Clinic disclosed my HIV status to my boss. Is this legal?

Ombogo & Company Advocates |Law Firm in Kenya |LEGAL EYE |MEDICAL CASES


With Gillian Ombogo,

Ombogo & Company Advocates |Law Firm in Kenya |LEGAL EYE |MEDICAL CASES

In 2010, I was employed in a certain organization. In May 2019, I suddenly fell ill at work and was rushed to a nearby clinic by my immediate supervisor. A blood test was conducted in the course of my treatment. The medical officer later revealed to me that I had tested positive for HIV. The clinic also disclosed my HIV status to my supervisor who subsequently shared the information with the management.

The information thereafter spread like bushfire within the organization. My colleagues gossiped and avoided me. My supervisor suddenly began treating me with contempt, to the extent of commenting that he could not work with a “sickly” person. A few months later, my employment was terminated without any terminal benefits.

Was it legal for the clinic to disclose my HIV status to my supervisor?

It is unfair to terminate my employment on account of my status. Where can I lodge my complaint and seek justice?

F. Wasike, Kisumu

Kenya has made tremendous progress in response to the HIV and AIDS epidemic however discrimination, stigma and human rights violations associated with HIV remains a serious challenge.

The Constitution does not expressly touch on persons living with HIV and AIDS. Article 27 of the Constitution nevertheless states that no person should discriminate another person directly or indirectly on the basis of their health status. Article 28 further provides for every person’s dignity to be respected and protected.

The HIV and AIDS Prevention and Control Act, 2006 (the HIV Act) states that HIV testing carried out in the course of a normal treatment procedure, like in your case, ought to have been conducted only with your informed consent. Medical practitioners can only conduct a HIV test without one’s consent if they are unconscious and unable to give the consent and they reasonably believe the test is clinically necessary or desirable in the interest of their patient. A consent in these circumstances means consent without fraud, force or threat and with your full knowledge and understanding of the medical and social consequences of the test.

It was improper and unlawful for the clinic and subsequently your supervisor to disclose your HIV status. You have a constitutional right to privacy under Article 31 which includes the right of information relating to your private affairs not to be unnecessarily revealed. On disclosure of information, the law stipulates that nobody should disclose any information concerning the HIV test results of a person to any third party, except with the written consent of that person.

The law is also clear that nobody’s employment should be terminated on the basis of their HIV status unless your former employer can prove your employment required you to be in a particular state of health or medical condition and you were unable to measure up to that state at the time of your dismissal.

You can lodge your complaints at the HIV and AIDS Tribunal of Kenya which has a mandate to hear and determine cases regarding violation of the HIV Prevention and Control Act.  The violations must be proved to be solely on the account of your HIV status. It is important to note that complaints can only be lodged in Nairobi, where the Tribunal is located.

Published in the Daily Nation Newspaper of 4th December, 2020