Public Health Act needs urgent revision
Section 120 on the other hand states that ‘A person shall not manufacture or sell, to another person a device for the purpose of carrying out an HIV test, except where the other person is a representative approved for that purpose by an institution recognised in the Act.
Section 176 (1), states that ‘A person who commits an offence against, or a contravention of, or a default in complying with any provision of this Act, shall where no penalty is expressly provided for that offence, contravention or default, be liable to a fine not exceeding P100 000 or to imprisonment for a term not exceeding five years, or to both’.
Kelemi explained in an interview that the Public Health Act does not necessarily criminalize people who do home testing or self-testing, but in fact the Act has given parameters within which HIV testing can be done and one of those parameters is that it should be done by an approved centre or an approved structure or approved health facility.
“In our view, the process of approving a facility which is an administrative responsibility for the Ministry of Health is done in accordance with the guidelines so that the guidelines can effectively and efficiently protect the rights of the users,” she said. The guidelines for home testing and self-testing are also aligned with World Health Organization (WHO) standards which are also referenced in the Public Health Act.
“The Public Health Act says that when we are developing guidelines, we should take into consideration WHO guidance which in this case was done and the rationale for allowing home testing and self-testing within the context of the law was so that we are able to reach people who are otherwise very difficult to reach including men, young people as well as key populations,” she said.
According to Kelemi, evidence shows that men in general present to hospitals and clinics very late and as such a number of them due to HIV infection. She says young people do not test in large numbers that are expected, as well as key populations. Kelemi says that the guidelines were meant to facilitate access to testing for these populations. “In our view the law has made provisions for such guidelines to be developed in order to make sense or provide a framework for which
the Act can be implemented. We also have to note that the selftest should be accompanied by a confirmatory test, which is done at an approved facility. One of the responsibilities for the approved facility is to ensure that there is no risk of harm on the part of the user, for example, while giving a test kit to a couple the risk of intimate partner violence or GBV should be eliminated.”