MEDIA STATEMENT: Human rights organisations welcome Zambia’s confirmation of informed consent to HIV testing and treatment
Human rights organisations welcome Zambia’s confirmation of informed consent to HIV testing and treatment
21 August 2017
The AIDS and Rights Alliance for Southern Africa (ARASA) and Southern Africa Litigation Centre (SALC) welcomed the clarification by Dr. Chitalu Chilufya, Zambian Minister of Health, during a live interview on Sunday, 20 August 2017, that the expansion of provider-initiated HIV testing and adoption of test-and-treat will be continued with due respect for the right to informed consent.
“We were gravely concerned by last week’s announcement by Zambian President Edgar Lungu that HIV testing, counselling and treatment would be compulsory in Zambia for any person seeking medical treatment in public healthcare facilities,” said Michaela Clayton, Director of ARASA. “The right to make a decision to test for HIV based on informed consent is protected by human rights law, but is also crucial from a public health perspective, as it enables people to act on the knowledge they obtain through the test.”
The majority of people living with HIV in southern Africa do not know their status, which poses a serious threat to achieving the 90-90-90 targets of the United Nations Joint Programme on HIV and AIDS (UNAIDS), which set out to ensure that 90 percent of all people living with HIV know their HIV status, 90 percent of people with diagnosed HIV infection receive sustained combination antiretroviral treatment (ART) and 90 percent of all people receiving ART have viral suppression.
This realisation has often resulted in considerations for more aggressive responses, in which certain human rights protections are suspended or restricted for the benefit of the greater good - pitting a “rights-based” approach against a “public health” approach. However, the protection of human rights in the context of HIV has been proven to be crucial for HIV prevention and treatment outcomes.
Mandatory HIV testing is not only illegal and unconstitutional under Zambian law, it would also be contrary to international standards and guidelines on HIV testing and treatment. Research has found that forcing people to test for HIV or to take HIV treatment is unnecessary and counter-productive as it creates a disincentive to voluntarily access healthcare services and may push people away from testing and finding out their status.
“Enforcing a policy that violates human rights to informed consent would have been unconstitutional and would have forced healthcare workers to violate professional ethical standards, which could have exposed them to legal liability,” said Anneke Meerkotter, Litigation Director at SALC.
This position has been confirmed by both the Supreme Court and the High Court in Zambia who found that HIV testing and the taking or administering of HIV or related treatments or therapies, like all other medical procedures, should only be conducted with the free, voluntary and informed consent of the individual and that consent is only present if it is provided freely, without undue influence, coercion, fraud, misrepresentation or mistake.
ARASA and SALC are encouraged that the Ministry of Health recognizes the potential harms of a mandatory testing policy and urge the Zambian government to focus on creating an environment in which people voluntarily seek to know their status by addressing stigma and discrimination, gender-based violence and other structural challenges that create barriers to access to HIV prevention services.
The Zambian government should facilitate and support healthcare providers to implement comprehensive, quality informed consent procedures in line with the key principles of consent, confidentiality, counselling, correct results, and connection to HIV prevention, treatment and care according to the WHO consolidated guidelines on HIV testing services.
For more information or to arrange for interviews, contact:
Annabel Raw, Health Rights Lawyer, Southern Africa Litigation Centre
AnnabelR@salc.org.za T: +27 (0) 105968538
Lesley Odendal, Communications Lead, AIDS and Rights Alliance for Southern Africa (ARASA)
firstname.lastname@example.org T: +27 (0) 21 447 2379 or +27 (0) 72 960 8991
About the AIDS and Rights Alliance for Southern Africa
Established in 2002, the AIDS and Rights Alliance for Southern Africa (ARASA) is a regional partnership of 115 non-governmental organisations working together to promote a human rights approach to HIV and TB in Southern and East Africa through capacity building and advocacy. ARASA partners comprise a diverse mix of more and less well-established organisations including networks of people living with HIV, legal aid organisations, women’s organisations, youth organisations and other AIDS service organisations. The basis of the partnership is solidarity and shared responsibility for advancing social justice in the region, with a focus on the realisation of the right to health. For more information, visit: http://www.arasa.info/
About the Southern Africa Litigation Centre
The Southern Africa Litigation Centre (SALC) promotes and advances human rights and the rule of law in southern Africa, primarily through strategic litigation support and capacity building. SALC provides technical and monetary support to local and regional lawyers and organisations in litigating human rights and rule of law cases in the region. SALC also provides training in human rights and rule of law issues and facilitates networks of human rights lawyers and organisations throughout southern Africa. For more information, visit: http://www.southernafricalitigationcentre.org
 See Lewanika and Others v Frederick Chiluba 1998) ZR 79.
 There are two elements to informed consent: knowledge/information and consent. Neither element on its own is sufficient to satisfy the legal requirement of informed consent. A medical procedure may only be lawfully performed under normal circumstances on an individual who has been fully informed of all relevant information, understands the information and has freely agreed to undergo the procedure.
 Dieter Giesen, International Medical Malpractice Law: a comparative law study of civil liability arising from medical care 252 (1988).