Thursday, December 15, 2011

Employees health screening- Ethically good or bad?

I got this question posted in one of the HR discussion group I initiated:

Dear professionals

Some organisations still continue practice of testing employees for HIV while joining the organisation as well as their executive medical check up in spite of instructions / court rulings against it. How this can be brought into the appropriate forum to address this.

If any body has related article which either Bombay High Court or SC has issued around 2 years before, may please be put into circulation so that those community members will also be aware of existence of such thing.

My reply:

There is nothing wrong to conduct the test however after if company found that the person is tested positive, he cannot be denied the employment unless he found substantially danger for other employee.

The law only prohibits you to publish or declare name and other details on the patient. Kindly find case details as follows. Even I feel that there is nothing wrong to have tests however, since the matter is very sensitive, it need to handle very maturely and with lot of confidentiality. Company invest a lot in human resources and taking care of safety of other employees. Company is not wrong here too.

A landmark anti-discrimination case in the Bombay High Court that affirmed the rights of PLHAs in the workplace was MX v. ZY [AIR 1997 Bom 406] where MX, a casual labourer, was tested for HIV by his employer, ZY, a public sector corporation, prior to being regularised into a permanent position. MX tested positive for HIV, and though otherwise fit, was rejected from being regularised, and his contract was terminated. MX filed a writ petition in the Bombay High Court, arguing that the company’s rules (mandatory HIV testing and denial of employment to positive people) and actions violated Articles 14 (Equality before the law), 16 (Equality of opportunity) and 21 (Right to life and personal liberty) of the Indian Constitution. The court ruled that:

•The services of HIV-positive employees can only be terminated if they pose a substantial risk of transmission to their co-employees or are unfit or unable to perform the essential functions of their job. Determining whether a person is unfit or incapable of performing their job must be made on the facts of each specific case by conducting an individual enquiry (beyond a mere diagnostic test).
I feel following details will help you more to understand the issue

Consent and testing

The principle of consent is based on the fundamental principle of the autonomy of an individual, and is recognised within the framework of the right to life and personal liberty in Article 21 of the Indian Constitution. Legal issues related to consent in the HIV context arise primarily with regard to HIV testing and treatment. The most important reason for taking consent from a person before testing and treatment is respect for human dignity and bodily integrity. Not obtaining consent could result in a criminal charge of assault or battery or a civil claim for damages or trespass to a person.

As seen above, the Indian private sector remains virtually uncontrolled while adopting discriminatory practices such as mandatory testing for employment and access to services, particularly health care. Mandatory testing is also being considered by the armed forces. In relation to immigration, the minister for Health and Family Welfare, in September 2002, declared that foreigners in India, including students, no longer had to undergo mandatory HIV testing as it contravenes the testing policy of the World Health Organisation as well as the National HIV Testing Policy.

While Indian laws on the issues of consent in the health care setting are not fully developed, there is a plethora of international case law:

•Bolam v. Friern Hospital [1957] 2 All ER 118 QBD England
•Canterbury V. Spence [1972] 464 F 2d 772, U.S. Court of Appeals, District of Columbia Circuit.
•Chatterton V. Gerson and another [1981] 1 All ER 257 QBD England
•Hills V. Potter and ors., [1983] 3 All ER 716 QBD England
•Malette V. Shulman et al. [1990] 67 D.L.R. (4th) 321, Ontario Court of Appeal.
•Reibl v. Hughes [1977] 78 DLR 35, Ontario High Court of Justice.
•Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital & ors. The Weekly Law Reports 8 March [1985] 480. House of Lords, England.
•Re T [1992] 4 All ER 649, Court of Appeal, Civil Division, England
•Jeanette Evelyn Young v. Northern Territory of Australia, (1992) 107 FLR 264, Northern Territory Supreme Court, Australia
•Margaret Smith v. Carole Arndt and Dennis Jackson [1997] 2 SCR 539 Canadian Supreme Court
•Kenny V. Lockwood, [1932] 1 D.L.R. 507

Although India does not have a specific law on confidentiality, courts have construed Article 21 of the Constitution - the fundamental right to life and liberty - to include the right to privacy, from which is derived the right to confidentiality. This implies that every person has the right to a sphere of activity and personal information that is exclusive to them and that they have the right to disclose as they please. In legal terms, confidentiality exists within the parameters of a special relationship (doctor-patient, attorney-client, for instance) that is dependent on factors such as mutual trust, or to impart services.

Legislatures and courts around the world have gone to some length to protect confidentiality on the grounds of privacy and public interest. In fact, in the HIV context, protecting privacy is often seen as being in the public interest. The maintenance of confidentiality of an individual’s health status is one of the cornerstones of a rights-based legal and public health response to HIV/AIDS. Given existing prejudices, the disclosure of an individual’s HIV-positive status indisputably leads to them being ostracised and discriminated against. People avoid a health care system that violates their confidentiality and leads to their stigmatisation, which ultimately drives the epidemic underground making attempts to control it ineffective.

The right to confidentiality has thus been viewed as a crucial component to encourage those most at risk to come forward for HIV testing, counselling and treatment. However, the principle of confidentiality is not absolute and has been circumscribed in law with specific provisions. This has been done by drawing a fine balance between the importance of maintaining confidentiality and that of disclosure in exceptional circumstances.

Accordingly, two divergent interests are balanced in legal approaches to this issue, ie, the public interest of maintaining the confidentiality of an individual vis-à-vis the public interest in disclosure of the information. The principle of disclosure states that it can only be made with the consentof the person concerned. However, the law also lays down situations where it may be necessary to disclose the HIV status of an individual irrespective of consent being obtained. These situations arise where:

•notification to public authorities is required by law
•disclosure is necessary in the public interest, or for the administration of justice (in a court proceeding where HIV status is a material fact), or for the benefit and treatment of the patient (to a healthcare worker directly involved in the treatment)
•disclosure is necessary to protect an identifiable person who is in foreseeable danger (partner notification).
Courts also maintain that the potential negative impact of disclosure must be mitigated through detailed protocols that provide mechanisms by which HIV status is to be revealed to a third party.

Indian law has not addressed confidentiality in a substantial manner and there have not been many legal developments in the sphere of confidentiality and HIV/AIDS. The Supreme Court has issued a judgment, though, that impacts partner notification, and allows for disclosure of a person’s HIV status to their partner. It is unfortunate, however, that in its judgment the court gave no direction regarding the protocols and methods by which this disclosure was to take place.

This emerged from the Supreme Court case of Mr. X v. Hospital Z [(199 8 SCC 296] which raised other critical issues (the right of PLHAs to marry), in addition to the right to confidentiality. Mr X donated blood for his uncle’s surgery at Hospital Z. Months later, Hospital Z informed the uncle that Mr X's blood had tested positive for HIV. Meanwhile, Mr X was to be married to Ms Y, but he himself called off the wedding when he heard about his HIV status. However, several people including members of Mr X’s family and the larger community had been made aware of his HIV-positive status because of the public nature of the wedding being arranged and then cancelled, and he was completely ostracised by the community, and finally had to leave the state.

Mr X approached the National Consumer Disputes Redressal Commission (NCDRC) for damages against Hospital Z, on the grounds that they disclosed confidential information. The Commission dismissed the petition on the grounds that Mr X could seek remedy in the civil court. Mr X therefore approached the Supreme Court. The question of law before the court was whether the NCDRC had the jurisdiction to rule on a case in which a plaintiff’s (Mr X) HIV-positive status was disclosed by the hospital to third parties.

The Supreme Court, however, ignored the limited question before it and chose to pass a judgment on the merits of the case and held that an HIV-positive patient who may transmit the disease to his or her prospective spouse is not entitled to the maintenance of confidentiality, since the life of the spouse has to be saved. Therefore, a hospital can disclose a patient’s HIV status to the prospective spouse (partner), and in fact, since acts that are likely to spread communicable diseases are a crime under the Indian Penal Code, the failure of the hospital to inform the spouse of the disease would make them participant criminals. The court also ruled that since being infected with a venereal disease (read HIV/AIDS) is grounds for divorce under Indian matrimonial laws, a person suffering from such a disease has no right to get married until they are cured.

In this judgment, the Supreme Court not only upheld the breach of Mr X’s confidentiality, it also circumscribed the rights of PLHA to marry. An appeal was filed, seeking clarification, and challenging the judgment of the Supreme Court decision to suspend the right of PLHA to marry when that was not even an issue before it. In the appeal, Mr X v Hospital Z, [AIR 2003 SC 664], also known as the ‘right to marry’ judgment, while the Supreme Court rescinded its earlier observations regarding marriage, and restored the right to marry for PLHA, it upheld its previous decision about partner notification maintaining that this disclosure was permissible.

Many countries permit partner notification by healthcare workers, even while maintaining strict codes of confidentiality. They do this however by adopting a uniform set of protocols to regulate the process of notification. Some of the conditions of these protocols include:

•that there is a significant risk of transmission to the partner
•that the HIV-positive person is counselled about modes of transmission, the importance and methods of prevention of transmission, and the need to tell their partners their status
•the healthcare worker’s reasonable certainty that the positive person will not tell their partner themselves
•that the healthcare worker informs the HIV-positive person that they intend to make the disclosure
•that counselling services are available to the partner when the information is disclosed.

I hope the posting is useful for you and solve your query


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