It is not uncommon for a person diagnosed as HIV positive to face the predicament of whether or not to disclose his or her own HIV status. Those people affected by HIV and AIDS often ask: “Am I obliged to disclose my HIV status to my employer? Am I protected if I tell my doctor about my HIV status?“.
The laws in Hong Kong provide protection against discrimination based on one’s actual or perceived HIV status. Furthermore, patients can take comfort in knowing that their doctor is subject to rules of confidentiality.
Privacy and Confidentiality
One’s HIV status is in itself a private and confidential matter. It also falls within one of the interests protected under Article 14 of the Bill of Rights Ordinance (Cap. 383) (“the Bill”) which provides that“no one shall be subjected to arbitrary or unlawful interference with his/her privacy and that everyone has the right to the protection of the law against such interference”.
Generally speaking, there is no obligation for a person diagnosed as HIV positive to disclose his/her status. However there are some exceptions, for example:
- In the role of a sexual partner, an HIV positive person may incur criminal liability for not disclosing his or her status;
- As part of certain immigration policies, where it is required that all candidates declare his or her status;
- As part of certain insurance policies, where a person intending to be insured is required to give a full disclosure on his health conditions.
Similarly, a doctor is under a duty of confidentiality in that they should not disclose a patient’s HIV status without the informed and formal consent of the patients.
The present Code of Professional Conduct issued by the Medical Council of Hong Kong (January 2016) strictly requires a doctor to respect a patient’s right to confidentiality unless there is a real and imminent threat of harm to a third-party whereby such harm can only be subdued through breaching the duty of confidentiality.
Under common law, a doctor has a duty not to disclose any of his or her patients’ information that he gained from his professional capacity without the express consent of the patient (Hunter v Mann  QB 767). In particular, the Court has recognized the importance of such confidentiality to promote proper diagnosis with full disclosure from the patient (X v Y  2 ALL ER 648).
Discrimination based on HIV status can take place in every aspect of one’s life. The list is non-exhaustive, but can include situations such as being discriminated in a sports club or at work. As some people diagnosed as HIV positive can be subject to unwarranted pressure, that if left unchecked, could escalate into some form of psychiatric illness.
Under the Disability Discrimination Ordinance (Cap. 487) (“DDO”), discrimination based on a person’s HIV status is unlawful. In general, there are two types of discrimination: direct and indirect discrimination.
Direct discrimination arises where a person is treated less favourably merely because of his or her being diagnosed as HIV positive. For anyone who suspects they are a victim of direct discrimination, the right question to ask is whether but for his/her HIV status, he/she would have received the same treatment (Secretary for Justice v Chan Wah (2000) 3 HKCFAR 459). If the answer is yes, then there is on the face of it, an existing claim of direct discrimination.
Indirect discrimination arises where there is an unjustified condition or requirement (e.g. workplace provision) that is equally applied amongst a designated group, but such condition or requirement would be impossible or inconvenient for people who was diagnosed as HIV positive to comply with. For example, in Siu Kai Yuen v Maria College  2 HKLRD 775, the plaintiff succeeded in establishing indirect discrimination on the basis that he, while diagnosed with cancer was dismissed under a provision which treats taking leave for more than 10% of his designated monthly class to be a fundamental breach of his employment contract.
Protection extended to associates
Furthermore, under the DDO, discrimination is also unlawful even if it is against the disability of a person’s “associate“. Associate has a statutory definition that include spouses, relatives, caregivers and other persons living together. An example of this kind of discrimination is if one is refused employment on the basis that a relative or spouse is diagnosed as HIV positive.
The current legal protections afforded to victims of discrimination exist in the form of confidentiality rules and anti-discrimination laws. For those who feel they are or have been a victim of discrimination, in whatever context it is key for them to first identify and document the incidences of discrimination and then take advice from the Equal Opportunities Commission or a legal professional to consider what action might be taken and/or if legal proceedings may be required.
Similarly, when issuing new provisions or requirements, employers should ensure that they do not engage in indirect discrimination and that they are in compliance with the anti-discrimination laws in Hong Kong.
Hugill & Ip provides hands on advice in handling discrimination complaints and/or breach of confidentiality. For more information on these issues, please contact us.
Until end of this year, our team at Hugill & Ip will cover specific issues related to LGBT rights, estate planning, discrimination and confidentiality. We wish to make the community in Hong Kong and China better aware of matters and legal protections afforded to individuals affected by HIV and AIDS as part of the Wills of Concern charity campaign.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.
You are informed to seek professional advice from qualified medical practitioner should you be concerned about your health condition or on any related health issues.