OfUMHtR 2001------------ THE SOUTHHlN AFRICAN JOUR.NAL OF HIV MEDICINE

ETHICAL ISSUES

Elsabe Klinck

Legal Advisor, South African Medical Assoaac£on

known to the employer. If the employee provides informed

consent that his or her status may be disclosed to the

employer, the employer must keep that information

confidential unless the employee consents to that

information being made known to co-employees. These

disclosures should take place with the necessary

counselling and training exercises.

Do the same principles apply to doctors who are HIV-

positive 7 The guidelines of the Medical and Dental

Professions Board of the Health Professions Council of

South Africa (HPCSA) on the Management of Patients with

HIV infection or AIDS (July 2001) state that no doctor is

obliged to disclose his or her HIV status to an employer or

co-employee. Infected doctors may continue to practise,

but have to seek counselling and advice so as to adjust

their professional activities to protect their patients. In

general, only scientifically justifiable restrictions will be

permissible. Some aspects of medical training may be

sensitive for HIV-positive medical students and doctors.

Medical schools and facilities are currently attempting to

address this issue so as to balance the rights of people to

choose a profession with the rights of patients. The HPCSA

has suggested that medical academic institutions should

designate an appropriate and professional counselling

service.

All employers should have HIV policies for the workplace

and should conduct educational and training activities.

Medical practitioners can play a constructive role in

imparting scientific and clinical knowledge on this matter.

The Code of Good Practice on HIV and AIDS in Employment,

issued by the Department of Labour in 2001

(http:/www.labour.gov.za/docs/legislation/eea/index.asp),

provides more details.

Employers who are not covered by the Employment Equity

Act will be bound by the Promotion of Equality and

Prevention of Unfair Discrimination Act of 2000. This Act

also binds employers towards 'any person', i.e. not only

employees, and claims may be lodged at any Magistrates'

Court. South African National Defence Force members are

not covered by most of the employment legislation.

However, the Constitutional Court ruled in 1998 that they

Section 7 of the Employment Equity Act prohibits the

medical testing of employees and job applicants. This may

only be done if the consent of the Labour Court has been

obtained in this regard. The only case that has, up to now,

dealt with this issue, reaffirmed the fact that testing at the

request of an employer may only be conducted with the

informed consent of each individual employee. This means

that no employer may force an employee or job applicant

to undergo an HIV test.

The Employment Equity Act of 1998 prohibits unfair

discrimination against employees based on their HIV status.

In the recent case of Hoffman v. South African Airways
(2000 (11) BCLR 1235 (CC)) the South African

Constitutional Court found the discrimination against an

HIV-positive prospective employee to be unfair. The Court

took notice of the employee's CD4 count, his actual ability

to do the work and whether he would be able to take

necessary medication for fiights to African countries. The

Court rejected arguments that passengers would feel

uncomfortable with an HIV-positive flight attendant. It also

rejected arguments that many other airlines have similar

discriminatory policies, stating that discrimination

elsewhere in the world cannot be used as a justification for

unconstitutional behaviour in South Africa. Furthermore,

this case means that refusal to retain an HIV-positive

employee will be unlawful. Dismissal based on a person's

HIV status constitutes a prima facie unfair dismissal In

terms of the Labour Relations Act of 1995.

EMPLOYMENT-RELATED HIV TESTING
SOME CONSIDERATIONS

Medical practitioners can be either employers (when for

example in private practice) or employees (when working

for the state or another employer). They are also expected

to deal with employers requesting HIV tests for prospective

or existing employees. For these reasons they have to be

familiar with the relevant provisions of labour law in this

regard. The much-publicised cases of testing of domestic

workers have emphasised instances where employers place

doctors in difficult ethical and legal situations.

Confidentiality in relation to an HIV test and the results

thereof applies even where the employer pays for the test.

It is unlawful for a medical practitioner to test an employee

solely at the request of the employer and to make the result



MEMBERSHIP BENEFITS

IKIIlW
CLINICIANS SOCIETY

.POSTAl CODE .......•.•.

Quarterly newsletter Transcript
Portion membership to support Web site

Advocacy and professional support
Education and Training Incentives

. COUNTRY

..... .HPCSA NUMBER

Employees should also have access to medical aid schemes

that must provide a minimum benefit to people living with

HIV/AIDS. Although an employee does not have to disclose

his or her HIV status to the medical aid. extra medical cover

may be provided for in terms of special HIV programmes

and it would benefit the patient to disclose that

information to the fund. The patient/employee should

disclose this fact rather than the medical practitioner to

prevent legal action or complaints of breach of

confidentiality.

..................... DATE

MEMBERSHIP

MEMBER FEES FOR 2002

• .........•.••••••••.......... FAX NO

. E- MAll

APPLICATION FORM

SA HN Clinicians Society: Private Sector - R250 per annum and Public Sector - R125 per annum.
These fees ore now due.

• Quarterly issues Southem African Journal of HIV Medicine •

• Accredited CPO points •

• Discounted attendance at sponsored conferences •
• Regional and International Representation •

POSTAL ADDRESS .

CITY STATE/PROVINCE .

TELEPHONE NO .

CEll NO .

SIGNATURE

IKIIlW
CliNICIANS SOCIETY

NB PLEASE PRINT LEGIBLY AND RETURN TO:
The Sauth African HIV Clinicians SocielJ. Suite 233. PoslNe! Killarney. Private Bag X2600, Houghlon, Johannesburg, 2041

FIRST NAME SECOND NAME lAST NAME .

TITLE DEGREE(SJ .. . . . . . ..............•.........••..••.••..•.

INSTITUTION/ORGANISATION/AGENCY SPECIALITY

PHYSICAL ADDRESS ...................•••••••..•. . .

Do you practice in Southem Africa? 0 YES 0 NO 0 OTHER . .IRURAUCITYI
Place of practice? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

For how many years have you been treating HIV patients? . .

Is your area of HIV practice in: 0 PRIVATE SECTOR 0 PUBLIC SECTOR 0 BOTH PROPORTION: PRIVATE: PUBLIC:-:-
Do you have any formal training in HIV Medicine? 0 YES 0 NO If 'Yes' please specify, .
Approximately how many of your patients are currently receiving antiretroviral therapy? .....•.••...

Would you like to become a member of the HIV Clinicians Provider Network? 0 YES 0 NO

Please enrol! me as a member of the SOUTH AFRICAN CLINICIANS SOCIETY

Please tick preferred Method of Payment 0 CHEQUE 0 DIRECT OEBIT 0 ELECTRONIC TRANSFER
IN FAVOUR OF THE SOUTH AFRICAN HIV CLINICIANS SOCIETY

Should you wish to deposit the membership fee, please ring (011) 453 5066

In terms of the Occupational Health and Safety Act of 1993

all employers have to adopt measures to reduce the risk of

HIV transmission at work. These measures have to be

rational and therefore based on the relevant scientific and

legal facts. The Basic Conditions of Employment Act of

1997 stipulates the rights of employees to sick leave. HIV-

positive employees may require reasonable

accommodation in this regard and in the allocation of

duties. etc. as prescribed by the Employment Equity Act.

have a constitutional right to fair labour practices. which

would include those in relation to HIV.

OfCEMHER 2001----------- THE SOUTHERN AFRICAN JOURNAL Of HIV MEDICINE