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Case Study 3

Breaching confidentiality to protect others

Bob has attended the genito-urinary clinic at his local Trust hospital. Bob is seen by Dr Gomez who informs him that he is HIV positive. Dr Gomez counsels Bob to contact his sexual partners to inform them of his status. Bob starts a course of treatment.

For the last 18 months Bob has been in a relationship with Sue. They are expecting a baby in 2 months time. Before this relationship Bob had a series of sexual partners.

On a subsequent visit to the clinic it becomes clear to Dr Gomez that Bob has not told Sue of his HIV status. Dr Gomez is aware of the impending arrival of their baby and tells Bob that steps should be taken to assess whether Sue is HIV positive and whether the baby is at risk so that if necessary treatment may be started.

Bob adamantly refuses to tell Sue and says that if she is told without his consent then he will stop his course of treatment.

What should Dr Gomez do? Can / should he inform Sue, or Bob’s GP?

Issues to consider

The principle of respect for autonomy requires that personal information should not be disclosed without consent. However, in some cases the autonomy of another person may also be at issue (in this case Sue and previous sexual partners, as well as the baby when born). Not disclosing information may limit their ability to make decisions as to treatment and lifestyle.

Although maintaining confidence in personal information may be the starting point, a balance of the benefits and harms of disclosure / non-disclosure leads to consideration of the consequences of a course of action.

In this scenario the harms of non-disclosure can be identified as:

  • The risk that Sue may be HIV positive. The consequence of not providing information to enable her to be tested is that she is harmed by not knowing her HIV status and not receiving a course of treatment.
  • If Sue is HIV positive and is not aware of the risk the consequences are that she will not take steps to minimise the risk of infection to the baby eg. obtaining treatment during pregnancy, baby born by caesarean section, knowing not to breastfeed, prophylactic treatment.
  • If Sue did later find out that there was a risk to her and that she was not informed she may lose trust in her doctor or the healthcare system.
  • Risks to Bob’s former identifiable sexual partners who could be contacted and informed.

The harms of disclosure would include:

  • If the clinician informs others without Bob’s consent then as a consequence he may lose trust in Dr Gomez, and perhaps the medical profession in general.
  • He has indicated that he will end his course of treatment thus risking relapse and severe health problems including death.
  • There is also a risk that he could go on to infect future sexual partners.
  • Bob may be stigmatized by others who get to know and may have problems with future employment because of discrimination

Applying ethics and law - balancing competing interests and values

It is necessary to balance the potential harms of non -disclosure with the harms that might result from disclosure without consent in breach of the duty of confidentiality.

Paragraph 22 of the GMC guidance - Serious Communicable Diseases (see above) allows disclosure to a known sexual contact where the patient has not informed that person and cannot be persuaded to do so. As Sue is an identifiable individual at serious risk disclosure to her would be justified (is she living at the same address? - if not and she could not be traced then if Bob and Sue share the same GP the GP could be informed in order to tell Sue). Bob should be informed of the decision to disclose to Sue.

Paragraph 22 refers to ‘known sexual contacts’ so it is necessary to rely on Bob providing information in order to contact previous sexual partners. It is more practically difficult to avert harm - can previous partners be contacted directly? If not can contact be made through their GPs? It may be more difficult to justify disclosure to previous sexual partners because the net of disclosure has spread far wider and the benefits of disclosure are less easily identifiable. A very difficult balancing of interest, harms and benefits based on the facts would need to take place to consider whether disclosure is justified.

A useful comparison could be made with disclosure of genetic information. Genetic information may have great relevance for the health of relatives. Nevertheless, if the patient refuses to allow relatives to be informed confidence should be maintained unless the health interests’ of family members to be given such information outweighs the duty of confidentiality.

BMA guidance (Human genetics: choice and responsibility 1998) states that a healthcare professional should consider the following factors in deciding whether to disclose:

  • Severity of the disorder
  • Level of predictability
  • Action relatives could take
  • Harms / benefits in giving or withholding information

What about the interests of the child to be born? In Re C (HIV testing) [1999] 2 FLR 1004 the court considered that it was in the best interests of a baby to undergo testing for HIV (where the mother was HIV positive and had refused interventions to prevent transmission of the virus) despite the fact that the parents refused their consent. Clinicians were of the view that if the child was infected measures could be taken to manage the condition. The court said that the child had interests that were separate from those of its parents (a foetus does not have legal rights but rights do crystallize at birth).

In the case study scenario it would be necessary to consider the likelihood of HIV risk to the baby to determine whether breach of confidentiality is justified. Sue would need to be informed in order to consent to testing / treatment.

Should Bob’s GP be informed? Paragraphs 18 and 19 of GMC, Serious Communicable Diseases states that “you should make sure the patient (Bob) understands that general practitioners cannot provide adequate clinical management without knowledge of their patient’ conditions”. If Bob still refuses his wishes must be respected unless failure to disclose would put a health care worker or other patient at serious risk of death or serious harm.

This section relates to disclosure to health professionals because of risk to them or inadvertent risk to their other patients. It is separate from disclosure to those directly at risk such as Sue.

It would appear, in balancing the harm to Bob with harms to others that the harm to Bob in disclosing without his consent is outweighed by the harmful consequences of not disclosing. However health professionals working in this area may consider that more weight should be given to the loss of trust that might result from breaching confidences.

Compelling ethical reasons exists for protecting the privacy of persons with HIV infection. An important justification for privacy resides in the principle of respect for autonomy. To respect the privacy of persons with HIV/AIDS is to respect their wishes not be observed or to have intimate information about themselves made available to others. Privacy also enhances the development of trust in the physician. One of the defining characteristics of the doctor/patient relationship involves the sharing - freely given - of private information. Failure to respect the confidentiality of patients drives patients away from HIV testing, counseling, and treatment, and discourages patients from confiding in their physicians. Healthcare facilities that treat persons with HIV argue fiercely that compelling physicians to disclose HIV infection to sexual or needle-sharing partners would mean they would lose the trust of their clients.
Lawrence O. Gostin, JD, from the September, 1995 issue of the JIAPAC.