When can doctors disclose your HIV status to others? by James Chalmers

The British HIV Association (BHIVA) recently published their long-awaited briefing paper, 'HIV transmission, the law, and the work of the clinical team', which came about as a response to concerns about the criminalisation of HIV transmission. The paper deals largely with issues of confidentiality and good practice, in particular the extent to which information about an HIV-positive person's status should be kept confidential, and the exceptional situations when disclosure without consent may be justified. This article presents an overview of some of the issues raised by the paper from a patient's perspective.

Question 1

First of all, how concerned should HIV-positive people be about doctors breaching confidentiality?

Two things must be stressed: first, disclosure without consent is always a last resort, and secondly, it should not take place without informing the patient first. Doctors are extremely reluctant to breach confidentiality (and are well aware of the possibility of disciplinary proceedings if they do so without very good reasons). There should never be any question of anyone rushing to breach confidences, as the BHIVA briefing paper makes clear.

Question 2

The BHIVA briefing paper says that doctors are regulated in their duty of confidentiality by the General Medical Council's (GMC) guidance on confidentiality1 and on serious communicable diseases2, like HIV. Does this mean other healthcare workers aren't covered?

Strictly speaking, this guidance is addressed to doctors and not to other healthcare professionals. However, it can be taken as an authoritative reflection of sound law and ethical practice, and guidance produced for non-doctors³ often refers to it for that reason. Other bodies have produced guidance covering similar issues: for example, the Nursing and Midwifery Council's Code of Professional Conduct⁴, or the Society of Sexual Health Advisers' Manual⁵. On the particular issue of confidentiality and serious communicable diseases, the detail contained in the GMC's guidance makes it the logical set of standards to refer to in this context, and this article often refers to “doctors” for the purpose of readability. The legal and ethical framework, however, is broadly similar for all health professionals.

Question 3

So, when can a doctor or healthcare worker choose to breach confidentiality?

The GMC guidance identifies two types of breaches of confidentiality which a doctor may make “in the public interest”. One of these is disclosure to prevent the patient, or a third party, being exposed to a risk of death or serious harm. Disclosure to prevent the risk of the onward transmission of HIV is a possible example of such a case, and the GMC's guidance on serious communicable diseases uses it as a specific example: “you may disclose information to a known sexual contact of a patient with HIV where you have reason to think that the patient has not informed that person, and cannot be persuaded to do so. In such circumstances you should tell the patient before you make the disclosure, and you must be prepared to justify a decision to disclose information”.⁶ It is thought that this duty could only arise where the person at risk is identifiable, if only because it is unlikely that there would be any practical options open to a doctor to prevent onward transmission to unidentifiable third parties.

Question 4

Is a doctor or healthcare worker allowed to inform the police if they think that 'reckless' HIV transmission has already taken place?

The exception to breach confidentiality in the public interest does not cover cases where serious harm has already occurred. Disclosures in this instance would be considered to be the second type of breach of confidentiality, and would have to be justified as truly exceptional cases “where the benefits to an individual or to society of the disclosure outweigh the public and the patient's interest in keeping the information confidential”.⁶ A doctor who believes that criminally reckless transmission had taken place might consider whether this provision could be used to justify reporting to the police. However, the fact that a criminal action may have taken place does not in itself justify disclosure under this heading of the GMC guidance, which requires a careful balancing exercise. Doctors will bear in mind that such disclosures would run the risk of seriously compromising patient trust and treatment, and that a prosecution is unlikely to be taken forward (much less be successful) without a willing complainant. Against this background, the BHIVA guidance takes the view that reporting a case to the police must be the choice of the patient, not the health care provider.

Question 5

Does a doctor ever have a duty to breach confidentiality?

The answer above suggests that a doctor who believes that an HIV-positive patient is putting a third party at risk of contracting HIV may, exceptionally, be permitted to breach their patient's right to confidentiality in order to protect that third party. Such a breach of confidentiality might in fact be legally required. If the third party is also a patient of the doctor concerned, then a failure to take steps to protect that third party would leave the doctor open to civil liability - that is, liability to pay damages, rather than the possibility of a criminal prosecution - for failing to prevent the onward transmission of HIV. A similar argument could be made where the third party was not a patient of the doctor concerned but could have been identified and warned by the doctor, although it is thought that such an argument would be unlikely to succeed.

These points are relatively hypothetical, however and so far no-one has been found legally liable for a failure to breach confidentiality. Although such a failure might result in a doctor being liable to pay damages, such a case would be wholly exceptional. Doctors will nevertheless be conscious of the possibility of legal liability, and the BHIVA briefing paper attempts, as far as is possible, to set out the relevant legal rules.

Question 6

Is there a difference in the duty of confidentiality between a doctor at an HIV clinic based at a GUM clinic (which is governed by the 1974 NHS Venereal Disease regulations) and a doctor at an HIV clinic based in another department, e.g. Infectious Diseas?

The position regarding confidentiality in respect of HIV and other sexually transmitted infections (STIs) is muddled somewhat by the National Health Service (Venereal Disease) Regulations 1974. These apply to “every Strategic Health Authority, NHS Trust, NHS Foundation Trust and Primary Care Trust”, and require those bodies to ensure that any information about persons examined or treated for an STI “shall not be disclosed” except “for the purpose of communicating that information to a medical practitioner, or to a person employed under the direction of a medical practitioner in connection with the treatment of persons suffering from such disease or the prevention of the spread thereof” and “for the purpose of such treatment or prevention”.

Question 7

Are different doctors and healthcare workers allowed to share information between each other about an HIV-positive patient?

It will often be in a patient's best interests for information about their health to be shared with different healthcare workers in order to properly inform their treatment. The GMC's guidance on confidentiality makes two things clear: one, patients should be made aware that this will happen unless they object and two, if a patient objects, their wishes must be respected “except where this would put others at risk of death or serious harm”.⁷ The guidance on serious communicable diseases suggests that this “may arise, for example, when dealing with violent patients with severe mental illness or disability”.⁸ This implies that the fact that a patient is HIV-positive would not of itself be enough to justify such disclosure, given that universal precautions should be taken to minimise transmission risks in medical environments.

The BHIVA guidance reiterates the GMC's guidance on information sharing, pointing out that the improper sharing of information could place healthcare workers in a catch-22 situation, resulting in a situation “where (a) there is a duty to disclose to a close contact and (b) this will or may make apparent the earlier breach of confidentiality”.

Question 8

Are there circumstances where an HIV-positive person might not wish to disclose information about the HIV transmission risks they are taking and/or whether or not they have disclosed their HIV to their sexual partners?

The BHIVA guidance recommends that “full, contemporaneous notes” of discussions with patients are kept - partly because of the spectre of legal liability, but more because this is simply good practice. It is important that clinicians document that they have properly advised patients, but patients may be reluctant to disclose information about risky (and potentially criminal) behaviour if they feel that their disclosure might be documented and used against them in legal proceedings. However, it could be argued that provided that it is documented that a person has been properly advised on issues such as transmission risks, to what extent is there any clinical or practice need to document disclosures that patients make about their behaviour?

Question 9

Could an HIV-positive person potentially sue a doctor or healthcare worker if they provide bad (or no) advice regarding HIV transmission risks?

Throughout the English-speaking world, there appear to be only four reported cases⁹ where doctors were held liable to pay damages for having failed to prevent the onward transmission of HIV. In three of the four cases, liability was found because they had badly advised their own patients - in two cases, failing to tell them that they might be HIV-positive as the result of contaminated blood transfusions, and in another, negligently failing to recommend an HIV test to a patient whose medical history and symptoms strongly suggested that he might be HIV-positive. In all these cases, the doctors concerned had badly advised their own patients, meaning that those patients had passed on HIV to their sexual partners. Those sexual partners successfully claimed damages from the doctors.

Question 10

Is any healthcare information of any kind ever protected from use in court?

Confidentiality is not an absolute right. If information is confidential, it should not normally be disclosed without the consent of the person to whom the right of confidence belongs. A breach of confidence may have a number of consequences, such as disciplinary proceedings or court action. However, there may be cases where disclosure without consent is permitted or even required by law.

Confidential information is different from 'privileged' information, which applies to communications between an individual and his or her lawyer, which the lawyer cannot be forced to disclose without the client's consent. Consequently, confidential information can be used by the criminal justice system (or, indeed, the civil courts), and one should assume, therefore, that any information held by health professionals, or indeed by HIV-positive persons themselves, is potentially available to the police in conducting a criminal investigation, and to a criminal court thereafter. Proper procedures - such as the obtaining of search warrants or court orders - must always be followed, however.

Question 11

In the recent case of Sarah Porter, police used her own personal records to trace former contacts in order to get a conviction. Are an HIV-positive person's own personal records (address book, diary, emails) ever confidential under the law?Under what circumstances can the police see them?

Although medical records are subject to particularly stringent procedures, requiring the police to seek a court order from a circuit judge to examine them, a person's own personal information (such as diaries, letters or emails) will normally be subject only to the general rules governing search warrants. These require only reasonable grounds for believing that the premises to be searched will contain material which is “relevant evidence” of “substantial value” to the investigation of an indictable offence.¹¹ That is demonstrated vividly by Sarah Porter’s case, where it appears from newspaper reports that the initial complaint to the police was made by a former partner of Porter's who had not himself contracted HIV from her, and the police searched her flat for documents which led them to a former sexual partner who had become HIV-positive after their two-year relationship.

Question 12

Following on from this, could semi-public information (profiles on internet dating sites like Gaydar, for example, or a personal testimony at an HIV conference regarding past HIV transmission) be used as "evidence" for the police?

Similarly, details of personal conversations or internet profiles on dating sites like Gaydar would be admissible in evidence, although in practice it might be impossibly difficult to prove that an internet profile contained particular information at a specified date in the past when an offence was alleged to have taken place.

Question 13

What about unlinked anonymous testing and confidentiality?

Since 1990, HIV prevalence in the UK has been estimated by use of unlinked anonymous surveillance programmes. These involve using residual blood left over from samples taken for other purposes (such as syphilis testing). Although individuals can request that their blood is not used in such programmes, no explicit consent is sought for this testing. This is because the sample is irreversibly unlinked from its source before the test takes place, and so the result and any further residual blood cannot be linked back to the individual concerned. This means that no information about an individual's HIV status can be obtained from these test results, which are only used to estimate HIV prevalence in wider populations. Because of this, although results of tests like this have no special legal protection from being used as evidence in court, they would in practice be of no evidential value whatsoever.

James Chalmers is a senior lecturerin law at the University of Aberdeen. He was one of the authors of the BHIVA briefing paper, but writes here in a personal capacity. This article was written during the consultation period for the draft guidance, which closed on July 21st. Consequently some of the recommendations may change in the final version. ATU will keep you updated on any changes.

The latest edition of NAM's book, Living with HIV, includes a newly updated chapter on HIV and the law, by James Chalmers. Topics include confidentiality; HIV transmission and the criminal law; immigration and asylum law; and the Disability Discrimination Act (DDA). You can order a copy of the book online at www.aidsmap.com/bookshop. The book is also available to read online at www.aidsmap.com.

References

1. GMC. Confidentiality: Protecting and Providing Information (April 2004) www.gmc-uk.org/guidance/library/confidentiality.asp. Hereafter, Confidentiality.

2. GMC. Serious Communicable Diseases: Guidance to Doctors (October 1997) www.gmc-uk.org/guidance/library/serious_communicable_diseases.asp. Hereafter, Serious Communicable Diseases.

3. See, for example, Royal College of Nursing, Confidentiality: RCN Guidance for Occupational Health Nurses, 2005. www.rcn.org.uk/publications/pdf/confidentiality.pdf

4.Nursing and Midwifery Council, The NMC Code of Professional Conduct: Standards for Conduct, Performance and Ethics, 2004. Available via www.nmc-uk.org.

5.Society of Sexual Health Advisers, The Manual for Sexual Health Advisers, 2004. www.ssha.info/public/manual/

6. Serious Communicable Diseases, para 22.

7. Confidentiality, para 10.

8. Serious Communicable Diseases, para 19.

9. For more detail on these cases, see: Chalmers J. Criminalization of HIV transmission: can doctors be liable for the onward transmission of HIV? International Journal of STD and AIDS 15: 782-788, 2004.

10.Serious Communicable Diseases, para 18.

11.Police and Criminal Evidence Act 1984, section 8.