No. 07-00-407/2024-02 date: 3 .10 .2024.

OPINION

The opinion was issued in proceedings concerning a complaint filed by the Association AA, on behalf of BB, against the Special Hospital “VV” for discrimination based on health condition. The complaint stated that BB went to the Special Hospital “VV” for a scheduled pre-operative examination for cataract surgery, and that the doctor who examined him, after learning that he was HIV positive, told him about how complications can occur during cataract surgery in HIV positive patients, after which he was referred to a tertiary institution. During the procedure, the Commissioner requested a statement from the Special hospital “VV”. In the statement of lawyer GG, attorney of the Special Hospital “VV”, among other things, it was stated that the acting doctors in the specific case acted following the rules of the health profession in everything. Also, the provisions of Article 156 of the Law on Health Care were cited, which stipulate that a health worker may refuse to provide health care if the health service to be provided is not in accordance with their conscience, beliefs or international rules of medical ethics – conscientious objection, as well as the provisions of Article 57 of the Code of Medical Ethics of the Medical Chamber of Serbia, which stipulates that a doctor has the right to refuse treatment and refer a patient to another doctor if they consider that they are not sufficiently professional or that they do not have the technical capabilities for successful treatment, if there is no relationship of full trust between the patient and the doctor or if the patient refuses to cooperate, attempts to commit abuse, except in cases of necessity to provide emergency medical assistance. The statement emphasized that the contract that the Special Hospital “VV” has concluded with the RFZO relates to the secondary level of healthcare provision, i.e. day outpatient surgery, which implies that the hospital is unable to treat patients, in case of complications, keep them in the hospital for further treatment and evaluation after the operation, as well as for possible remediation of complications that may arise in such patients. During the procedure, the Commissioner established that the Special Hospital “VV” canceled BB’s cataract surgery, after learning that he was HIV positive, by which complainant made the act of discrimination likely, in the sense of Article 45 of the Law on the Prohibition of Discrimination, which is why the burden of proof was transferred to the Special Hospital “VV”, which, according to this article, is obliged to prove that it is not guilty, that is, to prove that there was no violation of the principle of equality.

Having reviewed the hospital’s specialist report provided to the complainant, the Commissioner notes that it only states that the patient should be referred to a tertiary institution for planned cataract surgery without stating the reasons or what additional examinations need to be done. The Commissioner further notes that the hospital did not provide any evidence in its statement that cataract surgery would pose a risk to the complainant in this specific case due to any of his preoperative results, nor did it provide any research or other evidence confirming the allegations in the statement that cataract surgery would pose a high risk to the complainant, thus making the performance of the surgery in a tertiary institution necessary. Concerning the allegations in the statement, the Commissioner further points out that the Law on Health Care, by the provision of Article 21, paragraph 1, also stipulates that the principle of equity in health care implies the prohibition of discrimination in the provision of health care on various grounds, including, among others, based on the type of disease, and that Article 27 of the Law on the Prohibition of Discrimination prohibits discrimination based on health status if a person is unjustifiably denied the provision of health services due to their personal characteristics. The Commissioner recalls that in the General Comment on Non-Discrimination, the Committee on Economic, Social, and Cultural Rights explicitly states that HIV status cannot be the basis for differential treatment in terms of access to education, employment, and health care. Regarding potential complications after surgery, which were also highlighted in the statement, the Commissioner pointed out that in a study conducted regarding cataract surgery in HIV-positive patients, surgical outcomes, complications and postoperative progression in HIV patients undergoing cataract surgery, the doctors involved in the study determined that cataract surgery in HIV-positive patients is safe with outcomes similar to the general population, with the proviso that their ocular and general health should be optimized before cataract surgery. The study stated that the cataract surgery procedure for patients living with HIV is no different from providing the intervention to patients who do not have HIV, with the implementation of all standard medical protection measures, which are implied to protect staff and patients. The Commissioner issued the opinion that by refusing to provide BB with a health service – cataract surgery, after he disclosed his HIV status, the Special Hospital “VV” violated the provisions of Article 6 in conjunction with Article 27 of the Law on the Prohibition of Discrimination. The hospital was recommended to send BB a written apology and to act in accordance with anti-discrimination regulations in the future.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković