The Ministry of Health and Wellness (MOHW) insists that HIV self-test kits are not prohibited by law.
This despite an attorney’s argument that the Public Health Act makes it illegal to carry out self-tests or to even sell them.
Uyapo Ndadi, managing partner at Ndadi law Firm, and a Human Rights Activist had previously said that home testing is illegal in terms of the Public Health Act, in particular, Sections 119, 120 as read with section 110 as provisions that are clearly showing that tests must be done by approved persons, health personnel or at approved structures or facilities.
MOHW however maintains that HIV self-testing or home testing is not illegal because it is not a diagnostic test, but a screening one.
“The difference between screening and diagnostic HIV tests is that the screening test only predicts the presence of HIV in an individual while the diagnostic HIV test confirms the presence of HIV in an individual,” a press release reads.
Diagnostic HIV test results are therefore regarded as valid and conclusive while screening tests are preliminary and inconclusive. “The diagnostic tests are conducted by a medical practitioner or an approved health care worker, in an approved structure or facility, to ensure the privacy of patients and to avail the necessary counselling, prior to and after the testing. HIV self-testing falls under the ambit of HIV screening tests,” MOHW said in a release.
Ndadi, however, differs with the interpretation accorded to the Public Health Act by the MOHW. “The act does not give a distinction of tests. For example, nowhere in the act do we have HIV testing for screening purposes or diagnostic purposes. The Acts simply speaks of HIV testing, without any qualification. It is therefore improper for the government to categorise or pigeonhole tests,” he said.
Ndadi said that the same test kits used for diagnostic purposes are the very test kits that are used at home for screening purposes. “It is therefore misleading to making appear like one is not an HIV test for it is,” Ndadi added.
The human rights activists said that the question is not about the validity of the results as the health ministry seems to suggest. “The validity is not an issue. The issue is the results of home-testing kits are not valid because the practice itself is unlawful. It goes against various provisions in the act,” Ndadi stated.
Such provision is included in Section 2, which defines an HIV test as a medical test approved by the director, which determines whether or not a person is infected with HIV.
Ndadi said self-tests, also offend Section 110, which mandates that before a test is done a person, a medical practitioner or an approved healthcare worker must provide counselling on the medical and social consequences of the test. He rhetorically asked whether home testing for screening does not go against this.
“Section 120 goes a step by prohibiting the sale of test kits to the public. Why would the law prohibit it if home screening is allowed? The test kits for home screening and diagnostic purposes are the same,” Ndadi said. “I expect the government to own up to the mistake they did and amend the law and not play semantic. Yes, it is embarrassing, but the more the unlawful practice, the more the credibility is lost,” he added.
The position of the health ministry is that the Public Health Act does not prohibit HIV self-testing as a screening modality. The ministry, therefore, encourages all members of the public to take responsibility for their health by amongst others, actively participating in activities meant to help them know their HIV status.
The MOWH said that Section 119 of the Public Health Act, read with the definition of HIV test in section 2 and section 105 (4) of the Act, indicates that the law only prohibits diagnostic HIV testing if conducted in structures/facilities that have not been approved by the minister.