority [1997] 4 All ER
771, 776, Lord
Browne-Wilkinson stated that, ‘The locus
classicus of the test for the standard of care required of a doctor or any
other person professing some skill or competence is the direction to the
jury given by McNair J in Bolam v Friern Hospital Management Committee [1957]
2 All ER 118 at 122, [1957] 1 WLR 583 at 587: ‘I myself would prefer to put it this way: a
doctor is not guilty of negligence if he has acted in accordance with a
practice accepted as proper, by a responsible body of medical men skilled in
that particular art …. Putting it the other way round, a doctor is not
negligent, if he is acting in accordance with such a practice, merely because
there is a body of opinion that takes a contrary view.’
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