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Med Law. 1991;10(2):139-53.

AIDS: some medico-legal aspects.

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University of South Africa, Pretoria.


The increase in HIV infection in South Africa poses serious problems not only to medical services in this country, but also to its legal system. Some of the more immediate medico-legal problems surrounding AIDS are discussed: Informed consent to the testing for HIV antibodies, the maintenance of confidentiality and the question of whether health care workers may refuse to treat AIDS patients.


The most current statistics show that in South Africa there have been 430 people diagnosed with AIDS, half of whom have died. It is estimated that the number of HIV infections doubles every 8-8.5 months and projections indicate that by 1996 60% of the work force will be HIV positive. These facts pose serious medical and legal problems. Informed consent for HIV testing confidentiality of the patients, and the health care workers right to refuse treatment of AIDS patients are but 3 of the problems. There is no general agreement to screen all patients who enter hospitals since the time between infection and seropositivity is so long, typically up to 42 weeks. The case is stronger for mental patients since a certain percentage will be suffering from AIDS dementia and could pose a threat to the other patients. According to South African law there is no general duty to treat or right to treatment, so it is at the discretion of private practitioners. Informed consent must be obtained from a patient before medical treatment can be allowed, although, in South Africa, this can be overridden in cases of a threat to public health. There is still debate about whether AIDS constitutes such a risk. Also there are provisions that legally limit the amount of information that must be given to obtain informed consent, as in the taking of a blood sample used for multiple blood tests. Information does not have to be given to the patient to protect 3rd parties or to gather scientific data. So there is debate whether HIV screening could be put in the scientific data gathering category, or it could be considered part of other routine blood tests done to determine the general health of the patient, all without specifically informing the patients that they are being screened for HIV. AIDS will likely lead to an increase in laws that favor virginity, marriage, and monogamy as well as laws that decreases people's privacy rights. In the US this is already occurring as the issue of confidentiality and the right to privacy are being narrowed.

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