An impassioned challenge to respect the human rights of people with TB has been made by a prominent African judge, who says too few countries have legislation dealing with the issue, writes Carmel Rickard in the Legalbrief A Matter of Justice column.
Rickard writes: “This hampers effective management of the disease and makes it difficult for judges dealing with cases involving infringement of patients’ rights.
“Botswana's Judge Oagile Dingake was giving the keynote address at a major international gathering in Switzerland, called to discuss the ‘Nairobi Strategy’ – a holistic way of fighting TB that incorporates a strong human rights approach to the disease.
“He said many of the factors that made TB so difficult to treat were ‘strongly linked to human rights’. But even though this was widely accepted and understood, most countries failed even to consider human rights in their national TB programmes and policy frameworks. Instead, the focus was merely ‘biomedical’ and neglected the critical role of human rights.
“In his 14 years as a judge, he said, he had discovered that in many countries there were ‘policies’ on TB and related issues but that these were often not translated into legislation. In addition, the policies themselves often had no human rights content. Between them, these two problems ‘make the job of a judge extremely difficult’.
“TB and HIV/Aids are often inter-related, in their symptoms and their treatment, and in both cases the rights of patients are often violated, making it even more difficult to deal with these conditions. In his address, Dingake gave the example of an HIV-related case over which he presided some years ago when he was still a member of the Industrial Court. He found there was no specific legislation relevant to the case before him. Instead of ‘local legislative guidance’, he discovered ‘only policy, which is not law’. So he was forced to turn to international law, quoting and applying it because of the lack of local laws – this in a country (Botswana) where international law was not an automatic part of domestic law.
“The judge did not specifically mention which case this would have been, and several on his lengthy list of decisions with a strong human rights content might fit the bill. However, the one most widely cited and discussed from that period is Diau v BBS, a 2003 case heard in Gaberone, Botswana, in which he quoted, among others, decisions from South Africa, Australia, the US, Sri Lanka and India.
“In that case he explained his dilemma: ‘The question that arises is whether compulsory post-employment testing (for HIV/Aids) is legal. I must say at this juncture, that I know of no specific legislation regulating … HIV/Aids testing at the workplace and/or the general issue of HIV/Aids at the workplace.’ He considered Botswana’s national policy on HIV/Aids, even though it was not law and imposed no direct legal obligations. And he then waded through a number of foreign decisions for guidance on whether a company such as the employer in the HIV-related case before him was obliged to observe the bill of rights in Botswana’s constitution. Having decided that the constitution did indeed apply to the employer, he was able to consider whether the fact that the employee was sacked for refusing to undergo testing violated her constitutional rights.
“Finding the answer to a straightforward question thus involved lengthy detours because of the lack of local legislation on the rights of the public in relation to this particular illness.
“In his address in Geneva last month he said the lack of legislation that comprehensively ‘entrenched’ human rights in TB cases was ‘a matter of grave concern’. He warned that it could lead to situations where judges gave up: ‘The courts may simply say there is no law governing the situation and therefore their hands are tied.’ It was a real danger, and one that he had seen in his own country in the context of HIV/Aids, he said.
“There was an urgent need to ‘sensitise countries’ on the importance of legislating on TB, either in separate legislation or as part of the broader health law. ‘This legislation must be inspired by international human rights law and best practices on TB and human rights.’
“He said that ‘bringing human rights to the centre of the TB response’ was ‘the imperative of our time.’ In most countries however management was via national TB control programmes that tended to be based within ministries of health. These programmes therefore looked at a national response ‘through a public health approach devoid of human rights’.
‘TB patients are bearers of rights. These rights are universal, interdependent, inalienable and non-negotiable. Our governments must understand that … they have a duty – not an option – to protect, respect and fulfil rights and must be willing to account for failing to do so. … To give effect to this obligation, they must legislate comprehensively on TB so that there is little room for guesswork when it comes to human rights.’
“Enforcement of laws on TB often involved a balancing act, with the rights of patients – including the right not to be discriminated against, to dignity, to liberty, to access medical records among others – against public health considerations like the obligation to prevent disease transmission. Generally TB treatment should be voluntary, with the patient’s informed consent and co-operation. Out of respect for the patient’s autonomy, health professionals must explain to patients the medicine they dispense and any possible side effects.
“Coercive measures such as detention ‘should never be routinely utilised’. ‘Involuntary isolation must be used only as a last resort – and since having TB is not a crime, any isolation must be linked to the legitimate purpose of preventing disease transmission and must take place in a health facility and not a penal institution’.
“Even when involuntary isolation was essential, it had to comply with international human rights guidelines, and be ‘in accordance with the law, be based on a legitimate objective, be strictly necessary and be the restrictive possible’
“He quoted from Botswana’s health laws to show some of the potential dangers to the rights of patients. The isolation of someone certified as having a communicable disease was authorised ‘on the order of a registered medical practitioner’ until the person was ‘free from infection’ or no longer posed a danger to public health.
“Because TB was a notifiable disease, health officers had to notify the Minister of Health of such cases, and routine screening of all health care workers for TB and HIV infection was required via mandatory language which raised the possibility of the guidelines ‘being an instrument of coercion’.
“But, he said, human rights needed more than ‘good constitutions, treaties, lawyers and judges.’ ‘We also need a vigilant and active civil society.’
‘Constitutions and treaties are just promissory notes. It is all of us – judges, lawyers and civil society – who can ensure that the promise of constitutions and treaties is kept.’”
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[link url="https://www.hhrjournal.org/2017/04/letter-to-the-editor-human-rights-tb-legislation-and-jurisprudence/"]Full address by Judge Dingake[/link]