Protecting the Civil Rights and Health Information Privacy Rights of People Living with HIV/AIDS
For many years people with HIV/AIDS face great emotional as well social stress. Stigmatization and discrimination affect their fundamental rights. This is due to illegal disclosure of their health information. As such, this has contributed to loss of jobs, family, housing and insurance. Nevertheless, the rapid development of technology has significantly enhanced the capacity of health care workers, medical institutions, governments, employers and insurance firms to gather and convey personal medical information. Since huge volume of data is gathered and conveyed to many people, the capacity of HIV/AIDS positive persons to manage exposure of their medical information is hindered. Relevant rights as well as policy guidelines are in place to ensure that health information of HIV/AIDS positive people remains confidential and disclosed with consent. Based on public policy, privacy right and confidentiality are basic rights. Protection of these rights is therefore important, in guaranteeing inherent self-respect of HIV/AIDS positive persons, reduce transmission of the virus and minimize the effects on the large society. People will not be ready to go for HIV/AIDS tests is there is no privacy of their information. With respect to people living with HIV/AIDS, provision of efficient care and counsel relies on sharing of information with health care workers. For that reason, private and public sectors should ensure that medical information of HIV/AIDS positive people is kept private and confidential.
Table of Contents
HIV/AIDS is a condition that causes psychological and social stress because of the stigmatization and discrimination that is still prevalent in many societies. Consequently, it has become a significant concern at the work place because of the impact it has on employees and their dependents. According to the international Labor Organization (ILO), stigmatization and discrimination of individuals living with and affected by HIV/Aids affects their fundamental rights at work. In addition, it undermines the employment opportunities and a chance to obtain decent work. The progression of HIV to Aids may have many consequences at the work place, and significant impact for the firm such as death of employees that in turn leads to a reduction in the work force. The firm feels the huge impact left by such employees especially if they were among the most skilled and held critical positions. In addition, absenteeism leads to lost productivity due to lost man hours. Companies that have health programs also pay high insurance costs because insurance firms tend to increase the costs in relation to the high prevalence rates (Elliot, 2005).
This also means that the firm has fewer funds to channel into their investment programs. Eventually, this also affects the benefits it avails to the employees. The community also feels the impact of the epidemic through poor households that have little purchasing power. For the firms, this means loss of market for their goods and subsequent loss of profits. Other effects include loss of morale at the workplace, loss of skills and increased training costs. Together, these effects on the firm may lead them to develop policies that hinder employment of people living with HIV/Aids. Individuals living with HIV/AIDS and their dependents suffer the consequences of these policies. The ILO has recognized the impact of HIV/AIDS at the workplace and has developed policies to address discrimination. The ILO recommendation no.200 is the first international labor standard for the protection of human rights for people living with and affected by HIV/AIDS. This recommendation seeks for development and the adoption of “tripartite HIV/AIDS workplace policies and programmes” (Elliot, 2005). This should be conducted through a consultation program that includes the government, organizations representing workers and employers, organizations representing people living with HIV/AIDS, representatives from the health sector and other relevant sectors. However, in spite of such recommendations and guidelines, there are employers who still discriminate against people living with HIV/AIDS. It is imperative that employers treat employees living with HIV like other healthy employees, and when they fall ill, the employer should also regard them like other ill employees. UNAIDS also recognizes that health and human rights are related and this makes it essential to protect employees living with HIV/AIDS. The aim of this research is to examine the rights and protection legislation of workers in USA and Canada. It is also imperative that employees know their rights so that they can seek redress whenever the employers violate these rights. To achieve that, the paper intents to examine the effect of HIV/AIDS at the workplace and legislation that protects the civil rights and health information of people living with HIV/AIDS. The scope of the research will not be limited to workers living with HIV/AIDS in Canada and USA.
The need to protect confidentiality of medical information, especially for HIV/ADS positive people has been emphasised in many workshops, articles and government submissions. It is evident that people with HIV/ADS are subjected to discrimination as well as stigma globally. In addition, they also suffer discrimination due to unauthorized disclosure of their status. Patients especially those living with HIV/AIDS are highly vulnerable to aspects of their health care confidentiality. Discrimination faced by people with HIV/AIDS is due to unauthorized disclosure of their condition. As such, this has contributed to loss of jobs, family, housing and insurance. The remarkable technological development in the last ten years has enhanced the capacity of health care workers, employers, government among others to gather as well as disseminate personal information. Because high volume of data is collected and disseminated to many individuals, the ability of HIV/AIDS positive people to control exposé of their medical information is affected. Main ethical and also policy basis are available that guarantees that health information of people living with HIV/AIDS is kept confidential and not exposed without permission. As a matter of fact, public policy, confidentiality and privacy are basic human rights. Both protection and encouragement of human right are important in making sure that inherent self-esteem of HIV/AIDS positive people and reduce the effects of epidemic on the larger society (Open Society Institute, 2007). Individuals will not be ready to go for HIV/AIDS testing if there is no confidentiality of medical information. With regards to people with HIV/AIDS, provision of health services and counseling relies on the complete exchange of medical data with health care workers. Privacy requires that governments refrain from hindering with privacy of people and enforces a responsibility on same governments to take necessary measures to protect right of privacy. The right to privacy concentrates on the aspect of zone with respect to individual freedom that cannot be hindered by public bodies or third person. It is believed that freedom entrenched in right to privacy can be physical or informational. Physical zones encompass respect for individual home and bodily integrity. On the other hand, informational zone entails safeguard against unlawful gathering, use and disclosure of individual information for instance medical information such as HIV/AIDS status. Duty of confidentiality is an approach that individuals can use to ensure protection of their health information (Albertyn, 2000). Governments have given legal responsibilities to particular individuals concerning gathering, use and disclosure of individual information. With regards to HIV/AIDS positive people, the most significant duty is the responsibility imposed on particular individuals to store their medical information confidential, except under specific circumstances. Qualified and skilled healthcare workers are highly indebted to patients neither to infringe nor violate patients’ privacy or secrecy. In relation to this, courts came up with a special form of duty known as fiduciary obligation. This is purposely for the safeguard of the concerns of any susceptible social groups of people or individuals. This law enforces a duty whereby an individual (fiduciary) must take responsibility towards another person’s (beneficiary) acts of concerns in accordance to the value that exists in the relationship between the two people. Hereby, the fiduciary is held by the common law to firm behavior standards. If by any chance the health practitioner violates the fiduciary obligation, the patient that the health practitioner is obliged to have the right to take legal actions against the health professional for the harm caused. Therefore, a fiduciary duty has been compelled in connections that contain the following attributes: The recipient is predominantly vulnerable to the fiduciary’s possession of power. The fiduciary can be able to work out that power to influence the recipient/beneficiary’s permissible interests. The fiduciary has limitation for the practice of some cause of judgment or power. It is probable for a fiduciary link to be present whereby none of the above attributes exist at all. Moreover, the likelihood of all the above attributes cannot necessarily reveal the being of a fiduciary relationship. The obligation’s nature will differ on the basis of the realistic background of the connection in which it comes from (Elliot, 2005).
Individuals living with HIV/Aids experience unfair treatment at the workplace and society. Consequently, employers deny them the opportunity to utilize their skills and qualifications. Some employers may also deny them the opportunity to advance in their careers through training because they feel they do not have long to live. There is no recognized treaty that deals with such issues and this makes it difficult for employees living with HIV/Aids. Furthermore, lack of awareness leads to misconceptions that increase stigmatization and discrimination. Various civil rights groups have championed the cause for recognition of human rights including employees living with HIV/AIDS. The International Human Rights law offers reprieve for employees that encounter discrimination at the workplace. In addition, the Universal Declaration of Human rights promotes the recognition of human rights, privacy, equity and dignity (un.org). Consequently, article 23 advocates for equal employment opportunities without discrimination (un.org). Therefore, employers must safeguard the dignity and privacy of employees living with HIV and give them equal opportunities. The aim of this research is to examine the rights and protection legislation of workers in USA and Canada. It is also imperative that employees know their rights so that they can seek redress whenever the employers violate these rights.
d. Main Research Question: Should Civil Rights and Health Information Privacy of people living with HIV/AIDS be protected?
(a) Do HIV-positive people have any legal protection against discrimination?
(b) What is the connection between HIV/AIDS and human rights?
(c) Is confidentiality of information a moral right to persons with HIV/AIDS?
Supreme Court has therefore stood on the fact that an essential quality of the relationship between the doctor and patient is its fiduciary being and cause on which the patient builds self-assurance and trust on the physician. Nevertheless, fiduciary links and obligations do differ.
They are highly determined by the requirement of the situation at hand, and such a relationship may be well described as ‘fiduciary for some reasons, and not for others.’ In addition, the Supreme Court affirmed that in the situation of an existing relationship between a doctor and a patient, the medical doctor has the responsibility to take actions with greatest conviction and devotion, and to seize information given concerning a patient in confidence. Patient seeks out for health concern from a physician; they reveal exceedingly sensitive and confidential information that relates to the personal integrity and self-sufficiency of the patient. Therefore, the Court furthermore said that, “individual information revealed to a health practitioner in a certified facility should remain in its basic form of one’s own. It is a patient’s individual decision as to whether to preserve or speak out the information to the public (Privacy Commissioner of Canada, 2003).
Most of the standardized medical professionals are directed by systems of professional rules that enforce an obligation of privacy. Additionally, the reception of private information in events of confidence commonly establishes a sense of duty not to make use of that information for any purpose apart from that for which it was intended. If the information is utilized for any other purpose and the individual undergoes any form of harm or damage as a result, he or she is given the right to medication.
f. Limitations to the Study
A research to find out more efficient HIV/AIDS treatment may be criticized to be more significant than safeguarding the total privacy of health information of those living with HIV/AIDS. A health counselor or medical professional might reveal a patient’s HIV status to avoid damage to another person. The seeking out for truth in unlawful investigations, and in civil court proceedings, may necessitate revelation of an individual’s health information, as well as their HIV status. These challenging goals are acknowledged in legislation that needs revelation of health information without approval in certain cases. A United Nations (UN) sub-commission has projected that definite universal and political rights, together with the right to confidentiality, may be justifiably limited only when all the criteria below are met:
• The constraint is catered for and passed out according to the law;
• It is in the interest of a lawful purpose;
• It firmly necessitates attaining this objective;
• It is the slightest invasive and least restraining means existing
• It is not presented in an unfair or biased manner
- Chapter 1
- Chapter 2
- Chapter 3
- Chapter 4
- Chapter 5
- Chapter 6
HIV stands for Human Immunodeficiency Virus (HIV) and when it is not treated, it results in Acquired Immunodeficiency Syndrome (AIDS) (sahealth.sa.gov.au). There have been various HIV therapies introduced since the mid 1990s that have resulted in much less AIDS-related illness and death. However, HIV/AIDS has no cure and is a lifelong infection. HIV infection occurs through the contact of contaminated body fluids such as, breast milk, blood, semen and vaginal fluids. The most common means of spreading HIV is through unprotected sex. Others include sharing injecting equipment, mother-to-baby transmission during pregnancy, birth or breastfeeding. However, the latter has also reduced due to programs such as prevention of mother to child infection. Myths and misconceptions about the spread of HIV include social contact such as handshakes, sharing utensils, kissing, sneezing and coughing. Others include air and water, toilets and swimming pools. Such misconceptions have increased stigmatization and discrimination of people living with and affected by HIV/AIDS. HIV infection destroys cells within the immune system called CD4+ or helper T cells (WHO, 2002).This weakens the immune system and eventually the body is no longer able to fight off the infections. This results to opportunistic diseases that lead to death. Individuals willing to know their HIV/AIDS status usually undergo blood tests. The test outcomes may be positive or negative and can be conducted within weeks or months. Diagnosis of HIV infection is made using blood tests. In some cases, infection may not be visible in the early stages but the carriers of the virus can spread it to other people. Infection and symptoms may also take time to develop and individuals who do not seek treatment develop severe infections within a short span (WHO, 2002). Research and development in the medical field has led to discovery of drugs that prolong life and improve the quality of life of people living with HIV/Aids. In addition, they prevent opportunistic infections and early death. This has a positive contribution and employees living with HIV can be as productive as their healthy counterparts if they follow the treatment regimen and include a healthy diet. This treatment regimen includes measurement of their CD4 count that indicates the level of infection and the efficiency of treatment.
b. Should people living with HIV/AIDS have their Civil Rights and Health Information Privacy protected?
In the United States for instance, persons with physical deformities enjoy legal protection as stipulated by the Americans Disability Act (ADA) (Information and Privacy Commissioner, 2002). In the same breath, individuals with HIV are clustered as people with physical deformities because of their incompetence to engage fully in major life activities. As such, ADA affords them the same legal protection in all spheres of life (Privacy Commissioner of Canada 2002).
Various jurisdictions have various caps related to HIV/AIDS and employment. In South Africa for instance, the employment Equity Act (EEA) no.55 of 1998 promotes equality at the work place through elimination of discrimination and unfair work practices. It also provides for affirmative action to address the rights of minority groups such as people living with HIV/Aids. These measures also ensure equal representation at the workplace by various groups of employees. However, the Act does not cover members of the armed forces, police and intelligences service and unpaid volunteers (Hodges, 2004). The Labor Relations Act defines an employee as any person other than an independent contractor who works for another person for remuneration, and any person who assists in carrying out the business of an employer. The term also includes a former employee or an applicant for employment. Like other labor laws, the term “employee” excludes several government services such as the military, the intelligence, and the security forces.
In south Africa, the EEA is the only labor legislation that prohibits unfair discrimination based on HIV status. The act makes it clear in section 6 (2) that unfair discrimination does not include any distinction, exclusion or preference that is essential for carrying out a particular job. Consequently, affirmative action measures that aim at addressing inequality in society may not include unfair discrimination. Therefore, the affirmative action measures and the requirement of a job are possible means that employers can use against actions by employees based on unfair treatment. The requirement of a particular job is defense that is in line with
The ILO Convention According to the ILO code of practice on HIV/Aids and the world of work (ilocarib.org.tt), there are ten principles that firms must adopt to ensure protection of the rights of employees. These include:
- Employers must recognize HIV/AIDS as a workplace issue,
- They must not discriminate on the basis of real or perceived HIV status
- They must give gender equality essential consideration in a workplace response.
- Employers must provide healthy work environment for all concerned parties
- Social dialogue in developing and implementing a workplace strategy
- They should not impose screening for purposes of exclusion from employment
- Ensure confidentiality of HIV-related personal information
- Provide continuation of employment relationship mechanisms
- Implement prevention strategies in the workplace and,
- Provide care and support for infected and affected employees
It is uncommon to find job opportunities that require employees to be HIV negative as this would constitute open discrimination. Furthermore, individuals living with HIV infection during the early stages normally show no signs of illness and can perform their jobs without any problem. Therefore, it is unreasonable and unfair to exclude such persons from employment solely on the basis of their HIV status. However, in the last stage of AIDS, employees with HIV may fail to meet specific requirements of a job due to opportunistic diseases and other incapacities that affect their ability to perform. In such cases they should be treated as any other employee who is incapable of performing his work due to illness or other incapacities (MacLean, 1996). The Labor Court has powers to determine all matters related to the interpretation of the
EEA. Employees can approach the Labor Court whenever disputes arise. Employees specifically can bring to the Court disputes relating to HIV issues. The ILO Recommendation No. 200 incorporates all workers under all forms or arrangements and at all workplaces. These include: individuals in any employment or occupation, people in training, including internship and apprentices. It also includes volunteers, people seeking employment, and those that have been laid off or suspended. In addition, it incorporates all sectors of economic activities Private & public sectors; formal & informal economies. This also includes Armed forces and uniformed services (Kelly, 2006).
The LRA provides employees the right to equal treatment (paralegaladvice.org.za). It is an unfair labor practice to discriminate against an employee on any grounds, including, race, gender, sex, color, sexual orientation, age, and disability. Discrimination is ‘automatically unfair’ (paralegaladvice.org.za) if it does not conform to any of the basic rights of employees such as discrimination on grounds of a person’s disability. Automatically unfair dismissal means that employees who establish a primary reason for dismissal are entitled to a remedy. The labor law provides that the employer does not have the opportunity to prove that the dismissal was procedurally or substantially unfair.
Unfair dismissal refers to any unfair act or omission that arises between an employer and employee involving the terms of the employment contract and benefits that accrue, the continuity of employment. It also involves the occupational detriment following an employee’s disclosure of information relating to unlawful conduct of an employer or other employees. In circumstances where dismissal is established, the employer must prove that the dismissal is fair. If the dispute relates to conditions of employment, the employee who alleges that a right or protection has been infringed must prove the facts of conduct that constitute such conduct. The employer must prove that the alleged conduct did not violate the provisions of BCEA. The Employment Equity Act provides that whenever an employee alleges unfair discrimination, the employer against whom the allegation is made must establish that it is fair. Consequently, it is up to the employer to prove that such discrimination was reasonable, fair and justified.
In cases of incapacity due to ill health, the employers must investigate the extent of the incapacity and the period of time when the employee is expected to be absent from work. The employee should state a case in response. Furthermore, the employer must investigate the extent to which an employee is capable to perform the work or alternative work. This means the employees are entitled to reasonable accommodation before their contracts are terminated. In terms of the Labor Relations Act, employers may dismiss an employee who is too ill to work.
The Basic Conditions of Employment Act 1997 was enacted with the aim of giving effect to and regulate the right to fair labor practices, establishing and enforcing basic conditions of employment and to give effect to obligations incurred by the Republic of South Africa as a member state of ILO. In terms of section 4 of the Act, the entire Act forms part of all employment contracts to which the Act applies.
Working hours: The BCEA regulates the working time of employees. The basic working time for any worker is not more than 45 hours per week. In addition, employees should not work for more than 10 hours per week of overtime. The working hours permit employees to take meal breaks of at least one hour every five working hours. In addition, employees have a right to rest for 12consecutive hours and weekly rest period of 36consecutive hours. Employers should also pay their workers for night shifts and work done on Sundays and holidays.
Sick leave: The BCEA provides for the right to sick leave for all employees. Employees with HIV are thus entitled to a paid sick leave for a period of six weeks within the 36 months cycle. Employers should also pay employees for sick leave and any absences which are certified by a medical doctor.
Termination of employment: The BCEA allows parties to the employment contract to terminate such contracts with written notice or payment of a salary in lieu of notice. In terms of section 37 the length of notice depends on the length of service. When a person has worked for longer than a year, they should provide a statutory notice of one month.
Vii. Legislations that promote equality and prevent unfair discrimination
The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) ensures the effectiveness of the equality clause under the Bill of Rights. The purpose of the Act is to aid the transition to democracy and facilitation of compliance with international obligations. The principles of social progress, equality, fairness, equity, justice, human dignity, and freedom guide this Act. Consequently, PEPUDA seeks to attain these objectives through promotion of equality, safeguarding people against unfair discrimination and ensuring protection of human dignity as provided in sections 9 and 10 of the Constitution. Several objectives of the Act are significant for persons living with HIV. PEPUDA defines discrimination in section 1 in wide terms. In terms of this section, discrimination refers to as any act or omission including a policy, law, rule, practice, condition, situation which directly or indirectly imposes burdens, obligations or disadvantages on or denies, opportunities or advantages from any individual on one or more of the prohibited grounds. Occupational Health and Safety Act: This Act requires that employers ensure safety of employees at the workplace. New regulations include requirement to provide rubber gloves and training of all staff concerning safety measures they should take in case of an accident. The act also requires every employer to provide and maintain a safe working environment that does not involve risk to the health of the workers. This requirement means that workers have the right to a safe and risk free working environment. It obliges employers to take the necessary measures to prevent the spread of the virus at the workplace (MacLean GR (1996).
Medical Schemes Act: The Medical Schemes Amendment Act of 1998 prohibits discrimination on the grounds of the health status of individuals. It ensures that medical schemes do not discriminate against people living with HIV or AIDs. The act provides that the minimum benefits for employees living with HIV/Aids include: treating all opportunistic infections for HIV/Aids, hospital admissions with treatment, and that they do not have to provide anti-retroviral drugs.
Various countries have in place laws governing the privacy of information. In Canada for instance, The Protected Disclosure Act safeguards the private health information of employees. Consequently, employees living with HIV/Aids have a right to disclose or not to disclose their status. This serves to reduce the chances of discrimination. Furthermore, the international guidelines on HIV/Aids and Human rights recognize the right to privacy of people living with HIV. In addition, it includes confidentiality of their health information. Privacy protection under Québec law Civil Code of Québec (CCQ) – Law by Québec gives exclusive and important privacy safety. The ordinary law torts such as assault of privacy and break of self-confidence do not take effect in Québec. It is the only civil regulation authority in Canada, directed by the CCQ which directs individuals, relations between people, and property. The CCQ is the basis of all other laws passed by the Québec government, though other laws may harmonize the CCQ or make exemptions to it. The CCQ has a chapter on reverence for character and privacy. No one may attack a person’s privacy without the permission of the person except if allowed by law (UNAIDS, 2006). Using connections, documents, or other personal manuscripts without permission is considered an attack of privacy. People are permitted to check, obtain copies of, and correct files that have information about them. The CCQ gives people the right to take legal action where the privacy rules under the CCQ have been violated. Québec Charter- Québec Charter is similar to human rights codes in other regions and territories, however, it is wider in its capacity, and has clear privacy protections. Section 5 of it provides that every individual has a right to value his/her private life while section 9 says that every self has a right to the non-disclosure of private information. Moreover, section 9 ascertains a skilled advantage for information provided to professionals, that would involve health professionals: No one is bound to proficient confidentiality by law and no cleric or other religious minister may, even in court proceedings, reveal private information exposed to him by cause of his position or vocation, unless he is allowed to do so by the one who opened up such information to him or by an utter provision of law. A person who believes that his or her Québec Charter rights have been violated can cause a complaint with the Québec Human Rights Commission, in whose authority entails the inquiry of complaints. As one analyst concludes in the privilege under the Quebec law, the situation in Québec does not differ much from other Canadian jurisdictions. It is significant to note that the safeguard of physician–client right under the CCQ, the Québec Charter, and the Medical Act is not appropriate in criminal proceedings (Rycroft & Louw 2000). In Canada, illegal law entails federal jurisdiction, and centralized criminal law does not distinguish a physician–client right. The structure of defense of personal information is based on the idea of nominative information, which refers to information pertaining to an ordinary person that allows the person to be recognized. The act that respects the safeguard of Personal Information in Private Sectors sets up rules in regard to individual information that a person gathers, embraces, utilizes, or converses to third persons during the conduction of an enterprise. An enterprise involves the carrying on by an individual or more persons of an organized and established economic activity, whether or not it is profit-making by nature. It consists of production, administration, or alienation of property, or provision of a service. This could comprise of enterprises that give health services. Every one conducting an enterprise, who either gathers, embraces, utilizes, or converses private information about other persons must set up and dwell on such protection measures as they are suitable to make certain the confidentiality of the information. Normally, information in a person’s folder may be utilized only for an intention consistent with the purpose for which the folder was created, or with the person’s permission. Unusually, a person conducting an enterprise may, without the approval of the person concerned, release information from that person’s folder in certain situations.
This is a general law rule of verification. In a case where the rule applies, it stops the revelation of private information in an officially authorized case for reasons related to policy. This means that a person who is obliged to a sense of duty of privacy to another person cannot be mandated to reveal that information regarding the individual. The one who holds the confidential information cannot be obliged to be a witness in court regarding that information. Moreover, that person cannot be enforced to disclose printed or written information to be used as evidence in court. The rule of privilege ascertains that some social values are of great importance such that they cannot be given to determine the truth in court cases. Practically, it is up to an observer or a key party in a proceeding to state the right to safeguard information from disclosure.The right to sue under provincial legislation– Four universal bylaw provinces which include: British Columbia, Manitoba, Saskatchewan, andNewfoundland have endorsed common confidentiality decrees that provide rights to take legal action for privacy violations (UNAIDS, 2006). Normally, the rulings affirm that it is actionable with no proof of harm, for a person with no declaration of right, to go against the privacy of another. For example; in Québec, the only civil law jurisdiction of Canada in articles 35 to 41 gives a right to privacy. Article 35 asserts that: Every individual has the right to the respect of their character and confidentiality. No one can occupy the privacy of another without authority of that person or his inherent, not unless permitted by law. The above provincial acts do not particularly concentrate on deeds for the break of privacy related to physical condition, but an individual can depend upon the universal legislative rights to sue for infringement of privacy so as to sue for the revelation of their private health records.
Unluckily, for a complaint to succeed under the privacy acts of three out of the four common law provinces, the petitioner must ascertain that the defendant deliberately dishonored his or her privacy. The court, in Davis v McArthur, defined willfully under the circumstance of the British Columbia Confidentiality Act as deliberately, consciously and purposely with no justifiable reason or claim of rights. Under the privacy acts, the court is certified to judge whether the petitioner’s behavior was sensible in the condition of what the defendant had knowledge of. McNairn and Scott state that such-like standard provides a high level of freedom to a person scrutiny of what is or what is not logical (Rycroft & Louw 2000).
Additionally, the decrees largely fail to identify the significance of privacy rights. A small number of legal actions have been set off under the provincial privacy acts. In cases where lawsuits have been brought, defendants are generally better than petitioners, successive in about three out of four cases. In the minority of successful lawsuits, the damages rewarded have normally varied from insignificant to moderate. As one of the observers wraps up, the provincial privacy acts are hardly ever used. Also, they have not been very successful. Peters-Brown v Regina District Health Board is appropriate to the circumstance of the groups of people living with HIV/AIDS or hepatitis C.
In relation to this, a nurse sued the hospice in which she worked because the hospital had disseminated a record that had her name on it. The record affirmed that bodily-fluid preventative measures need be taken when intermingling with the people incorporated on that specific list. The nurse supported her court case on the Saskatchewan Privacy Act, which held that she had a right to privacy. However, the court was against her dispute that the revelation of health check information was an assault of her rights under the Privacy Act. The court apprehended that the hospice did not deliberately infringe her privacy rights. The court affirmed that it is uncertain as to whether such a right is in existence. Nonetheless, the court agreed that the hospital was neglectful because it violated its duty to preserve the confidentiality of the nurse’s health information. She was therefore awarded her $5000 for the damage that caused her suffering.
Statutes governing specific health professionals and health-care facilities- Regional bylaws governing health occupations and medical facilities normally set out responsibilities of privacy owed to the patient by the medical practitioners or facility. For example: such legislation relevant to doctors are the; Québec Medical Act, 216 regulations created under the Ontario Medicine Act, 1991,217 the Hospital Act in Newfoundland, 218. Nova Scotia, 219 and New Brunswick, 220 the Mental Health Act in Manitoba,221 Ontario,222 and Alberta, 223 and the Nursing Homes Act in New Brunswick224 and Ontario.225. Whereby there is an alleged break of confidentiality by a governed medical practitioner, a patient can complain concerning the specific professional regulatory organization. Professional regulatory organizations do not have the authority to grant fiscal damages to a patient. However, they do have the authority to control medical professionals for ineffectiveness or misbehavior, and can inflict endorsements such as withdrawal, suspensions, or insertion of stipulations on the professional’s accreditation to practice, warning the professional, or compelling a fine.
The regional decrees resemble in structure. Characteristically, they have stipulations on the right of entry to an individual’s information on their well-being, the obligations of trustees to guard individual health information, limitations on the utility and revelation of information, and a grievance process for violations of the law. The three statutes give a wide series of situations in which health information may be revealed with no authority to third parties.
The federal Personal Information Protection and Electronics Documents Act (PIPEDA)-PIPEDA was effected on 1st January, 2001 for issues contained by central authority, with the exemption of the provisions of health information, which later was effected on 1st, January 2002. The rationale behind PIPEDA was to control the compilation, utility, and discovery of individual information by personal ventures in the course of business activities. It was the first time that centralized legislation would control the information and privacy involvements of private ventures. It is not clear as to whether or not PIPEDA is appropriate to the publicly financed health-care sectors. PIPEDA is founded on a set of globally accepted reasonable information practices, as well as the Canadian regular Association Model Code for the Protection of Personal Information (CSA Model Code).
In some cases, the law may force people who got hold of certain information to reveal it, for example; in inquiries and officially authorized cases such as immoral, civil, and administrative cases. This is known as mandatory disclosure. The laws that create mandatory disclosure are clarified, and then the authorized bases for demanding mandatory revelation under these laws are evaluated. Another disclosure type is referred to as; discretionary disclosure. These laws provide people who hold on to personal information the power or discretion to choose whether or not to reveal information without permission and to act on that decision. Discretionary disclosure articles are normally found in provincial privacy laws that are relevant to personal health information (UNAIDS 2006).
Enhanced vulnerability: Various factions are rather vulnerable to contracting the HIV virus owing to the fact that they can’t realize their civil, opinionated, fiscal, societal and cultural rights. For instance, persons who are deprived of the freedom of assembly and the right to information are denied to discuss about HIV/AIDS and all that appertains to it. Such people will be deprived of their right to engage in productive debates, HIV/AIDs service groups that are proactively when it comes to formulating measures for combating HIV contagions. Societies with poor access to information for proper sexual and reproductive health and prevention of infection and are rather vulnerable to HIV/AIDS related infections. Women position in the community affects their capacity to bargain in terms of sexual activities. Poverty hinders people with HIV/AIDs to access medical facilities and treatment. Discrimination and stigma: In most cases the rights of people who are HIV/AIDS positive are violated since their assumed or known condition, making them suffer the burden of the disease as well as rights. In addition, both discrimination and stigma may hinder access to cure thus heavily impacting their rights. Hinders an efficient strategy: The failure to safeguard human rights impedes efforts to combat HIV/AIDS scourge. Unfairness and stigmatization of these people for instance, makes prevents their ability to access hence enhancing their vulnerability to the disease.
Case law: Increasing knowledge of human rights has enabled employees to seek redress of HIV related discrimination. Therefore, there have been various cases at the courts related to such issues. One of the famous cases is the Hoffman V South African Airways of 2000. Mr. Hoffman applied for a job a cabin crew attendant with South African Airways upon which the airways asked him go for a HIV test (paralegaladvice.org.za). The test turned out positive and this formed the grounds upon which the airline denied Mr. Hoffman employment. In addition, the airline said that part of his job involved travelling to different countries and he would need to have a yellow fever vaccination. They claimed that it is not advisable for people living with HIV to have these vaccinations. SAA said that this was an essential requirement of the job in the airline and therefore they couldn’t employ him. Consequently, the case was referred to the Constitutional Court. The court was required to decide if SAA had gone against Hoffman’s rights to equality, dignity and fair labor practices (Miriam et al., 2002).The court decided that SAA had discriminated against Hoffman and the discrimination was unfair and infringed his dignity. The airline was wrong in denying Hoffman the job on the basis of his status because being HIV negative was not an essential requirement of the job of being a cabin attendant. In addition, they should have taken greater steps to investigate how Hoffman’s immune system could have dealt with traveling and the possibility of getting a strange disease. This is because with medication and a proper diet, Hoffman could have discharged his duties effectively. Furthermore, medical evidence indicates that it is safe for people living with HIV/Aids to receive vaccination against yellow fever.
Testing for HIV status: In light with the right to privacy and dignity, the EEA prohibits HIV testing for employees without the authorization. HIV testing raises complex social, ethical and legal questions in a labor market that is very competitive. The questions relate to the right to privacy, and confidentiality of information as well as the right of access to information. The EEA also provides that employers cannot force an individual applying for employment to have a HIV test, or make HIV tests automatic part of medical tests. In addition, they cannot force employees to take HIV tests. Members of the armed forces and intelligence service that are not covered by the EEA can still seek redress at the constitutional court.
The Labor Court has decided various cases related to HIV testing in the workplace.
In the case of Joy Mining v National Union of Metal Workers of South Africa ( NUMSA, National Employees Trade Union (NETU) and others (saflii.org). The Labor Court allowed anonymous and unlinked HIV tests at the workplace after considering a long list of factors. The case involved the application by the employer to conduct HIV tests for employees. The application was supported by the employees and their trade union representatives. The purpose of the testing was to determine the prevalence of the HIV in the workplace and to take necessary measures. In making his decision, Judge Landman considered many factors such as the employer’s policy on prohibition of unfair discrimination at the work place and the need for HIV testing and the purpose of the test among others.
People are entitled to inalienable rights whether living with HIV/AIDS or otherwise. In South Africa for instance, the employment Equity Act (EEA) promotes equality at the work place through elimination of discrimination and unfair work practices. According to the Labor Relations Act an employee is any person other than an independent contractor who works for another person for remuneration, and any person who assists in carrying out the business of an employer.
According to latest statistics by International Labor Organisation (ILO) practices that surround denial of services against people who are HIV/AIDS positive in health institution are so rampant. Findings indicated that many of the people with HIV/AIDS are turned away or transferred to infectious illness medical institution as shown in Table 1. For those patients who received surgery, it was because their HIV/AIDS status was not known. Additionally, for those patients who were found to be positive during the pre-surgery examination, the hospital reported the case to medical departments to ask them to move to infectious diagnostic health institutions. Nevertheless, many of hospitals opt for surgical operation as the best option if patients are negative (Christianson, 2004).
Table 1. Categories of Discrimination
102 people with HIV/AIDS were interviewed.
Based on the findings, about 21 patients had case files and remaining approximately 71.4 % did not get surgery. Records from the health institutions indicated that get the surgery simply because they were discharged, refused to be treated or transferred to infectious medical institutions. In fact the respondents alleged that, in cases where surgery is required, doctors claiming that it is very difficult. In fact, one of the respondents was to undergo anal fistula surgery and tested HIV/AIDS positive, the medical institutions turned the patient away claiming that for the safety of other patients it was better to discharge him and this was likely to negatively affect the reputation of hospitals. Another respondent who was HIV/AIDS positive had a similar encounter. He reported that medical institution discriminate against them. For instance, they are given two alternatives; move to infectious department (TB) or move out of the institution. The problem here was the respondent was afraid that he would contract TB and willingly discharge himself. During the discharge process, the medical institution asked him to prove that he was discharged willingly as such he was forced to write a clarification stating that due to conflicting demands of time I was discharged willingly. Some respondents alleged that out 50 individuals who are HIV/AIDS positive that require surgical operation, a bout 20 are turned away due to many factors. Majority of general health institutions make excuses to show that there is no need for surgery. On the other hand, nurses are also not willing to offer medical services to patients with HIV/AIDS. For instance, 91.9 % of health care workers were afraid of contracting HIV/AIDS when treating such patients, 64 % of doctors stated that they had all the right to provide or not to people living with HIV/AIDS. In addition, 50 percent of doctors as well nurses hold the view that it is acceptable not to treat HIV/AIDS patients. A group of respondents, 24 % indicated that HIV/AIDS patients should be moved to specialized hospitals whereas 34.6 % were ready to treat an injury on HIV/AID patient (Burgenthal, Shelton & Stewart 2003).
One of the respondent indicate that he was to undergo bone surgery, but doctors in that hospital alleged that the procedure was very complex as well as technically challenging. So they had to invite an expert, he had to wait for long and actual date was undecided, the cost was also too high. In addition, he was told to leave with his beddings because no one would use them. His bed was also marked ‘HIV’ so that everyone could know his status.
Findings show that colleagues were extremely irrational. For instance one of the respondent who was HIV/AIDS positive was discrimination; such that, co-workers who had interacted or contacted with her were tested for the disease. Moreover, her team leader replaced all the uniforms and threw away her chair and table. Before her HIV status was know, routine testing did not include HIV/AIDS screening but after confirmation, the HIV/AIDS tests were started. In addition, the department was shocked by the news. She lost her job and his status is widely known in the city’s medical system making it had for her to get employment. Another scenario is where a respondent was given a different name in her place when the department learnt she was positive. At tat time she was working on her thesis the information was passed to her supervisor. Moreover, she was transferred from her nursing department to logistics, and forced her to move from her resident.
According to the findings, discrimination of People with HIV/AIDS in workplace is common. However, it was evident that employees who are HIV/AIDS positive can challenge discrimination with respect to their status; they can otherwise effectively carry out their tasks in conformity with the employers standards. Nevertheless, employers claimed that in certain cases as well as jobs, it was fair to discriminate employees who were very sick to perform their duties. One of respondent indicated that protection of workers was only feasible, only when awareness on discrimination against HIV/AIDS was carried out in workplaces. Additionally, respondents reported that they were received stigmatization from their co-workers compared to prejudice they received from their employers. Nonetheless, many respondents reported that if their colleagues learnt of their HIV/AIDS status they could be scorned, avoided and secluded.
20 workers were interviewed in medical institutions.
Of the 20 respondents interviewed, 7 were from health institutions they were negative and feared HIV/AIDS patients. Findings show that there are different forms of discrimination towards people who are HIV/AIDS positive. Basically they include delayed treatment, low quality service provision and high charges. Others include use of discriminatory attitude and language. Respondents reported that during their stay in hospital, doctors transferred their roommates and refuse to go to the wards whenever they are needed. In some cases, those who undergo surgical operations, health care workers in the infectious department do not know how to manage the wounds and have to ask assistance from surgical unit. But, in most instances nurses from surgical unit are very ‘busy’ to assist (Burgenthal, Shelton & Stewart 2003). Some of respondents about 22% are afraid that they would loose their jobs if their employers learnt that they were HIV/AIDS positive.
From a doctor’s perception, the survey showed that doctors believed that there is the danger of infection when they share public washrooms with HIV/AIDS positive patients. In addition, they would not let epidemiological questionnaire on their counters. They were very negative towards HIV/AIDS and even unwilling to take blood.
Yes it answers: Discrimination is common in all forms of institution, whether health facilities or places of work as indicated in this survey. For instance, findings indicated that HIV/AIDS patients are transferred in separate wards because health care providers believe that they can easily infect others. Their beddings are burnt are they asked to take them upon discharge, beds and rooms are disinfected. They also meet maltreatment at places of work, where some are turned away just because they have HIV/AID even though it’s not physically visible (Theodore, 2002).
Majority of people with HIV/AIDS complain on how they are treated in medical institutions. In some cases, health care workers refuse to treat them. Additionally, information about their HIV/AIDS status is not treated confidentially. In addition, nurses and doctors have a right to safe working environments and HIV/AIDS patients have the right to treatment, confidentiality and informed consent before HIV/AIDS testing. In this case, confidentiality implies that health care workers have a moral as well as legal duty to keep patients’ information confidential. Information on the patients’ diseases cannot be disclosed to any individual unless;
- The patient agrees
- Dead in this case the health worker gets permission from close family
For instance, according to law, the doctor cannot confide to his colleagues about the HIV/AIDS status of the patients unless, the patients agree to it. However, the doctor disclosed XX status to other doctors and the news spread to the entire town. XX filed a case to get compensation and the he was compensated by the doctor for breaking his confidentiality right (Dyk, 2005).
HIV/AIDS is not an open subject because positive patients are afraid of unfairness as well as discrimination. The society need to be aware of HIV/AIDS as well as supportive part they can take to help people with HIV/AIDS. This can largely help these people to be open about the illness. Whereas some people may opt to open up about their HIV/AIDS status, it does not imply they lose their confidentiality right. If a health worker a buses the right of confidentiality, the patient can file a civil claim for any damages caused.
A population of 60 respondents was surveyed by way of focus discussions in six groups of 10 participants.
According to the survey, information is imperative but how you keep the information. In this respect, a health worker should get patient’s consent before disclosing health information to a colleague or hospital. On the one hand a court can order a doctor to provide confidential health information on the other hand; a health worker cannot inform the sexual partner that the patient is HIV/AIDS positive not unless the partner is at risk of being infected if the patients are not ready to practice safe sex. Though, the health care worker should advice the patient on the need for safe sex. Consequently everybody has the right of making their individual choices and cannot be given any treatment without the prior consent. Agreeing to treatment has two important aspects; permission and understanding. With respect to HIV/AIDS, an individual must understand the test, its importance and meaning of the results before a blood sample is taken. This commonly called referred to as pre-test counsel. Then there is post-test counsel that involves counseling an individual are results to help them understand the negative or positive results on their lives. The consent can either be verbal or written. Consent can only be given by adults of sound and sober mind. In addition children over fourteen years can give permission to treatment. However, a consent for HIV/AIDS is not necessary when;
- One needs emergency treatment
- Tests done on donated blood
- Mentally ill people
- Pregnant women
In the event that HIV/AIDS test is conducted without permission, then an individual right has been violated. In such case, the individual can complain to the health professional council, file a case for violating privacy and criminal blame against a health care worker of medical institution (Siplon, 2002).
Everybody has a right to medical care such as access to affordable as well as quality health care which implies that it is unlawful for health care workers to decline to treat an individual due to their HIV/AIDS status or discriminate against them. If a health institution declines to treat HIV/AIDS positive people, they can charged in court that can assess or even counsel health institutions decision to decline to provide cure (Dyk, 2005). The right to health and medical treatment entails provision of treatment to all persons in need. The government has ensured that antiretroviral are easily accessible to people living with HIV/AIDS.
A population of 60 respondents was surveyed by way of focus discussions in six groups of 10 participants.
Pressure to maintain control over individual information, moral as well as ethical obligation has been discussed and how law can be used discourage disclosure of a persons HIV/AIDS status. Furthermore, some people living with HIV/AIDS try to open up about their status in a manner that is not direct. However, this form of coded disclosure may result in miscommunication. For instance, a HIV/AIDS positive person telling his partner that he has a short lifespan may imply many things. Specifically, HIV/AIDS positive people may not disclose their status because they are afraid of rejection, stigma, discrimination, or protect other people’s feelings. Particularly for women, confidentiality of health information is important in protecting their rights, since they may be abandoned, subjected to domestic cruelty or even detested if families or society learn of the HIV/AIDS status (Siplon, 2002). Findings show that fear of exposure of HIV/AIDS status is one of the primary hindrances women go for voluntary counseling services and this fear depicts unequal as well as restricted influence over the dangers of infection. Fear for violence may also be an aspect for not revealing their HIV/AIDS status. There was also a consensus that fear or abuse associated with HIV/AIDS disclosure, the law should not expose individuals to criminal responsibility in such case. As such the law should take obstacles to disclosure into consideration and make strategies to prevent them. Considering that HIV/AIDS is greatly stigmatized, World Health Organization encourages beneficial disclosure of HIV/AIDS status. This strategy requires that people have control of how to disclose, and time to tell about their status (Scott, 2006).
Majority of HIV/AIDS patients are willing to disclose their status to their partners. However, circumstance and time differ. Even as some are willing to tell their partners immediately, others do not due to likely negative effects. Other people living with HIV/AIDS are likely to be misperceived because their partners erroneously construed the HIV/AIDS positive person silence on the issue. Moreover, it’s feasible that HIV/AIDS positive individual may purposely lead his/her partner that they are negative. In some cases this basically accompanied by the aim to develop trust and emotional connection. For several people, disclosure of HIV/AIDS status is not a one-time discussion or even, rather a procedure that require time and continuous communication.
The findings fail to answer the question because what happens on the ground is quite different from theory. Whereas people with HIV/AIDS require legal protection against all manner of discrimination, this is not the case. The study shows how persons living with HIV/AIDs are subjected to all manner of bias.
Impeccable sources demonstrates that HIV/AIDS was first screened in 1981, and yet it has been noted that shame and prejudice against persons living with or adversely affected by and susceptible to HIV/AIDS bug are major hindrances to delivering HIV/AIDS preclusion, care and management services. Findings indicate that HIV/AIDS shame and bias are normally intertwined with discrimination in relation to gender, poverty, sexual inclination, prostitution, incarceration or use of drugs. In this regard, safeguarding human rights, when it comes to those that are vulnerable to the disease and those that are already infected, is not only paramount for people, but equally produces positive public health outcomes. Helpful structures of policy and law are pertinent to successful HIV/AIDS responses. As the scourge progresses, it also becomes apparently clear that: state and community rejoinders to HIV/AIDS cannot be as effective in the absence of those that suffer from the disease. Because human rights is about safeguarding the interests of members of the community when it comes to their inalienable rights to engage various activities, rights of women and teenagers should be guaranteed. This would help them deter infections and endure the effect of HIV/AIDS. By and large, the human rights of vulnerable members of society, such as people who use drugs, prostitutes, prisoners and homosexuals need to be guaranteed with rights if HIV/AIDS has to be effective (Privacy Commissioner of Canada, 2001).
Research shows that when human rights underlie the information of response to HIV, susceptibility to HIV epidemic is lessened and persons with HIV/AIDs co-exist in harmony and with dignity. Moreover, when human rights ethos leads the process through which community and countrywide responses are executed, the outcomes are custom made responses to the expectations and realities of those affected. These values include non-partisanship, collaboration, inclusion and responsibility. In the event, where nations offer far reaching HIV/AIDs deterrence, care and impact alleviation efforts to all those in need, helping susceptible persons to act on the information and services they get, while allowing total involvement of all those affected in the design and execution of HIV programmers, they are fulfilling their HIV-linked human rights responsibilities and putting up an effective response to HIV. On the contrary, where human rights are not accorded respect, or even protection, and the right advocacy, the risk of HIV infection is enhanced, persons living with and affected with HIV and AIDS suffer from biases and this leads to impeding an affective response to the disease.
A review of the execution of the Declaration of Obligations on HIV/AIDs commission in 2006 in more than 14 nations wrapped up that human rights violations of susceptible populace continue increasing, while disallowing them access to services as well as competent techniques for precluding HIV/AIDS contagion and drugs that will sustain their very existence. Studies conducted by the United Nations on the pandemic nature of HIV/AIDs indicated that 50% of nations that tendered in reports alleged fears emanating from policy frameworks in various jurisdictions that hindered HIV/AIDs related mitigation programs.
Legal transformation to highlight the human rights features of HIV have been advanced in various nations: The Canadian system of government for instance, formulated comprehensive HIV/AIDS legal structure replicas on HIV/AIDS to guarantee rights of persons using drugs, which are used for advocacy in nations as adverse as Georgia, Indonesia, Thailand, and Ukraine. A budding number of international entities have come together to highlight the issues of human rights when it comes to persons with HIV/AIDs (Link &, Phelan 2006). These integrations have indicated that human. rights are proficient corporate principle for marshalling up the civil society against HIV/AIDS.
A review of the execution of the Declaration of Obligations on HIV/AIDs commission in 2006 in more than 14 nations wrapped up that human rights violations of susceptible populace continue increasing, while disallowing them access to services as well as competent techniques for precluding HIV/AIDS contagion and drugs that will sustain their very existence. Research shows that individuals willing to know their HIV status usually undergo blood tests simply because HIV/AID diagnosis is achieved by way of blood tests. And yet, test outcomes may be positive or negative and can be conducted within weeks or months. Diagnosis of HIV infection is made using blood tests. In most circumstances, infection might not be visible in the initial stages although the carriers of the virus are highly contagious.
The sample size used in this survey would include 70 participants. The background of the study was based in Central Asia.
The survey was commission to investigate the relationship between human rights and HIV/AIDS. Eight percent of participants in Tajikistan indicated how they would purchase produce sold by a person living with HIV/AIDs. However, about 20 percent of participants from Tajikistan indicated that a female educator living with HIV/AIDs should not attend duties. Nonetheless, 15 percent of Uzbekistan male were not willing to disclose the status of their family members whether HIV-positive or not. To ensure successful response of HIV/AIDS, all positive people and vulnerable to the disease should have a wide range of globally-accepted human rights met, and respected;
Including right to;
- Medical treatment without being coerced with guaranteed confidentiality
- Access to anti-retroviral and management of HIV/AIDS to control mother to baby transmission
- Access to efficient as well as evidence-based HIV/AIDS prevention services
- Seek asylum
- Expression and receive HIV/AIDS related information
- Form and take part in HIV/AIDS institutions
- Workplace that respects HIV/AIDS people
- Access education
Human rights should take a center stage in ensuring that health information of people with HIV/AIDS is kept in confidentiality because;
- Universal access cannot be realized
- Inequality among genders makes women exposed to HIV/AIDS
- Rights as well as needs of children are basically assumed in regards to HIV/AIDS
- HIV/AIDS activists are in danger when they demand the government to offer access to HIV/AIDS services.
Surveys conducted in many countries, indicate rather well how human rights maltreatments associated to HIV have not been highlighted closely in various nations. As an outcome, shame and prejudice remain live, and susceptibility to illness continues to be anchored in communal, economical and gender disparities. These issues culminate to the soaring number of contagions annually, with women, you persons and vulnerable members of society getting infected at alarming rates while bearing worst impacts of AIDS. In a study that involved 115 participants, in the eastern Chinese coastal town, 50 percent of respondents understood that retribution was a befitting reaction for those living with HIV/AIDS, whereas more than 60 percent of the population was not ready to have people living with HIV/AIDS as their friends or even acquaintances. Studies conducted by the United Nations on the pandemic nature of HIV/AIDs indicated that 50% of nations that tendered in reports alleged fears emanating from policy frameworks in various jurisdictions that hindered HIV/AIDs related mitigation programs. Legal action on behalf of people with HIV/AIDS has been evident in many nations. For instance,
- In 2007, Serbian HIV/AIDS woman was compensated for the damages caused by a European court after being denied to see her child.
- In Mexico, the supreme court nullified a ruling alleging that it was unlawful to retrench members from military services based on the HIV/AIDS status
- In south Africa, the court held the administration for failing to offer nevirapine to pregnant women to control mother-child HIV/AIDS transmission
The survey answers the sub-research question. This is so because human rights advocacy has not highlighted closely the issue of human rights maltreatment associated with HIV/AIDs in various nations.
Summary Chapter 1
The need to protect confidentiality of medical information, especially for HIV/ADS positive people has been emphasised in man. It is evident that people with HIV/ADS are subjected to discrimination as well as stigma globally. Discrimination faced by people with HIV/AIDS is due to unauthorized disclosure of their condition. As such, this has contributed to loss of jobs, family, housing and insurance. The remarkable technological development in the last ten years has enhanced the capacity of health care workers, employers, government among others to gather as well as disseminate personal information. Protection and encouragement of human right are important in making sure that inherent self-esteem of HIV/AIDS positive people and reduce the effects of epidemic on the larger society. With regards to HIV/AIDS positive people, the most significant duty is the responsibility imposed on particular individuals to store their medical information confidential, except under specific circumstances. Therefore, employers must safeguard the dignity and privacy of employees living with HIV and give them equal opportunities. Civil rights groups have championed the cause for recognition of human rights including employees living with HIV/Aids. The International Human Rights law offers reprieve for employees that encounter discrimination at the workplace
Summary Chapter 2
There have been various HIV/AIDS therapies introduced since the mid 1990s that have resulted in much less AIDS-related illness and death. However, HIV/AIDS has no cure and is a lifelong infection. HIV infection occurs through the contact of contaminated body fluids such as, breast milk, blood, semen and vaginal fluids. The most common means of spreading HIV is through unprotected sex. Various jurisdictions have various caps related to HIV/AIDS and employment. In South Africa for instance, the employment Equity Act (EEA) no.55 of 1998 promotes equality at the work place through elimination of discrimination and unfair work practices. It also provides for affirmative action to address the rights of minority groups such as people living with HIV/AIDS. Different countries have in place laws governing the privacy of information. In Canada for instance, The Protected Disclosure Act safeguards the private health information of employees. Consequently, employees living with HIV/AIDS have a right to disclose or not to disclose their status. This serves to reduce the chances of discrimination. Furthermore, the international guidelines on HIV/AIDS and Human rights recognize the right to privacy of people living with HIV. In addition, it includes confidentiality of their health information. In most cases the rights of people who are HIV/AIDS positive are violated since their assumed or known condition, making them suffer the burden of the disease as well as rights. In addition, both discrimination and stigma may hinder access to cure thus heavily impacting their rights.
Summary chapter 3
Despite prohibition of inequitable discrimination and stigmatization, workers living with HIV/AIDS encounter many problems (such as dismissal) once their status is known. Cases of dismissal arise due to inadequate awareness as well as stereotypes that project such workers as incompetent to carry out their tasks. Furthermore, inadequate information on the spread of HIV virus has made many employers to believe that dismissing workers with HIV/AIDS can prevent the spread of the virus in workplace settings.
Summary Chapter 4
Discrimination of people with HIV/AIDS based on their condition places a burden on human development. Health care workers do not understand confidentiality of health information and the consequences of discretionary disclosure. In particular, they should understand that discretionary exposure does not permit revealing patient medical information without their authorization. Discretionary disclosure articles are normally found in provincial privacy laws that are relevant to personal health information. On the other hand, societies with poor access to information for proper sexual and reproductive health and prevention of infection and are rather vulnerable to HIV/AIDS related infections.
Summary Chapter 5
Employers have the responsibility to provide safe workplace settings. Making a balance between workers with HIV/AIDS right is necessary. Additionally employers have to ensure that HIV/AIDS positive workers are accommodated in workplace. Different governments and ILO have made efforts to strike a balance between workers interest, privacy rights, and confidentiality and on the other side employers’ rights to enhance productivity by recruiting HIV/AIDS negative workers. Thus, ILO has been championing human rights to combat HIV/AIDS in workplace setting. ILO efforts have been reinforced by worldwide in fighting the transmission of HIV/AIDS as well as protecting the rights of employees.
Whereas the legal framework has the obligation to guarantee the human rights of persons living with HIV/AIDS, this has not been the case, because more often, people with HIV/AIDS find themselves in precarious situations. Their privacy is compromised and human rights thwarted. Laws for instance, provide people who hold on to personal information the power or discretion to choose whether or not to reveal information without permission and to act on that decision. Women position in the community affects their capacity to bargain in terms of sexual activities. Poverty hinders people with HIV/AIDS to access medical facilities and treatment. Those who undergo surgical operations, tend to find health care workers in the infectious department that hardly understand how to manage the wounds and tend to ask assistance from surgical unit (Burgenthal, Shelton & Stewart 2003).
Furthermore, a health-care’s proficiency or any other person who holds private health information can claim privilege when faced with a merit. Whether or not the medical professional or any other person will take further steps to protect the information is an additional cause that may impact the privacy of personal health information of those living with HIV/AIDS. In most cases, the health information of an individual living with HIV/AIDS’s will be in a documentation held by a medical professional, a counselor, or a community service organization for AIDS victims. Practically, it may be up to that individual or organization to cause a motion in court to assert that the information is protected by dispensation. Majority of counselors, particularly those in community-based AIDS organizations, will not have the acquaintance or skill to do so, or the monetary means necessary to hold on to a lawyer. Medical professionals working in institutional backgrounds such as hospitals may have better access to legal recommendation and representation, and thus be in a better place to guard the privacy of clients’ personal health information and well-being.
In quasi-criminal inquiries and in criminal and civil permissible scheduling, courts may regulate that personal health information be revealed without approval. Legislation can also provide managerial actors and decision-makers the power to regulate the revelation of information, as well as personal health information. Analysis and the creation of proof in lawful proceedings are a possible threat to the privacy of health information of the people living with HIV/AIDS. The Criminal Policy, public health and other legislations all authorize police or other state performers to investigate for and take hold of information of a private character without the authority of the individual to whom the information is related.
People living with HIV/AIDS can affirm their Charter rights in an effort to avoid the investigation and arrest of their personal health information. They can also try to make use of the evidentiary rules and regulations about privileged statements to avoid that information from being revealed as evidence in a court or hearing proceeding. The license, the general law evidentiary rule of privilege, and proficient duties of privacy offer essential protections for people living with HIV/AIDS, who may be able to guard their health information from exploration and attack, or foreword into court as proof, by demanding the constitutionality of an exploration and apprehension.
Albertyn C. (2000). “Prevention, Treatment and Care in the Context of Human Rights.” Paper submitted to the UN Expert Group Meeting on “The HIV/AIDS Pandemic and its Gender Implications.
Elliot R (2005). Protection against Discrimination based on HIV/AIDS status in Canada (HIV/AIDS Policy and Law Review Vol. 1.
Privacy Commissioner of Canada. (2003). Report to Parliament Concerning Substantially Similar Provincial Legislation. Ottawa: Minister of Public Works and Government ServicesCanada, June 2003. Available at www.privcom.gc.ca/legislation/leg- rp_030611_e.asp.
Open Society Institute, (2007). “HIV/AIDS and Human Rights” in Health and Human Rights: A Resource Guide for the Open Society Institute and Soros Foundations Network (New York: Open SocietyInstitute, pp. 2
The Universal Declaration of Human Rights. Retrieved from
Chapter 2 Literature Review
Historical Research Main Research Question
Kelly, (2006). “Polygyny & HIV/AIDS: A Health and Human Rights Approach” (2006) 31(1) Journal of Juridical Science, pp. 1-12, 32-33
Human immunodeficiency virus infection (HIV and AIDS) – symptoms, treatment and prevention
Retrieved from http://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/health+topics/health+conditions+prevention+and+treatment/infectious+diseases/human+immunodeficiency+virus+infection+hiv+and+aids.
HIV/AIDS in the workplace. Retrieved from
International Labor organization. HIV/AIDS and the Workplace. Retrieved from
South Africa Labor Court. Retrieved from http://www.saflii.org/za/cases/ZALC/2002/7.html
Stein M et al. (1988). Disclosure of HIV-positive status to partners. Archives of Internal Medicine; 158: 253
World Health Organization. (2002). Question and Answers on Health and Human Rights. Geneva, Switzerland: World Health Organization, Available at www.who.int/hhr/activi- ties/en/25_questions_hhr.pdf.
Historical Research on Sub-Research Question 1
Information and Privacy Commissioner/Ontario (2002). Submission to the Ministry of Consumer and Business Services: Consultation Draft of the Privacy of Personal Information Act, 2002. 27 February 2002. Available at www.ipc.on.ca/english/pubpres/reports/cbs0202.htm.
Privacy Commissioner of Canada (2002). An address to the Legislative Assembly of Ontario, Standing Committee on General Government on the Government of Ontario’s proposed personal health information legislation (Bill 159). Available www.privcom.gc.ca/speech/02_05_a_010208_e.asp.
Historical Research on Sub-Research Question 2
Hodges J (2004). Guidelines on addressing HIV/AIDS in the Workplace through Employment and Labor Law (ILO Geneva).
MacLean GR (1996). HIV Infections and Limit to Confidentiality SALHR452.
Historical Research on Sub-Research Question 3
Miriam Maluwa et al., (2002). “HIV and AIDS-Related Stigma, Discrimination, and Human Rights” Health Hum. Rights 1.
Rycroft A & Louw R (2000). Discrimination on Basis of HIV: Lessons from Hoffmann Case 21 ILJ 856.
UNAIDS (2006). Courting Rights: case studies in litigating the human rights of people living with HIV (UNAIDS).
Chapter 3 Data Analysis Sub-Research Question 1
Burgenthal T, Shelton D & Stewart DP (2003). International Human Rights in a Nutshell 3rd Ed (West Group 2003).
Christianson M A (2004). Retrospective and prospective overview of the past 25 years ILJ 879.
Theodore de Bruyn, (2002).”HIV-Related Stigma and Discrimination – The Epidemic Continues” 7(1) Can. HIV/AIDS Policy Law Rev.
Chapter 4 Data Analysis Sub-Research Question 2
Dyk AV (2005). HIVAids Care and Counselling: A Multidisciplinary Approach3rded. (Pearson Education South Africa).
Siplon P. (2002). AIDS and the Policy Struggle in the United States. Washington, DC: Georgetown University Press.
Scott Burris, (2006). “Stigma and the Law” 367 Lancet 529.
Chapter 5 Data Analysis Sub-Research Question 3
Link BG, Phelan JC. (2006). Stigma and its public health implications. Lancet; 367:528-9.
Privacy Commissioner of Canada (2001). Submission to the Standing Committee on General
Government (Ontario) on the Personal Information Privacy Act, 2002. Hansard, 37th
Parliament, Session 1, 8 February 2001, 1119-1325.