A hospital has been fined Sh2 million for conducting HIV tests on a woman without her consent.
The woman had been initially awarded Sh900,000 by a tribunal but Justice Hedwig Ong'udi increased the fine.
Ong’udi noted that a test like that of HIV cannot be lumped with other tests and assumed to have been consented to.
“There must be counselling and preparation before this test is taken. None of these was undertaken,” Justice Ong'udi said.
The woman was an employee at the hospital. She sued her former employer for testing her without consent, without pre-test or post-test counselling and unlawfully disclosing the status causing her so much psychological trauma.
She had been awarded Sh900,000 by the HIV-Aids tribunal as compensation for damages.
But the court found that the award was too low given the imponderables of life and the negative impact of disclosure of the woman’s status without consent.
The judge set aside the decision by the tribunal and instead awarded Sh2 million as compensation for general damages. Justice Ong’udi gave her decision on June 24.
Of the Sh2 million, Sh400,000 is for testing without consent, Sh250,000 for lack of counselling, Sh500,000 for unlawful disclosure of status and Sh850,000 for emotional distress and stigma.
The award will be paid together with interest earned since the date of the first judgment which was delivered on November 27, 2020.
In her suit papers, the woman had accused the hospital of testing her without consent.
The hospital filed a counterclaim denying that it breached the woman’s rights. It denied all the accusations.
Instead, the facility asked the HIV-Aids tribunal to order the woman to pay an outstanding bill of Sh33,067 and damages for bad publicity.
The tribunal ruled in favour of the woman and directed the hospital to pay her Sh900,000.
Aggrieved by the decision, the woman filed an appeal saying the award of Sh900,000 was inordinately low. She had asked for Sh10 million.
She was admitted to the hospital after she fell ill on May 25, 2019. A series of tests was conducted.
Despite not consenting to the HIV test, she said, the doctor disclosed the results to her in the presence of other patients who were with her in the ward.
He then went ahead to notify the human resource officer without her consent.
As a result of these actions, the woman said she suffered physically, emotionally and psychologically.
Her colleagues were openly talking about it and she was reassigned from the restaurant to the laundry.
In his response, the doctor denied conducting the test without the woman's knowledge.
The woman, the tribunal was told, actually consented by appending her signature on the admission form.
And if there is any damage occasioned to her it was contributed to by her own negligence, the doctor said.
The court also held that when she was moved from the restaurant to the laundry at the hospital, the reason given was that she was HIV positive.
“All that happened to the appellant left her stigmatised. She was clearly told by her work colleagues that they were being tested to confirm whether the appellant had a fake food handling certificate or whether hers was an isolated case,” the court said.
Justice Ong'udi wondered where the workers got such information unless they had been told by their bosses.
Edited by P.O
