Yes. A doctor's primary duty is towards the patient and to maintain the confidentiality of information imparted by the patient. If such confidentiality has been breached you have the right to go to court and sue for damages. People Living with HIV/AIDS (PLHWA)are often afraid to go to court to vindicate their rights for fear of their HIV status becoming public knowledge. However, they can use the tool of Suppression of Identity whereby a person can litigate under a pseudonym (not your real name). The lawyer is bound to keep information about a client confidential.
What are the remedies available to people living with HIV/AIDS (PLHA) if there is breach of confidentiality?
In cases where there is a breach of confidentiality, PLHA have the following remedies:
- Civil suit: action for duty and breach of confidentiality. For this the court may grant relief as damages and/or injunctions.
- Consumer complaints: the PLHA can file a complaint in the district or sate or National Consumer Commissions. The aggrieved parties can claim damages or compensation for the deficiency of service.
- The PLHA can file a writ petition in a high court under article 226 of the Indian Constitution and in the Supreme Court under article 32 of the Indian Constitution. A cause of action lies in the violation of right to life and personal liberty or other fundamental rights. The courts in these cases may grant the aggrieved party compensation and/or injunctions.
What is meant by “access to treatment”?
Access to treatment includes not only access to competent medical practitioners but also access to centres of required medical testing and also medicines and drugs required for the control and treatment of the disease.
Is access to medicine part of right to health?
It has been held in various judgments that the access to medicine is a part of the right to health which in itself is seen to be protected by the article 21 of the Indian Constitution. Thus access to medicine is an important right.
A combination of denial, helplessness and complacence dominates the issue of access to treatment for people living with HIV/AIDS in the country.
Should there be separate schools for children living with HIV?
No, children living with HIV need not be educated in special schools as their rights to equality protect them from possible discrimination. Various court judgments have ruled that children living with HIV need not be even separated from other school going children.
What are the important basic amenities that are must for a PLHA?
Access to the basic amenities such as food, water, medicines professional medical help as part of the right to health apart from property. The protection of the PLWHAs against any form of discrimination in the various fields where such discrimination is likely to happen is also basic to the PLHA.
Is there special legislation to protect the rights of PLHA?
There is no special legislation yet to protect the rights of PLHA. However, a bill is to be brought before Parliament - the HIV/AIDS Bill 2007.
What are the human rights of PLHA?
Some of the important rights of PLHA include:
- Right to non-discrimination, equal protection and equality before the law (provided by article 26 of the International Covenant on Civil and Political Rights and article 14 of the Indian Constitution)
- Right to Privacy. The issue of confidentiality is protected under this. Article 21 of the Indian Constitution has been understood to include this right.
- The right to benefit from scientific progress and its applications. This right is provided under article 27 of the Universal Declaration of Human Rights and article 15 of the International Covenant on Economic, Social and Cultural Rights.
- Right to liberty and security of the person. This is provided by article 9 of the International Covenant on Civil and Political Rights, article 9 of the Universal Declaration of Human Rights and article 21 of the Indian Constitution.
- Right to education. There exists a right to education for all people including PLHA under article 26 of the Universal Declaration of Human Rights and article 13 of the International Covenant of Economic, Social and Cultural Rights.
- Right to freedom of expression and information. This is provided under article 19 of the International Covenant of Civil and Political Rights and under article 19 (1) (a) of the Indian Constitution.
- Right to freedom of assembly and association. This is provided under article 20 of the Universal Declaration of Human Rights, article 21 and 22 of the International Covenant of Civil and Political Rights and under 19 (1) (b) and (c) of the Indian Constitution.
- Right to be free from cruel, inhuman degrading treatment or punishment. This is provided under article 5 of the Universal Declaration of Human Rights, article 7 of the International Covenant of Civil and Political Rights. This can also be understood from article 21 of the Indian Constitution.
- Right to the highest attainable standard of physical and mental health. This is provided under article 55 of the United Nations Charter, article 25 of the Universal Declaration of Human Rights, article 12 of the International Covenant of Economic, Social and Cultural Rights. This can also be interpreted from article 21 of the Indian Constitution.
- Right to employment. This is provided through various judgments.
If a hospital does not have necessary instruments to treat a PLHA can the doctor refuse to give treatment to such a person?
Refusal of treatment because of lack of required instruments may be justified but refusal of the same because of the HIV status of the person would be unethical and discriminatory.
What action can be taken if the discrimination is based on HIV status?
Discrimination in terms of employment or health care by the State is constitutionally invalid and prohibited by the Indian Constitution and so there are remedies. However, under the Constitution, there is no remedy for discrimination by private individuals and bodies. Also, the law only prohibits unfair discrimination. The discrimination may not be unfair if it is based on rational determinable criteria, or has a legitimate purpose.
Who can PLHA approach if they face discrimination?
Various forums such as the courts, National and State Human Rights Commissions etc.
What are the remedies available to a person who is exposed to unsafe sex by the spouse concealing his/her HIV status?
The person would be entitled to a divorce. Criminal proceedings for cheating and criminal transmission can also be launched against the spouse.
If a husband who knows he is HIV-positive forces his wife to have sexual intercourse with him, will it amount to rape?
No, it would not amount to rape as marital rape is not recognised in India. However, the wife would have recourse in criminal law as it would be a case of criminal transmission (under section 270 of the Indian Penal Code, 1860).
Can a PLHA have an insurance policy?
The law allows for an insurance policy for PLHA, but this would also depend upon the policy of the insurance company. There is nothing in the law that stops a PLHA from getting an insurance policy; however the insurance company may refuse the policy on the grounds of high risk.
What are the rights of the PLHA under the consumer law?
The aggrieved party would have a cause of action in deficiency of service for which damages or compensation may be claimed. The party may approach the district or state or national consumer commissions.
Does a PLHA have the right to marry?
Yes, as long as the partner is aware of the HIV status. The HIV-positive person must disclose his/her HIV status.
Can the HIV status of a person be grounds for divorce?
Yes. Transmission of any sexually transmittable disease is a ground for divorce in most marital laws, so this would apply to HIV positive persons too.
Can a divorced PLHA woman claim maintenance from her husband?
Yes, if she is not in a position to maintain herself.
Can a PLHA claim custody of his/her children in a divorce case?
Yes, a PLHA can claim custody of his/her children just as any other person can, and as in all other cases, the custody is decided and given by the courts.
Can an employer make it compulsory for every employee to undergo HIV testing?
No, not unless it is important to the field of work.
What is the protection available for HIV-positive women from domestic violence?
An HIV-positive woman is protected under the same laws as applicable to all other women. There is criminal liability for domestic violence inflicted upon women. The same laws would apply to PLWA women as well as this would be within the framework of equal protection of law granted by article 14 of the Indian Constitution.
Do PLHA have property rights?
PLHA have the same property rights as other people. Denial of these rights would mean denial of basic rights.
Can a PLHA adopt a child?
Yes, the law allows a PLHA to adopt a child, but it would also depend on the policy of the adoption agency. There is no law that prohibits a PLHA from adopting a child, but an adoption agency may not allow it.
What are the ethics to be followed by a doctor in case of PLHAs?
- Maintaining confidentiality
- Not denying treatment to a person
- Must give the best medical treatment.
- The patient’s welfare must be of paramount importance to the medical professional.
What are the situations where disclosure of HIV status is permissible?
It is permissible to reveal the HIV status of a person in the case of:
- Administration of justice
- Public safety
- Medical research (approved by a recognised ethics committee)
What constitutes criminal transmission?
When any person who malignantly (acting out of malice or deliberate intention) does any act which is or which the accused has reason to believe is likely to spread of any disease dangerous to life.
What is the law to punish criminal transmission?
Section 270 of the Indian Penal Code, 1860, stipulates imprisonment up to two years or fine or both for criminal transmission. Criminal transmission would require a criminal or a malevolent intent to transmit a disease dangerous to life.
Is it legal to advertise products that claim to cure/prevent AIDS?
The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 specifically prohibits misleading advertisements relating to drugs and magic remedies, and it also prohibits advertisements for the cure/prevention of HIV/AIDS.
(Compiled by Mariette Correa, an independent consultant who has been involved in HIV/AIDS programming for NGOs in Goa and South Asia)
InfoChange News & Features, February 2008