On 22 February 2013, the Botswana Network on Ethics, Law and HIV/AIDS; the AIDS and Rights Alliance of Southern Africa; the Southern Africa Litigation Centre and the HIV and AIDS Programme of the Open Society Institute of Southern Africa submitted a letter to the Speaker of the National Assembly of Botswana, the Minister of Health and National AIDS Coordinating Agency, detailing their concerns around the Public Health Bill currently before the Botswana Parliament. The organisations requested that the Botswana parliament provide an opportunity for public participation on the contents of the Bill before it is passed by Parliament.
Some of the key concerns regarding the current version of the Public Health Bill are outlined below. The Southern Africa Litigation Centre has written a memorandum on the Botswana Public Health Bill, which can be accessed here.
Communicable and notifiable diseases
The provisions in the new Public Health Bill relating to communicable diseases are exactly as they were in the old Public Health Act, and do not reflect modern day public health discourse on how best to approach communicable diseases.
Communicable diseases are widely defined as “any disease which can be transmitted directly or indirectly from one person to another”. The Bill does not differentiate between the seriousness and risk of infection of various communicable diseases. Accordingly the Bill applies to all persons with any communicable diseases, when it allows –
- Any health officer to enter premises and medically examine persons (section 53); and
- Any health officer to detain a person who is infected with a communicable disease [section 57(1)] and the length of such detention is determined by the health officer [section 57(2)], without any recognition of the rights or provision of remedies for the person detained.
Thus, sections 53 and 57 as currently drafted, are so wide in application and provide such limited safeguards, that they violate the State’s duty to protect individuals from violations of their rights to privacy, freedom from inhumane and degrading treatment and freedom of movement.
The list of notifiable diseases has been extended from nine diseases in the Public Health Act to 23 in the Public Health Bill. This raises a number of concerns regarding the impact of such an extension on the health system, and the methods that will be used for notification. The Bill does not include any penalties for breaches of confidentiality of medical information that might occur during the notification process.
The Public Health Bill contains progressive provisions on confidentiality of HIV test results [sections 104(1)(a), 113, 114, 115(1) and 122(1)]. However, some of the sub-sections which allow disclosure of information about HIV testing and sexual behaviour, are too sweeping in application and are likely to lead to infringements of the right to privacy:
- Section 115(1)(g) allows a court to hear information about HIV status behaviour where directly relevant to proceedings. It is recommended that such information should only be made available after an application for admission of the evidence has been heard.
- Section 140(1)(b) allows a child to refuse disclosure of his or her medical records, yet section 115(1)(c) allows a parent to decide on disclosure of a child’s HIV status.
- Section 122(2)(b) allows any legal representative to access information about sexual behaviour disclosed during an HIV test, without consent. This section is overly broad and likely to be misused by legal practitioners to obtain confidential information protected by doctor-patient privilege. It is recommended that the section be deleted since the legal representative can obtain a court order for such information in terms of section 122(2)(a).
The Ministry of Health should be applauded for the Bill’s explicit prohibition of mandatory HIV testing[section 104(2)]. However, it is of concern that various sections proceed to allow mandatory HIV testing without any apparent legitimate objective:
- Section 104(3)(b) allows the Director to require someone to undergo an HIV test, failing which the Director can apply to a court for an order forcing the person to undergo HIV testing. At present, a magistrate is in any event able to order an HIV test during criminal justice processes. The section, despite various safeguards, does not appear to serve a legitimate government purpose.
- Similarly, section 109(3)-(7) allows a medical practitioner, nurse or dental practitioner to require a person to undergo an HIV test, and to decide to refer a person to another service based on the outcome of the result. As it currently stands, the section is ambiguous and can be read to allow conscientious objection as a defence for health workers not providing services in cases of HIV.
Section 105(1)(b) requires parental consent for a child under 16 years of age to test for HIV. The section does not appear to recognise the various cases in which it would be desirable for children under 16 years of age to test, for example in the case of child-headed households and orphans.
Section 116(7) allows a medical practitioner to inform a care-giver or sexual contact of someone’s HIV status, after a person has been given a reasonable opportunity to do so. Whilst partner disclosure should be encouraged, the current section is too broadly phrased and does not recognise the possibility of violence in relationships. The approach to partner disclosure in section 116 is different to that in section 2.7.2 of the National Guidelines on HIV Testing, which is framed in a way to encourage and empower patients to notify their partners. The Regulations should define “reasonable opportunity”.
Section 116(9) allows a Director to apply to a magistrate for an order to detain a person living with HIV if that person is recklessly placing others at risk without their knowledge. In all respects, this section is a duplicate of section 57 and there does not appear to be any legitimate government purpose for it. The section does not outline the court process for such application and provides no remedy to the person detained. The section assumes knowledge on the methods of HIV transmission on the part of magistrates and is likely to place a strain on the justice system. The section further violates the right to freedom of movement and the right to be free from cruel, inhuman and degrading treatment, as provided in sections 14 and 7 of the Botswana Constitution.
Unfair discrimination between different users of health services
Section 136 provides for the rights of users of health services, but the section is located under the heading: non-communicable diseases. Sections 137, 138 and 139 provide additional rights to users of health services and places responsibilities on the Director to ensure efficient health services. However, these sections are specifically limited to persons with non-communicable diseases. This differentiation between persons with communicable and non-communicable diseases amounts to unfair discrimination in violation of sections 3 and 15 of the Botswana Constitution. There is no public health justification for limiting rights of persons based on their health status. Such differentiation between communicable and non-communicable diseases suggests outdated notions of disease control and will only perpetuate stigma against people with communicable diseases. Sections 136 to 139 should be written in a manner which indicates that they apply to all users of the health system.
Section 149(1) prohibits discrimination based on health status, but section 149(2) allows a head of a facility to discriminate as to the services provided to users based on their health status. Section 149(2) should be deleted since it contradicts section 149(1) and is likely to lead to inconsistent treatment between health facilities.
Section 169(3) provides that organs may not be transplanted into someone who is not a citizen or permanent resident without authorisation from the Minister. This section violates section 3(a) of the Botswana Constitution and should be deleted.
Ambiguity in offences
Section 58 makes it an offence to expose the public to any communicable disease. The offence is vague and overly broad.
Section 117 makes it an offence to publicly promote participation in sexual activity likely to cause HIV transmission. This provision is vague and ambiguous and does not provide a reasonable person with a clear idea of the type of activity prohibited.
Both these offences violate section 10(8) of the Botswana Constitution and should be deleted.
For more detailed information on the provisions in the Public Health Bill and their human rights implications, the SALC commentary on the Public Health Bill can be accessed here.