Module 7
LEGAL AND ETHICAL ISSUES
IN ART
Module 7
Objectives
By the end of the session, the participant should:
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Demonstrate the linkages between HIV, Human
Rights and Public Health
Describe the ethical and legal issues in HIV/AIDS
generally
Identify the ethical and Legal issues which they may
encounter in ART
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Objectives (Cont..)
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Describe the legal framework in Kenya
that addresses legal and ethical issues
on HIV/AIDS
Describe how to handle the ethical and
legal issues in ART in special
circumstances.
Module 7
Human Rights Principles
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Right to non-discrimination, equal protection
and equality before the law
Right to live
Right to the highest attainable standard of
physical and mental health
Right to liberty and security of person
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Human Rights Principles
(Cont..)
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Right to work

Right to marry and to found a family
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Right to equal access to education
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Right to an adequate standard of living
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Right to social security, assistance and
welfare
Module 7
Human Rights Principles
(Cont..)
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Right to share in scientific advancement and
its benefits
Right to participate in public and cultural life
Right to be free torture and cruel, inhuman
or degrading treatment or punishment.
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Human Rights Principles
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Rights spelt out clearly in the Universal
Declaration of Human Rights and Kenyan
Constitution
HIV/AIDS initiatives work best where there
is supportive legal and ethical environment
protective to human rights
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Special features of HIV/AIDS which
raise legal and ethical issues
Feature
Consequences
New Epidemic infection
Fear, misunderstanding and denial
Long asymptomatic period & life Infected often unaware. No action
long infectivity
taken until people become ill
No cure, limited expensive
treatment
Intensifies fear over testing,
burden on family & health services
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Special features of HIV/AIDS which
raise legal and ethical issues (Cont..)
Feature
Consequences
Associated with stigma and
myths
Patients reluctant to come
forward for testing/care
Affects young adults
Severe secondary costs due to
loss of productive years of life
and burden on family
Module 7
Legal Framework of HIV/AIDS
in Kenya
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Amendment of Public Health Act in 1987 –
HIV a ‘notifiable’ disease
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Guided by policies and guidelines since then
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Sessional Paper No. 4
Guidelines on HBC, ART, VCT, Blood Safety
Other sources include:
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The Constitution (Bill of Rights), Common law,
Relevant Statutes eg: Public Health Act
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Legal Framework of HIV/AIDS
in Kenya (Cont…)
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HIV/AIDS declared a national disaster –
Legal Notice number 170 of 26 Nov 1999
Legal Task force on HIV/AIDS established
(2001) – Gazette Notice No. 4015
HIV/AIDS Prevention and Control Bill (2002)
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Non-discrimination and Equality
before the law
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Negative discrimination against persons
infected or affected by HIV/AIDS is not
allowable
Every person infected or affected by the
epidemic remains an equal member of the
society with equal rights
Stigmatization of people with AIDS is equally
unlawful and objectionable
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Testing for HIV
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Mandatory testing for HIV/AIDS should be
prohibited
Prior and informed consent for those being
tested with pre and post-test counselling and
guarantee of confidentiality
Testing without prior and informed consent
may be permissible on grounds of necessity
and only for patient’s health interest
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Testing for HIV
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Negligent testing resulting in misdiagnosis would
invite legal actions for damages against the person
and institution
No blood should be transfused or human organ
transplanted unless known not to be infected
Anonymous and unlinked testing of populations or
groups necessary for epidemiological purposes to
enable surveillance and control
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Testing for HIV
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All pregnant women or girls should be
routinely counselled about benefits of
HIV testing
Ensure informed consent is provided
and counselling offered
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Ethical and Legal Controversies
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Testing for HIV and whether it should be
mandatory or voluntary
Confidentiality of HIV test results with ethical
dilemmas on doctor/ patient relationship,
employer/employee situation, partner
notification
Discrimination of PLWHA in employment and
provision of services
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Ethical and Legal
Controversies
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Criminalisation of deliberate infection
with HIV
Ethics of research
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Doctor-Patient confidentiality
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Confidentiality a must for all health workers
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Disclosure only from express consent of patient
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Duty of confidence may be waived by public
interest if demonstrated that a greater public good
would be served by disclosure than by maintaining
the confidence
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Doctor-Patient Confidentiality
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Information requested by a patient
about his HIV status should not be
withheld.
PLWHA should be encouraged to share
information of their serostatus with
their sexual partners and those at risk
of infection by them
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Doctor-Patient Confidentiality
If a doctor or other medical attendant
reasonably believes that a person living with
HIV/AIDS has failed to inform his/her
partner of his/her status and continues to
expose the partner to risk of infection and
a reasonable period has elapsed since the
date when the PLWA was requested to
share the information, the doctor or
medical attendant may be required to
disclose the information to the sexual
partner.
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Doctor-Patient Confidentiality
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For minors and some patients in an
advanced state of AIDS, the doctor or
medical attendant may be allowed to
inform the closest or most appropriate
family member
Module 7
Legal and Ethical Aspects of
ART
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Broad Ethical issues that arise in ART are:
 Availability
 Affordability
 Accessibility
Intense debate on best way to deal with scarcity
 Principle of justice – effective socially available medical
treatment should not be denied because of inability to pay

Greatest good to the greatest number: interventions that
save lives or reduce suffering to the majority have stronger
ethical claim than those that benefit few individuals
Module 7
Legal and Ethical Aspects of ART
ART in special circumstances
 Occupational Exposure
 Sexual Assault
 Expectant mothers
 Unborn babies
Legal and Ethical questions arising include:
 Do they need post-exposure prophylaxis
 How does one deal with issues of consent and
confidentiality of HIV results
 Do they need to know the HIV status of the
patients and vice versa
Module 7
Rights of the Child in the
context of HIV/AIDS
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All children under 18, infected or affected by
HIV/AIDS are recognised by the UN convention on
the rights of a child
UN convention states that Children have a right to
life, survival and their development should be
guaranteed
They should have access to HIV/AIDS prevention,
education, information and to the means of
prevention
Rights to confidentiality and privacy in regard to their
HIV status
Module 7
Health Care Workers need not know the HIV
status of the patients and must at all times
adopt the safety measures provided by the
universal standards.
Equally there is no legal justification for the
patient to know the HIV status of the
Health Care Provider
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Case Study 1

Juma lost his job as a truck driver because he could not keep
awake during long journeys. His boss had noted that he had lost
weight and said that he coughed a lot. The boss requested that
he visits a company doctor who tested him without his
knowledge and passed on the results to the boss
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Does Juma have any human rights and if so, which ones?
Was the doctor assisting Juma in doing the HIV test without
his knowledge?
In which ways would the boss and the doctor have assisted
Juma
Module 7
Case Study 2
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A 32 year old female school teacher comes to the clinic after
she tested HIV positive at a local VCT. She feels fine and has no
signs and symptoms of AIDS or any other illness. She is married
to a nurse HIV positive too but is in good health. The couple
desires to have children
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What do the Human Rights Principles relevant to HIV/AIDS
state?
Should the couple go ahead and get a baby?
As a health worker, what would be the legal and ethical
issues involved?
Module 7