These are the case doctrines--meaning, the teachings which the Supreme Court have laid down in a certain case--in Escarcha v. Leonis Navigation Co. Inc. and World Marine Panama, S.A. (G.R. No. 182740).
Read the full text of Escarcha case here.
The Escarcha case is definitely ruled against the PLHA who already passed away at the time of the ruling. Fair warning, reader: cases filed before the Supreme Court are always read as if such is the first time. So, if there will be another HIV/AIDS-related case that the Court will decide, the Escarcha case is not an automatic stare decisis.
Here are the case doctrines of Escarcha case in relation to our Labor Laws (again, only in relation to Labor Laws):
1. The general acceptation of Republic Act 8504 (HIV/AIDS Law) is that no discrimination in the workplace should exist.
Section 35 of RA 8504 provides that "Discrimination in any form from pre-employment to post-employment, including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual is prohibited. Termination from work on the sole basis of actual, perceived or suspected HIV status is deemed unlawful."
2. Substantial pieces of evidence will refute the liberal construction of the Labor Code and special labor laws in favor of employees.
Any conclusion that the the courts or quasi-judicial agencies arrive at with the proper application of the law cannot be swayed by the intent of our laws and jurisprudence to be read liberally in their application to our overseas Filipino workers. Liberal construction is not a license to disregard the evidence on record or to misapply our laws. Stated otherwise, if an employee is found to be transgressing laws despite his condition, the Supreme Court will rule against his favor even if the RA 8504 aims to protect PLHAs and the Labor Code provides protection to employees.
3. Acquisition of HIV/AIDS due to an incident which is not work-related is not compensable, as an exception to RA 8504's general acceptation of non-discrimination. Stated otherwise, any demand of benefits as regards HIV/AIDS against an employer should be work-related.
Death arising from a pre-existing illness, like HIV/AIDS, is not compensable or rewardable especially when it is found that the illness was suppressed or undisclosed as a means to circumvent the law to gain employment. Even if RA 8504 includes "post-employment" as a phase where a person living with HIV/AIDS (PLHA) cannot be discriminated against, if an employee acquired HIV/AIDS through sexual relations with an infected person and not because of his working conditions during the employment period, benefits cannot be rewarded.
4. There must be a rational connection between the worsening condition of a PLHA and the work-related condition or environment the PLHA is in.
AIDS is not listed as an occupational disease both under the Philippine Overseas Employment Agency-Standard Employment Contract (POEA-SEC) and the Employees Compensation Commission (ECC) Rules. Thus, the claimant (e.g. the employee with HIV/AIDS or his/her heirs) bears the burden of reasonably proving the relationship between the work of the deceased and AIDS, or that the risk of contracting AIDS was increased by the working conditions of the deceased.
5. Employer not liable to pay benefits against a PLHA if there is circumvention of the law on the part of the PLHA to gain employment.
If an employer has come to know of an employee's HIV status long after the employee was employed and whose progression did not result in the worsening of his condition--as HIV is a disease of the immune system that does not progress to the point of attracting opportunistic infections until the immune system has substantially been weakened by the progress of the disease--the employer is not liable for any benefits due the employee, who did not suffer the illness due to work-related reasons.
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Tuesday, April 5, 2016
Sunday, February 7, 2016
compulsory testing?
What about compulsory HIV testing in extreme cases?
One kind soul approached me at my PlanetRomeo HIV account, let's call him F, and asked about the early symptoms of HIV onset. Since I am no doctor but a disciple of law, I could not be too exact as to what the "symptoms" are regarding HIV. HIV could be asymptomatic. But it could also show early signs when we are properly informed about HIV literature as applied to how raunchy we are in bed.
Fast forward, I told F that I had rashes back then in my chest area which actually were not itchy. He inquired if I have had fever. None, I said. The conversation went on and finally into its climax. F said that his late partner died, but up until now he and the people around him and his late partner cannot be fully sure if it were AIDS behind the late partner's passing because the significant other refused treatment. Even refused to take the HAT or the HIV Anti-bodies Test. The only speculation he had, and mine as well, was that it was AIDS as it already shown dire complications (as what F told me at least). I asked F if he tried talking down his partner to at least get an HAT; he did to no avail and no change of heart. One then can only speculate as much--even the doctors who I think at that moment had the hunch--because the patient waived his right to treatment. At that point and on hindsight, I saw how doctors could be bound by what is only permitted by the patient. A more existential question then: In cases like that, where do we draw the line for doctors to truly heal and to strictly adhere the decisions of their patients? I am in absolutely no position to answer.
Enter law. It is well-within the Philippine Patient's Bill of Right for a patient to refuse treatment, as can be gleamed in paragraph 5, "The patient has the right to refuse treatment/life-giving measures, to the extent permitted by law, and to be informed of the medical consequences of his action."
But, take heed readers of the one important passage: "to the extent permitted by law." That is an important statutory phrase in paragraph 5 because then we ask, which law permits refusal and which law overrides a patient's refusal to treatment? I think there is none yet to date because it would be highly controversial to think of the least if a doctor, who in his utmost good faith and impelled by the good intent of the law, to do what the patient otherwise permits.
Apply it to the scenario of F's partner, what if his doctors, with their healthy medical reasoning, conducted a HAT despite the stern refusal of the patient? Would that be allowed?
Be that as it may, weeks passed and F's story had me thinking, what if there is a law that actually does not permit refusal of patient as regards their care management when life and death is on the line? Are we to look at it on a moralistic viewpoint or on a legal philosophical view of crafting laws for people's sake? I bet it would be a tough consideration because moralists have been on the look out as regards our health laws in this country.
It fancy me to think about the unpopular opinion. Let's give compulsory testing a chance to save lives in dire cases of death. But right now, no law actually permits that unsavory opinion of mine. The rule under the Philippine HIV/AIDS Law (Republic Act 8504) is that it is prohibited to conduct compulsory testing. The last thing I've heard as regards development of RA 8504 is an amendatory bill filed by Rep. Teddy Baguilat of Ifugao province. As to the bill's content, I am not privy to it.
But again, take heed, because Sec. 2(b)(1) of RA 8504 admits of an exception to prohibition against compulsory testing, that is, unless otherwise provided in this Act.
Down in Section 17 of the Act, there are three instances where the Act may allow compulsory HIV testing: criminal charge of rape and injurious substance; relevant issues as regards the Family Code; and compliance as regards organ and blood donation.
The exceptions, in legal parlance, methinks, are not a closed-list exception, which means, instances to allow compulsory testing may still be added as lawmakers have the good faith to include those new instances as worthy exceptions, and, in my whimsical thoughts, in articulo mortis.
The way I see it, if our lawmakers only have the balls to consider--of course, always reaching out to public consultants and experts--the need to have a compulsory testing to determine if a patient's disease is caused by HIV, it will make care management more efficient. Of course, what is only made compulsory is the testing, not the treatment. If after testing and results showed that the patient is reactive to HIV anti-bodies, then this information may be used to properly inform the patient of his situation. Only then will the patient be allowed to choose whether to opt for treatment or not because with HIV now a reality after testing, doctors can now move to explain how HIV in these day and age can be manageable as diabetes or hypertension.
What is important, methinks, is that there is a testing done per se. This may give the patient a new perspective as to his survival if done with the guidance of doctors. Unlike if the testing--not the treatment--is made to depend on the decision of the patient, doctors have no slim chance to fight for the survival of the patient. Doctors are immediately bound to wait for the patients to die.
Surely, after testing, and reactivity, a patient can still choose whether to move on to the treatment. If he opts to, good. If he doesn't, the doctor has done his fair share.
If this is the way, we can save people such as F's partner. If we are to include in articulo mortis as an exception in RA 8504, we can save lives. And since the Patient's Bill of Right is a general law, and HIV Law is a special one, any first year law student will know that special law overrides a general law.
If this is a way to save lives and truly make doctors as lifesavers we can fancy the thought of how long the shot is and try to shorten it by making it a reality. This is where HIV/AIDS and law intersects. This is HIV policy-making and lawmaking. This is where the law can actually respond to a medical phenomenon.
So I ask, how about compulsory testing urgente mortis periculo, any takers?
One kind soul approached me at my PlanetRomeo HIV account, let's call him F, and asked about the early symptoms of HIV onset. Since I am no doctor but a disciple of law, I could not be too exact as to what the "symptoms" are regarding HIV. HIV could be asymptomatic. But it could also show early signs when we are properly informed about HIV literature as applied to how raunchy we are in bed.
Fast forward, I told F that I had rashes back then in my chest area which actually were not itchy. He inquired if I have had fever. None, I said. The conversation went on and finally into its climax. F said that his late partner died, but up until now he and the people around him and his late partner cannot be fully sure if it were AIDS behind the late partner's passing because the significant other refused treatment. Even refused to take the HAT or the HIV Anti-bodies Test. The only speculation he had, and mine as well, was that it was AIDS as it already shown dire complications (as what F told me at least). I asked F if he tried talking down his partner to at least get an HAT; he did to no avail and no change of heart. One then can only speculate as much--even the doctors who I think at that moment had the hunch--because the patient waived his right to treatment. At that point and on hindsight, I saw how doctors could be bound by what is only permitted by the patient. A more existential question then: In cases like that, where do we draw the line for doctors to truly heal and to strictly adhere the decisions of their patients? I am in absolutely no position to answer.
Enter law. It is well-within the Philippine Patient's Bill of Right for a patient to refuse treatment, as can be gleamed in paragraph 5, "The patient has the right to refuse treatment/life-giving measures, to the extent permitted by law, and to be informed of the medical consequences of his action."
But, take heed readers of the one important passage: "to the extent permitted by law." That is an important statutory phrase in paragraph 5 because then we ask, which law permits refusal and which law overrides a patient's refusal to treatment? I think there is none yet to date because it would be highly controversial to think of the least if a doctor, who in his utmost good faith and impelled by the good intent of the law, to do what the patient otherwise permits.
Apply it to the scenario of F's partner, what if his doctors, with their healthy medical reasoning, conducted a HAT despite the stern refusal of the patient? Would that be allowed?
Be that as it may, weeks passed and F's story had me thinking, what if there is a law that actually does not permit refusal of patient as regards their care management when life and death is on the line? Are we to look at it on a moralistic viewpoint or on a legal philosophical view of crafting laws for people's sake? I bet it would be a tough consideration because moralists have been on the look out as regards our health laws in this country.
It fancy me to think about the unpopular opinion. Let's give compulsory testing a chance to save lives in dire cases of death. But right now, no law actually permits that unsavory opinion of mine. The rule under the Philippine HIV/AIDS Law (Republic Act 8504) is that it is prohibited to conduct compulsory testing. The last thing I've heard as regards development of RA 8504 is an amendatory bill filed by Rep. Teddy Baguilat of Ifugao province. As to the bill's content, I am not privy to it.
But again, take heed, because Sec. 2(b)(1) of RA 8504 admits of an exception to prohibition against compulsory testing, that is, unless otherwise provided in this Act.
Down in Section 17 of the Act, there are three instances where the Act may allow compulsory HIV testing: criminal charge of rape and injurious substance; relevant issues as regards the Family Code; and compliance as regards organ and blood donation.
The exceptions, in legal parlance, methinks, are not a closed-list exception, which means, instances to allow compulsory testing may still be added as lawmakers have the good faith to include those new instances as worthy exceptions, and, in my whimsical thoughts, in articulo mortis.
The way I see it, if our lawmakers only have the balls to consider--of course, always reaching out to public consultants and experts--the need to have a compulsory testing to determine if a patient's disease is caused by HIV, it will make care management more efficient. Of course, what is only made compulsory is the testing, not the treatment. If after testing and results showed that the patient is reactive to HIV anti-bodies, then this information may be used to properly inform the patient of his situation. Only then will the patient be allowed to choose whether to opt for treatment or not because with HIV now a reality after testing, doctors can now move to explain how HIV in these day and age can be manageable as diabetes or hypertension.
What is important, methinks, is that there is a testing done per se. This may give the patient a new perspective as to his survival if done with the guidance of doctors. Unlike if the testing--not the treatment--is made to depend on the decision of the patient, doctors have no slim chance to fight for the survival of the patient. Doctors are immediately bound to wait for the patients to die.
Surely, after testing, and reactivity, a patient can still choose whether to move on to the treatment. If he opts to, good. If he doesn't, the doctor has done his fair share.
If this is the way, we can save people such as F's partner. If we are to include in articulo mortis as an exception in RA 8504, we can save lives. And since the Patient's Bill of Right is a general law, and HIV Law is a special one, any first year law student will know that special law overrides a general law.
If this is a way to save lives and truly make doctors as lifesavers we can fancy the thought of how long the shot is and try to shorten it by making it a reality. This is where HIV/AIDS and law intersects. This is HIV policy-making and lawmaking. This is where the law can actually respond to a medical phenomenon.
So I ask, how about compulsory testing urgente mortis periculo, any takers?
Labels:
compulsory testing,
HIV,
in articulo mortis,
law
Sunday, November 2, 2014
dreaming a dream
Part and parcel of the silence here in my blog is due to professional studies. The last five months was spent memorizing provisions, reading Supreme Court cases and consistently asking myself whether what I opted in my life was the best decision of all. After rebounding from HIV depression, I knew that everything was back to normal; and the dreams are back afire.
My truer friends who know my condition were more concerned than I am after I told them that I would proceed to law school: "Isn't it bad for you to be stressed out given your condition?" I actually pondered about it but would I want HIV to punctuate my ambitions in life? I guess then when it comes to amoral choices, we shoot in the dark. So shoot I did.
The two weeks that passed was spent unwinding. It is the semestral break, although since Monday, I started prepping for second semester. The sheer rote learning employed in law school is so burdening and mentally taxing, notwithstanding that humiliation is a tool of instruction, that sometimes the destination is too far from where I am that it bogs me down. Don't get me wrong. With a costly tuition and a costlier-than-the-usual set of books, the destination will always be relative to the journey.
In short, I feel like giving up. I feel like there is always an easier way out. That I could just sedate my ambitions. I hope I don't cross anyone. For someone with HIV, there is always that gray area in my brain where I keep on telling myself that I have to compete with my May 2, 2011, the date of my diagnosis. I don't have to prove things to anyone, but I am mandated to beat the hell out of my having HIV to prove that I can do things. Then again, when the going gets tough, the tough quibble at times.
But somewhere in the vast uncharted corners of the universe comes wonder. I get to receive emails from people regarding their conditions. And all of them are about employment issues. Truth be told, I cannot answer them with precision everytime. But for these generous email senders who placed their trust on me, I could not thank you enough for making me realize why I want to be a lawyer in the first place.
At the time when I was about to take the law school application test, there was a question that asked the applicants what kind of legal field do we want to specialize on. I ticked, "Labor Law." I dunno why that choice given that Criminal Law and sending people to rot in jail appealed to me back then more than anything. But I also already thought too that as the number of PLHIVs increases, PLHIVs will encounter work-related issues, whether unjust termination in work, insurance coverage, immigration issues, mandatory testing, etc. I could just ask you to watch Tom Hank's Academy Award-winning performance in the 1993 film Philadelphia to get my point.
A while ago, under the spirit of unfettered brazenness and grandiosity, I scoured the Internet to know which American schools offer a Health Law track in their Master of Law degree. There are Georgetown and UPenn that licked my interest.
The Philippines could do so much better if we have a bevy of lawyers adept with health and HIV laws that could tie them with labor, immigration, insurance or even adoption and family issues, on top of human rights, among others. Imagine a free legal assistance group for PLHIVs and whose lawyers are not just gays but who are PLHIVs too, a circumstance that will not hinder people seeking help to pour out their concerns; won't the country be a better place? Ah, the beauty of dreams!
Then again, tomorrow will be the start of the next semester and for now I still have years to burn. Since 2011, what I have proved is that it is us who kill our dreams or let our wounds remain unhealed in open air. We, not HIV.
My truer friends who know my condition were more concerned than I am after I told them that I would proceed to law school: "Isn't it bad for you to be stressed out given your condition?" I actually pondered about it but would I want HIV to punctuate my ambitions in life? I guess then when it comes to amoral choices, we shoot in the dark. So shoot I did.
The two weeks that passed was spent unwinding. It is the semestral break, although since Monday, I started prepping for second semester. The sheer rote learning employed in law school is so burdening and mentally taxing, notwithstanding that humiliation is a tool of instruction, that sometimes the destination is too far from where I am that it bogs me down. Don't get me wrong. With a costly tuition and a costlier-than-the-usual set of books, the destination will always be relative to the journey.
In short, I feel like giving up. I feel like there is always an easier way out. That I could just sedate my ambitions. I hope I don't cross anyone. For someone with HIV, there is always that gray area in my brain where I keep on telling myself that I have to compete with my May 2, 2011, the date of my diagnosis. I don't have to prove things to anyone, but I am mandated to beat the hell out of my having HIV to prove that I can do things. Then again, when the going gets tough, the tough quibble at times.
But somewhere in the vast uncharted corners of the universe comes wonder. I get to receive emails from people regarding their conditions. And all of them are about employment issues. Truth be told, I cannot answer them with precision everytime. But for these generous email senders who placed their trust on me, I could not thank you enough for making me realize why I want to be a lawyer in the first place.
At the time when I was about to take the law school application test, there was a question that asked the applicants what kind of legal field do we want to specialize on. I ticked, "Labor Law." I dunno why that choice given that Criminal Law and sending people to rot in jail appealed to me back then more than anything. But I also already thought too that as the number of PLHIVs increases, PLHIVs will encounter work-related issues, whether unjust termination in work, insurance coverage, immigration issues, mandatory testing, etc. I could just ask you to watch Tom Hank's Academy Award-winning performance in the 1993 film Philadelphia to get my point.
A while ago, under the spirit of unfettered brazenness and grandiosity, I scoured the Internet to know which American schools offer a Health Law track in their Master of Law degree. There are Georgetown and UPenn that licked my interest.
The Philippines could do so much better if we have a bevy of lawyers adept with health and HIV laws that could tie them with labor, immigration, insurance or even adoption and family issues, on top of human rights, among others. Imagine a free legal assistance group for PLHIVs and whose lawyers are not just gays but who are PLHIVs too, a circumstance that will not hinder people seeking help to pour out their concerns; won't the country be a better place? Ah, the beauty of dreams!
Then again, tomorrow will be the start of the next semester and for now I still have years to burn. Since 2011, what I have proved is that it is us who kill our dreams or let our wounds remain unhealed in open air. We, not HIV.
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