The role of health professionals

The General Medical Council (GMC, an official body responsible for regulating doctors in the UK) published supplementary guidance on confidentiality in respect to serious communicable diseases in 2009.¹ This document reinforces and clarifies the guidance given to doctors in other GMC guidance with respect to HIV, hepatitis B and C and tuberculosis.

Confidentiality is considered to be central to trust to doctors and patients; there is a public interest in having a confidential medical service. However, in some rare situations, disclosure of personal information without a patient’s consent “may be justified in the public interest if failure to disclose may expose others to a risk of death or serious harm.”

Of particular note are the following three recommendations to doctors:

• “You should explain to patients how they can protect others from infection, including the practical measures they can take to avoid transmission, and the importance of informing sexual contacts about the risk of transmission of sexually transmitted serious communicable diseases.”

• “You may disclose information to a known sexual contact of a patient with a sexually transmitted serious communicable disease if you have reason to think that they are at risk of infection and that the patient has not informed them and cannot be persuaded to do so. In such circumstances, you should tell the patient before you make the disclosure, if it is practicable and safe to do so. You must be prepared to justify a decision to disclose personal information without consent.”

• “When you are tracing contacts and notifying partners, you should not disclose the identity of the patient, if practicable.”

It is worth noting that the GMC outline the possibility of informing the sexual contact of a patient, but not that of informing the police or another authority. Moreover, it is a possibility rather than a legal requirement.

These are among the points clarified and explored in a briefing paper on HIV transmission, the law and the work of the clinical team.² Following on from an initial version produced in 2006, in April 2010 the British HIV Association (BHIVA) and the British Association for Sexual Health and HIV (BASHH) issued an updated briefing paper. However, please note that the version being described here is a draft that was open for consultation at the time of writing.

The document describes the roles and responsibilities of healthcare professionals, with two having central importance: the duty to properly advise; and the duty of confidentiality. The main points are listed here:

• Healthcare professionals have a central role to advise and support patients. A failure to advise on how a patient can protect his or her sexual partners from infection could give rise to legal liability if a partner became infected.

• Healthcare professionals also have a duty to maintain the confidentiality of patient information unless the patient has consented to disclosure, or disclosure is necessary in the public interest. There is individual and public interest in maintaining confidentiality.

• For HIV-positive individuals, advice must include the routes of HIV transmission and how to prevent transmission, with information about safer sexual practices, the use of condoms and post-exposure prophylaxis. The issue of viral load and infectiousness should be discussed, but the professional should make it clear that the Swiss statement³ is not universally accepted. The legal situation should be described.

• Discussion of sexual-health needs must take place regularly, according to relevant BASHH guidelines, to enable the giving of appropriate advice on an ongoing basis.

• It is important, when considering breaching confidentiality, to weigh up all potential harm as there may be situations where disclosure of HIV status to protect a sexual partner results in considerable harm to an individual e.g. domestic violence.

• In situations where a healthcare professional believes that an HIV-positive individual continues to put close contacts at risk their duties and subsequent action depend upon the type of contact:

• A close contact who is also a patient of the healthcare worker: there is a duty of care, a legal obligation to disclose.

• A close contact who is not a patient of the healthcare worker: there is no duty of care, there is a power to disclose, but no legal obligation.

• There is no identified close contact: as there is no identifiable person to disclose to, the healthcare worker’s duty is to counsel and support behaviour change.

• No information should be released to the police unless there is verified consent from the patient or there is a court order in place.

• It is up to an individual patient to make a decision about complaining to the police, and healthcare workers should remain impartial during discussions with patients.

• Those involved (complainant and defendant) in cases of reckless transmission are likely to need specialist legal advice and support and referral to THT direct would be appropriate.

For more details, please see the document posted on BHIVA’s website (www.bhiva.org).

Guidelines specific to psychologists were published by the British Psychological Society’s Faculty of HIV and Sexual Health in 2009.⁴ Much of the advice echoes that given above. However, the importance of maintaining a safe and trusting therapeutic relationship is emphasised. The guidelines outline a duty for psychologists to inform their clients of the potential legal consequences of non-disclosure and unprotected sex, but only if these issues come up. If the issue has not arisen as relevant, discussing it may raise anxiety and undermine the therapeutic relationship.

The guidelines also outline specific steps to be taken if breaching a client’s confidentiality is being considered. It is made clear that, as with any other ethical dilemma, the psychologist should not act alone but consult with colleagues and managers. The responsibility for breaking confidentiality in the interest of public safety does not rest with any particular individual, but is shared with the clinical team, manager and NHS trust.