Text: Lungile Khumalo. Pictures: Thinkstock Images. Article from the April 2013 issue of Bona Magazine.
Fighting HIV is hard enough, but there are legal rights to protect you from discrimination.
In SA, people living with HIV and Aids are protected by our Bill of Rights and have the same rights that protect all citizens – the right to housing, food, social security, medical care, welfare, and so on. It’s beneficial for people living with HIV/Aids to be reminded of our rights in everyday life.
Health Issues
As patients, we all have the right to medical treatment and care from our health and welfare services. There are three main areas of concern:
When testing for HIV
- Informed consent (written or verbal agreement) is a must before HIV testing is done. This means you need to be made aware of and understand the purpose of the test. You need to know the benefits, risks, choices you have and social implications (how it affects society and their views of you) of the test results.
- You have the right to make your own decision about taking the test or not. You cannot be forced into being tested.
- You have the right to anonymous (not identified by name) and confidential (secret) HIV testing with counselling both before and after the HIV test.
- Proxy consent (give someone else the right to agree on your behalf) for an HIV test may be given by a parent or guardian for a child younger than 16 years.
Confidentiality
- Doctors, nurses, psychologists, dentists and all healthcare workers have to legally keep all information about patients confidential. Information about the patient’s illness or treatment cannot be given to anyone else unless (a) The patient agrees to this; (b) The information is about the illness or treatment of a child (the health worker can tell others so long as the child’s parent or guardian have given permission); (c) The patient is dead (the doctor must get permission from the person’s closest relative).
Medical Treatment
The constitution gives all of us the right of access to healthcare services and medical treatment. Government must provide hospitals, clinics and medicines to everyone. You have the right to be treated by healthcare workers. Legally they cannot refuse to treat someone with HIV and they cannot treat you differently to other patients.
In The Workplace
Workers living with HIV/Aids are often discriminated against by their employers or work colleagues.
- A person who is HIV+ is not forced to tell their employer their status. If you do, this is done in confidence, and your employer cannot tell anyone else without your consent.
- A doctor or healthcare worker is not allowed to disclose your HIV status to an employer without your consent.
- An employer cannot demand to know if the cause of an illness is due to HIV infection.
- You cannot be forced to have an HIV test when applying for a job.
- An employer cannot include an HIV test in a medical examination.
- An employer cannot force someone who is already employed to have an HIV test.
- You cannot be refused employment because you are HIV+.
- You cannot be fired, retrenched or refused a job because you have HIV, and an employer cannot dismiss you, even if other employees refuse to work with you.
- You cannot be unfairly discriminated against in the workplace on the grounds of your HIV status. For example, you are allowed the same employee benefits (payment, leave, training and development, promotions, transfers, etc.) as everyone else.
- If an employee is not able to do their job properly because they have become weak and ill from HIV, then an employer is able to dismiss them on the grounds of incapacity (failure or inability to work as required) and poor work performance.
Other Important Rights
- People with HIV/Aids have the right to make their own decisions about matters that affect marriage, family and having children.
- People with HIV/Aids may not be separated, isolated or treated badly in prisons, schools, hospitals or elsewhere simply because of their HIV+ status.
- All children with HIV/Aids have the right to attend any school.
- HIV+ women have the right to make their own choices regarding their pregnancy. You cannot be forced to terminate your pregnancy if you are HIV+.
- A woman with HIV cannot be sterilised (an operation to remove or stop sex organs from reproducing) unless she agrees to this. All women, including women with HIV, have the right to have children. They must remember that it is possible that the children they carry will also get the disease.
- HIV-infected people who are too sick to support themselves or their family have the right to a social grant.
- People with HIV have a duty to tell their partners they are HIV+ in order to protect them from the disease. Everyone has the right to insist that they or their sexual partners practice safe sex (by using condoms) to prevent the spread of HIV.
If you Have been Raped
If you have been infected with HIV during the rape and can prove this, you can make a claim against the rapist for medical expenses, trauma, pain and suffering. To prove you were HIV negative before being raped you should:
- Straight after the rape get tested for HIV. If the result is positive, you were infected before the rape. If the result is negative, get tested again after three months. If you are then positive, this will prove you were infected by the rapist.
- Submit this finding to the prosecutor handling your case, who will mention it in court. If a rapist is found by the court to be HIV+, and he knew of his HIV status before the rape, this could be used to give him a harsher sentence.
Taking Out Insurance
Insurance companies are not allowed to refuse an insurance policy to anyone based on their HIV status. However, they can insist on people being tested for HIV and may refuse life insurance. The good news is insurance companies do have special policies for people who have HIV+.
Medical Aid Companies Companies
South African medical aid schemes cannot refuse membership to anyone, regardless of their health status (which includes anyone with HIV/Aids). However, there may be some limits for a certain period of time regarding any medical cover for bills related to HIV/Aids. According to the Medical Schemes Act, all schemes must offer a minimum level of benefits, decided by the government, to people with HIV/ Aids. These benefits include:
- Treatment for all opportunistic infections (infections that take advantage of a weakened immune system) for HIV/Aids.
- Hospital admissions with treatment.
- Providing anti-retroviral drugs is not compulsory (a must).
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