HIV and confidentiality

Confidentiality is central to the trust between patients and healthcare practitioners. If the therapeutic relationship is to be successful, patients must be confident that intimate details about their health and personal relationships go no further than the consultation room.The need for a confidential medical service is recognised as a public good. The duty to maintain patient confidentiality is rooted in medical ethics, in common law and in law relating to contracts. The General Data Protection Regulation (GDPR) also imposes obligations in terms of the lawful processing of personal data.

But the duty is not absolute. Disclosure of confidential medical information may be required by law, for example, when ordered by a judge in the context of civil litigation,criminal or family proceedings. In rare cases, where patient consent has not been obtained, or where a patient has refused consent, disclosure may be justified in the public interest, to protect others (for example,from the risk of death).

In a recent case involving a patient with HIV infection, the courts in Ireland considered– for the first time in that jurisdiction – the concept of disclosure of a patient’s medical information against his wishes, to prevent serious harm to another person.¹

The judgment is in no way binding in the context of the UK, and the courts here may take a different view in relation to the broader issues that are discussed below. However, Ireland’s legal system is based on common law (like that of England, Wales and Northern Ireland) and hence, the approach adopted in the Irish jurisdiction can be read with interest elsewhere.

THE FACTS IN BRIEF

‘A’ was a 17-year-old male, in the statutory care of the Child and Family Agency (CFA). Described by the Court as an intelligent and capable person, there was evidence he had significant behavioural issues in the past. The genesis of the case was A’s relationship with ‘B’ – a 17-year-old female – in circumstances where A had been diagnosed with HIV infection at birth. B was one of A’s closest friends, but A denied that she was his girlfriend and he also denied that they had ever had sexual intercourse. The CFA was of the view that despite A’s denials, B was having a sexual relationship with A. The CFA was also of the view that A was not using condoms.

The CFA sought a declaration from the High Court that it was entitled lawfully to disclose the fact of A’s HIV condition and status to B, in order to afford her the opportunity of accessing medical and healthcare testing, along with treatment and counselling as maybe needed, regardless of A’s refusal to consent to such disclosure.

THE COURT’S ANALYSIS

The Judge considered, in detail, the circumstances of the relationship between A and B, the failure by A to take his antiretroviral drugs, the possible lack of use of condoms by A, expert medical evidence on the risk of B contracting HIV and medical evidence regarding the effect of disclosure on A.

In relation to the factual dispute, the Court had little hesitation in finding that there was a possibility that A was having sexual intercourse with B, but it concluded that the CFA had not proven, on the balance of probabilities, that there was such a relationship. The Court indicated that even if this analysis was incorrect and A was having sexual intercourse with B, A would not put B at risk by having unprotected sex with her. Hence, the Court concluded that there was no basis for the breach of patient confidentiality.

BROADER ISSUES

It was made clear in the judgment that the key legal issue in this case – whether medical confidentiality could be breached to prevent harm occurring to a third party – arises irrespective of the ages of the individuals involved and would apply equally to adults. Additionally, the fact that it was the CFA seeking to breach patient confidentiality was not significant and the scenario could just as easily involve a doctor who had the same information. The broader issue behind the question in this particular case was encapsulated as follows: in what circumstances can a doctor breach his or her duty of confidentiality because of the risk of harm to a third party?

(i) The legal test
The Court determined that the appropriate test to apply to ascertain whether patient confidentiality should be breached is whether “on the balance of probabilities,the failure to breach patient confidentiality creates a significant risk of death or very serious harm to an innocent third party”.

In considering whether the disclosure threshold had been crossed in this particular case, regard was given to the balancing of interests, namely between the interest of A – whose privacy was at stake, the interest of B – who was potentially at risk of harm, and the public interest in ensuring that the public at large has the confidence to disclose the most private details about their health and private lives to doctors.

(ii) HIV infection
The Court determined that the contracting of HIV, although a significant condition, is no longer a terminal one, but rather a chronic and lifelong condition that can be managed.In addition, in the view of the Court, the risk of contracting HIV through sexual intercourse is extremely low and can be further reduced through the use of condoms,and as such, does not pose a ‘significant risk’of harm. Accordingly, HIV infection is not considered enough of a ‘very serious harm’ to justify a breach of patient confidentiality.

(iii) Societal issues
The Court observed that the proceedings in this case were supported by well-intentioned doctors who had the interests of B at heart. However, if the Court granted an order giving medical professionals the right to breach patient confidentiality where a patient has a sexually transmissible disease,that right would necessarily carry with it a responsibility for medical professionals in the future. It would mean that medical professionals could decide, in cases of sexually transmissible disease, whether asexual partner of the patient needed to be notified of the harm to which he or she was exposed. With this responsibility could come liability for those medical professionals who failed to breach patient confidentiality, and where that failure subsequently led to harm to a third party.

The Court held that there was a public interest in patients remaining open and frank with their doctors. If the order in this case had been granted, it would operate as a disincentive to those with sexually transmissible diseases from seeking medical advice. Such persons would perceive that there would be a risk that their doctor would disclose this fact to their alleged sexual partners (if the patient refused to do so).The Court concluded that this would be detrimental to society as a whole since it could lead to patients with communicable diseases failing to seek medical advice,which could result in those diseases not being treated and becoming more prevalent in the community.

CONCLUSIONS

The judgment underscores the importance of patient confidentiality, which must be observed save in the most exceptional of circumstances.

GMC GUIDANCE

The GMC has published guidance for doctors in Confidentiality. The GMC has also published supplementary guidance on “disclosing information about serious communicable diseases”². In this, the GMC advises that doctors may disclose information to a person who has close contact with a patient who has a serious communicable disease if they have reason to think that:

• the person is at risk of infection that is likely to result in serious harm

• the patient has not informed them and cannot be persuaded to do so.

The GMC goes on to advise doctors that they should tell the patient before the disclosure of information if it is practicable and safe to do so. When tracing and notifying people,doctors should not disclose the identity of the patient, if practicable. Practitioners must be prepared to justify a decision to disclose personal information without consent.

TIPS FOR PRACTICE

• Disclosures in the public interest can be ethically challenging. Adopt a low threshold for consulting your medical defence organisation.

• Ensure that a clear record explaining the decision is made in the patient’s records(including in those cases where there is a decision to maintain confidentiality).
• Any disclosures that are made should include only the information needed to meet the purpose.

REFERENCES

1. The Child and Family Agency v A.A. & Anor [2018] IEHC 112.
2. General Medical Council. Confidentiality: disclosing information about serious communicable diseases. 2017.