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Health authority employing HIV positive dentist wins anonymity

Clare Dyer legal correspondent, BMJ

An English health authority that has not contacted former patients of an HIV positive dentist nearly a year after it learned of his HIV status won an appeal court ruling last week barring the media from identifying it.

No decision has yet been taken on whether to get in touch with patients of the dentist, who has now developed AIDS and offer them HIV testing. Official guidelines under which patients of HIV positive health workers who perform invasive procedures are contacted and offered counselling and testing are about to be superseded by new guidance, but not until mid-March at the earliest.

Three appeal court judges, headed by the master of the rolls, Lord Phillips, set aside a ban on identifying the man’s specialty but overturned a High Court ruling allowing the Mail on Sunday, which wants to highlight the fact that patients have been kept in the dark, to name the authority. The paper is not seeking to name the dentist, "H," whose identity remains protected by court order.

The authority had argued that naming it would cause "public panic and alarm, perhaps on an unprecedented scale."

Of only two instances worldwide where patients were found to be HIV positive after treatment by an infected healthcare worker, the more significant one involved a dentist in the United States.

Six of his patients tested positive for the virus. However, the route of transmission was never found. In the other case, just one patient—of an orthopaedic surgeon in France—was found to be HIV positive. In the United Kingdom, 22 "look-back" exercises since 1988 have not found a single case.

Last November ministers agreed in principle with a working party recommendation that the exercise of contacting patients should no longer be automatic and that decisions on whether to conduct a look-back exercise, and how extensive it should be, would be taken on a case by case basis. But there is no firm date for the new guidance to be finalised.

Lord Phillips said: "It is a matter worthy of debate that there are, at present, no guidelines in place covering notification to patients that they have been treated by someone who is HIV positive."

The authority argued that if it were identified, confidentiality obligations to the dentist would prevent it reassuring patients who had not been treated by him that they were not at risk, and it would have to offer HIV testing to anyone wanting reassurance, at a cost of up to £2m ($2.8m; €3.2m).

Lord Phillips said: "We found this scenario disturbing and unrealistic." He added: "We would view with concern any attempt to invoke the power of the court to grant an injunction restraining freedom of expression merely on the ground that release of the information would give rise to administrative problems and a drain on resources.

"Such consequences are the price which has to be paid, from time to time, for freedom of expression in a democratic society."

But he said that if the health authority were identified, it would inevitably lead to the disclosure of the dentist's identity because only his patients would be offered HIV tests and counselling. There was a public interest in preserving the confidentiality of people with AIDS, in particular healthcare workers, who might be discouraged from reporting that they were HIV positive.

The judges ordered the dentist—who had brought proceedings against the health authority to stop it contacting his patients and against the newspaper to stop it identifying him, the health authority, or his specialty—to hand over records of his private patients to the health authority. He has already provided details of his NHS patients.

Alistair Wilson, QC, representing the Mail on Sunday, said: "The original order prevented the Mail on Sunday even investigating important aspects of this story, but the Court of Appeal recognised there are issues of public importance in this case. Although it was anxious to protect the dentist’s identity, it also showed considerable sympathy for the Mail on Sunday’s position."
 
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