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HIV And Aids Prevention And Control Act

This Is An Act Of Parliament To Provide Measures For:

  1.  the Prevention, Management And Control Of HIV And AIDS,
  2. to Provide For The Protection And Promotion Of Public Health And
  3. for The Appropriate Treatment, Counseling, Support And Care Of Persons Infected Or At Risk Of HIV And AIDS Infection, And For Connected Purposes.

The Government is required to carry out education on HIV and AIDS. The Act provides that the Government shall through a comprehensive nationwide educational and information campaign conducted through its various Ministries, Departments, authorities and other agencies promote public awareness about:

  • the causes,
  • modes of transmission,
  • consequences,
  • means of prevention and
  • control

of HIV and AIDS.

Section 4 of the Act provides that the Government's educational and information campaign shall—

(a) employ scientifically proven approaches;

(b) focus on the family as the basic social unit;

(c) encourage testing of individuals; and

(d) be carried out in schools and other institutions of learning, all prisons, remand homes and other places of confinement, amongst the disciplined forces, at all places of work and in all communities throughout Kenya.

 

The Government is also required to collaborate with relevant stakeholders to ensure the involvement and participation of individuals and groups infected and affected by HIV and AIDS, including persons with disabilities.

Ministry of Health is required to provide all official information for  training purposes.

 Section 5 Requires the Government to provide education on HIV and AIDs at learning institutions. It states:

  1. The Ministry of Education, shall integrate instruction on the causes, modes of transmission and ways of preventing HIV and AIDS and other sexually transmitted diseases in subjects taught in public and private schools at primary, secondary and tertiary levels, including informal, non formal and indigenous learning systems.
  2. The Ministry for education, shall ensure that every teacher or instructor of an HIV and AIDS prevention and control course under this section is adequately trained and duly qualified to teach such course.
  1. HIV and AIDS education and information dissemination shall form part of the delivery of healthcare services by healthcare providers.
  2.  the Government shall ensure training of healthcare providers on proper information dissemination and education on HIV and AIDS, including post-exposure prophylaxis for prevention of transmission.
  3. The training of healthcare providers shall include education on HIV-related ethical issues such as confidentiality, informed consent and the duty to provide treatment
  1. The Government shall ensure the provision of basic information and instruction on HIV and AIDS prevention and control to—
    1. employees of all Government Ministries, Departments, authorities and other agencies; and
    2. employees of private and informal sectors.
  2. The information provided under this section shall cover issues such as confidentiality in the work-place and attitudes towards infected employees and workers.

Every County, in collaboration with the Ministry, shall conduct an educational and information campaign on HIV and AIDS within its area of jurisdiction.

These  are provided for under Section 11:

 

  1. A person who offers to donate any tissue shall, immediately before such donation, undergo an HIV test.
  2. The proposed recipient of donated tissue or his immediate relatives shall have the right to demand a second HIV test on such tissue before a transplant or other use of the tissue and such test shall, except in the case of emergencies, be carried out.
  3. All donated blood shall, as soon as reasonably practicable after donation, be subjected to an HIV test.
  4. Any donated blood which is found to be HIV positive shall be disposed of in accordance with the prescribed guidelines on the disposal of medical waste as soon as reasonably practicable after such result is obtained.
  5. Ensure the provision of protective equipment such as gloves, goggles and gowns to all healthcare providers and other personnel exposed to the risk of HIV infection.
  6. Precautions against HIV transmission during surgical, dental, delivery, embalming and similar procedures according to regulations.
  7. Handling and disposal of cadavers, body fluids or wastes of persons with HIV according to regulations.
  8. The provision of post exposure prophylaxis to healthcare providers and other personnel exposed to the risk of HIV infection.

 

  1. A person who, in the course of his professional practice, knowingly or negligently causes another to be infected with HIV through unsafe or unsanitary practices or procedures contrary to the provisions of this Part, or of any guidelines prescribed by the Ministry of Health, commits an offence.
  2. A court may, in addition to any penalty imposed on a person convicted for the above offence—
    1. in the case of an institution, order the revocation of any business permit or license in respect thereof; or
    2. in the case of a natural person, order the revocation of license to practice such person’s profession.

 No person shall compel another to undergo an HIV test.

  1. No person shall compel another to undergo an HIV test as a precondition to, or for the continued enjoyment of—
    1. employment;
    2. marriage;
    3. admission into any educational institution;
    4. entry into or travel out of the country; or
    5. the provision of healthcare, insurance cover or any other service.
  2. A person charged with an offence of a sexual   nature under the Sexual Offences Act, 2006 (No. 3 of 2006) may be compelled to undergo an HIV test.
  3. A person who contravenes any of the provisions of this section commits an offence.

No person shall undertake an HIV test in respect of another person except—

  1. with the informed consent of that other person;
  2. if that person is a child, with the written consent of a parent or legal guardian of the child
  3. any child who is pregnant, married, a parent or is engaged in behaviour which puts him or her at risk of contracting HIV may, in writing, directly consent to an HIV test;
  4. if, in the opinion of the medical practitioner who wishes to undertake the HIV test, the other person has a disability by reason of which he appears incapable of giving consent, with the consent of—
    1. a guardian of that person;
    2. a partner of that person;
    3. a parent of that person; or
    4. an adult offspring of that person:
    5. a medical practitioner may undertake the HIV test if the persons referred to in  (i), (ii), (iii) and (iv) above are either absent or are unwilling to give consent;
  5. where the person is required to undergo an HIV test under the provisions of this Act or any other written law.
  6. a person who offers to donate any tissue shall be deemed to have consented to the mandatory HIV test ;
  7. a person who offers to donate blood shall be deemed to have consented to the mandatory HIV test
  8. a medical practitioner responsible for the treatment of a person may undertake an HIV test in respect of that person without the consent of the person if—
    1. the person is unconscious and unable to give consent; and
    2. the medical practitioner reasonably believes that such a test is clinically necessary or desirable in the interest of that person.
  9. A person who contravenes the provisions of this section commits an offence. 

Subject to pre and post counseling, a medical practitioner who undertakes an HIV test on a person under this section shall, if the person so requires, disclose the results of the HIV test to that person.

 

The results of an HIV test shall be confidential and shall only be released—

  1. to the tested person
  2. in the case of a child, to a parent or legal guardian of such child.
  3. where any child consents to an HIV test directly as provided in this Act, the results thereof shall be released to the child; or
  4. in the case of a person with a disability which, in the opinion of the medical practitioner undertaking the test, renders him incapable of comprehending such result to—

(i) the guardian of that person;

(ii) a partner of that person;

(iii) a parent of that person; or

(iv) an adult offspring of that person.

(1) Every health institution, whether public or private, and every health management organization or medical insurance provider shall facilitate access to healthcare services to persons with HIV without discrimination on the basis of HIV status.

(2) The Government shall, to the maximum of its available resources, take the steps necessary to ensure the access to essential healthcare services, including the access to essential medicines at affordable prices by persons with HIV or AIDS and those exposed to the risk of HIV infection.

The Cabinet Secretary for Health shall ensure that facilities for HIV testing are made available to persons who—

  1. voluntarily request an HIV test in respect of themselves; or
  2. are required under the provisions of this Act or any other written law to undergo an HIV test.
  3. No person shall carry out an HIV test except in a testing centre approved by the Minister following procedure in the regulations.
  4. No person shall carry out an HIV test unless such person is a healthcare provider approved by the Cabinet Secretary for Health.
  5. No person shall provide pre-test or post-test counselling unless such person is approved by the Cabinet Secretary for Health.
  6. The Cabinet Secretary for Health shall, in regulations, prescribe—
    1. standards and the procedure for the approval of testing centres for the purposes of this Act;
    2. the standards and the procedure for the approval of healthcare providers;
    3.  guidelines for the provision of pre-test and post-test counselling services at such centres, including the standards and the procedure for approval of persons qualified to provide such services; and
    4.  guidelines for self testing.
  7. Every testing centre shall provide pre-test and post-test counselling to a person undergoing an HIV test and any other person likely to be affected by the results of such test.
  8. The Cabinet Secretary for Health shall enhance the capacities of testing centres by ensuring the training of competent personnel to provide the services required by this Act to be provided at such centres.

A person who contravenes the provisions of Section 16 or of any regulations made hereunder commits an offence.

Privacy guidelines (Section 200

The Cabinet Secretary for health may, in regulations, prescribe mandatory privacy guidelines, including the use of an identifying code, relating to

  1. the recording,
  2. collecting,
  3. storing and security of information,
  4.  records or forms used in respect of HIV tests and related medical assessments.

Confidentiality of HIV/AIDS records

 No person shall, include any information which directly or indirectly identifies the person to whom an HIV test relates, except in accordance with the prescribed privacy guidelines including,

 (a) a request for a HIV test by persons in respect of themselves; 

(b) an instruction by a medical practitioner to a laboratory for an HIV test to be conducted; 

(c) the laboratory testing for HIV or HIV antibodies; or 

(d) the notification to the medical practitioner of the result of the HIV test.

When can a Person’s HIV Status be disclosed? Section 22

  1. with the written consent of that person;
  2. if that person has died, with the written consent of that person’s partner, personal representative, administrator or executor; 
  3.  if that person is a child with the written consent of a parent or legal guardian of that child:
  4.   any child who is pregnant, married, a parent or is engaged in behaviour which puts other persons at risk of contracting HIV may in writing directly consent to such disclosure;
  5.   if that person is unable to give written consent, with the oral consent of that person or with the written consent of the person with power of attorney for that person;
  6.  if, in the opinion of the medical practitioner who undertook the HIV test, that person has a disability by reason of which the person appears incapable of giving consent, with the written consent, in order, of—  (i) a guardian of that person;  (ii) a partner of that person;  (iii) a parent of that person; or  (iv) an adult offspring of that person; 
  7. to a person, being a person approved by the Cabinet Secretary, who is directly involved in the treatment or counseling of that person; 
  8. for the purpose of an epidemiological study or research authorized by the Minister; 
  9. to a court where the information contained in medical records is directly relevant to the proceedings before the court or tribunal; 
  10.  if the person to whom the information relates dies, to the Registrar of Births and Deaths pursuant to section 18 of the Births and Deaths Registration Act (Cap. 149); or
  11.  if authorized or required to do so under this Act or under any other written law.
  12. statistical or other information that could not reasonably be expected to lead to the identification of the person to whom it relates.

Prevention of Transmission of HIV (Section 24)

A person who is and is aware of being carrying the HIV virus or infected with HIV shall— 

  1. take all reasonable measures and precautions to prevent the transmission of HIV to others; and
  2. inform, in advance, any sexual contact or person with whom needles are shared of that fact.
  3.  shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knew that fact and voluntarily accepted the risk of being infected.
  4. may request in the prescribed form any medical practitioner or any person approved by the Minister to inform and counsel a sexual contact of the HIV status of that person.

A medical practitioner who is responsible for the treatment of a person and who becomes aware that the person has not, after reasonable opportunity ,may inform any sexual contact of that person of the HIV status of that person.—

  (a) informed their sexual partner of their status; or 

 (b) made a request for the medical practitioner to reveal status to the sexual partner

A person who knowingly transmits HIV virus commits an offence and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding seven years, or to both such fine and imprisonment.

HIV and AIDS Tribunal (Section 25)

There is hereby established a Tribunal to be known as the HIV and AIDS Tribunal which shall consist of members appointed by the Attorney-General as follows— 

(a) a chairman who shall be an advocate of the High Court of not less than seven years standing;

 (b) two advocates of the High Court of not less than five years standing; 

(c) two medical practitioners recognized by the Medical Practitioners and Dentists Board as specialists under the Medical Practitioners and Dentists Act (Cap. 253); and 

(d) two persons having such specialized skill or knowledge necessary for the discharge of the functions of the Tribunal. (

 At least two of the persons appointed under subsection (a), (b) and (c) above shall be women.

 

 

How can an office in the Tribunal be vacant?

 (a) at the expiration of three years from the date of a member’s appointment; 

(b) if a member ceases by any reason to be such advocate or medical practitioner as required

 (c) if a member is removed from membership of the Tribunal by the Attorney General for failure to discharge the functions of his Office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour; and 

(d) if a member resigns the office of member of the Tribunal.

The HIV and AIDS Tribunal can: (Section 26)

  1.  hear and determine complaints arising out of any breach of the provisions of this Act;
  2. hear and determine any matter or appeal as may be made to it pursuant to the provisions of this Act; and
  3. perform such other functions as may be conferred upon it by this Act or by any other written law being in force.

The Tribunal does not have criminal jurisdiction.

Any interested party may be represented before the Tribunal by an advocate or by any other person whom the Tribunal may, in its discretion, admit to be heard on behalf of the party.

 

Powers of the HIV and AIDS Tribunal (Section 27)

The Tribunal shall have all the powers of a Chief Magistrates Court to;

  1. summon witnesses,
  2.  take evidence upon oath or affirmation
  3. call for the production of books and other documents.
  4. receive evidence by affidavit
  5. administer interrogatories and require the person to whom the interrogatories are administered to make a full and true reply to the interrogatories within the time specified by the Tribunal
  6.  take into consideration any evidence which it considers relevant to the subject of the matter before it, notwithstanding that the evidence would not otherwise be admissible under the Evidence Act (Cap. 80). (4).
  7.  to summon expert evidence as may be necessary for the discharge of its functions under this Act.
  8. to award the costs of any proceedings before it or
  9.  to direct that costs shall be taxed in accordance with any scale prescribed for suits in the High Court

All summons, notices or other documents issued under the hand of the Chairman of the Tribunal shall be deemed to be issued by the Tribunal.

What sanctions/orders can the HIV and AIDS Tribunal Make in a Case? Section 27(7)

  1. confirm, set aside or vary the order or decision in question;
  2. order for the payment of damages in respect of any proven financial loss, including future loss, or in respect of impairment of dignity, pain and suffering or emotional and psychological suffering as a result of the discrimination in question;
  3. directing that specific steps be taken to stop the discriminatory practice; 
  4. for the maintenance of the status quo of any matter or activity which is the subject of the complaint or appeal until the complaint or appeal is determined; 
  5. requiring the respondent to make regular progress reports to the Tribunal regarding the implementation of the Tribunal’s order.
  6. make such other order as may be appropriate in the circumstances; 

Disobedience of a summons or request by the Tribunal is an offence and shall be liable upon conviction to a fine not exceeding fifteen thousand shillings or to imprisonment for a term not exceeding two years, or to both.

Tribunal shall on application of an applicant issue a certificate for costs or damages awarded for filing in the High Court.

Such filed certificate shall have same force as a decree of the High Court. (Section 29)

DISCRIMINATION OF PEOPLE INFECTED WITH HIV/AIDS

  1. Discrimination in the Workplace: Unless an employer can prove, that the requirements of the employment in question are that a person be in a particular state of health or medical or clinical condition,  No person shall be denied access to any employment for which he is qualified; or be transferred, denied promotion or have his employment terminated, on the grounds only of his actual, perceived or suspected HIV status. (Section 31)
  2. Discrimination in schools (Section 32): No educational institution shall deny admission or expel, discipline, segregate, deny participation in any event or activity, or deny any benefits or services to a person on the grounds only of the person’s actual, perceived or suspected HIV status.
  3. Restriction on Travel and Place to Sleep or Live ( Section 33): A person’s freedom of abode, lodging, or travel, within or outside Kenya, shall not be denied or restricted on the grounds only of the person’s actual, perceived or suspected HIV status. No person shall be quarantined, placed in isolation, refused lawful entry or deported from Kenya on the grounds only of the person’s actual, perceived or suspected HIV status.
  4. Public Service ( Section 34): No person shall be denied the right to seek an elective or other public office on the grounds only of the person’s actual, perceived or suspected HIV status.
  5. Exclusion from credit and insurance services: No person shall be compelled to undergo a HIV test or to disclose his HIV status for the purpose only of gaining access to any credit or loan services, medical, accident or life insurance or the extension or continuation of any such services.
    1. An insurer, re-insurer or health maintenance organization shall, in the case of life and healthcare service insurance cover, devise a reasonable limit of cover for which a proposer shall not be required to disclose his or her HIV status.
    2. Where a proposer seeks a cover exceeding the no test limit prescribed above, the insurer, reinsurer or health maintenance organization may, require the proposer to undergo an HIV test.
    3. Where a proposer elects to undergo an HIV test pursuant to increase their cover limits and the results thereof are positive— 
      • the proposer shall, at his own expense, enter into such agreed treatment programme with the insurer as may be prescribed by the Cabinet Secretary in consultation with Commissioner for Insurance; or
      • the insurer may impose a reasonable additional premium or lien to the benefits ordinarily purchased; or
      • the insurer may decline granting the cover being sought.
    4. A person aggrieved by a determination as to what is reasonable for the purposes of this section may appeal to the Commissioner of Insurance in accordance with such procedure as may be prescribed in regulations and the Commissioner of Insurance shall make a determination on the basis of statistical and actuarial principles and other relevant considerations.
    5. A person aggrieved by a determination made by the Commissioner of Insurance may appeal within thirty days to the Tribunal and the decision of the Tribunal shall be final.
  6. Discrimination in health institutions: No person shall be denied access to healthcare services in any health institution, or be charged a higher fee for any such services, on the grounds only of the person’s actual, perceived or suspected HIV status.
  7. Denial of burial services: A deceased person who had AIDS, or was known, suspected or perceived to be HIV-positive shall not be denied access to any burial services on the grounds only of their said status.

A person who contravenes any of the provisions on discrimination commits an offence and shall be liable for imprisonment for a term not exceeding two years or to a fine not exceeding one hundred thousand shillings or to both.(Section 38)

A person who undertakes HIV or AIDS related human biomedical research on another person or on any tissue or blood removed from such person must conform to the requirements under the Science and Technology Act (Cap. 250) or any other written law for the time in force.

A person who undertakes HIV or AIDS related human biomedical research on another person or on any tissue or blood removed from such person must —

 (a) procure the written informed consent of that other person; or 

(b) if that other person is a child, with the written informed consent of a parent or legal guardian of the child.

The person, whose consent is sought, shall be adequately informed of the aims, methods, anticipated benefits and the potential hazards and discomforts of the research.

(Section 29)

The Cabinet Secretary for the time being responsible for matters relating to health may prescribe guidelines under which anonymous testing for HIV may be carried out.

Any anonymous testing conducted shall only be for the purposes of public health.

Under Schedule IV of the Constitution of Kenya 2010, the role of Health has been devolved to the Counties. However the National government still retains the role of Health policy to be followed by the County governments.

In the Act, any function to the Cabinet Secretary of Health is deemed to be the role of the Department of Health in the County Government.

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