Doctors have a duty to breach patient confidentiality to protect others at risk of HIV infection
BMJ 2013; 346 doi: https://doi.org/10.1136/bmj.f1471 (Published 06 March 2013) Cite this as: BMJ 2013;346:f1471All rapid responses
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Re: Doctors have a duty to breach patient confidentiality to protect others at risk of HIV infection
As Tak Kwong Chan writes, balancing the competing duties of maintaining privacy in a doctor-patient relationship with minimising potential harm caused by non-disclosure of HIV status is not always easy.
However, unlike the author, NAT (National AIDS Trust) does not believe the issue will ever be resolved by reducing rights to confidentiality. It is easy to characterise the behaviour of hypothetical patients as 'selfish' and 'objectionable', but this simple moralistic language does not address the real barriers to disclosure.
As long as people living with HIV face stigma and discrimination from those closest to them, from healthcare professionals, and from the community as a whole, many will find it extremely difficult to disclose. To heap additional judgement upon them for their difficulty with disclosing will only add to this stigma.
As the previous response from colleagues at Barts Health NHS Trust and City University London highlights, the best way to encourage disclosure is by engaging patients in care and educating them about reducing the risk of transmission. Evidence shows most people diagnosed with HIV consequently change their sexual behaviour and go on treatment that significantly reduces infection risk to others(1). If the doctor still believes there is a risk to others, they should be addressing their patient's fears around disclosure and supporting them, in order for the patient to overcome them.
NAT believes that more could and should be done to improve HIV partner notification practices in the UK, which have been neglected and underfunded for many years. There has been no national audit of the impact of systems to inform sexual partners of a newly diagnosed person (sometimes anonymously) but the local clinic audits that do exist have shown an average 27% positivity rates in those presenting for testing following notification(2).
Good quality partner notification is not about compromising a person's right to confidentiality but giving practical support to disclose in a safe way. Increasing our skills and practice in this area will go a long way to addressing the problems associated with non-disclosure of HIV status. Moralising about the responsibilities of individuals living with HIV will not.
(1) Reductions in HIV transmission risk behaviour following diagnosis of primary HIV infection: a cohort of high-risk men who have sex with men http://onlinelibrary.wiley.com/doi/10.1111/j.1468-1293.2009.00708.x/full
(2) NAT: HIV Partner Notification: a missed opportunity?
http://www.nat.org.uk/media/Files/Publications/May-2012-HIV-Partner-Noti...
Competing interests: No competing interests
Re: Doctors have a duty to breach patient confidentiality to protect others at risk of HIV infection
Chan's comments are useful but include nothing about the testing of any children Mr A,B,C or D have. Children have the right to be tested and treated whether or not their parents consent to their own treatment and testing. This is often not straightforward but cannot be ignored.
Competing interests: No competing interests
Re: Doctors have a duty to breach patient confidentiality to protect others at risk of HIV infection
We read Tak Kwong Chan’s opinion piece with interest but find it misinformed and misleading, smacking of unprincipled pragmatism. Reference to “victims” at risk of acquiring HIV not only draws upon outmoded stereotypes, thus perpetuating stigma, but also belies the complexity of human sexual relationships and the ongoing stigma, discrimination and gender-based violence within which decisions to disclose occur.
The author misguidedly approaches this question from an ethical perspective, rather than one of public health, which must surely be the incentive here. Let us say that X is having unprotected sexual intercourse with Y without disclosing their HIV-status. If the physician knows the identity, name and address of Y then it is practically easy to inform Y of X's HIV-positive status. However, if X is on treatment and has an undetectable viral load and/or uses condoms, then the risk of onward transmission is negligible and informing Y, as the author suggests should occur, serves no demonstrable public health interest. Instead, the breach of confidentiality is likely to contribute to the erosion of trust between X and his/her physician, possibly resulting in disengagement from care - an arguably greater public health concern. Furthermore, this forced disclosure may disrupt the relationship between X and Y which may be beneficial as regards the health of X and Y in emotional and other respects.
Now, what if there is an identifiable class of third parties, identifiable not by name or address but because X informs the physician that he regularly has unprotected sex with men at a specific sauna? The guidance of the author suggests that there is no duty to inform, even though in practical terms it would be easy enough to go to the sauna and put up a photograph of X, with information of his HIV-positive status. Even where X is not on effective treatment, most physicians would probably say that such a breach of confidentiality would be unjustified. But this cannot be on public health grounds - indeed the prevention justification for providing this information may be even stronger given the higher risk of onward transmission to multiple partners. The proposed identifiability criterion is thus a weaker basis for disclosing on X's behalf than is suggested.
Finally, the author appears to come from a default position where X is able to abstain from sex or use condoms if he/she feels unable to disclose their HIV-positive status. This overlooks the reality of non-consensual sex and relationships in which unbalanced power dynamics constrain a person’s ability to disclose or use condoms, even when they would prefer to. Rates of non-consensual sex and other forms of violence experienced by people living with HIV are reported as being high in UK and global studies.1,2,3
Starting from a professional/moral/ethical position might enable some to justify breaching a patient's confidence - but doing so is different from, and not necessarily correlated with, public health risk. At the heart of decisions about HIV disclosure is the assessment of risk, not only to others but to those living with HIV. A careful consideration of the transmission risk in the context of each particular situation needs to be made. Furthermore, it is imperative that the consequences of disclosure are taken into account. Violence, in its many physical and non-physical forms, as a result of HIV disclosure is well reported in the literature. 4
Doctors have a duty to not only protect others at risk of acquiring HIV, but to also ensure the wellbeing and safety of their patients living with HIV. The best way to do this is by engaging patients in care and educating them about reducing the risk of transmission. Labelling their behaviour as “selfish” or “objectionable” is neither helpful nor professional. If there is ongoing risk to others, doctors should be working with their patients – as many do5 - to address their fears about disclosure, before they are likely to be able to move towards overcoming them. In the (very rare) instances where this does not occur we would direct practitioners to the recently published position statement by the British HIV Association which advises discussion with the local HIV clinical centre and the clinician’s medical defence union.6
In conclusion, we strongly refute the author’s assertion that doctors have a professional duty to disclose the HIV-status of their patients to sexual partners on their behalf. Doctors have a duty to engage with the complex nature of risk in these cases, which includes an understanding of current scientific knowledge regarding the use of condoms and antiretroviral therapy to reduce transmission risk. As an article this month by Canadian lawyer Louise Binder eloquently argued, neither doctors nor lawyers can prevent the spread of HIV through pressing for disclosure.7 Disclosure without the consent of the patient does not result in either the wellbeing of the patient or the prevention of HIV spread and is therefore very rarely justifiable.
References
1. Dhairyawan R., Tariq S, Scourse R, and Coyne K.M. Intimate partner violence in women living with HIV attending an inner city clinic in the UK: prevalence and associated factors. HIV Medicine 2013. [Epub ahead of print].
http://onlinelibrary.wiley.com/doi/10.1111/hiv.12009/full (accessed 11 March 2013).
2. Hale F and Vazquez M. Violence Against Women Living with HIV/AIDS: A Background Paper. Development Connections and the International Community of Women Living with AIDS 2011. www.salamandertrust.net/resources/VAPositiveWomenBkgrdPaperMarch2011.pdf (accessed 11 March 2013).
3. Sophia Forum. HIV + GBV: A feasibility study regarding potential national investigation into violence as a cause or consequence of HIV for women in England. Sophia Forum 2013. http://www.sophiaforum.net/resources/Finalweb_SophiaForum_HIV_GBVreport2... (accessed 11 March 2013).
4. North R and Rothenburg K. Partner notification and the threat of domestic violence against HIV infection. N Engl J Med 1993; 329: 1194–1196.
5. Dodds, C, Weait, M. Keeping Confidence: HIV and the Criminal Law from Service Provider Perspectives, Report 4 – Responsibility and Public Health. March 2013. http://sigmaresearch.org.uk/files/report2013b.pdf (accessed 11 March 2013).
6. Phillips M, Poulton M, on behalf of the British HIV Association (BHIVA) and British Association of Sexual Health and HIV (BASHH) writing committee. HIV transmission, the law and the work of the clinical team: A position statement. BHIVA 2013. http://www.bhiva.org/Reckless-HIV-Transmission-2013.aspx (accessed 11 March 2013).
7. Binder L. Criminal law: HIV and violence against women. Open Democracy 06 March 2013. http://www.opendemocracy.net/5050/louise-binder/criminal-law-hiv-and-vio... (accessed 11 March 2013).
Competing interests: No competing interests
Re: Doctors have a duty to breach patient confidentiality to protect others at risk of HIV infection
Tak Kwong Chan's makes some interesting points about patient confidentiality. The article highlights at present, there is no clear defining legal framework dealing with situation regarding the breach of confidentiality in UK.
The problem, however is that breaching patients' confidentiality is a complicated issue. One would have to take into account various factors, and each case should be dealt with individually, before deciding on breaching a patient's confidentiality. The best way to do that is still by relying on a physician's instinct and his/her moral obligation.
What is needed is a change in medical education instead of sets of laws. Junior doctors and medical students should be taught to think critically, not just when dealing with clinical pathology but also with ethical issues.
Competing interests: No competing interests
Re: Doctors have a duty to breach patient confidentiality to protect others at risk of HIV infection
The personal view presented by Tak Kwong Chan and Li Ka Shing1 regarding breaching patient confidentiality to protect others at risk of HIV not only confuses personal morals with professional ethics but also presents a rather simplistic view of ethical decision making. The authors rightly state that the GMC allows for disclosure of personal information to protect others at risk of serious harm. However each individual case is different and the GMC would expect clinicians to balance all harms and benefits of a particular action before taking the very drastic step of breaching confidentiality. Health professionals would also be expected to consider other action to achieve the same outcome. For example, previous sexual partners (where there is no on-going risk of transmission) could be contacted via anonymous contact tracing which allows the index case not to be named. This will enable appropriate partner testing whilst maintaining confidentiality.
Of concern is the view presented that ‘HIV positive individuals should not be entitled to confidentiality’ and that HIV positive individuals should not be trusted; as if HIV positivity somehow gives one less worth. The doctor-patient relationship is founded upon trust and all doctors have to start from a point of believing what the patient tells them unless there is evidence to the contrary. Such trust has to work both ways. Do the authors really think that patients would continue to disclose information about sexual contacts if they did not trust their doctor with this information? Furthermore, actively seeking evidence that a patient is being truthful crosses over into the territory of police work and is neither necessary nor indeed accepted professional behaviour. In presenting personal moral views regarding the four scenarios given, the authors have also demonstrated an injustice; why should we believe Mr A who tells us he has no sexual partners but not believe Mr D who tells us he has informed his wife of his HIV status?
The British HIV Association (BHIVA) recognises that such situations can be difficult for clinicians to navigate and have developed a position paper that sets out the legal and ethical framework. Although we acknowledge that there may be occasions when disclosure to sexual partners without a patient’s consent becomes necessary, this should be an action of very last resort, in circumstances when there is a definite risk to a known partner. The duties of clinicians in such situations lie primarily in providing high quality care to the person who is our HIV positive patient, which includes giving advice on reducing the risks of onward HIV transmission to others. Disclosure is not always necessary; transmission of HIV and therefore harm to sexual partners can be avoided without breaching confidentiality with the use of condoms and/or effective antiretroviral treatment. Any health care professional faced with the complexities of such a situation should refer to this document which can be found at http://www.bhiva.org/documents/Guidelines/Transmission/Reckless-HIV-tran...
1. Tak Kwong Chan and Li Ka Shing. Doctors have a duty to breach patient confidentiality to protect others at risk of HIV infection. BMJ 2013; 346: f1471
Competing interests: No competing interests