'HE SOUTHER AFRICAN JOUR AL OF HII' MEOICI E------------ MARCH 2002

LEGAL MATTERS

Elsabe Klinck

Legal Adl.riser, SOllth Africall Medical Association Human Rights, LmL' Qlld Ethics U"it

(b) Unfair discrimination in the provision of benefits,

facilities and services related to insurance.

(cl Unfairly disadvantaging a person or persons, including

unfairly and unreasonably refusing to grant services to
persons, solely on the basis of HIV/AIDS status:

Aggrieved individuals or the family members of deceased

persons may approach their nearest Magistrate's Court to

enforce these statutory rights. Insured persons should also

be aware that insurers may contest pay-outs or insurance

claims on the basis of the non-disclosure of material facts,

and such claims may even be made against a deceased

person's estate.

Insurance companies aim to be profitable and work on
collective risk. With the coming inro operarion of the

Promorion of Equality and Prevention of Unfair
Discrimination Act larer this year, insurance companies

may be required to justify HIV exclusions. HIV status is a so-
called 'additional prohibited ground' of discrimination and

the schedule to the Act lists the following as illustrations of
unfair practices:

is something that has to be contractually agreed berween
the insurer and the insured when the pOlicy is taken out.

'(al Unfairly refusing on one or more of the prohibited

grounds to provide or to make available an insurance

policy to any person.

HIV/AIDS, HUMAN RIGHTS AND
INSURANCE - SOME INDICATORS

Every patient has a constitutional righr to privacy and every

doctor has an ethical duty to maintain patient
confidentiality. The principle is that any rhird party such as

an insurance company can only access information to
which a patient (the insured) has provided informed

consent. Informed consent means that the person is aware

of the consequences of his/her consent. Therefore the
South African Medical Association does not regard blanket

consent or consent obtained years ago as informed
consent. In insurance law, a person (the insured) has to

disclose all material facts that may affect the insurance to
the insurer. The relationship is between the insurer and the

insured, and unless the insured has consented to the

medical practitioner making medical information known on

his/her behalf, the practitioner is bound to preserve
confidentiality. The family of a deceased person may

consent to an insurer requesting information from the

practitioner in terms of the Promotion of Access to

Information Acr of 2000. The Regulations to the Act must
be used to request the information.

Medical practitioners may be requested to complete forms

in which they have [Q indicate their suspicions in relation

to a patient's Htv s a us. If the doctor does not know a

deceased person's HIV starus, ir cannot be revealed,

because one cannot reveal what one does nor know. If

disclosure of medical facts [or indicators) is required ex
post facto, companies and orhers may require a range of

tests to be per armed on deceased persons, but again that