Confidentiality and medical professional standards

Unsurprisingly, professional standards and guidance adopted by medical bodies pay considerable attention to confidentiality. The General Medical Council (GMC) has recently reviewed its guidelines on confidentiality and, in 2009, published both general guidance on Confidentiality and supplementary guidance on Disclosing Information about Serious Communicable Diseases.

These are not the only such guidelines – for example, the Nursing and Midwifery Council also publish a Code of Professional Conduct which covers confidentiality, as does the Society of Sexual Health Advisers’ Manual for Sexual Health Advisers. The approach in all these publications is essentially the same, and the GMC guidance (which is the most detailed) is often referred to as a general source of guidance even though, strictly speaking, it is addressed only to doctors.

The British HIV Association has carried out work on HIV-specific guidance. A draft paper, ‘HIV Transmission, the Law and the Work of the Criminal Team’ was posted on the BHIVA website (www.bhiva.org) in early 2006 for consultation. The paper attempts to set out the relevant legal rules, ethical standards and best practice. Work on this project has recommenced following the GMC’s 2009 guidance, and it is hoped that a final version will be published in due course.

The GMC’s guidance on confidentiality stresses the importance of protecting confidentiality and of obtaining consent to disclosure. Of particular interest are the circumstances in which, according to the GMC guidance, it is permissible to breach confidentiality “in the public interest”. The guidance sets out, first, a general rule on disclosure in the public interest:¹

“Personal information may, therefore, be disclosed in the public interest, without patients’ consent, and in exceptional cases where patients have withheld consent, if the benefits to an individual or to society of the disclosure outweigh both the public and the patient’s interest in keeping the information confidential. You must weigh the harms that are likely to arise from non-disclosure of information against the possible harm, both to the patient and to the overall trust between doctors and patients, arising from the release of that information.”

It then goes on to set out a specific rule on “disclosures to protect the patient or others,”¹ explaining that one situation in which disclosure may be in the public interest is where “failure to disclose may expose others to a risk of death or serious harm”. The guidance goes on to say that, in such cases, the patient’s consent should still be sought where practicable and any reasons for refusal should be considered. The matter is dealt with more specifically in the GMC’s supplementary guidance on Disclosing Information about Serious Communicable Diseases, which states² that:

“You may disclose information to a known sexual contact of a patient with a sexually transmitted serious communicable disease if you have reason to think that they are at risk of infection and that the patient has not informed them and cannot be persuaded to do so. In such circumstances, you should tell the patient before you make the disclosure, if it is practicable and safe to do so. You must be prepared to justify a decision to disclose personal information without consent.”¹

The principal guidance on Confidentiality stresses that the obligation of confidentiality continues after the death of a patient.²  While a breach of confidence in such cases might lead to disciplinary proceedings, it is unlikely that a court would uphold a claim for damages as, in law, “as the confidence is prima facie a personal matter, the legal duty ends with the death of the patient.”³

It is important to note that this paragraph 6 of the guidance on serious communicable diseases refers only to known sexual contacts. There may be cases where a health professional believes that an HIV-positive person is generally taking risks and engaging in unprotected intercourse with an unknown person or people. In such a case, disclosure would not be justified, largely for the reason that there is no-one to whom to disclose.

Because the general guidance about “disclosures to protect others” suggests that such disclosure might be in the public interest where it would be “likely to assist in the prevention, detection or prosecution of a serious crime”⁴, it is sometimes thought that the criminalisation of reckless HIV transmission gives a green light to disclosure under this heading. However, it must be remembered that this type of disclosure must be to protect a third party from death or serious bodily harm. If it is thought that reckless transmission has already taken place, then the harm is complete and disclosure cannot be justified in this way. This means that it is not allowed for someone to rely on this principle to report a case of alleged reckless transmission to the police without the consent of the individual who is believed to be the ‘victim’ of that crime. That person, is, of course, entitled to make a complaint themselves.

It is possible that reporting an alleged crime might be justified under the general principle of disclosure in the public interest –  where “the benefits to an individual or to society of the disclosure outweigh the public and the patient’s interest in keeping the information confidential”⁴. That principle, however, requires a careful balancing act. Medical professionals must bear in mind that such disclosures could seriously compromise patient trust, care and treatment, and that a prosecution is highly unlikely to proceed without a willing complainant.

In certain circumstances, it is possible that a medical professional who did not breach confidentiality in order to protect a third party from the onward transmission of HIV could face civil liability (that is, liability to pay damages, rather than the risk of a criminal prosecution).

It has to be stressed that such a case is highly unlikely. For one thing, it might be near impossible to prove that the failure to breach confidentiality caused the HIV transmission, because it would be difficult to establish whether transmission had taken place before or after the point when confidentiality should have been breached.

There are, however, five reported cases in English-speaking countries where doctors have been found liable to pay damages to the sexual partner of one of their own patients after that patient had transmitted an STI (HIV in four cases, hepatitis B in another) to their sexual partner. Two of the cases were in the US, two in Australia and one in Canada. But four of these claims were based on negligent advice given to the doctor’s own patient – meaning that they were not aware of the risks they posed to their sexual partner – rather than any suggestion that confidentiality should have been breached.

The fifth and most recent case⁵ is more complex, because it involved two patients (one HIV-positive, one not) who were patients of the same doctor. They requested HIV tests in a joint consultation, but their doctor did not discuss how those results would be communicated. They were communicated separately, which led to one partner being able to deceive the other into believing he had tested negative. In that case, the doctor was held liable to pay damages to the patient who subsequently contracted HIV from her partner, although based on the negligent way in which the original consultation had been carried out rather than any failure to breach confidentiality (which would probably not have been possible given a specific New South Wales law on confidentiality in HIV cases). Liability here was based on the fact that the doctor owed her a duty of care as his own patient.

On the basis of the case law, and applying the general principles of this area of law, it has been suggested that the UK courts would be likely to approach the problem as follows:

• Onward transmission may result from a failure to properly advise an HIV-positive patient. It is almost certain that UK courts would impose liability.

• The patient is properly advised, but a doctor is aware that an identifiable third party who is also a patient of theirs is nevertheless at risk of infection. It is probable that UK courts would impose liability.

• The patient is properly advised, but a doctor is aware that an identifiable third party who is not a patient of theirs is nevertheless at risk of infection. It is possible that UK courts would impose liability, but unlikely.

• The patient is properly advised, but a doctor is aware that unidentifiable third parties may nevertheless be put at risk. It is almost certain that UK courts would not impose liability.

It must be stressed that this is very much speculative (the legal principles involved are discussed further in J Chalmers, Criminalisation of HIV transmission: can doctors be liable for the onward transmission of HIV?⁶) However, the possibility of legal liability has, understandably, become an issue in the light of criminal prosecutions for the reckless transmission of HIV, and has been a key factor in BHIVA’s draft guidance.