The British HIV Association (BHIVA) has published a briefing paper providing information and guidance regarding the responsibilities and duties of healthcare staff in the light of recent United Kingdom prosecutions of HIV-positive people for the transmission of HIV. The briefing paper, which can be downloaded from the BHIVA website is open for consultation until Friday 21 July 2006.
There have now been nine criminal convictions for the reckless transmission of HIV in the UK: one in Scotland, and eight in England and Wales. The most recent case was reported on aidsmap.com yesterday.
The briefing paper addresses the complex questions that clinicians may have about their patients' rights, and their own responsibilities and legal obligations to disclose information about their patients' HIV status to others.
The paper's authors include legal expert, James Chalmers, representatives from two patient advocacy organisations - Terrence Higgins Trust (THT) and the African HIV Policy Network (AHPN) - and members of both BHIVA and the British Association of Sexual Health and HIV (BASHH).
"For an effective therapeutic relationship to be established and maintained, people living with HIV and their clinical carers must be able to discuss any relevant matter openly," they write in their introduction. "An underlying principle in the provision of clinical care for people with HIV is the need for a secure and confidential environment in which extremely sensitive matters can be frankly and fully discussed.
"The importance of ensuring that full trust is maintained by people with HIV in their clinical services in the light of the introduction of the criminal law into the HIV arena is fundamental, not only for the health of people living with HIV but also for people who may wish to seek information or testing and thus for the wider public health."
In day-to-day clinical practice, the paper suggests that healthcare professionals:
- advise patients with HIV appropriately about HIV infection and the implications for themselves and others
- support patients with HIV appropriately
- ensure confidentiality of medical information in line with GMC guidance
Duties for healthcare professionals: proper advice
A healthcare worker must properly advise a patient on ways of protecting their sexual partners from infection. A failure to do this may give rise to legal liability if the patient's sexual partner becomes infected as a result. Liability may also arise where a healthcare worker negligently fails to diagnose the patient as having the infection.
The paper lists the General Medical Council's (GMC) crucial requirements for healthcare workers to properly advise their patients on serious communicable diseases, including HIV. This includes "ways of protecting others from infection." It also includes a discussion of the clinician's liability in the "extremely rare" case of someone being infected by an undiagnosed patient suing the clinician for negligence.
HIV transmission, the law and disclosure
The authors argue that whilst "disclosure of HIV status is neither necessary nor sufficient to ensure that safer sex is consistently practiced...lack of disclosure associated with onward transmission has been an important determinant in the successful convictions for reckless transmission."
Although the authors do not agree with current law regarding the criminalisation of HIV transmission, they say that it is clear that "people living with HIV in the UK must be aware of the risk of legal action if they do not disclose their status to sexual partners and there is onward transmission of HIV."
They add that the use of condoms without disclosure "may possibly provide a successful defence against the charge of reckless transmission," although this point of law has not yet been clarified.
Duties for health care professionals: confidentiality and disclosure
A healthcare worker must maintain the confidentiality of patient information unless the patient has consented to disclosure or disclosure is necessary in the public interest. A failure to maintain confidentiality may give rise to legal liability.
The paper discusses in great detail the duty of health care workers to keep information confidential - as addressed in the GMC's guidance - and where this may sometimes be outweighed by the public interest, which is ultimately decided by the courts.
Differences between the power to disclose and the legal duty to disclose
One of the most vexing moral and legal dilemmas facing clinicians today - and one that worries many patients - is whether a healthcare worker is legally required to breach confidentiality and disclose a patient's HIV status to close contacts, if the healthcare worker is aware that their patient is putting this close contact at risk of HIV infection.
The paper discusses this in great detail, and suggests that when the close contact is also a patient, nondisclosure may "be a breach of duty owed to the close contact." However, if the close contact is not a patient, although disclosure would be lawful due to the public interest, it is not necessarily unlawful not to disclose. "In other words," the paper's authors write, "it is thought that there is a power to disclose, but no legal obligation to do so."
However, the current law covering GUM clinic confidentiality (NHS Venereal Disease Regulations 1974) conflicts with the GMC's guidance and creates some doubt as to whether disclosure to close contacts is ever permissible, leaving the above guidance in some doubt. The Department of Health is due to issue an imminent consultation on whether the 1974 Regulations should be changed.
Disclosing information to the police and in court
The paper strongly suggests that only the HIV-positive individual and "NOT the health care provider" should decide to make a complaint to the police if they believe they were infected through the 'recklessness' of another.
"Doctors have no duty to report criminal acts which have already taken place,' the authors write, and confirm that healthcare professionals "have no duty to answer questions that the police ask about their patients unless the request is sanctioned by a court order." The paper's authors say that this applies both HIV healthcare workers and to GPs.
Nevertheless, they write, "although medical evidence is confidential, it is not legally privileged" and that if a healthcare professional is required to testify in court, "all information must be disclosed."
Further information on this website
Patient information: HIV transmission and the criminal law
News feature: Criminalisation of HIV transmission in the UK: how did we get here and where to now?
Anderson J et al. HIV transmission, the law and the work of the clinical team: a briefing paper. available from the BHIVA website.