Constitutional rights of Covid-19 patients

The State and private institutions have an obligation to uphold the constitutional rights of Covid-19 patients. The disease brings to the spotlight a few constitutional issues as set out in the Bill of rights.

There are several ways that the constitutional rights of Covid-19 patients are being breached. Take the case where an employer dismisses a staff member on suspicion that he is positive. This is clearly discriminatory and an abuse of such a person’s constitutional rights.

I will highlight some of the constitutional rights of Covid-19 patients, with emphasis on specific ones that ought to be upheld.

The main right to be upheld during this period is that to health. This is contained in Article 43 (1) (a) which guarantees all persons the right to health or the right to receive the highest attainable standard of health and services. This is very important for Covid-19 patients who seek treatment.

Treatment should not be denied on the grounds of status. According to the Health Act, every person has the right to receive emergency medical attention notwithstanding their ability to pay. Health facilities have an obligation to provide this care. However, the definition of emergency care is all the treatment required to stabilise a patient. These people are entitled to receive medical care if they need emergency attention due to the disease.

When it comes to treatment of Covid-19, the Health Act prescribes that one cannot be forced to go through any medical procedure without consent. But when there is a need to preserve public health, then the law allows medical procedures to be done without consent.

The same applies where there is a court order, prescribing that a person undergo a medical procedure without consent.

In the case of Covid-19 , it seems that some procedures can be taken without consent as it is a public health matter.

Covid-19 patients have a right to privacy and a right to have their status kept confidential. It is wrong to publish a patient’s results whatever the outcome. This is found in Article 31 of the Constitution.

The Data Protection Act also protects the privacy rights of Covid-19 patients who have personal data rights.

The provisions of this law, are such that the personal data of a patient can be used only as per the prescription of the law. It is therefore a contravention of privacy rights to release the results to a third party without authority.

In the case of JAO versus Homepark Caterers and two others, a HIV positive plaintiff who worked as a waitress successfully filed a suit against her employer, the staff doctor and clinic for breach of privacy. The employer had the staff doctor take a HIV test on the plaintiff without her consent or knowledge. When the result came back positive, the employer sacked her.

It was found to be a wrongful termination on grounds of discrimination. Secondly the doctor and the hospital were found to have wrongfully taken a medical test without consent and also wrongfully released the results.

Covid-19 patients should be protected from discrimination and stigmatisation based on their status. This is in Article 27 of the Constitution that prevents discrimination based on health status.

They have a right to receive information pertaining to their treatment as provided in the Constitution. A hospital cannot withhold such information and on request are obligated to release it to a patient.