The state and private institutions have an obligation to uphold the constitutional rights of COVID-19 patients. COVID-19 brings to the spotlight a few constitutional issues as set out in the bill of rights.There are several ways that constitutional rights of COVID-19 patients are being breached.Take the case where an employer dismisses a staff member on suspicion that the staff member is COVID-19 positive.This is clearly discriminatory and the abuse of such a person’s constitutional rights. In this article I will highlight some of the constitutional rights of COVID-19 patients with emphasis on the specific ones that ought to be upheld.
The main right to be upheld during this COVID-19 period, is the right to health.This is contained in article 43(1)(a) which guarantees all persons the right to health and that is, the right to receive the highest attainable standard of health and the right to receive health care services. This is very important for COVID-19 patients who seek treatment. Treatment should not be denied on the ground of status. According to the health act,every person has the right to receive emergency and 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. Therefore patients are entitled to receive medical care in the event of the need for emergency attention due to COVID-19.
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. However in the event there is need to preserve public health,then the 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 therefore 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 very wrong to publish a patient’s results whether the result is positive o negative.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 COVID-19 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 vs Homepark caterers and two others, a HIV positive plaintiff who worked as a waitress succesfully 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 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 the grounds of discrimination. secondly the doctor and the hospital were found to have wrongfully taken a medical test without consent and wrongfully released the results.
COVID-19 patients should be protected from discrimination and stigmatization based on their status. This is in article 27 of the constitution that prevents discrimination based on
COVID-19 patients have a right to receive information pertaining to their treatment as provided in the constitution, Therefore an hospital can not withhold such information and on request are obligated to release such information to a patient.