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Introduction
The good news for
healthcare providers is that rapid kits for HIV tests are increasingly
available in all government hospitals and testing centres.
This will help cut down the interminable wait that doctors have to
make before they can prescribe a course of treatment for their
patients. It will also help clients seek testing services more than
they have done so before, given that test results will be available
either on the same day, or on the next. For a fledgling Voluntary
Counselling & Testing (VCT) movement in the country, this is very
good news indeed.
However,
the proliferation of easy testing facilities carries with it the
danger that healthcare providers will increasingly seek to enforce
testing upon their clients. This is already the case in most
government hospitals in the country. Anywhere between 70% & 80% of
all clients seeking testing are referred by doctors from within the
hospitals itself.
From the
point of view of healthcare providers this is justifiable for both
reasons of self-protection as well as to prescribe appropriate
treatment of patients. From the patients' perspective, this is
untenable, largely because it threatens to expose an individual's HIV
status to a world that continues to stigmatize and discriminate
against people with HIV. The end result is that many patients referred
for testing from the out patient department do not return to receive
test results. Others, who agree to test, primarily because it is a
pre-condition for treatment, face ongoing onslaughts on their personal
and professional dignity and respect.
For
healthcare providers, the issue is even more significant in the light
of the fact that the national policy on HIV forbids mandatory testing.
While this can be got around by getting clients to give their consent,
it may not stand the scrutiny of law in the light of consequences that
a patient faces, as a result of the slightest breach of
confidentiality. If a patient were to feel that s/he has been coerced
into giving consent, s/he can challenge procedures that proscribe
testing, on the grounds that their fundamental rights have been
violated. And they may well win!
VCT,
Constitution of India and the Human Rights Act (1996)
A study of the
Fundamental Rights as well as the Directive Principles of State Policy
reveals that every citizen of India has the right to be protected
against the very consequences that an enforced test can have upon an
individual's life and liberty. This is especially true in cases where
news of the result gets around.
Breach of
confidentiality is the single largest factor that leads to
discrimination of people with HIV and their families. Most government
hospitals have a poor track record in terms of maintaining
confidentiality. Reasons vary from sign boards announcing HIV testing
facilities, poor understanding of the principles and practices of
counselling, inappropriate methods of revealing test results, and
segregation of positive people in separate wards; to common knowledge
of the HIV status of a patient among medical and paramedical workers
in the ward. Apart from any limitations in treatment that the
individual may undergo as a result, the concrete outcomes of
discrimination can typically result in some or all of the following:
1. Loss of
job / income
2. Loss / conflict within family and friends
3. Loss of reputation / respect / social standing
4. Discrimination of children by community / educational institutions
5. Loss of homes / shelters
6. Loss of property
7. Denial / poor quality of treatment facilities
8. Loss of self-esteem / dignity.
All these
issues are directly linked to an Indian citizen's rights under
Articles 19 and 21 of the Constitution.
Article
19: Protection of
certain rights regarding freedom of speech, etc. - (1) All citizens
shall have the right:
(a) to
freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practice any profession, or to carry on any occupation, trade
or business.
Article
21: Protection
of life and personal liberty:
No person shall be deprived of his life or personal liberty except
according to procedure established by law.
In the
course of several hundred judgments, both the Supreme Court as well as
individual High Courts has interpreted the scope of these rights to
include almost all of the areas that HIV positive people are
discriminated against. Thus, the law can prosecute anybody who
willfully contributes towards circumstances that can lead to violation
of an individual's Fundamental Rights.
Consequences
of HIV-related Discrimination
Loss
of job / income
Article 21 of
the Constitution of India protects "the right to livelihood as an
integral facet of right to life. When an employee is afflicted with an
unfortunate disease due to which, s/he is unable to perform the duties
of the posts s/he was holding, the employer must make every endeavour
to adjust them in a post in which the employee would be suitable to
discharge the duties." (In Narendra Kumar Chandla v. State of
Haryana, AIR 1995 SC 519 at p. 520) Article 19(1)(g) guarantees a
citizen "the right to practice any profession or to carry on any
occupation, trade or business".
Enforced
testing that can lead to loss of job / income violates both these
rights, and can be sufficient cause for seeking legal redress.
Loss
of reputation / respect / social standing
In 1997, the
Bihar High Court ruled that "reputation is a part of one's
Fundamental Right and personal liberty as guaranteed under Art. 21 of
the Constitution of India. Any act that tarnishes the reputation of an
individual amounts to violation of this right." (Lal Krishna
Advani v. State of Bihar AIR 1997 Pat 15 at p.19)
Enforced
testing that can lead to loss of reputation / respect / social
standing, violates this right, and can be sufficient cause for seeking
legal redress.
Discrimination
of children by community / educational institutions
In 1997, a
Court ruled that "right to education uninterrupted by any outside
forces, political or others, is a Fundamental Right guaranteed under
Art. 21, read with Arts. 39, 41, 45 and 46 of the Constitution, which
will make the life more meaningful and purposeful." (Satyavan
Kottarakkara v. State of Kerala, AIR 1997 Ker 133 at p.137, 138)
Enforced
testing that can lead to discrimination of children by community /
educational institutions violates all these rights, and can be
sufficient cause for seeking legal redress.
Loss
of home / shelter
In 1995, a
three judge bench of the Supreme Court held that "right to
residence and settlement is a Fundamental Right under Article
19(1)(e)." They further held that "protection of life
guaranteed by Article 21 encompasses within its ambit the right to
shelter to enjoy the meaningful right to life." (P.C. Gupta v.
State of Gujarat, AIR 1995 SCW 1540)
In yet
another judgement of the Supreme Court in 1990, a three judge bench
held that "the basic needs of man have traditionally been
accepted to be food, clothing and shelter. Right to life is guaranteed
in every civilized society which would take within its sweep right to
food, clothing and decent environment, and a reasonable accommodation
to live in." ( Shantistar Builders v. Narayan Khimalal Totame,
AIR 1990 SC 630)
In another
case in 1985, the Supreme Court held that the right to life includes
right to residence. (Olga Tellis v. Bombay Municipal Corporation AIR
1986 SC 180)
Enforced
testing that can lead to loss of home/shelter violates both these
rights, and can be sufficient cause for seeking legal redress.
Denial
of healthcare facilities
In several
judgments, the Supreme Court ruled that "the tight to health is
an integral to right to life. Government has a constitutional
obligation to provide health facilities." Right to health and
medical care to protect health and vigour, while in service or after
retirement, was held a Fundamental Right of a worker under Article 21.
"The right to health of a worker is an integral facet of
meaningful right to life, to have not only a meaningful existence but
also robust health and vigour without which the worker would lead a
life of misery. Lack of health denudes him of his livelihood."
(State of Punjab v. Mohinder Singh Chawla, AIR 1997 SC 1225 at p. 1227
and Air India Statutory Corpn. v. United Labour Union, AIR 1997, SC
645 at p. 669)
Enforced
testing that can lead to denial of treatment facilities violates this
right, and can be sufficient cause for seeking legal redress.
Loss
of self-esteem / dignity
In 1981, the
Supreme Court, while elaborating the scope of the right guaranteed
under Article 21, stated: "But the question which arises is
whether right to life is limited only to protection of limb or faculty
or does it go further and embrace something more. We think that the
right to life includes right to live with human dignity and all that
goes along with it namely, the bare necessities of life such as
adequate nutrition, clothing and shelter; facilities for reading,
writing and expressing oneself in diverse forms; freely moving about;
and mixing and
commingling with fellow human beings. Of course, the magnitude and
context of the components of this right would depend upon the extent
of the economic development of the country, but it must, in any view
of the matter, include the right to the basic necessities of life and
also the right to carry on such functions and activities as constitute
the bare minimum expression of the human self." (In Francis C.
Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 at
753)
Enforced
testing that can lead to loss of self-esteem/dignity violates this
right, and can be sufficient cause for seeking legal redress.
Compensation
in infringement of other's right
It is a
recognized principle in both Civil and Criminal Jurisprudence to
punish any individual who infringes the rights of the other individual
and also to award monetary compensation under some circumstances to
the victim who was adversely affected by such infringement. Similarly,
the State (Government) which performs its assigned powers and
functions through its machinery consisting huge number of employees is
also liable to pay monetary compensation like any other individual
whenever its employees cause infringement of the rights of the
individual. Though the State enjoys certain privileges in comparison
with the ordinary citizen in some matters it cannot escape from the
basic and fundamental liabilities. This is more so in any country
governed by the Rule of Law and Democracy. (See AIR 1997 Journal
Section 167 at 167, 168)
Conclusion
Though healthcare
providers seek enforced HIV testing of their patients, both for their
own self-protection as well as that of the well-being of patients,
they run the risk of attracting legal action. This possibility is
reinforced by the crucial fact that the national policy on HIV testing
promotes the principles and practice of voluntary counselling and
testing, and explicitly forbids mandatory or enforced testing.
A more
concrete and sustainable way that enables self-protection of
healthcare providers is to make mandatory several infrastructural as
well as procedural requirements. These include:
1.
Facilities to implement universal precautions
2. Availability and easy accessibility of Post-Exposure Prophylaxis
(PEP)
3. Training in self-care for healthcare providers
4. Training in HIV management
5. Adequate and appropriate manpower in hospitals
6. Adequate and appropriate infrastructure in hospitals
7. Adequate and appropriate drug supplies.
These areas
are entirely remediable and can be advocated through official bodies
such as the Indian Medical Association (IMA), the Federation of
Nurses, etc. Strengthening these areas will help care providers to
cope with the impact of HIV in the country, in the short term. In the
long term, it will be a safeguard against the possibility of future,
unknown epidemics.
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