A fundamental tenet of medical practice that secures the doctor-patient relationship is patient confidentiality. The respect for patients' confidentiality is both a moral and legal duty that doctors owe to their patients. However, HIV has put absolute confidentiality to the test.

Whilst an individual’s positive HIV status deserves protection against indiscriminate disclosure due to discrimination and stigma associated with the disease, there are several instances where the doctor is in a predicament as to whether or not to disclose a patient’s status. Are there instances when the doctor is legally and morally allowed to disclose a patient’s HIV status to a third party without having a patient’s consent?

When the patient refuses to cooperate

One of the more common dilemmas encountered involves a HIV positive patient who despite knowing his/her status, refuses to disclose to the spouse/partner, while still engaging in unprotected sexual intercourse with the partner thereby putting them at increased risk of infection. The ethical conflict arises as the doctor weighs the duty to respect the patient’s right to privacy and confidentiality and not disclose the HIV status against the general duty to inform individuals of possible health risks. Laws regulating such an ethical dilemma vary from Country to Country. But the common ground is that doctors are allowed to breach confidentiality if the partner of that patient is clearly identified, if there is a real risk that the partner will be infected, and if there are no alternative ways of protecting the partner other than through disclosure.

However, the patient must be informed by the doctor of this action, and the reason behind the steps towards disclosure. An exception though occurs where the patient believes that the disclosure of his/her HIV/AIDS status will place them at risk of harm. In such a case, the doctor’s primary duty is to protect the patient and not disclose the status.

Common dilemmas

What if the patient is deceased and the spouse unaware of the deceased’s status? With regard to the disclosure of the HIV/AIDS status of a deceased to his/her intimate partner, it is generally acceptable that such a disclosure is in the public interest. Doctors, in most jurisdictions, have a legal duty to inform the intimate partners of HIV-positive deceased persons.

Another situation arises for doctors who are in the care of children/minor, and the primary caregiver’s inability to disclose to her male partner compromises the care of the child. Such a scenario is more complex as the doctor-patient relationship is with the child and not the caregiver. However, the doctor, within the limits of the law, is allowed to involve the father of the child, which may include disclosing the status of the child.

Adolescents who are sexually active and unaware of their status present another medical dilemma, more so if the caregiver prohibits doctors from disclosing to the minor. The doctor in such a case is barred from disclosing to the minor, as the caregivers are the custodians of consent in such a case. Another generally accepted reason for breaching confidentiality is to comply with legal requirements. For example, many jurisdictions have laws for the mandatory reporting of patients who suffer from designated diseases. In such a situation, doctors are legally bound to report such cases. However, the reporting should be done in a manner to ensure that the information only reaches the targeted recipient, in this case the concerned government department.

While the right to privacy and confidentiality of HIV/AIDS patients is central, it is not absolute and several considerations ought to direct the case by case evaluation. The non-consensual or inappropriate disclosure of another person’s HIV/AIDS status may put the infected individual at great risk of human rights violations, including disruption of family relations. MIMS

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