Recent HIV/AIDS Case: Confidentiality, Statutory Obligations and HIV/AIDS

14 Jul 2003

Recent HIV/AIDS Case:Confidentiality and Privacy Implications

The AMA Code of Ethics requires that a Medical Practitioner: "Maintain your patient's confidentiality. Exceptions to this must be taken very seriously. They may include where there is a serious risk to the patient or another person, where required by law...or where there are overwhelming societal interests."

Notifiable Medical Conditions are scheduled under the Public Health Act 1991 (NSW) and similar if not equivalent provisions exist in other States and Territories to further health policy safety nets.

The Impact of "PD" v Dr Y and Anor on Medical Practitioners

The medical practitioner's duty is a single comprehensive duty to take reasonable care in all of the circumstances. In PD v Dr Y & 1 Ors NSWSC 487 Acting Justice Jerrold Cripps was required to determine the scope and content of the medical practitioner's duty of care. On 16 November 1998 a Sydney woman (known only as PD) and her then fiance (FH) sought testing for sexually transmitted diseases including HIV. Although the general practitioner Dr Y knew they were considering unprotected sexual intercourse, he did not mention the procedure required to obtain consent to disclose PD's or FH's results to each other.

Having relied on a negative result, which was either fraudulent or forged by FH, PD contracted HIV infection. She only discovered his positive status when she found the true laboratory report 15 months later - shortly before the birth of their child. The infection was not transmitted to their child who was delivered by caesarian section to prevent infection.

PD was awarded damages of $727,437, having successfully sued the medical practice for the negligence of 2 doctors -one employed by the practice and the other being a medical director. Both doctors claimed they could not have told PD about FH's HIV status because it would have breached patient doctor confidentiality.

Some Ethical and Legal Issues

Overlap between the common law duty of confidentiality and statutory obligations may give rise to competing or conflicting duties. This is because they either compel or prohibit disclosure, or require that information be provided to patients with certain medical conditions.

This decision is concerned with certain aspects of the ethical basis of the duty of confidentiality. First, the requirement for proper explanations to validate patient consent to authorise disclosure of protected information. Second, the statutory constraints under the Public Health Act 1991 impact on the doctor's duty as the legislation reflects health policy related to risks or safety of patients and/or third parties.

This area of medical practice has been considered relatively fixed in terms of requirements to meet ethical behaviour. Patients' perceptions about confidentiality must be addressed appropriately. Sexual partners may be a source of health information relevant to the medical care of a patient.

Notifiable diseases cause conditions ranging from infertility to fatal illness and risks to the health of third parties. Federal privacy legislation and legislation in some States and Territories govern the issue of patient access to their own medical records and disclosure of their records to others. The clinical implications arise in part from considerable diversity in practice, illustrated by the opinions put forward by experts called on behalf of the parties. They also arise due to changes in policy direction and legal formulation. For example the doctor's statutory obligation to notify the relevant Authority of a patient's failure to comply with follow-up recommendations is not fixed in specific time frames. This is because the regulations address a multitude of conditions each with different health implications.

The Facts of the Case

PD was a patient of the practice during the period October 1997 until February 1999. Her future husband ("FH") was on a visa. At PD's request they went to the practice for testing and jointly attended Dr Y, a general practitioner. The couple were having a sexual relationship, but taking precautions. For PD, negative results were a condition precedent to unprotected sexual intercourse. This was the purpose of the attendance during which PD provided a history that she was not having unprotected sex.

Dr Y also knew that the parties were proposing to get married. He did not inform either of them that in the absence of consent, disclosure by him of any information about HIV/AIDS about one to the other was prohibited. Blood tests were performed and Dr Y told them to return to the practice in about a week's time when the pathology tests would be available.

Dr Y had noted on FH's card that he was "...About to engage in a new relationship". FH's results were positive for HIV and Hepatitis B. Having received them the day after he received negative results for PD, Dr Harvey rang the practice for FH's telephone number. The judge accepted Dr Y's evidence that he advised FH that he had tested positive and of the follow-up appointment about two days later at the Royal Prince Alfred Immunology Clinic (RPAIC). Dr Y neither raised any issue arising from the joint consultation nor asked whether he was proposing to tell PD.

There was no record of FH having attended the follow-up appointment at the RPAIC. Within five weeks PD returned to the practice for a contraceptive pill and in February of 1999 she attended for vaccines to travel to Ghana. Although she did not see Dr Y, the joint consultation and the results of the tests were not referred to directly or indirectly on either occasion. PD did not engage in unprotected sex until around March/April 1999.

Record Keeping

This decision highlights the importance of accurate and contemporaneous record keeping. A significant omission was that there was no mention on either card of a joint consultation having been held. PD's record did not include any note that she was about to enter - what was described by the Judge as - a 'new relationship.'

There was also an evidentiary dispute as to the details of the history taking elicited by Dr Y. The record noted that FH came from Ghana. However, PD gave evidence that she told Dr Y of a particular concern about the health status of her future husband. This was because of her belief that there was a higher risk that a person who came from Ghana would be HIV positive than from Australia. Dr Y would not concede that his reference was included as a reflection of her expressed concern. He contended that this had been recorded as an aide memoire that a resident of Ghana posed a higher than usual possibility of having other sexually transmitted diseases.

It is also important that FH did not give evidence. Having spoken to Dr Harvey on the telephone, FH attended the practice on 25 November 1998 to collect his results. He was seen by the medical director, Dr X who was unaware of any relationship with PD, an established patient of the Centre. Dr X referred FH to the Royal Prince Alfred Hospital. Sometime in May 1999 Dr Harvey received a questionnaire from the Department of Health seeking information concerning FH's HIV status which had been notified to the Department by the serum laboratory. Although PD and FH were living together at this time neither was contacted by Dr Y. His evidence that an attempt to do was made was not accepted by Cripps AJ.

The practice then received a letter from RPAHIC advising it had no information that FH had ever attended despite the record of an appointment. Again no attempt was made to contact PD or FH as the members of the practice believed they had no further obligation to either of them.

PD attended the clinic and spoke to Dr X after she discovered FH's negative result was forged. Her evidence was accepted that at that stage she was not HIV positive.

The Decision

This case was decided very much on the facts and according to the principle of the High Court of Australia in Rogers v Whitaker.Cripps AJ said this was an appropriate case where the duty required specific information to be provided. His Honour took the view that the legal duty was breached by omissions which prevented a safety net whereby the Director-General of Health could have taken steps under the Regulations to inform PD that she was at risk. The judge reasoned that had the referring doctor followed up with the HIV clinic earlier he would have found that FH had failed to keep the appointment.

The judgment was not expressed as governed by the principles of a duty to warn a third party. Furthermore, doctor/patient confidentiality was upheld, as Cripps J did not find that disclosure was implied by the joint consultation. The cross-referencing of the files would not have breached statutory confidentiality, because it is the disclosure of information to others that is prohibited not the recording of it by the doctor.

This was compounded by the fact that Dr Y did not explain the need for an appointment to see a medical practitioner if any concerns arose about the results. The 'foreseeable risks' were of such magnitude, considering the nature of the risks to health that the court held that follow-up treatment and counselling were necessary.

The joint consultation was not inappropriate. Cripps AJ accepted that PD reasonably expected that they would be given access to each other's results. If the parties had been asked by Dr Y what they intended to do with the results, both would have said that the other could have access to them.

PD initially attended the practice and was properly refused access to FH's results by a nurse. On a later occasion, Dr X told PD that he was unable to disclose the results of FH's test. However, he said that he provided information confirming the positive result and that PD had told him that she had contracted HIV.

Dr X did not make any contemporaneous notes of the various conversations and therefore many of the findings were based on the inadequacy or absence of clinical records. Cripps AJ drew an inference that had Dr Chen counselled FH adequately about what his obligations were, he would have been encouraged to obtain treatment. This may have prevented FH's deceptive behaviour of showing PD a forged or fraudulently obtained negative result.

Implications

There are numerous exceptions to the general duty of confidentiality. The case is instructive for medical practitioners. Dr X was vicariously liable for the actions and omissions of Dr Y. Had the notes been cross-referenced the doctors had the opportunity of realising the system error and contacting PD before she contracted the disease.

Sexual partners require accurate information about pathology results and may well be confused concerning the procedures required before disclosure is authorised. A relatively unexplored tension is the degree to which medical practitioners vary in their perceptions and performance of the duty. To some extent this may depend on the perceived degree of secrecy attached to information.

Given the conflicting expert opinion evidence as to the meaning of appropriate counselling, the practical question is how do 'all reasonable steps' vary in the following instances when the duty requires advertance to foreseeable risks? 

  1. Joint consultations,
  2. Confidentiality constraints arising from State or Territory statutory provisions which impose similar obligations as the Public Health Regulation 1991 (NSW), and
  3. The principles governing the scope and content of the duty of care in circumstances where the doctor may not know the range of possible sexual partners? and
  4. The manner in which the duty alters in respect to different scheduled conditions which are sexually transmitted diseases.

Joint Consultation

The joint consultation raises vexed issues related to whether partners in other circumstances would invoke similar obligations. The autonomy of each individual patient must be respected. Respect for autonomy is expressed in procedures for obtaining informed consent to disclose results.

This cannot be based on any assumption by the doctor that a patient believes the degree of secrecy is not absolute. Dr X spoke to FH and PD on separate occasions subsequent to the joint consultation. The cross referencing of the records would not have required the cross referencing of results and would have optimised the likelihood of compliance with the statutory obligations.

Statutory Obligations

The issue arises as to whether the case provides guidance in relation to other scheduled medical conditions where risks of exposure and transmission may be assessed with the exercise of reasonable care. These include chlamydia, the various forms of Hepatitis and HIV/AIDS which are transmitted through sexual activity or blood.

The key implication arising from the decision is the nature of the information required when a case is similarly identifiable as one being appropriate for advice, and in consequence counselling. A perception may arise that the identification of at risk individuals invokes a broadening of the scope of the duty of care. This would include advice about new sexual relationships because of the 'window period'. In any case of uncertainty follow-up treatment ought to be recommended. When it is not complied with, a system to enable the implementation of checks is essential.

The Patient's History

As the history may not be completely reliable for the purposes of assessment of exposure to risk, questions about the broader purpose for the investigative procedure enhance effective communication. The specific question for the medical practitioner is the nature and extent of the relevant sexual history even when this is not stated as the purpose of the consultation.

This can be covered under personal history and may require sub-categorisation for example under psycho-sexual history. Personal history will identify education, occupation and habits from which exposure to special risk categories can be assessed.

Is there a Duty of Care to a Patient's Sexual Partners?

The Supreme Court of New South Wales considered this question directly in BT v Oei which was delivered on 5 November 1999. The case also concerned duties under the Public Health Regulations and included an action brought on behalf of the estate of the patient for damages arising from psychiatric injury and/or nervous shock suffered by him upon learning that he had infected his wife with HIV.

The case provides some principles governing the recognition of the duty in circumstances where a practitioner should have taken certain investigative precautions on a clinical history and symptoms suggestive of HIV infection.

One provisional diagnosis was Hepatitis B, a scheduled medical condition under the Regulations in New South Wales. The routes of transmission include the sharing of injecting equipment, needle stick injury, sexual intercourse both heterosexual or homosexual and vertical transmission from mother to child.

The further question is the way in which the duty is different when a patient does not identify their sexual partner. Whilst there is no identified 'third party', there may be a reasonably foreseeable risk. This is determined by whether the history taking is adequate. Whilst this will vary in some circumstances, reasonable steps to explore any relevant sexual history are necessary.

Privacy Legislation

As medical care requires full knowledge of patient health information by all members of a medical team, it is necessary to consider the extent to which a sexual partner's pathology results contain health information about a patient.

The two Supreme Court decisions also raise issues which have privacy implications where a doctor provides advice and information for the purpose (understood by the practitioner) of excluding risks through diagnostic investigations. The consultation in PD's case occurred in November 1998. The procedures for valid consent to disclose results must now comply with the amendments to the Privacy Act 1988 which took effect in 2001.

The situation which arose in the case of PD v Y is not likely to occur now in light of the Federal Privacy legislation which requires medical practitioners to inform patients how their personal information will be handled at the time it is collected. To whom the HIV results were to be disclosed would now necessarily have to be raised in the joint consultation. If the parties expected their results to be shared, their consent would be obtained.

AMA Policy

As the cross-referencing of the clinical notes would have optimised the treatment of both patients PD v Y is consistent with AMA policy.

The AMA Code of Ethics enunciates clear guidance of a general nature on the importance of medical confidentiality, including the confidentiality of the contents of medical records.

Conclusion

Despite the claimed centrality of confidentiality in the relationship between health care professionals and their clients, many issues arise because the basis for this obligation has rarely been adequately explained. The wider reaching implications of PD v Y take the duty of confidentiality beyond the commonly understood positive duty to a client in direct consultation to the broader sphere of patient follow-up and duties to third parties.

Omissions can amount to a breach of duty and systems errors are a commonly identified key to circumstances where negligence occurs. There have previously been a number of appeal decisions providing general guidance in relation to the duty of care when following up patients after clinical investigations. However the recent Supreme Court decisions look at the interplay between confidentiality and health risks.

The decision has not really changed doctors' legal obligations regarding patient confidentiality. This is because the doctors concerned had an avenue under the statutory provisions of the Public Health Act, which did not breach confidentiality. Statutory obligations override common law duties to the extent to which the two are inconsistent. They may also create criminal offences.

The case has led some insurers to recommend that those who are not comfortable with the procedures required in this area refer the patient to a more specialist Centre. A duty may then arise from the obligation to check whether the referral was actually attended.

A conflict of obligations must always be considered when more than one person is present during a consultation. The main reason for this is that either one or both of the individuals may have personal agendas or motivations which are not disclosed. The consequence is that the medical practitioner may not have a full history and therefore may have a false sense of assurance about patient's understanding and the likelihood of patient compliance.

The practitioner needs to provide up to date advice and information which varies depending on the mode of contamination for all communicable diseases scheduled for notification. The categories may be reclassified for various reasons and the legislative provisions will change so that any practitioner who is unsure of the situation should seek advice from your local public health unit as the provisions between States and Territories vary slightly.

The decision further emphasises the need for doctors in group practices, in particular, to formulate clear practises on internal communications in order to exercise reasonable care when communicating test results. It is also important to recognise that health policy initiatives in respect to different conditions reflect specific public health concerns relating to the magnitude of the risk from infection which with chlamydia, for example, includes broader health implications such as the associated rise in infertility rates.