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3 Dec 2010

The Lawyer Is In: Where is your humanity?

The Lawyer Is In is a monthly legal column by George Hwang who will answer questions from readers. This month, he discusses two cases whereby one was outed at work as HIV positive by an anonymous person and another has a non-Singaporean partner who is HIV positive.

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Dear Readers, 

With the first Developed Asia Regional Consultation on HIV in MSM (men who have sex with men) and transgender people organised by Fridae and Action for AIDS on Dec 2 and 3 in Singapore and the 7th Singapore AIDS Conference on Dec 4, I have decided to focus on some issues surrounding people living with AIDS (PLWA).

So as to ensure the letters or stories tackled here highlight the spectrum of problems these victims experience, I have requested two volunteers from AFA to help. They are Dr Paul Tambyah, a specialist in infectious diseases, and Thomas Ng, a lawyer. Roderick, with his background on non-traditional security, weigh in from the pandemic angle. Incidentally, all four of us will be attending the conference. Unlike the others who will be exercising their cerebral prowess, yours truly will be “singing” for lunch. In a moment of weakness at a gala premiere in May this year, I have accepted Roy Chan’s invitation to debate Alex Au, a most formidable foe. So, if you are reading this on or before noon of 4 Dec 2010, say a little prayer for me.

We decided to pick one letter and one story from the media. They highlight not only the inadequacies of our law and policies but Singapore’s parochial response to HIV.

HIV is not an infectious disease like tuberculosis or flu. In the UK, it is legislated that it should be treated like any long term debilitating disease like cancer or kidney illness. Obama has abolished all laws banning HIV patients from entering USA. The ban was lifted on 4 Jan 2010. 

The World Health Organisation has a recommended list of drugs that a country should subsidise. This includes HIV drugs. Sadly, this is one of the few drugs on the list which Singapore has not adopted.

First, we will answer the question showing how our law has separated a couple. The question involves immigration law. Like most immigration issues, they are affected by administrative directives. Such directives may change overnight and are not transparent. You need a lawyer who is experienced in this field to handle the questions. Thomas, who volunteers with AFA, is in a better position than me to do this.

Then, I will analyse the unethical behaviour of one of our school principals and its legal ramifications. Our Ministry of Education could be sued because its employees have breached the law. This may affect the amount of tax we have to pay.

MALAYSIAN PARTNER WHO'S HIV+ 

Dear Mr Hwang,

My partner and I have been together for more than 10 years. Two years ago, we discovered that he is HIV positive. I am not.

As a result, his employment was terminated. He returned to Kuala Lumpur. Financially, this made some sense, as the cost for HIV drugs in Malaysia is minimal.

However, we are now separated by at least five hours of driving. I visit him every month.

The nature of my business is such that it will not be possible for me to relocate to Kuala Lumpur. My partner, James, does not earn enough to support the two of us. We also need to think of our retirement.

The travelling and stress of the illness is eating into our relationship. Is there anyway for me to sponsor James’ stay in Singapore. Since I run my own business, I am able to employ him.

Thank you.

Yours truly,
Tony

Thomas Ng’s Reply:

Dear Tony

Unfortunately, any non-Singaporean citizen who is HIV+ is a prohibited immigrant under the Immigration Act. Hence, any non-Singaporean who is HIV+ is not permitted to enter

Singapore. However, it appears that foreign spouses (who are HIV+) of Singaporean citizens may be allowed to remain in Singapore on a case-by-case basis. It also appears that Singapore Permanent Residents and certain high-flyers on an Employment Pass may be allowed to remain in Singapore. Again, this is on a case-by-case basis and is at the discretion of the immigration authorities.

You do not say how your partner was diagnosed. If he were diagnosed by a doctor or medical officer at a non-anonymous testing clinic, his medical history would be in the authorities' database. As such, he may not be allowed to even enter into Singapore for a holiday.

If you now intend to employ him on a work permit or employment pass, it is likely that he will be required to undergo a blood test as a condition for that work permit or employment pass. Thereafter, his application will probably be rejected.

You could of course, appeal to the immigration authorities if he is rejected. They will have to decide on a case-by-case basis but chances to obtaining a work permit or employment pass would be slim.

Thomas

HIV+ SPORTS TEACHER

This story was reported in the Straits Times on 6 Aug 2008.

John (not his real name) is a co-curricular activity coach, hired by a private company which provides schools with enrichment programmes. One day, one of the schools where he was teaching received an anonymous tip-off that he is HIV positive. The principal informed his employer that John should stop teaching at that school. As if that is not enough, another school where he was also teaching asked John’s employer about his HIV status, though he had by that time been posted to do administrative work. Afraid of being a burden to his employer, John eventually resigned. 

Who can John Sue?

John can sue:

1. the anonymous tipper;

2. the first school principal;

3. the second school; and

4. the Ministry of Education.

Since John is not directly employed by the Ministry of Education, he cannot sue the Ministry under employment law. However, the Ministry can still be liable vicariously for the wrongful acts of its employees, especially, that of the first school principal.

The conduct of John’s direct employer is commendable. It exemplifies humanity. I presume that it is a small company. Whatever its set-up, it has taken a commercial risk by doing what is “correct” and humane. The world is a better place for people like them. I hope John, if you read this, please convey my admiration to them. Like “BodyShop”, because it is an enterprise with social conscience, its business will thrive. We need to support such enterprises. Please exercise your consumer power everytime you are able to do. Small sacrifices will change the world.   

What are the actions against each?

John can sue three parties for breach of confidential information and the Ministry of Education for vicarious breach of the same.

In order to succeed, John needs to show the following ingredients. They are:

1. that the information must have the necessary quality of confidence;

2. that this information was imparted in circumstances importing an obligation of confidence; and

3. that the recipient has used it in an unauthorized manner, and in appropriate cases, this use is to the detriment of the party who originally communicated it.

For Condition 1, one’s HIV status has been held by an English court to be information protectable by the law since 1987.

In Singapore, this position is supported by an Act of Parliament, the Infectious Diseases Act. Section 25 states that any person, in the course of performing functions under the Act, having reason to believe that someone is infected, must not disclose such knowledge unless authorised by the Act. Otherwise, it is an offence punishable by a fine of imprisonment. The authorised situations are confined mainly disclosures to medical practitioners, police officers, victims raped by HIV patients, recipients of blood or semen donation so exposed, by order of court or with the consent of the HIV patient. Even the next-of-kin of such persons can only know after the patient’s death.

In the same Act, a medical practitioner may only disclose a person’s HIV condition to those at risk, e.g., spouse or ex-spouse; after meeting certain strict conditions that include counseling the HIV victim of such a necessity.

The way John has conducted himself, it seems unlikely that he went around “blowing the horn” on his HIV status. Therefore, the information would not have come into the public domain because of John’s own action.

For Condition 2, information need not be disclosed directly by the owner. Third party recipient of confidential information is under an equal duty to refrain from usage once he knows that the information is confidential.

It is likely that the anonymous “tipper” would be someone close to John. He is likely to be an ex-boyfriend with an axe to grind. Therefore, he would be under a duty of confidence.

The first principal as “tippee” should know that it is confidential. This is because nobody in the school knew about this. By informing John’s employer that he should not work in the school, he has misused the information. As for the information being leaked to other schools, this is way out of the usage authorized by John. The first principal as “tippee” has a duty not to breathe a word of John’s HIV status.

The same applies to all other “tippees”. 

As for detriment, is often implied once unauthorized usage is proven. A court in Singapore has remarked that it is not necessary to prove damage or detriment to the plaintiff in every case. In any event, in this case, John could not teach anymore. He had to stay in the office doing administrative work. This is adequate “damage” to John.

The English court in X Health Authority v Y has ruled that keeping a person’s HIV status confidential outweighs disclosure in public policy. As the virus is not spread through air or mere touch, no harm is done by keeping it private. Given the stigma attached to the illness when compared to the likelihood of transmission, there is a general interest in keeping the information confidential unless consent from the patient is given. 

Procedural steps to ferret the identity of the tipper

The principal cannot withhold the identity of the tipper, when the latter has committed a wrong. We have laws to make him disclose.

If the tipper is anonymous to the principal, then the principal is not fit to be one. He should be made to resign.

One does not need to read Enid Blyton to know that anonymous letters or messages only come from lowest of the low. If it is anonymous, the principal should not have acted on such a tip-off. To say that he did so puts his already questionable judgment and values beyond redemption.

On the premise that the principal obtained the identity of the tipper, John can ask the court to order the principal to reveal the name of the tipper. In most common law jurisdiction, it is called the Norwich Pharmacal order, after the name of the first case. A court has inherent powers to do so.

Basically, when there is a clear case of tort being committed or breach of intellectual property right, the court can order a party with information of who the wrongful party is to reveal the latter’s identity. This will then allow the plaintiff to sue the party in breach. This is a tool used often in media cases, where we want to get the journalist to reveal the identity of the “whistle blower”.

In Singapore, not only have our courts confirmed this inherent jurisdiction, the Rules of Supreme Court has been amended to expressly incorporate such an order.

Therefore, the first principal will have to reveal the name of the tipper. If he really does not know, he has more to answer.

Should the Ministry of Education allow someone who acted on an anonymous tip be a school principal? Further, there are no grounds for his action. The principal should know that he himself is in breach of confidential information by saying that John cannot teach in his school anymore. This is an abuse of power.

What are the Remedies?

Besides monetary compensation (called “damages”), John can seek injunctions from further disclosure. There are 2 types of injunctions, interlocutory and permanent.

Interlocutory injunction is a temporary order by the court. In fact, it is now called “interim injunction” in England. It is a pre-trial remedy, effective until the trial. Often there is no trial after such an injunction is granted, making this a de facto permanent order. To obtain such an order from the court, the most important elements to prove are that the information must still be relatively confidential and that damages (money) is not an adequate remedy. Once the information is made public, any injunction granted is merely a declaration of disapproval.

John should have commenced proceedings against the first “tippee” and the Ministry of Education, immediately after being told by his employer about the tippee’s reaction to the news. This could have prevented a lot of damage. John could still be flexing his biceps in front of the tippee principal, teaching physical exercise.

Illness

HIV is an illness. However, looking at the behaviour of the tippees, especially, the first principal, I wonder who is really ill?

Such stories make me angry and sad. Our immigration law seems to be based on the presumption that HIV is a “foreign” disease that can be stopped by no contact with infected foreigners. As for cases similar to John’s, employers, whether private or public, should respond with proper policies. Most of all, I wish John is brave enough to sue, in particular, the “tippee” principal. We only live once.  

Until the next decade, I dare you all to be brave!

Bon Courage!

George Hwang

The Lawyer Is In is a monthly column. In the columns, George Hwang will answer questions posed by readers on subjects such as personal and civil rights, workplace issues, discrimination, immigration, sexuality, lasting power of attorney and estate planning. To submit a question, email editor@fridae.com. Responses will be made by placing your question (without identifying you) in an upcoming column, and answering it there. We regret that questions cannot be answered privately.

Disclaimer: The answers, opinions and other information in this column are, usually, of a general nature, even if you think the scenario is exactly the same. They are not legal advice. Neither the writer, www.fridae.com nor anyone involved shall be responsible to readers who rely on them as one. Readers facing legal problems should seek independent legal advice from a qualified lawyer

Singapore

Reader's Comments

1. 2010-12-03 02:17  
i have similar case like Tony.. it was tough when i was trying to renew my employment pass which required me to undergo for hiv testing. When i was told by the doctor that i am positive, he advised me to start packing n start my new life back where i am coming from(Malaysia). I was in and out of Singapore for 2 months and then eventually the immigration stop me from entering without any reason which i already knew why. I havent been going back since and have not really tell most of my friends why i left out of a sudden. I am back on my feet now in Malaysia and life is much more relaxing here.
I must say the Msia Govt is helping almost all the cost for HIV patients.
2. 2010-12-03 05:35  
Unfortunately, it's stories like this that cement Singapore's international reputation as a police state with little regard for her citizens, which is why Singapore's seen as Great as a banking gateway for the Asia basin, but, otherwise, as a country with bad human rights and dreadful civil liberties records.

The SG Government sees itself as leading a 'first-world' country,, but stories like this show that it's not as, as far as I'm aware, the SG Gov does Nothing at all to fight discrimination and promote equality amongst all, other than pretending to - for the 'right' people, of course.

Yes, someone who was involved with high-risk physical activty - such as a PE Teacher, who could indeed pick up cuts and scrapes and grazes etc - would be unlikely to remain in such a position in pretty much any country - BUT (s)he would certainly be entitled to stay in a similar post, such as an educational sports coach (after all, there is a significant, and growing, range of academic courses available to bolster and further the skills of those interested in PE etc as a career - it's not all hurling basketballs at kids or young adults, and blowing through whistles whilst telling everyone to do 50 laps). For examplpe, that person could have gone on to work in what's termed Sports Science, here - and this continue in their chosen career with a rewarding role, within the same general stream of their interest, without being a risk to anyone.

Instead, some anonymous person takes a cheap, easy shot, without even having the decency to stand up and say: "It was Me; I'm the one who complained about you - and here's why..." Here, someone who was dismissed in this way would launch a Civil action in the courts, to sue their formal employer for loss of earnings, damages, emotional distress, and unfair proceedings.

But Justice doesn't work the same way in Singapore - as the never-ending stream of negative stories about Her rulings in the international press constantly underlines, yet which Her government seem completely unconcerned about. What a pity, for those who live there to be a Subject of the Government's, rather than a Citizen of the State...
Comment edited on 2010-12-03 05:40:16
3. 2010-12-03 12:13  
Government responsible to do something to ensure that HIV+ ppl at least can earn a living granted being terminated employment.
4. 2010-12-05 01:24  
Dear Tony,

RE: HAVING A MALAYSIAN PARTNER WHO'S HIV+

In your letter, it’s clear that you intend to live with your HIV+ Malaysian partner when you retire. You mention that you must live in Singapore to manage your business, while he, having been sent back to Malaysia and disallowed entry into Singapore, is now living in KL, which is 5 hours’ drive away. This makes meeting up with him, not to mention live with him, quite difficult. Let me suggest a solution which you both may like.

You could, as a HIV-negative, healthy person apply for a long-term VISA to live in Malaysia. There is a government programme named Malaysia My Second Home (www.mm2h.gov.my) which allows you to obtain a 10-year VISA, which is renewable. You’d need to demonstrate that you are financially independent, of good character, and healthy, etc. Also, you must place a fixed deposit of RM300,000 (around S$130k) in a Malaysian bank. Half of this may be withdrawn to purchase a house after 1 year. You might want to liquidate some of your liquid assets to satisfy this requirement and obtain the VISA. It’d allow you to live in Malaysia, and even purchase a real estate priced RM500,000 or more, though you might choose to rent one instead.

One solution is for you to rent/buy an apartment in JB, which’s just minutes away from Singapore to build your nest. This allows you to visit your partner conveniently. As you know, many Malaysians who live in JB commute to Singapore daily to work. Even if you don’t find this desirable, you can at least stay with him over the weekends. If you choose to stay with him just over the weekends, you don’t even require this VISA, because, with a Singapore passport, you can enter VISA-free to Malaysia and stay for up to 30 days PER ENTRY.

If the medical costs of your partner are mostly relieved by generous subsidies from the Malaysian government, you two could well enjoy a decent lifestyle on S$1,500-2,000/month (RM3,600-4,800) in Johore State. You might be able to generate this income from your existing business, or a passive income source, such as rental income from your Singapore HDB flat and investment income. If your passive income exceeds your JB expenses by a margin of safety, it’s theoretically possible to retire early so that you may spend more time together with each other. If you could cover your and his combined living expenses this way, does he still need to work in KL? Wouldn’t it be still financially sustainable if he lives in JB and take up a less lucrative job, or even become a ‘house husband’?

While he may be disallowed entry into Singapore, you as a Singaporean should never have this problem even if you are/become HIV+. This allows you to continue running your business, banking or collecting rental from your tenants in Singapore.

All the best to you and your partner.

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