HIV0304Pg000


MARCH 2004                                             THE SOUTHERN AFRICAN JOURNAL OF HIV MEDICINE  4 4

In no other field is the role of law and ethics as crucial as
in the field of HIV/AIDS. Health care professionals are in a
unique situation, as both legal and ethical rules apply to a
single HIV-related situation faced by them. Legal and
ethical rules sometimes overlap, but sometimes differ. The
South African Constitution and its Bill of Rights
complicates matters further in that it is the highest law,
and even ethical rules and rulings may be challenged as
being justifiable limitations to human rights principles.

Perhaps the most well-known rule of medical ethics is ‘do
no harm’. In South Africa the Health Professions Council
has issued a variety of ethical rules and its professional
boards have made various rulings further concretising the
application of these ethical rules. This body of rules and
rulings is supplemented by policy statements, such as the
Guidelines for the Management of Patients with HIV
Infection or AIDS and the  Policy Document on Undesirable
Business Practices, which also contains various provisions
on managed care.

The following human rights play an important role for
people living with HIV:
■ The right to (substantive) equality and non-

discrimination
■ The right to privacy (confidentiality)
■ The right to human dignity
■ The right to security of the person (to make informed

decision about one’s body)
■ The rights of access to health care and access to social

security (welfare and insurance)
■ The right of access to information.

These rights do, however, also entail responsibilities. The
right of access to health care implies the responsibility to
take care of one’s own health and to follow the instructions
of one’s practitioner; the right of access to social security
in the form of health care funding implies the duty not to
abuse benefits awarded by schemes. 

Pre- and post-test counselling form an integral part of the
process of obtaining informed consent from a patient. Not
only does it show respect for the physical integrity and
human dignity of the patient, it prepares the patient for the
potential outcome of a test and issues that may arise from
such an outcome.

A typical pre-test counselling session could include:
■ What the test is 
■ How it is done 
■ All advantages and disadvantages of undertaking a test

and knowing the results 
■ What a positive result means 
■ What a negative result means 
■ The chances and implications of an incorrect result 
■ Appropriate support structures available, etc. 

Concerns on funding of further health care may also be
high on a patient’s list of questions and should be
addressed. Some of the issues raised during such sessions
may indeed necessitate legal support. Practitioners may
find it useful to have a list of support organisations and
telephone numbers available for patients.

Post-test counselling should revisit the above points, and,
in general, serve to facilitate patients’ decision-making on
future health care. The health care options and effects of
each need to be discussed, as well as the ongoing and
longer-term health care planning of the patient.

The National Health Act of 2003, which is not yet in force,
sets the following prerequisites for informed consent:
■ The range of diagnostic procedures and treatment

options available to the patient
■ The benefits, risks, costs and consequences generally

associated with each option
■ The right to refuse services, but also the implications,

risks and obligations accompanying such refusal.

It also sets a whole new requirement in that where health
services have been provided without consent, the
provincial head of a health department must be informed
of such fact within 47 hours.

M E D I C O - L E G A L

HIV/AIDS, LAW AND ETHICS: A BRIEF
ANALYSIS OF SOME PERTINENT ISSUES

Elsabé Klinck

Director: Research, Compliance and Counselling, Foundation for Professional Development

LAW AND ETHICS COUNSELLING AND INFORMED CONSENT

HUMAN RIGHTS AND RESPONSIBILITIES



THE SOUTHERN AFRICAN JOURNAL OF HIV MEDICINE                                            MARCH 2004  4 5

The requirement to obtain a patient’s informed consent
may be disposed of where a law so authorises or a court so
orders. The National Health Act of 2003 also authorises
treatment without consent where failure to treat the
patient will result in a serious risk to public health. This
clause may, albeit unjustifiably, be used in the HIV setting.
Another contentious section involves circumstances in
which it would be justifiable for a professional not to
discuss a patient’s health status with him or her, i.e. if there
is substantial evidence that the disclosure would be
contrary to the best interests of the user. As these sections
may indeed limit the rights of patients, both should be
narrowly construed and applied.

Although not mandatory, it is advisable to obtain written
consent. A typical consent form should include that the
patient received the required information (listed in the
document) and has understood such information, and that
the patient provides his or her informed consent for the
test and/or to be informed of the results thereof and/or
treatment. If the form refers to treatment, the patient has
to declare that s/he understands the requirements set in
terms of compliance and the effects of the failure to
comply. Patients may also be requested to agree to the
anonymous use of their data for purposes of practice
profiling, epidemiological data or files-based research
projects.

Needle-stick injuries remain a bone of contention.
However, in the absence of legislation authorising testing
without consent, if is submitted that the patient’s consent

should be obtained, failing which post-exposure
prophylaxis (PEP) should be commenced.

Testing in the pre-operative setting should serve to protect
the health care, and especially the postoperative health
care decisions, of the patient. Testing solely to ‘protect
other health care workers’ may result in a false sense of
security and a violation of ethics (acting in the best interest
of the patient) and human rights (obtaining informed
consent).

A third contentious area is where patients have been tested
accidentally. It is advisable to discuss the circumstances
with the patient and explain the importance of knowing
one’s HIV status.

Patients who are unwilling to undergo testing also present
a particular difficulty to practitioners, especially where a
practitioner strongly suspects that the patient is HIV-
positive. The clinical signs of HIV may be explained to the
patient, but it may be advisable to get to the root of this
unwillingness, if necessary by means of counselling.

Other unresolved areas include disclosing HIV status for a
known sex partner, accessing medical scheme benefits and
insurance products, and access to health care in the public
sector. 

The well-known nevirapine case provides us with a good
guideline on the issue of access to treatment in that the
Constitutional Court ruled that if a medical practitioner is
of the opinion that nevirapine is clinically indicated, it
should be provided to the patient. Patients living with HIV
and whose rights are in jeopardy may be greatly assisted if
practitioners fight to retain their clinical independence.

CONTENTIOUS ISSUES