Goa: HIV test mandatory for registration of marriage

[Guest guest]

PANAJI: Goa may soon become the first state in the country to make

HIV test mandatory for registration of marriage. At a Cabinet

meeting on Friday, the state government decided to amend the Goa

Public Health Act to make such a test compulsory.

Briefing reporters on the Cabinet decision, Health Minister Dayanand

Narvekar said the government has also decided to " throw open this

amendment for public debate " and various NGOs and other individuals

can give their suggestions in this regard.

Chief Minister Pratapsingh Rane was also present at the press

conference. Narvekar said that extensive debate on the amendment -

which would be put before the Assembly during the coming session in

July - would be held in and outside the state for over two months.

" There should be a national debate in which issues like morality and

personal privacy are discussed before giving final shape to the

amendment, " he added.

In yet another proposed amendment to the Act, the government has

decided to offer free medicine to cancer and trauma patients who are

treated in state-owned Goa Medical College Hospital.

http://www.bellevision.com/newshead.asp?nhid=3159

[Guest guest]

Dear Forum,

Asking for a clarification - is not mandatory testing for HIV against NACO

guidelines and contrary to fundamental rights of Indian citizens?

Do we not have a Supreme Court ruling on this? If this is right, how is the

Govt. of Goa going ahead with this discriminatory (and maybe illegal) bit of

legislation?

Urgent clarifications needed people!

Amitrajit

E-mail: <amitrajitsaha@...>

[Guest guest]

Dear FORUM,

Re: Goa: HIV test mandatory for registration of marriage

Of course, it is very serious matter. When the GOI (NACO) has given clear

guidlines AND working for Voluntary and Confidencial Counselling, how can a

state Govt. (Goa or anyone else) can make it mandatory at it own level ? Whether

or not is there any instructions/advise from the NACO ?

Bhawani

Bhawani Shanker Kusum

Secretary and Executive Director

Gram Bharati Samiti (GBS)

NGO Delegate for Asia Pacific, UNAIDS PCB

Amber Bhawan, Amber 302 028

Jaipur India

Tel./Fax.:91-141-2530719

E-mail:gbsbsk@...

www.gbsjp.org

[Guest guest]

Dear FORUM,

While I do appreciate the senitments of all with regard to confidentiality, I

beg to differ on certain issues and consider it worth a discussion as to impact

of confidentiality over providing care and support including preventive care.

In to-day's situation, preventive care needs special attention and mention.

Towards achieving this, the Government as a representative of the people, is

bringing out measures in more possible ways which is actually to be appreciated.

If people are more worried about stigma, are they not really worried about large

scale spread of pandemic like situation.

The problem spreads from one to another. What is wrong if a blood test is done

to prevent such a spread to persons who are, either not knowledgeable or

ignorant about the health status of the other or the party is intentionally

keeping the problem to himself / herself - refusing to disclose the true status.

This will also help in reducing lot many legal issues arising later.

Let us all fight the problem not the solution.

S. VIJAYAKUMAR

E-mail: <vijayakumar@...>

[Guest guest]

Dear FORUM,

Dr. Pradeep Kasar send two articles on this issue

a) Right to confidentiality vs human rights

Make HIV test before marriage mandatory: victims

a) Right to confidentiality vs human rights

Right to confidentiality is one of the essential rights of a

patient. However, there are certain exceptions to this rule wherein

confidentiality can be overridden and disclosure permitted.

Cited below is a recent Supreme Court ruling on this important

aspect (decided on 10/12/2002).

The appellant, after obtaining the Degree of MBBS in 1987 from

Jawaharlal Institute of Post Graduate Medical Education and

Research, Chandigarh and MD-Pharmacology Course, was in the Nagaland

State Service as assistant surgeon.

One Itokhu Yepthomi who was suffering from a disease which was

provisionally diagnosed as `Aortic Aneurysm' was advised to go to

the `Z' Hospital at Madras and the appellant was directed by the

government of Nagaland to accompany the said patient to Madras for

treatment.

The appellant was asked to donate blood for the latter. In August

1995, the appellant proposed marriage to one Ms.`Y' which was

accepted. But the marriage was called off on the grounds of a blood

test conducted at the `Z' hospital at Madras, where several tests

were conducted and he was found to be HIV(+).

Since the marriage had been settled but was subsequently called off,

several people including members of the appellant's family and

persons belonging to his community became aware of the appellant's

HIV(+) status.

This resulted in severe criticism of the appellant and he was

ostracised by the community.

The appellant then approached the National Consumer Disputes

Redressal Commission for damage against the `Z' Hospital, on the

ground that the information, which was required to be kept a secret

under medical ethics, was disclosed illegally and, therefore, the

Hospital `Z' were liable to pay damages.

The Commission dismissed the petition and also the application for

interim relief summarily, by an order dated 3rd July 1998, on the

ground that the appellant may seek his remedy in the civil court.

Learned counsel for the appellant has vehemently contended that the

principle of `Duty of Care' as applicable to persons in the medical

profession, includes the duty to maintain confidentiality and since

this duty was violated by the hospital `Z', they are liable in

damages to the appellant.

Duty to maintain confidentiality has its origin in the Hippocratic

oath, which is an ethical code.

The Hippocratic oath which is reproduced here says, " Whatever, in

connection with my professional practice, or not in connection with

it, I see or hear, in the life of men, which ought not to be spoken

of abored, I will not divulge, as reckoning this all such should be

kept secret. "

The International Code of Medical Ethics has also been laid down as

under: " A physician shall preserve absolute confidentiality on all

he knows about his patient, even after his patient has died " .

The Code of Medical Ethics which has been made by the Indian Medical

Council, provides as under:

" Do not disclose the secrets of a patient that have been learnt in

the exercise of your profession. Those may be disclosed only in a

court of law under orders of the presiding judge " .

It is true that in the doctor-patient relationship, the most

important aspect is the doctor's duty of maintaining secrecy. A

doctor cannot disclose to a person, any information regarding his

patient, which he has gathered in the course of treatment, nor can

the doctor disclose to anyone else, the mode of treatment or the

advice given by him to the patient.

It is contended that the doctor's duty to maintain secrecy has a

correlative right vested in the patient that whatever has come to

the knowledge of the doctor would not be divulged and it is this

right which is being enforced through these proceedings.

It is the basic principle of jurisprudence that every right has a

correlated duty and every duty has a correlated right. But the rule

is not absolute.

It is subject to certain exceptions, in the sense that, a person may

have a right but there may not be a correlated duty. The instant

case, as we shall presently see, falls within the exceptions.

Hippocratic oath as such is not enforceable in a court of law, as it

has no statutory force.

Medical information about a person is protected by the `Code of

Professional Conduct' made by the Medical Council of India.

The relevant provision of the Code of Medical Ethics contains an

exception to the general rule of confidentiality, in as much as it

provides that the information may be disclosed in a court of law,

under the orders of the presiding judge.

This is also the law in England, where it is provided that the

exceptions to this rule permit disclosure with the consent, or in

the best interests, of the patient, in compliance with a court order

or other legally enforceable duty and, in very limited

circumstances, where the public interest so requires.

Circumstances in which the public interest would override the duty

of confidentiality could, for example, be the investigations and

prosecution of serious crime, or where there is an immediate or

future(but not a past and remote) health risk to others.

The General Medical Council of Great Britain, in its guidance on HIV

infection and Aids has provided as under: Occasionally, the doctor

may wish to disclose a diagnosis to a third party other than a

health-care professional.

The Council thinks that the only grounds for this are when there is

a serious and identifiable risk to a specific person, who, if not so

informed would be exposed to the infection. A doctor may consider it

a duty to ensure that any sexual partner is informed, regardless of

the patient's own wishes.

Thus, the Code of Medical Ethics also carves out an exception to the

rule of confidentiality and permits the disclosure in the

circumstances enumerated above, under which, public interest would

override the duty of confidentiality, particularly where there is an

immediate or future health risk to others.

The arguments of the learned counsel for the appellant, therefore,

that the hospital`Z' were under a duty to maintain confidentiality

on account of the Code of Medical Ethics formulated by the Indian

Medical Council, cannot be accepted, as the proposed marriage

carried with it the health risk to an identifiable person who had to

be protected from being infected with the communicable disease from

which the appellant suffered.

The right to confidentiality, if any, vested in the appellant was

not enforceable in the present situation.

Learned counsel for the appellant then contended that the appellant

was HIV(+) and therefore, they are liable in damages. Let us examine

this contention.

The European Convention on Human Rights defines this right as

follows:

· Every one has the right to respect for his private and

family life, his home and his correspondence.

· There shall be no interference by a public authority in the

exercise of this right except such, as is in accordance with the law

and is necessary in a democratic society in the interests of

national security, public safety or the economic well-being of the

country, for the prevention of disorder or crime, for the protection

of health or morals or for the protection of morals or for the

protection of the rights and freedoms of others " .

Having regard to the fact that the appellant was found to be HIV(+),

its disclosure would not be violative of either the Rule of

Confidentiality or the appellant's right of privacy as Ms `Y' with

whom the appellant was likely to be married was saved in time by

such disclosure, or else, she too would have been infected with the

dreadful disease if the marriage had taken place and consummated.

Ms `Y' with whom the marriage of the appellant was settled, was

saved in time by the disclosure of the vital information that the

appellant was HIV(+).

The disease which is communicable would have been positively

communicated to her immediately on the consummation of the marriage.

As a human being, Ms `Y' must also enjoy, as she, obviously, is

entitled to, all the human rights available to any other human

being.

This is apart from, and, in addition to, the fundamental rights

available to her under Article 21, which, as we have seen,

guarantees the `right to life' to every citizen of this country.

This right would positively include the right to be told that a

person, with whom she was proposed to be married, was the victim of

a deadly disease, which was sexually communicable.

Since the `right to life' includes the right to lead a healthy life,

so as to enjoy all faculties of the human body in their prime

condition, the respondents, by their disclosure that the appellant

was HIV(+), cannot be said to have, in any way, either violated the

rule of confidentiality or the right of privacy.

Moreover, where there is a clash of two fundamental rights, as in

the instant case, namely, the appellant's right to privacy as a part

of the right to life and Ms Y's right to lead a healthy life which

is her fundamental right under Article 21, the right which would

advance the public morality or public interest, would alone be

enforced through the process of court.

For the reasons stated above, the appeal is without merits and is,

consequently, dismissed.

A civic appeal arose out of the order made by the National Consumer

Disputes Redressal Commission that the appellant should seek his

remedy in the Civil Court.

The Supreme Court upheld the observations made by the National

Commission that the appellant's right was not affected in any manner

in revealing his HIV positive status to the relatives of his fiancee.

(Decided on 10/12/2002).

(The writer is senior manager, professional services, Hinduja

Hospital, Mumbai. She may be contacted at drsiyerin-@...)

" Dr. Pradeep Kasar "

E-mail: <kasarpk@...>

________________________________

Dr. Pradeep Kasar " <kasarpk@...>

Date: Fri Mar 24, 2006 11:49pm

Subject: HIV Test before marriage

Make HIV test before marriage mandatory: victims

PONDICHERRY, NOV. 30. Rights activists may frown upon making fitness

certificate mandatory before marriage. But for Kaveri (25), it

protects women against HIV.

It should be made mandatory for a bride and bridegroom to produce a

fitness certificate before their marriage, argued the young woman

today at a press conference here, where she and four other HIV-

positive women narrated how they got the infetion. Except two, the

others got the virus after marriage. None of them knew that their

husbands were HIV positive.

Kaveri, an illiterate girl who hails from a fishing village here,

said, " I was compelled to marry my uncle's son. My father did not

know that he was identified as HIV positive and that was the reason

for his not going back to his work place in Saudi Arabia. I came to

know about his disease only when his health deteriorated. By then I

had given birth to a child. One day he committed suicide, jumping

into the sea. "

Her in-laws, with whom she stayed after her husband's death, forced

her to marry again. " Though I refused, I was compelled to marry a

widower, whose wife had died of tuberculosis. Later, I came to know

that he was also HIV positive. He died a few months after marriage. "

Saraswathi (26) and Yamuna (35), both from economically deprived

families, have similar stories to tell. The other two were forced

into prostitution by their lovers and were infected with the virus.

The press conference was organised by the Society for Development

and Research, a non-government organisation.

____________________

Dr. Pradeep Kasar

E-mail: <kasarpk@...>