JK, an employee at a state corporation, visited a clinic for a routine medical checkup, courtesy of her medical scheme provided by the government.
Just after issuing her details – her age, height, sex, Body Mass index, phone number ad email address, she made it clear to the medic attending to her that she did not want HIV and cancer Pap-Smear tests done on her.
However, days later JK received an email from the clinic that contained three attachments on her wellness health results.
When she opened one of the attachments, she was shocked to see her HIV results, something that prompted her to write back to the clinic.
In a landmark ruling offered to employees by insurance companies, the HIV & AIDs tribunal ruled that AAR Healthcare Kenya Limited violated JK’s rights.
A six-member bench chaired by Helen Namisa ordered the clinic to compensate JK Sh500,000 for general suffered, adding that the amount shall attract interest at the court’s rates from November 6 until the final amount is paid to the patient.
The clinic was also ordered to cater for expenses JK incurred in filing the suit.
Namisi said by signing that attendance list for the wellness check, JK did not agree to the test since the document only had columns for her sex, age, height, Body Mass Index, email address, and phone number.
“Informed consent is given with full knowledge of the risks involved, probable consequences, and range of alternatives available,” Namisi said.
The tribunal found that the clinic violated her rights under the HIV and AIDS Prevention and Control Act, 2006.
In its defense, the clinic argued that JK was fully aware of the wellness package that was issued, and therefore, this knowledge together with a voluntary drawing of blood can be construed to be informed consent by her.
According to the clinic, JK signed the attendance sheet indicating her name and contact information, it was construed as consent.
According to the summary results, showed to the court, there were seven male participants as well as female participants. From these, three females and three males were tested for HIV. The results did not show the names of persons tested, save that all six persons had ordinary results.
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Based on the assessment, the tribunal said it was reluctant to infer disclosure of information to the insurance company as per the report submitted to it.
On the matter of the post and pre-HIV counseling to a person undergoing HV tests as demanded by Section 17 of the HUV Act, the clinic did not bring any witness who conducted the process to defend its case.
