The role of health professionals

In January 2013, the British HIV Association (BHIVA) and the British Association for Sexual Health and HIV (BASHH) updated their 2006 position paper on HIV Transmission, the Law and the Work of the Clinical Team.¹

Covering the legal situation in two United Kingdom jurisdictions – England and Wales, and Scotland – the document sets out the roles and responsibilities of healthcare professionals when caring for individuals living with HIV. It also suggests ways to achieve a confidential environment in which extremely sensitive matters relating to sexual risk and HIV status disclosure to third parties can be frankly and fully discussed.

Of note, the position paper clearly states that healthcare professionals “must be mindful of their duty not to work beyond their expertise in legal matters. For people living with HIV, advice must include the routes of HIV transmission and how to prevent transmission, with information about safer sexual practices, the use of condoms and suppression of viral load. Advice must be given in a non-judgmental way.”

It provides clear advice to both help prevent transmission of HIV to sexual partners and to avoid prosecution for ‘reckless’ HIV transmission.  Accordingly, it recommends that people with HIV should do at least one of the following:

• Use a male or female condom fitted correctly along with water-based lubricant. Individuals doing this are unlikely to be seen as reckless for legal purposes. In the event of a condom splitting, it is advisable to disclose HIV status in order to support the partner’s decision whether or not to obtain post-exposure prophylaxis (PEP), which should be taken within 72 hours. The need for PEP will be assessed by a clinician according to the BASHH and BHIVA guidelines.² Disclosure in these situations would suggest that the person with HIV was not reckless.
• Adhere to effective (suppressed viral load) antiretroviral medication. There is growing evidence of extremely low/minimal risk of transmission when plasma HIV is fully suppressed with the use of antiretroviral medication. In some situations, an undetectable viral load can afford protection equivalent to or greater than that of condoms. A person with HIV is unlikely to be seen as reckless when relying on a suppressed viral load instead of condom use as long as they have been counselled accordingly by an HIV clinician or similar medical authority. It is recommended that this discussion be documented in the patient’s medical records.
• In addition people with HIV should be advised that disclosure of HIV-positive status to a partner before sex is important to support informed agreement around risk and safer sex behaviours. To avoid successful prosecution an individual who is not taking effective antiretroviral medication and does not use a condom must disclose their HIV status to sexual partners before sex takes place.

The position paper expands upon guidance³ provided by the General Medical Council (GMC, the official body responsible for regulating doctors in the UK) on confidentiality in respect to serious communicable diseases in 2009. It is also consistent with the most recent Crown Prosecution Service guidance.

The document clarifies the appropriate response of a healthcare professional whose patient has not disclosed to their sexual partner. The circumstances in which it would be appropriate for the clinician to breach their patient’s confidentiality are extremely limited. Moreover, the position paper notes that only individuals can make complaints to the police “and health care workers should remain impartial during discussions with patients.”

It states: “no information should be released to the police unless patient consent has been verified or there is a court order in place, except in very limited circumstances defined by the GMC.”

The GMC guidance states that in some rare situations, disclosure of personal information without a patient’s consent “may be justified in the public interest if failure to disclose may expose others to a risk of death or serious harm.”

However, the GMC says that this is something which “may” occur – in other words, it may be permissible in certain circumstances. The GMC do not say that such personal information “must” be disclosed.

They continue:

“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.”

The British Psychological Society’s Faculty of HIV and Sexual Health published guidelines specific for psychologists in 2009.⁴ Much of the advice echoes that given above. In addition, the importance of maintaining a safe and trusting therapeutic relationship is emphasised. The guidelines outline a duty for psychologists to inform their clients of the potential legal consequences of non-disclosure and unprotected sex, but only if these issues come up. If the issue has not arisen as relevant, discussing it may raise anxiety and undermine the therapeutic relationship.

The guidelines also outline specific steps to be taken if breaching a client’s confidentiality is being considered. It is made clear that, as with any other ethical dilemma, the psychologist should not act alone but consult with colleagues and managers. The responsibility for breaking confidentiality in the interest of public safety should not rest with any particular individual, but should be shared with the clinical team, manager and NHS trust.