Not a single doctor reported to the Health Professions Council of SA (HPCSA) has been found guilty of misconduct, unethical or unprofessional behaviour for testing domestic workers for HIV without their consent.

The AIDS Law Project has brought several cases to the attention of the council, but according to attorney Anita Kleinsmidt not one case has delivered results. In many instances the HPCSA has taken so long to call a hearing that the patient has died, causing the file to be closed with no consequences for the doctor. In other instances the HPCSA simply stated that no improper conduct had been found. Many employers insist that domestic workers must be tested for HIV because of their fears that HIV can easily be transmitted in the household.

It is, however, medically well established that there is virtually no risk of HIV transmission where a domestic worker with HIV has cleaning duties or prepares food. In order for HIV to be transmitted, there must be a substantial exchange of bodily fluids (blood, semen, vaginal fluids and possibly saliva). It is therefore clear than there can be no transmission of HIV when a domestic worker washes dishes, does the laundry or cleans the toilet. A doctor may not test a domestic worker on the instructions of a second person (employer).

The doctor must obtain the domestic worker’s informed consent, without which, the doctor acts illegally and unethically and is liable to disciplinary and legal action. An employer who deceives a domestic worker (or an applicant for such a position) into taking an HIV test opens himself/herself to action under the Labour Relations Act. This Act recognises job applicants as employees. Myrtle Witbooi, General Secretary of the Domestic Workers’ Union (DWU) said that many domestic workers were being exposed to HIV tests without their knowledge. “They are told they are receiving a flu injection, in the meantime they are undergoing an HIV test,” Witbooi said. She said many workers were reluctant to take the cases further because they did not want to lose their jobs.

“Many employers are also asking domestic workers to produce certificates proving that they are HIV negative when they interview them with the view of employing them,” said Witbooi. “Many domestic workers are losing their jobs because they are HIV positive.” The HPCSA confirmed that it had a number of formal complaint cases that related to breach of doctor/patient confidentiality with regard to HIV/AIDS patients, but declined to give specific numbers or details.

Spokesperson Thola Nzusa said that at this stage they had not found any of the doctors guilty because they “are pending professional conduct inquiries (disciplinary inquiries) into some of the cases”. She confirmed there were cases that were finalised at a preliminary stage where the Preliminary Committee of Inquiry noted the explanation of a doctor and thus resolved not to proceed with disciplinary action. She did not elaborate on what explanations were offered. Nzusa explained that the role of the Preliminary Committee was to determine whether or not, on the basis of a complaint lodged, there was a prima facie case to hold a formal disciplinary inquiry.

She said the HPCSA had published a set of guidelines in which it was clear that the status of the HIV patient was confidential unless the patient gave permission for disclosure. “The doctor may reveal the HIV/AIDS status of the patient only when convinced that non-disclosure may endanger the life or health of other individuals. “The practitioner concerned must, however, thoroughly counsel the patient to that effect in an attempt to persuade the patient to consent to disclosure,” Nzusa said.

HIV cannot be transmitted by hugging or holding another person. Employers often insist that it is in their children’s best interest that the domestic worker employed by them be tested for HIV. If this reasoning is followed, then every individual who comes into contact with children should be tested for HIV (parents, grandparents, extended family, friends, teachers, food preparers).

Domestic workers may refer a dispute on the grounds of discrimination to the CCMA. In the context of HIV testing, a dispute against the employer by a domestic worker can either be lodged when the employer insists on an HIV test or once the test has been carried out. When a domestic worker is dismissed because of HIV status, it is doubtful that she or he would seek reinstatement. It is clear though that they would be able to claim compensation if they had been tested illegally and unfairly or where they were incorrectly informed that HIV testing is a prerequisite for employment. The compensation awarded depends on the circumstances of each case. If an employer dismisses a domestic worker solely on the grounds of HIV status, the dismissal is unfair and it can be challenged as unfair discrimination or as an unfair labour practice.

The dismissal will amount to unfair discrimination if it can be established that:

• a domestic worker’s HIV status has no correlation to their ability to perform their job;
• there is virtually no risk of HIV transmission in the household – thus the fears of transmission are unfounded in the light of medical knowledge available regarding the modes of HIV transmission;
• testing in itself created a false sense of security, as it merely acts as a tool to unfairly discriminate against people with HIV by excluding them from gainful employment.

If a domestic worker is permanently unable to work because they are incapacitated through full-blown AIDS, an employer may be allowed to dismiss the employee. The decision cannot be unilateral and there must be proof of consultation with the employee as well as proof of ill health. Even if it is established that the domestic worker is suffering from ill health and is unable to continue working, there must be a fair procedure for the dismissal. Without a fair hearing the dismissal can still be unfair. Without proof of incapacity and without a fair hearing, an employer cannot dismiss a domestic worker.

– Health-e News Service