The UK Department of Health has initiated a policy consultation on the confidentiality of HIV and sexual health records and the circumstances in which disclosure without a patient’s consent may be possible. The exercise was launched after sexual health professionals contacted the Department of Health for clarification of circumstances when information about a patient, including an individual’s HIV infection status, may be disclosed without a patient’s consent.
Earlier this year the British HIV Association published a preliminary guidance document for HIV doctors entitled HIV transmission, the law and the work of the clinical team: draft recommendation document. Since 2003, nine individuals have been imprisoned in England and Wales for the reckless transmission of HIV and the confidentiality of sexual health and HIV medical records has become an issue of concern for both clinicians and patients.
English common law and the Human Rights Act of 1998 place an obligation of confidence on healthcare providers concerning information disclosed to them by their patients during consultations. There is also additional legislation ensuring the confidentiality of information disclosed by individuals seeking treatment for sexually transmitted diseases, and the Department of Health’s consultation document stresses, “ensuring patient confidentiality for people using sexual health services is and must remain a key component of prevention strategies to control the spread of infection and reduce undiagnosed infections. STIs and HIV remain stigmatised health conditions.”
However, UK law currently recognises that there are certain circumstances when disclosure of medical records, even sexual health records, can take place without a patient’s consent. There include “the treatment of persons suffering from such diseases or the prevention of the spread thereof”, and, “for the purpose of treatment and prevention.” Medical records can also be disclosed without consent for the prevention of serious crimes – such as murder, rape, manslaughter, treason, and child abuse.
Current guidelines regarding the confidentiality of sexual health and HIV records were prepared in 1974 – several years before the first reports of AIDS. At the time all sexually transmitted infections were curable and issues regarding the reckless transmission of a potentially life-threatening infection were not therefore considered. The consultation document therefore asks if it is now appropriate for a healthcare professional, who believes a patient is putting somebody at risk of an infection, to take steps to contact at-risk individuals, even without their patient’s consent.
The consultation document also asks if it is appropriate for “the healthcare professional to inform the partner directly that they can report their partner to the police for the reckless transmission of HIV or other serious sexually transmitted infections? Would this be likely to deter people from using sexual health services?” In some of the cases that have already been brought to court, a complaint was initially made to the police after healthcare staff at sexual health clinics encouraged recently infected individuals to contact the police.
HIV testing and sexual health services will increasingly be provided at a primary care level, and the consultation document asks for interested parties to say if they believe that the current guidance, originally prepared specifically for sexual health services, should be extended to cover primary care as well.
Views are also sought on the confidentiality of sexual health and HIV records for children aged under 16 and on the circumstances in which young people’s records can be disclosed. Protecting the confidentiality of patients whilst collecting accurate data for disease monitoring is also addressed in the consultation paper.
Responses are requested to a number of hypothetical situations involving on-going sexual risk behaviour by people with diagnosed or suspected HIV or another serious sexually transmitted infections. It is asked that comments on these situations take into account English common law, the Human Rights Act and the 1974 venereal diseases regulations, and respondents should provide details of the principles that underlined their responses.
The consultation document can he read here. Comments should be directed to Sexual-Health-&-HIV@dh.gsi.gov.uk by post to Jonathan Fraser, Area
620, Wellington House, 133-155 Waterloo Road, London SE1 8UG. The deadline for the receipt of comments is October 31st 2006.