Africa, Development & Aid, Headlines, Health, Poverty & SDGs

AIDS-SOUTH AFRICA: Balancing Individual Rights Against Public Health

Mercedes Sayagues

PRETORIA, Dec 22 2008 (IPS) - Public health and individual human rights are poor friends. What may be good for society may be bad for the individual, or the other way round. And nothing sharpens this tension as starkly as AIDS.

Does a mother's right to refuse HIV testing prevail over the baby's right to a healthy life? Should infectious patients with drug-resistant TB be locked up? Can a father reduce maintenance payments because he must buy nutritious food to help his antiretroviral (ARV) treatment and stay alive?

Such tensions are explored in "Balancing Act", the annual review launched in December by the Centre for the Study of AIDS at the University of Pretoria. It looks at public health practices and legislation around AIDS and rape, drug-resistant TB, male circumcision, routine and mandatory testing, and ARV treatment for prisoners, refugees and migrants in South Africa.

"Writing this book showed me the incredible amount of work to be done with magistrates, lawyers, judges and the media on these issues," said author Carmel Rickard, a journalist specialized on human rights.

Lock them up

For Rickard, the "most shocking" finding was regarding media coverage of drug-resistant TB. Struggling to contain its alarming TB epidemic, South Africa has a policy of forced hospitalisation of patients until they are no longer infectious. Echoing public anxiety, the media describes patients "as convicts, dangerous to society, and intensifies stigma," said Rickard.

Absent in the press is the experience of Tugela Ferry, in KwaZulu Natal province, site of a killer outburst of extra-drug resistant TB that killed over 200 patients and nurses a couple years ago, and now a pioneer in treating patients at home.

"Journalists need to know about this option and generally be more critical about drug-resistant TB policies," said Rickard.


Another thorny issue for medical staff is disclosure of a patient's HIV status to their sexual partners, who risk infection, while non-disclosure to doctors can result in inappropriate health care, as HIV masks other diseases. Thus, strict patient confidentiality could result in infection and death of others. Whose rights should a doctor uphold?

"Health workers are also responsible for the health of patients' spouses and babies. We should expand the discourse to include third parties," said Dr. Theresa Rossouw, an AIDS clinician in Pretoria. "Nothing is the same after HIV."

On rape – another alarming epidemic in South Africa – a new law of 2007 has made it harder for rape survivors to get post-exposure prophylaxis (PEP), the 28-day course of ARVs to reduce the risk of HIV infection.

With the new law, only designated clinics will provide PEP, after charges are laid and paperwork completed in two different facilities – not easy for traumatised victims. Previously, access to PEP was simple, informal, and treated as an emergency health matter.

The HIV tests offered to rape survivors are the cheapest and slowest, taking several weeks. Activists argue that a faster but more expensive test will deliver peace of mind to a rape survivor within 11 days of the assault and eliminate the need for compulsory testing of the rapist, which could prompt revenge on the survivor.

When laws dealing with AIDS "do not properly factor human rights into the equation, then the decisions can become self-defeating and even worsen the situation," wrote Rickard.

New legal problems

At the book launch, Joe Ngelanga, a law lecturer at the Justice College in Pretoria, rattled off new AIDS-related legal issues popping up in courts: the right of adoptive and foster parents to know if the child is HIV-positive; child custody by an HIV-positive parent; wilful infection through unprotected sex; and jail sentences for terminally ill criminals.

"AIDS has implications for the running of the courts," said Ngelanga.

The review argues for wide and systematic training of the judiciary and legal community around AIDS, and production of a policy document or chart on AIDS and the law to be displayed in every court room.

Summing up the review, Centre director Mary Crewe explained that while human rights operate globally, public health is implemented locally. And while public health interventions propose a rational use of resources, people often manage their health and their lives irrationally. Often, personal autonomy and social control drive on opposite directions.

"Traffic lights restrict movement so that everybody can move," said Crewe. "How do we strike the balance between the imperatives of public health and the imperatives of human rights?"

A useful concept to guide this complex debate is "fair limitation" of individual rights to support public health, suggested Jody Kollapen, chair of South Africa's Human Rights Commission. "In our young democracy, we are learning to grapple with human rights and AIDS."

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