Q&A – 13 July 2020

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Compulsory HIV testing

I am an accountant intending to work for a company in Dar. The company insists that it is their policy that I get a HIV/AIDS test done. Can I be forced to do so? How secretive are the results?
PP, Dar

The HIV and AIDS (Prevention and Control) Act 2008 answers all your questions in section 15 and 16 and states that 15(1) Every person residing in Tanzania may on his own motion volunteer to undergo HIV testing. (2) A child or a person with inability to comprehend the result may undergo HIV testing after a written consent of a parent or recognised guardian. (3) A person shall not be compelled to undergo HIV testing. (4) Without prejudice to the generality of subsection (3), no consent shall be required on HIV testing (a) under an order of the Court; (b) on the donor of human organs and tissues; and (c) to sexual offenders. (5) Every pregnant woman and the man responsible for the pregnancy or spouse and every person attending a health care facility shall be counselled and offered voluntary HIV testing. (6) All health practitioners, traditional and alternative health practitioners, traditional birth attendants and any other person attending patients shall be encouraged to undergo HIV testing. (7) Any health practitioner who compels any person to undergo HIV testing or procures HIV testing to another person without the knowledge of that other person commits an offence. (8) Without prejudice to the preceding subsections, a medical practitioner responsible for the treatment of a person may undertake HIV test in respect of that person without the consent of the person if (a) the person is unconscious and unable to give consent; and (b) the medical practitioner reasonably believes that such a test is clinically necessary or desirable in the interest of that person.

Section 16 further states that (1) The results of an HIV test shall be confidential and shall be released only to the person tested. (2) Notwithstanding subsection (1), the results of an HIV test may be released to (a) in case of a child, his parent or recognised guardian; (b) in case of person with inability to comprehend the results, his spouse or his recognised guardian; (c) a spouse or a sexual partner of an HIV tested person; or (d) the Court, if applicable.

Attachment of audited accounts to annual returns

Is it true that when we file annual returns the Company must also file annual audited accounts? Our company has been in existence since the late 1970’s and we have never done so. Why would I have to file my annual accounts that then become accessible publicly?
GK, Dar

Section 132 of the Companies Act states that a Company, other than one that is exempt from appointing auditors, which you likely are not, must annex to the annual return a copy, certified both by a Director and by the Secretary of the company to be a true copy, of the accounts laid before the company in a general meeting during the period to which the return relates (including every document required by law to be annexed to the accounts); and a copy, certified as above, of the report of the auditors on, and of the report of the directors accompanying, each such balance sheet.

The law that governs your company dictates what you should file in your annual return. Having said that, we are informed that most companies in Tanzania have not complied with this requirement of filing accounts. That, however, does not change the position of the law that requires all companies to file such annual accounts.

Offensive language by nurse

I have been frequently attending a certain government hospital for the purpose of taking my old man who goes for special medication there. Strangely there is one nurse who uses extremely offensive language with patients. There are a lot of complaints by the other patients but it seems all these are falling on deaf ears. Is there a regulatory framework against unprofessional conduct of nurses?
SD, Dar

We are alive to existence of the Nursing and Midwifery Act, No 1 of 2010 which is an act to make provision for protection, promotion and preservation of the public health, safety and welfare through regulation and control of nursing and midwifery education and practice. This is the specific law which regulates conduct of nurses as you have brought it up in your question.

Among the reasons where a person’s fitness to practice as a nurse is impaired includes abusing a client verbally, physically, sexually or emotionally among others as provided under this Act. The remedy for this is for one to present a complaint to the Tanzania Nursing and Midwifery Council, whereas the Registrar of the council who also serve as the Chief Executive Officer shall put the law in motion by dealing with the complaint appropriately.

This law provides for serious penalties against nurses including striking them off the register. We are informed there are very few such complaints lodged as people are unaware of this mechanism. Your lawyer can explore this avenue further.