Refusal to Perform Surgery Due to HIV Status is an Act of Discrimination
Efforts to resolve stigmatization·discrimination toward HIV/AIDS within the healthcare system are necessary
□ On June 14, 2023, the National Human Rights Commission of Korea (Chairperson Song Doo-hwan, hereinafter referred to as ‘NHRCK’) recommended to the Director of □□□□□ Hospital (hereinafter ‘Respondent’), regarding the complaint against the refusal to perform surgery for the reason that the victim was positive for Human Immunodeficiency Virus (hereinafter ‘HIV’), that job training for the medical treatment of HIV-positive persons be conducted for all employees including the respondent, and that measures be provided to prevent recurrence of similar cases going forward.
□ The complainant filed a complaint with the NHRCK as the victim was scheduled to undergo hepatic disc resection and neuroplasty at □□□□□ Hospital (hereinafter "Respondent Hospital") on May 31, 2022, but the victim was denied treatment because the pre-surgery examination on the day of the surgery revealed that the victim was HIV positive.
□ In response, the Respondent argued that since the victim had not disclosed the HIV-positive status, the Respondent was unable to accurately assess the patient's condition, and that there were special medical circumstances, such as not being privy to previous treatments performed by other medical experts, etc., therefore the refusal of treatment had a justifiable reason.
In addition, the respondent hospital responded that due to the small size of the hospital, it did not have the space for procedures or surgeries for HIV-positive persons, etc., nor did it have a dedicated infection control team. In addition, the Respondent Hospital responded that it did not have the expertise or facilities to treat patients with infectious diseases such as HIV in emergency situations such as bleeding during surgery. Therefore, the respondent hospital replied that it was unavoidable to inform the patient that the medical treatment would have to take place in another hospital.
□ According to the ?2020 Medical Institution Guidelines for Treatment of HIV-Positive Persons? and ?2022 HIV/AIDS Management Guidelines?, disclosing one's HIV-positive status does not constitute grounds for refusing medical treatment such as surgery, etc. In addition, the same standard precautions for the protection of patients and medical staff apply to the treatment of both HIV-positive persons and all other patients, so it is not necessary to have special equipment for performing surgery on carriers of blood-borne pathogens (HBV, HCV, HIV, etc.).
The NHRCK Discrimination Remedy Committee found that according to the above guidelines, disclosure of HIV-positive status does not constitute grounds for refusal of medical treatment such as surgery, etc. In addition, during consultations with an employee of the Respondent Hospital, the Victim had identified the medical facility where the Victim had received HIV-related treatment. Thus, the Respondent would have been able to hear from the Victim or, with the Victim's consent, could have obtained relevant records of previous treatment. It is therefore found that the Respondent's argument that the refusal to perform the surgery was justified is without merit.
Moreover, according to the guidelines of the Korea Disease Control and Prevention Agency, no special equipment or facilities are required for the surgery of carriers of blood-borne pathogens other than following standard precautions. Therefore, it is determined that the Respondent Hospital's refusal to perform the surgery on the grounds that it does not have HIV-related expertise or facilities cannot be considered a justifiable act.
□ Therefore, the NHRCK finds that the Respondent's act of refusing to perform surgery on the Victim is a discriminatory act that violates the Victim's right to equality based on fear and prejudice against HIV/AIDS, and therefore, the NHRCK recommends that the Respondent conduct relevant job training for employees to prevent future similar cases and provide measures for recurring cases.
