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Hot From The Bench

This is a free critical analysis on current legal issues. It can either be a thematic analysis of a topic while referencing relevant cases or analysis of certain authoritative or jurisprudence making cases decided by various courts in the Eastern African region.

HIV Aids and the Law in Kenya
Date: Tue 5 Oct 2010

In this week’s HFTB, LawAfrica’s Charles Kanjama looks at various litigation from around the world on issues surrounding HIV/ AIDS. This time, he looks through the LLR database, the Butterworths/ LawAfrica ALL ER CD-Rom and our in-house set of ALL South Africa Law Reports on CD-Rom. He concludes that Matrimonial causes, personal injury claims and breach of confidence are some of the areas where the HIV/AIDS issue is already developing the law.


The Kenyan Task Force on review of legislation dealing with HIV/AIDS has recently come up with a comprehensive piece of proposed legislation tackling the question of AIDS from a statutory perspective.


In the United Kingdom, not too many cases dealing directly with HIV/AIDS have been reported. Among the first is X v Y & others [1988] 2 All ER 648. A journalist obtained confidential records of two doctors who had been diagnosed with AIDS in a health authority but still continued their general practice. The doctors went to court to restrain the publication of the confidential information, which was contained in their hospital records. The defendants published an article titled “Scandal of Doctors with AIDS” referring to doctors practising despite having AIDS and intending to publish a follow up revealing the confidential information in question.


Some medical experts gave evidence in the course of the hearing. From the evidence on record, the judge summarised the salient features of the disease: “The first cases of the condition were seen in 1978…. It affects people in many countries…. To date the groups principally, though not exclusively, affected have been homosexuals and intravenous drug abusers…. The distinction between infection and disease is important. Infection is by the Human Immunodeficiency Virus (HIV). The disease, AIDS, only develops in some people who are infected. The incubation period is long and is usually between about six weeks and five years. Those who are infected can infect others and should be observed for signs of development of the disease. The virus can infect white blood cells thereby impairing and destroying the cellular immune system which normally fights bacterial infection; this permits organisms which would normally be fought off to cause infection, anywhere in the body but particularly in the lungs, the skin, the digestive system, the central nervous system and the brain…”


The court then considered the risk of transmission with HIV/AIDS: “The way in which the virus spreads is not fully understood... It is not contagious; indeed, it does not transmit easily and is readily killed by detergents and common disinfectants. The three clearly established and predominant means of transmission are sexual intercourse between homosexuals and between heterosexuals, the transfer of contaminated blood (particularly through the use of hypodermic needles but also through fissures in the skin) and from pregnant mother to foetus. Transmission in any other way is extremely rare.”


After considering the different opinions on the transmissibility of the disease from doctor to patient, the court concluded that the risk of transmission was generally minimal. A permanent injunction was granted against disclosure of the confidential records in question on the ground that the public interest in preserving the confidentiality of hospital records outweighed the public interest in freedom of the press to publish such information.


In the distressing S-T (formerly J) v J [1998] 1 All ER 431 in which a female-to-male transsexual concealed her true gender and married a female, the court observed obiter that if certain matters of health are concealed e.g. AIDS or HIV, a marriage may be voidable or even void for want of capacity.


In the last two years, English courts have begun to deal with suits for personal injury on ground of infection with HIV or other serious diseases. In A & others v National Blood Authority [2001] 3 All ER 289 the Plaintiffs had been infected with Hepatitis “C” from transfusions involving contaminated blood. The contamination could not have been discovered using the tests available at the time. The plaintiffs brought the suit under consumer protection legislation that imposed stricter liability to the seller of consumer products.


The court considered a Netherlands case that had dealt with relevant European Union legislation, Scholten v Foundation Sanquin of Blood Supply. In the Netherlands case, contaminated blood had been screened for HIV but not detected because it was still at the window phase just after infection. The blood authority had taken all available precautions but there was still a minimal risk. The court held that “the general public expects and is entitled to expect that blood products in the Netherlands have been 100% HIV free for some time. The fact that there is a small chance that HIV could be transmitted via a blood transfusion, [estimated] at one in a million, is in the opinion of the court not general knowledge.” Compensation was granted on that basis to the plaintiff.


In A & others v National Blood Authority, the court made a similar ruling, granting relief to the plaintiffs on the ground that ‘the product’, the blood bag, though not ipso facto defective, was defective because the public at large was entitled to expect that the blood transfused to them would be free from infection. Similarly, in Morris v KLM Royal Dutch Airlines [2002] 2 All ER 565, the court asserted, “One would not normally describe a person who caught a cold as having suffered an injury but, on the other hand, one would certainly describe someone who contracted a serious disease or condition, say, ‘AIDS’ or hepatitis, as the result of the deliberate or negligent act of another as having suffered an injury.”


In contrast, Kenya has not had too much HIV/AIDS-related litigation. There was the case of Kenya AIDS Society v Arthur Obel [1997] LLR 598 (CAK) however, where the plaintiffs sought a temporary injunction to stop the defendant, a medical doctor and professor in clinical pharmacology, from selling or offering for sale the drug ‘Pearl Omega’. The injunction was sought on the ground that the drug was ineffective against AIDS but was merely being used to milk AIDS-sufferers of their money. The injunction was refused and the appeal against the refusal dismissed. The court held that the plaintiff had not made out a prima facie case with probability of success because even if it could show that the laws regarding research, manufacture and distribution of drugs were not complied with, it would still be required to prove actual loss to it and its members arising from that failure. The court further noted that even were a prima facie case established, damages would in any case be an adequate remedy.


In Reitmair v Reitmair [2001] LLR 2071 (HCK), a woman sought divorce on the ground of cruelty, inter alia because her husband had engaged in illicit liaisons with a woman who had since died of AIDS but had subsequently refused to take an AIDS test. The divorce petition was certified as undefended and the court granted the petitioner the divorce prayed for.


The case of Midwa v Midwa [2000] 2 EA 453 generated more media attention. The husband petitioned for divorce after his wife tested HIV positive and brought proceedings to have his wife vacate their jointly-owned matrimonial home where they were living with their two children on the ground that she posed a grave risk to his life and the life of the children. The wife was ordered to move to the servant’s quarter. On appeal, the court considered the law of custody and the fact that the wife was still strong and healthy despite being HIV positive for some five years and ordered that the wife be put back in the matrimonial home.


An interesting South African case is B & others v Minister of Correctional Services [1997] 2 All SA 574 which involved the interpretation of the constitutional right of prisoners, HIV positive in this case, to “adequate medical treatment.” The applicants were HIV positive prisoners and had been prescribed anti-viral medication by their doctors. The public hospitals to which they were sent for treatment only treated opportunistic infections arising from the HIV condition and prescribed anti-viral drugs for patients at a more advanced stage of the disease. The court held that due to the specific constitutional right of prisoners to adequate medical treatment, the state owed them a higher duty of care than it held to general citizens. Thus, since the state had not conclusively shown that it could not afford to treat the applicants, the court ordered that they should be provided with the prescribed anti-viral therapy so long as this treatment was prescribed on medical grounds.


It would be interesting to watch this novel area of HIV/AIDS-related litigation. Various issues are yet to be comprehensively addressed: personal injury claims for HIV/AIDS infection against blood authorities and knowing or unknowing infected persons, breach of confidence for disclosure and negligence for non-disclosure against holders of information on the HIV status of individuals, and matrimonial, employment and other proceedings where HIV/AIDS issues crop up. These are all matters that will gradually need to be ventilated by the courts. In the process, one expects to see the courts engage in a delicate balancing act between competing public and private interests, as shown by X v Y & others.

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