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Medical Confidentiality and the Public Disclosure of HIV Status (Working Paper) [2004] JSPL 10; (2004) 8(1) Journal of South Pacific Law

MEDICAL CONFIDENTIALITY AND THE PUBLIC DISCLOSURE OF HIV STATUS

PAUL MAE∗

 Whatever, in connection with my professional practice or not, in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret. (Hippocratic Oath).^[1]

In the Pacific Islands the public disclosure of the names of people infected with HIV has, at various times, been proposed as a sound response to the threat of HIV,^[2] most recently by a Member of Parliament in Solomon Islands. The news report covering the statement said ‘Dr Aumanu said if health authorities continue to hide the identity of the people living with HIV/AIDS, then the disease will continue to be secretly and privately transmitted.’^[3] Such proposals, however, violate the privacy of people living with HIV/AIDS. (PLWHA)

This article provides a comparative study of medical practitioners’ duty of confidentiality concerning HIV/AIDS in Pacific Island Countries (PICs) and the UK and Australia. The paper intends to analyse the conditions under which medical practitioners can disclose confidential information in different jurisdictions. This is done with a view to identify a possible approach the PICs should take regarding this matter. The research only look at some PICs, namely; Papua New Guinea, Vanuatu, Kiribati, Solomon Islands, Samoa and Fiji.

 THE DUTY OF CONFIDENTIALITY GENERALLY

What Constitutes Confidential Information

Confidential information is defined as information disclosed to another in circumstances which give rise to a duty on the part of the confidant not to make unauthorised disclosure of information.^[4] Information may be expressly made confidential by agreement. The nature of the relationship between the people (such as a doctor patient or lawyer client relationship) or the subject matter and the circumstances in which the information has come in the hands of a person may also make information be classified as confidential.^[5] Protection of confidentiality applies to personal information and information of a private nature, even though the disclosure of this type of confidential information may not lead to pecuniary loss.^[6] Incomplete information that may nonetheless give away someone’s identity is also confidential.^[7]

The legal basis of medical practitioner’s duty of confidentiality

The legal basis of the duty to maintain confidentiality arises from both statute and common law. Statutes can make it an offence to disclose patient’s information to a third party, while in common law the duty developed in cases where patients sued medical practitioners who have allegedly disclosed confidential information without justification.^[8]

 Under common law, it has been suggested that the medical practitioner’s legal duty to maintain confidentiality is founded in three areas; contract law, equity and torts. In contracts, there exists an express or implied contractual duty of confidentiality between the medical practitioner and the patient. This contractual duty encourages patients to disclose information so that medical practitioners can provide effective health care.^[9] In other words, there is a trust in which the doctor will not pass on any information disclose to him, unless prior consent has been granted.^[10] Lord Denning stated in the Parry-Jones case^[11] that

[the] law implies a term into the contract whereby a professional man is to keep his client’s affairs secret and not to disclose them to anyone without just cause. 

As a result of this contractual duty, medical practitioners owe a duty of confidentiality to their patients. It is clear that patients have a right of expectation that medical practitioners will not pass on any personal information that they learn in the course of their professional duties, unless the patient gives permission.^[12] However, this contractual duty does not apply to public hospitals and doctors who work there. ^[13]

The duty of confidentiality also exists in equity. It arises when the patient relies in the good faith on the medical practitioner to keep what has been disclosed between them confidential.^[14] The rationale behind equitable intervention is that one should not benefit from information that has been received in confidence. The duty of confidentiality exists in equity where

1.   the information has the necessary quality of confidence about it,

2.      it was given in a situation importing an obligation of confidence, and

3.      there was unauthorised use of that information.^[15]

In torts law, the duty of confidentiality is considered part of the medical practitioner’s duty of care in the law of negligence. It is established under torts law that there is a general duty on the medical practitioner not to cause foreseeable harm to another person that may result in damage. Furniss v Fitchett^[16] illustrates the use of negligence to obtain a remedy for breach of confidentiality. In this case, the plaintiff (Mrs Furniss) sued her doctor (Dr. Fitchett) for breached of confidentiality. The doctor had disclosed confidential information about the plaintiff to her husband, which was later produce in court against the plaintiff by the husband’s solicitor. The judge concludes in this case that:

[the doctor] ought reasonably to have foreseen that the contents of his certificate were likely to come to the patient’s knowledge and he knew that if they did, they would be likely to injure her in her health.

Limits to the duty of confidentiality

However, the duty of confidentiality is not absolute, but rather one that is subject to limitations.^[17] As suggested by Justice Everleigh in Gillick v Norfolk and Wisbech Area Health Authority and Another,^[18] the duty is subject to exceptions which should be maintained at all times. The extent to which these exceptions can be exercised is not clearly identified. It all lies in the ability and judgment of the medical practitioner. Three situations were identified by MacFarlane and Reid which justify the disclosure of confidential information which may be contrary to the express wishes of the patient.^[19] The first situation is where statute makes provisions requiring medical practitioners to disclose information concerning a patient. There are statutes that provide statutory rights for certain individuals or bodies to have access to confidential information. A common example is where a statute may require a medical practitioner to notify the officer of the local authority whenever he is made aware or suspects that a patient is suffering from one of the diseases in a list of notifiable disease.^[20]

The second exception to the duty of confidentiality arises where there is an overriding public duty to disclose.^[21] Medical practitioners have a common law duty to disclose information to the public if failure will expose the public to a serious risk of death or harm.^[22] For example, confidential information may be disclosed where there is a possible threat that the infected person may make attempts to infect other members of the public. Through disclosure of the information, members of the public maybe protected from the risk of death or harm, or the occurrence of any serious crime. In occasion like this, relevant medical authorities may disclose information concerning the health status of the patient to the required bodies or individuals that are entitled to the information.

It was held in the Tarasoff case^[23] that the failure to disclose information to the required persons has resulted in serious injuries to members of the public. In this particular case the psychiatrist and his employer where held liable for negligence when a client informed the psychiatrist of an intention to assault a third party, which he eventually carried out. The psychiatrist failed to advise the third party despite having knowledge the intended assault. The Tarasoff case was discussed at great length in W v Egdell,^[24] where the court held that a medical practitioner who had slightly relevant information about a patient’s condition was justified in passing information to the relevant authorities of a patient’s intention to harm a third party.

The third situation in which disclosure of information will not amount to a breach of the duty of confidentiality is where information is sought by a court order.^[25] A failure by the party required by the court to disclose information would amount to a contempt of court. These requirements are regulated by legislative provisions.^[26]

 IMPORTANCE OF THE DUTY OF CONFIDENTIALITY WITH REGARDS TO HIV/AIDS

The duty of confidentiality is important because it encourages people to voluntarily come forward to seek treatment or advice from medical practitioners. The importance of protecting confidentiality was noted in the English case X v Y^[27]:

...in the long run, preservation of confidentiality is the only way of securing public health; otherwise...individual patients will not come forward if doctors are going to sequel on them.^[28]

McClelland^[29] argues that:

...without promises of confidentiality patients are far less likely to share the private and sensitive information required for their care.

It is important that while the law sets out to protect public health, it must also take measures to protect the individual to allow him or her to come forward for testing and any available treatment.^[30] The success of the different policies depends entirely on the mutual respect for the confidentiality of the patient care information that flows from the patient to the medical practitioner. For example, a medical practitioner cannot diagnose a patient unless the patient provides all the relevant information. However, relevant information can only be provided if a patient has confidence that such information will not be disclosed.^[31]

Also the duty of confidentiality is important because of its assistance in preventing discrimination against people living with HIV/AIDS. As noted by Godwin, HIV infection brings with it a risk of stigma and discrimination which is not present with the other diseases.^[32] The knowledge of a people’s HIV status may lead to inferences about their sexual habits, drug taking habits, or social contacts. People living with HIV/AIDS may lose certain benefits when their identity is made known. For example, a direct community result is rejection of the known HIV infected person by members of the community.^[33] Besides this, Farmer^[34] further argued that there is a likelihood that HIV/AIDS infected people will face a lot of problems, either within their families or communities. These problems include the loss of housing, loss of jobs, and rejection by family members and friends.^[35]

Circumstances existing in PICs that give rise for the need to develop the Duty of Confidentiality.

1.      Customary Circumstances

In PICs matters of a sexual nature are not openly discussed or talked about in the family or community.^[36]  People living with HIV/AIDS face severe condemnation for having engaged in activities that are perceived as “anti-custom”. HIV is still sometimes perceived as foreigners’ disease, and this can also strengthen the notion that becoming infected is against tradition.

Further, under indigenous custom it is difficult to maintain privacy. In Samoa, for example there is a customary duty that requires sharing of information with other members of the society.^[37] In other words there is customary duty for members of the public to know about the welfare of a member of the community. This custom contradicts the principles of the duty of confidentiality.

2.      Religious Circumstances

There are beliefs that acquiring the disease HIV/AIDS is a punishment by god for wrongs committed. Therefore a situation where information regarding the HIV status of a person is disclosed to the public can lead to religious condemnation, and ostracising of that person.  Churches can resist prevention campaigns, particularly those relating to condom use which goes against certain religious teachings. In Solomon Islands the Ministry of Health took a bold stand by rejecting calls from religious groups to ban the campaigns promoting the use of condoms to avoid HIV infection and other diseases.^[38]

On the other hand, because of growing awareness, other churches began to work with other Organisations to fight against the spread of HIV/AIDS in the Pacific. The Seventh Day Church approved a Strategic Framework for Action in a meeting held in June 2003.^[39] The Church acknowledges its failure to recognise the ‘growing reality’ and help prevent its impact on the society. The Church called upon its members to address the concerns:

...compassionately and intelligently in their homes, places of work and worship, schools and training institutions, clinics and hospitals.^[40]

In April 2004 participants of the Pacific Churches Consultation on HIV/AIDS endorsed the open discussion of HIV.^[41] Despite such statements by religious leaders, though, on a grassroots level religious condemnation still remains one of the main factors posing a threat to the welfare of people living with HIV/AIDS in the PICs.

3.      Social and Economical Circumstances

The smallness of PICs’ social structure and societies make it difficult to live with a known HIV status, compared to larger countries where a HIV positive person could remain anonymous despite his or her identity or information being disclosed to the public. In Fiji, for example, people living with HIV/AIDS tend to live double lives. As MacAlister^[42] discovers, people infected with HIV tend to live quite lives with their families. The main fear that they face is the reaction of the community if their HIV status is made known. Such reaction includes rejection from the community. Similar reactions can be identified for all the PICs as well. The small populations and close family networks found in PIC societies make it very difficult to maintain confidentiality. Therefore, strict maintenance of the duty of confidentiality is vital for the survival of HIV infected people in the PICs’ communities.

 PACIFIC ISLAND COUNTRIES’ (PICs) LEGAL APPROACH TO HIV/AIDS

As discussed above, there are limits to the general duty of confidence. The legislature can prescribe limits, courts can order the disclosure of confidential information, and medical practitioners can disclose confidential infomration if, in their judgment, there is an overriding public interest to do so. A failure to protect confidentiality, as discussed above, hinders HIV management efforts as it reduces individual’s willingness to gain access to testing and treatment. It should therefore be clear that general public disclosure of names of PLWHA does not serve any public interest, and is therefore in breach of the duty of confidentiality. 

There is, however, justification for a much more limited exception to the duty of confidentiality. The most difficult area for practitioners is, maybe, deciding whether the duty of confidentiality overrides the public interest in notifying the spouse of an HIV positive patient. This tension arose in Mr X v Hospital Z.^[43] There the Supreme Court of Canada held that although the doctor-patient confidentiality was important and is an integral part of medical ethics; a patient’s right to confidentiality was not enforceable in a situation where the patient is HIV positive, and he or she stood the risk of spreading it to his or her prospective spouse. Since the outcome of HIV can be fatal, and the life of the spouse must be saved, the court concluded that the right to privacy of the patient is not absolute in situations like this and may be restricted.

Given the difficulties that circumstances in PICs create in relation to HIV, it makes sense that legislatures take the lead in defining more precisely exactly how far an HIV positive person’s right to confidentiality extends. So what does the law in PICs say?

PICs have no specifically developed legal approach towards the issue of HIV/AIDS. Nearly all the public health laws are remnants of colonial laws and policies.^[44] Therefore, the laws are inappropriate to the growing issue of managing HIV/AIDS. The Regional Strategy for the Prevention and Control of STD/AIDS in Pacific Island Countries and Territories^[45] highlights the need to include law reform as one of the measures PICs should take in responding to HIV by stating that:

...policies and laws that are based on an ethic of compassion for people infected with HIV will increase the effectiveness of prevention programmes. Alienating people with HIV breeds indifference and low self-esteem, creating perfect conditions for the spread of the virus, and discouraging voluntary changes in behaviour. A supportive social and legal environment encourages people infected with HIV and/or STD and people whose behaviours might put them at risk of HIV and STD, to respond to education campaigns and resources, and to make use of services such as STD clinics and counselling.

The same call was raised in Guideline 3 of the International Guidelines on HIV/AIDS and Human Rights^[46] which states that:

States should review and reform public health legislation to ensure that they adequately address the public health issues raised by HIV/AIDS, that their provisions applicable to casually transmitted diseases are not inappropriately applied to HIV/AIDS and that they are consistent with international human rights obligations.

Therefore, PICs have been encouraged to identify and review laws that are inappropriate or inadequate for the reduction of the disease HIV/AIDS. There have not been wide scale legislative changes, however. The current status of PICs in relation to their public health acts are stated in the following subsections.

 Papua New Guinea

Papua New Guinea identified its first HIV positive case in 1987^[47] and to this day it has the highest number of HIV positive people in the region.^[48]