FSAL HIV AIDS

Question 1

What constitutional rights provide protection for persons who are HIV positive?

6 points

Answer 1

1. privacy, right to inform people of their HIV status
2. equality : treated equally , equal protection in law
3. personal dignity
4. health care services
5. fair labour practices
6. government must make sure these rights are achieved

Question 2

HIV testing may only be carried out in the following circumstances:

4 points
2010 – national policy on testing for HIV

Answer 2

1. Someone has personally asked for the test and given
   informed consent to the test
2. doctor has indicated that a test is clinically necessary
   and the patient has given their informed consent
3. HIV testing is done for research purposes, with the
   person’s informed consent
4. testing is part of the screening, or inspection, of blood
   donations, with the informed consent of the persons
   involved

Question 3

Testing without informed consent can take place in following circumstances:
2010 – national policy on testing for HIV

2 points

Answer 3

1. testing is unlinked and anonymous and is for
   epidemiological purposes (test must be done for
   medical reasons) undertaken by local health authorities
2. An emergency situation arises where a blood sample is
   available ( individual must be informed, privacy and
   confidentiality)

Question 4

Post-test counseling must be done when person receives HIV test result requirements

2010 – national policy on testing for HIV

Answer 4

1. Involves one or more sessions and should include
   discussions on understanding the results
2. If result is negative, strategies for risk reduction and
   possibility of infection in the window period should be
   discussed

Question 5

If HIV result is positive post test counselling discussions must include

2010 – national policy on testing for HIV

7 points

Answer 5

1. Persons immediate emotional reaction and concerns
2. Personal, family and social implication
3. Difficulties a patient may foresee and possible coping strategies § With whom the clients want to share results
4. Responsibilities to sexual partners
5. Immediate needs and social support identification
6. Follow-up support counseling
7. Follow-up medical care

Question 6

Summarise the guidelines that have been laid down to regulate the treatment of persons who are HIV positive by health-care professionals

Jansen van Vuuren and another v Kruger

Answer 6

1. Assume every person being treated is HIV+ in every case – therefore must follow rigid procedures – wear masks, gloves etc.
2. Unethical to refuse to treat any patient, or to give normal treatment simply on the ground that the patient may be HIV positive
3. Confidentiality

Question 7

when is it okay to disclose an HIV + persons status without their consent

Jansen van Vuuren and another v Kruger

Answer 7

1. only if they’re certain that the 3rd party is definitely in
   danger
2. May only disclose this information without patients
   consent only after they’ve counseled patient on the
   importance of disclosing status to sexual partner and on
   taking measures to prevent spreading of virus
3. If patient refuses to do so, doctor must inform patient
   that the health-care worker has an ethical responsibility
   for this and must ask for patients consent
4. If patient still refuses consent and health-care worker
   still sure there’s a clear danger to 3rd party, then
   allowed to disclose HIV status without permission

Question 8

labour relations act and HIV AIDS

6 points

Answer 8

1. LRA states employer may not dismiss an employee because of their HIV/AIDS status
2. However, if they suffer from ill health that affects their ability to do their job properly, then employer may dismiss them as long as fair procedures have been followed
3. Means that an employer must find out how the disease has affected an employee’s health and whether it’s of short or long duration
4. Employer has to consider alternatives to dismissal e.g.
   moving person to another position
5. The employer must try to adapt duties or work circumstances to adjust to the disease
6. It’s only after an employer has tried all these possibilities that they’re allowed to dismiss employee

Question 9

Safety legislation and HIV AIDS

Answer 9

1. The Occupation Health and Safety Act
2. Mine Health and Safety Act
3. These Acts state that the duty of the employer is to provide as safe a workplace as possible, so that there’s less risk of other people being exposed to the disease at
   work
4. However, if an employee is infected with HIV because they’re exposed to infected blood or bodily fluids in the workplace, then the employee can apply for benefits in
   terms of s 22(1) of the Compensation for Occupation Injuries and Diseases Act

Question 10

Medical Schemes Acts

Answer 10

1. Where an employer offers a medical aid scheme as a
   benefit in the workplace, then the Medical Schemes Act
   provides that the medical scheme may not discriminate
   against a person on the basis of their HIV status
2. In addition, the scheme must provide minimum benefits
   to all members
3. Currently, medical schemes have to treat all
   opportunistic infections caused by HIV/AIDS, but they
   don’t have to provide ARV treatment

Question 11

Summarise the provisions of s 7 of the Code of Good Practice

Answer 11

1. guide to all employers and employees
2. not legally binding but large part binding due to LRA, EEA
3. people have a right to privacy and don’t need to disclose status to employer or potential employer
4. If an employee told employer about status, nobody else can be told without the written consent of the employee
5. An employer not allowed to ask a potential employee to undergo an HIV test before they’re employed
6. Testing someone’s HIV status prior to employment can be carried out only if Labour Court has stated this is justifiable

Question 12

NM and others v Smith and Others

Answer 12

− Publication in a biography – Patricia De Lille’s biography
− Wrote about a medical trial
− Report had been published in book and gave the name of three women in study found to be
HIV+
− Writer thought it was public knowledge and thus used the names
− Women mentioned were affected by the publication
− Court held de Lille, author and publishers were liable for damages, because they infringed on the women’s’ rights to privacy and dignity

Question 13

Jansen van Vuuren and Another v Kruger 1993 (4) SA 842 (A)

Answer 13

1. Mcgeary applies for insurance policy
2. Insurance company makes him take HIV test
3. results positive
4. DR agrees to keep this confidential but soon after discloses info
5. McGeary sued doctor for breaching confidentiality
6. court held that although legal duty to respect confidentiality isn’t absolute , doctor could breach this if society in danger
7. however society was not in danger so doctor had no legal justification paid damages

Question 14

Hoffmann v SAA 2001 (1) SA 1 (CC)

Answer 14

1. Hoffmann applied for employment with SAA as a cabin attendant
2. Was refused employment because he was HIV positive
3. CC held that ‘people living with HIV must be treated with compassion and understanding. We must show Ubuntu towards them. They must not be condemned to ‘economic death’ by the denial of equal opportunity in employment’
4. Court held that SAA’s non-employment of Hoffmann on grounds of his HIV status discriminated against his right to dignity and equality, as he was not unsuitable for
   employment as a cabin attendant
5. Court ordered SAA to employ Hoffmann as a cabin attendant

Question 15

Venter v Nel 1997 (4) SA 1014 (D)

Answer 15

1. Venter claimed damages from Nel
2. She claimed that he had infected her with HIV
3. Nel didn’t choose to defend the matter and the court granted judgment against him in default
4. Court granted Venter damages of R344 399, 06 for past medical expenses, future medical
5. expenses and general damages for reduction in life expectancy, psychological stress and pain and suffering

Question 16

S v Nyalangu [2005] JOL 13254 (T)

Answer 16

1. Accused was convicted of rape and attempted murder
   2.He had raped the complainant when already aware that he was HIV+
2. This offence resulted in the prescribed minimum
   sentence of life imprisonment

Question 17

N and others v Government of the RSA and others (no 1) 2006 (6) SA 543 (D)

Answer 17

1. Durban High Court heard an application by an HIV +
   prisoner from Westville Prison, demanding access to
   free ARV treatment.
2. treatment had been provided for in a government
   scheme launched in 2003, state argued prisoners
   already
   had access to HIV treatment without restriction
3. Plaintiff: prisoners receive treatment only after attended 4. pre-treatment counseling sessions. Westville Prison’s
   appointment schedule allowed only one prisoner a day
   to receive one pre-treatment counseling session
4. lengthy delays in prisoners accessing ARV drugs
5. High Court in first case (no 1), ordered prison to remove
   all restrictions on prisoners accessing ARV treatment
6. Department of Correctional Services granted leave to
   appeal order, refused to provide the prisoners ARV
   treatment until the appeal was heard
7. prisoners launching an urgent application
8. court ruled that, despite the pending appeal, the prison
   authorities had to carry out court’s initial ruling and
   provide prisoners with treatment

Question 18

N v Minister of Defence (2000) ILJ 999 (LC)

Answer 18

1. Namibian Labour Court asked to decide whether the
   pre-employment testing of the HIV status of applicants to
   the Namibian Defence Force (NDF) was justifiable
2. Namib law similar to SA law- can’t unjustifiably test
   people before employment
   3.At the time N applied to the NDF, he was in good health
   and was able to perform all the usual functions and
   duties required of him ( confirmed by a surgeon)
3. Applicant then found to be HIV + by a diff doctor , refused employment
4. court found this discriminatory bc he was fit and healthy at time of application
5. court ordered him to take more tests because 4 years had passed since application and he didn’t tell the court when he first contracted the virus
6. Regarding further applicants to the NDF, court ordered
   that the NDF may not refuse
   employment to applicant only on the basis of their HIV status as long as they were fit and healthy enough to perform their tasks

Question 19

FACTS:

Minister of Health and Others v TAC and other (no 2) 2002 (5) SA 721 (CC)

Answer 19

1. Treatment Action Campaign (TAC) compelled
   government to roll out ARV therapy
2. Drug company patents: reduce prices, issue licences,
   cheaper drugs imported
3. July 2000: Nevirapine free for 5 years to SA: refused –
   said weren’t sure about safety etc.
4. Allowed only 2 sites per province to distribute the
   medicine
5. International and West-African trial successful with
   Nevirapine
6. 2001 ; pretoria high court order govt forced to provide
   drug
7. Separation of powers – courts can’t tell state/executive
   how to spend money – policy issue
8. Narrowed the issue down to pregnant women in public
   hospitals
   9.S28of Constitution – every child has the right
9. GP decision: declaratory order – ordered government to develop a plan for roll out of Nevirapine
10. government wanted to appeal but unsuccessful
11. TAC implemented

Question 20

why is the decision of Minister of Health and Others v TAC and other (no 2) 2002 (5) SA 721 (CC) important

Answer 20

1. CC: Judgment by the court (complete unanimity) – first time court been called on not to make policy, but to deliver on socio-economic rights
2. Addressed issues wider than just the TAC and HIV/AIDS – more far-reaching
   3.Critical decision focusing on courts power regarding the fulfillment of second generation rights
   4.Courts can make decisions impacting on policy, where the policy is inconsistent with the
   Constitution
3. ordered the state to act

Question 21

What was the aim of the TAC campaign and Zackie Achmat

Answer 21

1. Challenge about the functions and separation of powers
2. Whether government could be compelled to roll out
   ARV therapy
3. Problems around the intellectual property of the drugs

Question 22

Criminal Law and HIV

Answer 22

1. HIV status on a suspect in a criminal act may be relevant in certain circumstances i.e rape
2. Criminal Law (Sexual Offences ad Related Matters) Amendment Act
3. sexual penetration that is committed under false pretenses or by fraudulent means is regarded as prima facie unlawful
4. if person does not disclose life threatening infection when there is a risk of infection- unlawful
5. could be charged with rape
6. if you are a victim of a sexual offence and have been exposed to risk, may receive medical treatment at state’s expense
7. victim of sexual offence may apply to a magistrate for the compulsory HIV testing of an alleged sex offender, results disclosed to victim and offender
8. if they knew they were HIV+ could be sentenced to life sentence in jail for rape, find it v difficult to get bail
9. if they know they are HIV+ then could aggravate their sentence