Everyone has the right to make their own decisions about their body so no patient can be given medical treatment without their consent. Consenting to medical treatment has two parts to it: information (understanding) and permission (agreeing).

With an HIV test, you must know what the test is, why it is being done and what the result will mean for you before you agree to the blood sample being taken. This is called pre-test counselling. After the HIV test results have been received you must be counselled again to help you understand and accept the effect that a negative or a positive result will have on your life. This is called post-test counselling.

EXAMPLE

Thami is a caregiver in a children’s home. The matron informs him that all staff in the hospital must have a Hepatitis B test. Thami agrees to this. But, the hospital does an HIV test too, saying it saves time and money to do both tests at the same time. The matron tells Thami he is HIV-positive. Thami is furious because he only gave permission for the Hepatitis B test. The matron did not have a right to do the test. She should have discussed it with Thami first and obtained his consent.

SOME RULES ABOUT HIV TESTING AND CONSENT

Here are some rules to remember:

• You can give verbal or written consent to have an HIV test
• If you go to hospital, you cannot be tested for HIV without your consent

EXCEPTIONS TO THE RULE OF INFORMED CONSENT

These are the only exceptions to the rule that a person must give their consent to treatment or an operation:

• If a patient needs emergency treatment
• Testing done on blood donations
• Mentally ill patients – In this case the mental hospital must get permission from one of the following people: the patient’s husband or wife, parent, child (if the child is 21 or older), brother or sister
• HIV tests are routinely done on the blood of all pregnant women for health research, but the name of the woman is not attached to the blood sample, so no one knows whose blood it is

WHO CAN GIVE CONSENT?

A person who is directly affected must give consent. Only in exceptional circumstances can it be given by another person e.g. on behalf of mentally ill patients. In the event that a person is unable to consent, consent can be given by a person who has a legal right to consent on behalf of another person, e.g. guardian or curator.

Adults who have a legal capacity (the ability to make legal decisions) and who are of “sound and sober mind” can give valid consent to medical treatment (consent recognised by law). Adults without legal capacity (e.g. people who are mentally ill or have a mental disability) cannot give consent without assistance. Couples must consent to treatment individually – one partner in a relationship cannot consent to treatment on behalf of the other partner.

Children over 12 years can also give their consent to medical treatment. When a child is too young to consent, either one of their parents or guardians must give consent. (See Children and youth and HIV/AIDS)

WHAT CAN YOU DO IF AN HIV TEST WAS DONE WITHOUT YOUR CONSENT?

If an HIV test was done without consent, your rights have been abused. You can complain to the Health Professions Council of South Africa (HPSCSA). You can also bring a civil claim for invasion of privacy, and a criminal charge of assault against the health care worker or the person they were acting on behalf of.

CASE STUDY – HOFFMAN v SOUTH AFRICAN AIRWAYS (SAA)

Mr Hoffman applied for a job as a cabin attendant with South African Airways (SAA) and was asked by SAA to take an HIV test. He tested HIV-positive. SAA refused to give Mr Hoffman the job because, they said, part of his job involved traveling to different countries and he would need to have a yellow fever vaccination. It is not advisable for someone with HIV to have these vaccinations. SAA said that this was an inherent requirement of the job in the airline and therefore they couldn’t employ him. The Constitutional Court was asked to decide if SAA had gone against Hoffman’s rights to equality, dignity and fair labour practices. The court decided that:

• SAA had discriminated against Hoffman
• the discrimination was unfair and infringed on his dignity

Being HIV-negative was not an inherent requirement of the job of being a cabin attendant; they should have taken greater steps to investigate how Hoffman’s immune system could have dealt with traveling and the possibility of getting a strange disease.