The Southern Africa Litigation Centre (SALC) and AIDS and Rights Alliance for Southern Africa (Arasa) welcomed the clarification by Dr. Chitalu Chilufya, Zambian Minister of health, during a live interview on 20 August, that the expansion of provider-initiated HIV testing and adoption of test-and-treat will be continued with due respect for the right to informed consent.
"We were gravely concerned by last week's announcement by Zambian president Edgar Lungu that HIV testing, counselling and treatment would be compulsory in Zambia for any person seeking medical treatment in public healthcare facilities," said Michaela Clayton, director of Arasa.
"The right to make a decision to test for HIV based on informed consent is protected by human rights law, but is also crucial from a public health perspective, as it enables people to act on the knowledge they obtain through the test."
The majority of people living with HIV in southern Africa do not know their status, which poses a serious threat to achieving the 90-90-90 targets of the United Nations Joint Programme on HIV and AIDS (UNAIDS), which set out to ensure that 90 percent of all people living with HIV know their HIV status, 90 percent of people with diagnosed HIV infection receive sustained combination antiretroviral treatment (ART) and 90 percent of all people receiving ART have viral suppression.
This realisation has often resulted in considerations for more aggressive responses, in which certain human rights protections are suspended or restricted for the benefit of the greater good - pitting a "rights-based" approach against a "public health" approach. However, the protection of human rights in the context of HIV has been proven to be crucial for HIV prevention and treatment outcomes.
Mandatory HIV testing is not only illegal and unconstitutional under Zambian law, it would also be contrary to international standards and guidelines on HIV testing and treatment. Research has found that forcing people to test for HIV or to take HIV treatment is unnecessary and counter-productive as it creates a disincentive to voluntarily access healthcare services and may push people away from testing and finding out their status.
"Enforcing a policy that violates human rights to informed consent would have been unconstitutional and would have forced healthcare workers to violate professional ethical standards, which could have exposed them to legal liability," said Anneke Meerkotter, litigation director at SALC.
This position has been confirmed by both the Supreme Court and the High Court in Zambia who found that HIV testing and the taking or administering of HIV or related treatments or therapies, like all other medical procedures, should only be conducted with the free, voluntary and informed consent of the individual and that consent is only present if it is provided freely, without undue influence, coercion, fraud, misrepresentation or mistake.
Arasa and SALC are encouraged that the ministry of health recognizes the potential harm of a mandatory testing policy and urge the Zambian government to focus on creating an environment in which people voluntarily seek to know their status by addressing stigma and discrimination, gender-based violence and other structural challenges that create barriers to access to HIV prevention services.
The Zambian government should facilitate and support healthcare providers to implement comprehensive, quality informed consent procedures in line with the key principles of consent, confidentiality, counselling, correct results, and connection to HIV prevention, treatment and care according to the WHO consolidated guidelines on HIV testing services. Report provided by Arasa.