In instances where there is a risk to public health, the rules of informed consent may be relaxed.
An example of a public health risk would be for example where an infectious disease breaks out which threatens the lives of many people.378 In The Minister of Health of the Province of the Western Cape v Goliath Griesel J granted an order authorizing the isolation and treatment of the respondents who had been diagnosed with highly infectious drug resistant tuberculosis on the basis that they posed a severe public health risk to their families and other members of the public. The respondents had refused to be isolated or treated. Griesel J cited Section 36 of the
376 Health Professions Council of South Africa. Guidance for Good Practice in the Health Care Professions: Ethical Guidelines for Good Practice with regard to HIV Booklet 11 (2008) Paragraph 8.1
377 WHO. Statement on HIV testing and counselling : WHO, UNAIDS re-affirm opposition to mandatory HIV testing (2012) Available at http://www.who./int/hiv/events/2012world_aids_hiv_testing_counselling/en/ Last accessed on 2014/10/25.
378 The Minister of Health, Western Cape v Goliath 2009 (2) 248 (C).
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Constitution in his judgment and in justifying the order to isolate and treat the respondents in the interests of public health.379
It would be necessary for authorities to take preventative measures to prevent the spreading of the disease, for example the recent Ebola outbreak which poses a serious threat to society in general. Such preventative measures may mean quarantining those infected and also providing medical treatment to such individuals. Having to take these steps may imply that a person‟s right to privacy can be infringed if he or she is not willing to submit to treatment or quarantine. 380 Will it be lawful to hold and treat someone against their will and without informed consent in order to protect the public from risk of infection?
International guidelines provide that an individual‟s right to liberty of movement may be restricted if provided for by law when necessary to protect public health or the rights and freedoms of others.381
The Constitution provides that a person‟s rights contained in the Bill of Rights which include the right to privacy, the right to freedom as well as the right to bodily and psychological integrity, may be limited in terms of general application if it is reasonable and justifiable to do so in an open and democratic society, taking into account relevant factors.382 These relevant factors are the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose; and the less restrictive means to achieve this purpose.383 The qualification is that the limitation must be based on principles of human dignity, equality and freedom and taking into account all relevant factors.384
In light of the limitation in the Constitution it can be argued that there are competing interests at stake where a person‟s right to freedom must be balanced against the rights of the public as a
379 The Minister of Health, Western Cape v Goliath 2009 (2) 248 (C).
380 Carstens & Pearmain op cit 1000.
381 UN International Covenant on Civil & Political Rights.Article 12 1.3 Available at
https://treaties.un.org/doc/Publication/UNTS/Volume%20999/Volume-999-I-4668-English.pdf Last accessed on 2014/10/02.
382 The Constitution Act 108 of 1996 s 36 (1).
383 The Constitution Act 108 of 1996 s 36 (1).
384 Ibid.
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whole. The National Health Act provides that a health service can be provided to a patient without obtaining his or her informed consent if failure to treat such a person will result in a serious risk to public health.385 A duty is also placed on the Director General of Health to ensure that national health policy provides for the management and control of communicable diseases.386 This would mean that a person can be treated and quarantined without his consent in the event that there is a serious threat to public health. Obviously if a person refuses consent to treatment for an illness that does not pose a public health risk, he cannot be compelled to submit to treatment.
In light of the topic of this paper, it is necessary to consider whether HIV could ever be classified as a public health risk and whether such risk can allow for mandatory testing.
In S v Makwanyane387 the Constitutional Court pointed out that „the limitation of constitutional rights for a purpose that is reasonable and necessary in an open and democratic society, involves the weighing up of competing values, and ultimately an assessment based on proportionality.‟388 Due to the nature of the transmission of HIV and that it is unlike contagious diseases such as Tuberculosis and Ebola which can be easily transmitted through casual contact, it may be difficult to justify mandatorily testing a person for HIV on the basis that it constitutes a public health risk. An isolated example may be in a case where a person willfully and sexually transmits HIV to many people or where for example a health care worker injects all male patients with infected needles since she was infected by a male partner. These examples may constitute a public health risk which justify mandatorily testing a person for HIV in terms of the provisions of the National Health Act which have been mentioned above. It must be borne in mind however that such testing will have to be reasonable and justifiable in terms of the constitution as it will amount to a limitation of the individual‟s rights to privacy and bodily and psychological integrity.
In summary informed consent rules may be relaxed where there is a risk to public health. An individual‟s constitutional rights may be limited in terms of Section 36 of the Constitution
385 The National Health Act s 7(1)(d).
386 Section 21(2)(k).
387 S v Makwanyane1995(3) SA 391 (CC).
388 S v Makwanyane1995(3) SA 391 (CC) at Paragraph 104; cf K Naidoo & K Govender „Compulsory HIV testing of alleged sexual offenders- a human rights violation‟(2011) 4(2) SAJBL 98.
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provided that the limitation satisfies certain constitutional requirements. There is a duty on government to ensure that a national policy is in place to provide for the management of communicable diseases which pose a public health risk. Testing for HIV without consent may be carried out in terms of the National Health Act if it poses a risk to public health. Such testing will have to be reasonable and justifiable in terms of the Constitution.