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Duty of confidentiality and HIV/AIDS.


The duty to maintain patient confidentiality is an ethical and legal priority for all health professionals. There is a common law duty in addition to statutory duties imposed by various privacy statutes. An ethical dilemma can arise when a patient is diagnosed with HIV/AIDS because a practitioner becomes aware that third parties can be placed at risk of a serious infection if the patient passes the disease on to those parties.

In New South Wales, the Department of Health has published a Policy Directive, 'HIV Confidentiality: A Guide to Legal Requirements', in which the Department specifies to whom information regarding a patient's HIV or related status can be disclosed. In short, disclosure is limited to health care workers involved in the care of the patient where such information is necessary to provide such care; to persons providing care, treatment or counselling to the patient and the information is necessary to provide such care, treatment or counselling; where statutes mandate reporting of such cases; by force of law, for example subpoenas; and with the patient's consent. The document provides no guidance with regard to notifying other third parties.

Under the NSW Public Health Act 1991, HIV and AIDS are included in a list of scheduled medical conditions that must be reported by medical practitioners and laboratories in accordance with the legislation. In all cases, the Act provides that mandatory reporters must take 'all reasonable steps' to prevent disclosure of HIV related information to others (s17). The Act imposes a duty on a person who knows that he or she suffers from a sexually transmissible medical condition to inform potential sexual partners of that fact before intercourse takes place to provide that person an opportunity to decide voluntarily to agree to the risk (s13). It does not mandate that a health practitioner who is aware a patient is HIV positive to inform others who will be at risk.

The NSW Health Records and Information Privacy Act 2002 (Schedule 1 s10) prohibits the use of personal information for a purpose other than the purpose for which it was collected except, inter alia, if there is a serious and imminent threat to the life, health or safety of the individual or another person or threat to public health or public safety. The question that arises is whether this provision excuses a health practitioner advising sexual partners of a patient's HIV/AIDS status.

In a case heard in the New South Wales Supreme Court in 1999, BT v Oei (1999) NSWSC 1082, the issue of a doctor's duty to third parties, who could be infected if a patient has or is suspected of being positive for HIV, was canvassed. The facts and the law are drawn from the judgment of Bell, J.

The facts

An action was commenced in the Supreme Court by BT, on her own behalf and as administratrix of the estate of AT, who died prior to commencement of the proceedings. The claim was that the defendant doctor, Dr Oei, was negligent in failing to diagnose AT's HIV illness and to counsel him to have an HIV antibody test. AT proved to be HIV positive and BT, who married him after living with him in a de facto relationship, also contracted HIV.

AT consulted the defendant on 26 November 1991 complaining of a sore throat, fever and a cough. After taking a general history and noting that AT had lymphadenopathy, the defendant diagnosed viral laryngotrachitis and pharyngitis. On 28 January 1992 AT presented to the defendant with fever, urinary symptoms, bilateral pain and lethargy. On examination, he was found to have a coated tongue, lymphadenopathy, abdominal tenderness and hepatomegaly. A provisional diagnosis of appendicitis or hepatitis was made and a number of tests ordered. The next day AT returned for a further consultation. He remained unwell and feverish. One of the test results taken the day before led the defendant to a provisional diagnosis of urinary tract infection. He prescribed antibiotics and instructed AT to return for the results of the other tests when they became available.

At a consultation on 1 February 1992 the defendant advised AT that he could have acquired a hepatitis infection as a result of an unprotected sexual encounter. He gave two pamphlets concerning hepatitis D and a third relating to safe sex practices, and counselled him regarding this. According to the defendant, AT commented he would have 'no energy for it'. The defendant advised AT to rest, gave him a medical certificate for one week, ordered further tests and asked him to return in due course for the results of same. AT attended for a further consultation on 10 February 1992 when he said he was feeling a little better. One of the test results suggested AT had a kidney stone. The defendant advised AT that the kidney stone was not a matter for concern and recommended further rest. AT was to return for review in two weeks. AT returned on 4 March 1992 and reported that he had been feverish and suffering chills, aches and pains. The defendant provided him with a medical certificate for a further two weeks and to return for review. On 19 March, AT returned stating he was feeling much better. The defendant ordered more tests including a full blood count and a liver function test.

AT did not return again until 1 December 1992 at which time he complained of feeling irritable and suffering from a mild headache as well as a fever and aches and pains. The defendant provisionally diagnosed a viral illness and ordered further tests including a full blood count. On 15 January, AT attended again complaining of bilateral ringing of the ears, felling unwell and suffering abdominal pain and constipation. An abdominal examination elicited tenderness, and AT had wax in both ears. The defendant arranged for AT to undergo a barium enema.

AT next saw the defendant on 22 January 1993 when he reported he was feeling a little better. The results of the barium enema were that AT had splenomegaly. A later CAT scan revealed hepatosplenomegaly suggestive of cirrhosis of the liver. AT's last visit to the defendant was on 30 January 1993 at which time he referred AT to Dr Bill Bye, a gastroenterologist, for further investigation and management.

BT met AT around March 1992 while he was under the care of the defendant. At this first meeting AT told BT that he had contracted hepatitis B but that he was better. He also revealed that after separating from his first wife he had visited a brothel and had sexual relations with an illegal immigrant. AT and BT began to socialise together except on one occasion when AT phoned to say he did not wish to continue seeing BT as he did not believe he could manage a relationship with a woman who had a young child.

The relationship resumed and at Easter 1992 the couple went on a holiday together and it was on this trip that they first had intercourse, using a condom due to BT's fear of becoming pregnant. Between Easter and June of 1992, intercourse took place on about three or four occasions when they did not use a condom. In June 1992, BT consulted her doctor, Dr Subbamma, and told him that her partner had hepatitis B. On subsequent visits in June and July, the doctor arranged for BT to have a series of vaccinations to immunise her against hepatitis and advised her to use condoms.

AT and BT cohabited from September 1992 during which time the couple had unprotected sexual intercourse. BT accompanied AT to his consultation with his doctor on 15 January 1993 when he had his ears syringed and also complained of abdominal pain.

In February 1993, BT became ill, complaining of a severe headache and unable to move her jaw freely. She had a high temperature, watery eyes, a sore throat, was unable to eat and her arms and legs were weak. She saw Dr Spalgo on 22 February who noted that she was very febrile and prescribed antibiotics for suspected tonsillitis.

In January 1994 the couple quarrelled and separated for a time. BT consulted with Dr Subbamma as she was upset over the breakup. The doctor ordered blood tests including an HIV antibody test. On or about 8 March 1994, BT was advised that her test was positive for HIV and was referred to the Albion Street clinic for counselling. Although BT attributed her positive HIV status to her sexual contact with AT, she did not inform AT of her results as she was concerned he might not go ahead with plans to marry her.

In October 1994, Dr Koorey, who was treating AT for his liver condition, arranged for him to have an HIV test whereby AT was diagnosed as HIV positive. AT suggested that BT, who was now his wife, undergo a test herself. BT underwent further testing for HIV and was confirmed as being HIV positive. BT did not tell AT nor the doctor that she had tested positive before. AT was admitted to hospital in February 1995 for a liver transplant and died on 26 February of liver failure, not from HIV or AIDS.

The law

In order to succeed in an action of negligence against another, the plaintiff must prove, on the balance of probabilities, that the defendant owed the plaintiff a duty of care, that the defendant breached that duty of care, and that the breach materially caused the harm claimed. The duty is to avoid harm that could result from a reasonably foreseeable risk. There was no doubt that the defendant doctor owed AT a duty of care as his patient. What the court had to consider was whether the doctor owed a duty of care to BT as his patient's sexual partner.

The plaintiff alleged that the defendant owed a duty of care to her, which was 'to diagnose AT's HIV infection and/or give proper counselling and advice to AT as to the need for an HIV test'; that she 'is within the class of persons who were at risk of foreseeable injury if the defendant failed to properly counsel and advise AT to have an HIV test'. The defendant did not disagree that the plaintiff, as a sexual partner of AT, was a person at foreseeable risk of injury but contended that something more was required to prove a duty of care.

The defendant submitted that he did not owe a duty of care to BT as she was never his patient; that AT did not disclose he had a sexual relationship with BT; that AT did not specifically seek treatment for, or advice about his HIV status; that AT's HIV status was not caused by any action or inaction on the part of the defendant; that HIV is a lifelong infection, which can be transmitted in a variety of ways and can be retransmitted by an infected person.

The Judge considered a number of Australian, North American, and English decisions dealing with the issue of a duty of care to third parties who may not be known or capable of identification at the time of the alleged negligent act, but who could be considered to be a member of a reasonably foreseeable class of persons who could be at risk.

The Judge also canvassed relevant sections of the Public Health Act 1991 (NSW), which mandates that a medical practitioner who believes on reasonable grounds that a patient is suffering from a sexually transmissible disease to provide that patient with information under the act. After referring to the duty of a person who knows they have a sexually transmissible condition to inform a potential sexual partner of their infection, there is also the requirement for a medical practitioner to inform the patient of the public health implications of the condition and their statutory responsibility to warn prospective sexual partners.

The defendant submitted there were policy reasons why he should not owe a duty of care to BT; that such duty would involve a conflict with the duty owed to BT; that there was a potential conflict in the context of therapeutic privilege that may justify a doctor withholding information from a patient where it is in the patient's best interests to do so; and that it would conflict with a doctor's duty of confidentiality to patients. None of these arguments prevailed.

In conclusion, the Judge held that the defendant owed BT a duty of care, for the following reasons:

* There is no conflict between the duty owed by the defendant to AT and BT as the two are coincident.

* BT was a sexual partner of AT.

* It was reasonably foreseeable that AT, if HIV positive, would transmit the virus to a sexual partner.

* AT was unaware of his HIV status (in this respect his condition was latent).

* The defendant's specialist knowledge and training equipped him to identify the risk that AT had contracted HIV.

* Failure to adequately diagnose and adequately counsel AT to undertake an HIV antibody test exposed AT's sexual partner/s to the real risk of contracting a fatal disease.

Having determined that the defendant owed BT a duty of care Her Honour went on to consider whether the defendant had breached his duty of care. She analysed opinion evidence from a number of medical witnesses called for each side and came to the following conclusion:
 I am satisfied that as at 1 December 1992 when
 AT returned to the defendant's rooms apparently
 suffering a further viral illness, having regard
 to the likelihood that the hepatitis B was
 contracted as a result of sexual contact and in
 the light of the earlier history of viral illnesses, a
 general practitioner exercising ordinary care and
 skill would have considered a diagnosis of HIV
 and counselled the need for an HIV antibody

 I consider that as at 1 December 1992 the
 defendant was negligent in failing to diagnose
 the possibility of HIV infection and to counsel
 AT as to the need to undergo an HIV antibody

The next issue the Judge turned her mind to was that of causation. With respect to this issue the Judge posed four questions:

* Had AT undergone an HIV antibody test in the period 1 February 1992 to 30 January 1993 would the test have shown him to be positive?

* Did BT contract HIV as the result of sexual contact with AT and, if so, when?

* Would AT have undergone an HIV test if counselled to do so?

* Would AT have taken appropriate steps to protect BT from contracting HIV from him? After considering expert evidence regarding

CD4 cell counts, the Judge made a finding that AT had been infected with the virus not later than November 1991 and that HIV antibody testing in the period from 1 February 1992 to 15 January 1993, a probable window period between sero-conversion and the detection of infection, would have revealed his positive status.

Bell J accepted the evidence of BT that although she had had sexual intercourse with three persons up until the time she began living in a domestic relationship with AT. From the time of the ending of her first marriage in mid-1991, she had not had sexual relations thereafter until forming her relationship with AT. BT had no history of risk taking behaviour in terms of contracting HIV and it was accepted by the Judge that BT was infected with HIV due to her sexual contact with AT.

The Judge referred to the fact that the defendant could not compel AT to have an HIV antibody test and his blood could only be tested with his consent. Evidence was given that AT had suggested her husband undergo HIV testing after she found out she was positive for HIV but this was not followed up. After considering the defendant's submission that AT was not generally a compliant patient, the Judge considered that AT would have undertaken an HIV antibody test in 1992 had he been advised by the defendant that he should do so.

Given the nature of the relationship between AT and BT as it started and developed, and with reference to expert evidence of the behaviour of people who are HIV positive, the Judge held that AT would not have engaged in unprotected sexual intercourse with BT had he been aware of his HIV status. She held that the 'defendant's negligent failure to properly advise AT with respect to a possible diagnosis of HIV and the need for an antibody test materially contributed to the plaintiff's infection with the virus'.

A verdict and judgment for the plaintiff for her personal claim was delivered. Judgment was given in favour of the defendant insofar as BT's claim in her capacity as administratrix of the estate of AT as the evidence failed to disclose any injury or illness for which compensation was recoverable.


In the BT v Oei case, the doctor's negligence was his failure to take into account his patient's presenting symptoms and signs, and counselling his patient to undergo HIV testing. It was accepted that the doctor had a duty of care towards his patient. According to expert testimony by Dr Fisher, an experienced general practitioner, 'a reasonably informed general practitioner practising in the inner city of Sydney in 1992 to 1993 would have recognised that fevers, night sweats, lethargy, lymphadenopathy and chronic ill health during early 1992 were consistent with lowered resistance and HIV infection'. As referred to supra, the Judge found that as at 1 December 1992 AT was HIV positive.

Bell J held that the defendant doctor also owed a duty to BT, as AT's sexual partner. The defendants' failure to diagnose and adequately counsel his patient to undertake an HIV antibody test exposed his patient's sexual partner/s to the real risk of contracting a fatal disease. However, the duty only extended to providing adequate advice to the patient. It did not extend to notifying BT directly.

Thus medical practitioners have a common law duty of care to the sexual partners of a person who may reasonably be suspected of being HIV positive. Although practitioners are not obliged to inform the sexual partner/s directly, they must keep in mind that should a patient present with a history suggestive of risky sexual activity and symptoms consistent with a diagnosis of HIV, that they must adequately counsel that patient to undergo HIV antibody testing. As a means of protecting themselves from liability, the practitioner must record this advice in the patient's medical record at the time that the counselling is given. Should a patient's test results be HIV positive, the doctor's counselling must be firmly directed towards counselling the patient to inform prior sexual partners of the positive result to enable them to attend for HIV testing. There is also an obligation to counsel those with HIV positive results of their legislative mandate to inform prospective sexual partners before having sexual intercourse with them to enable those prospective sexual partners to decide whether or not to run the risk of infection. The practitioner must also report in the appropriate manner to the health authorities as required by public health legislation.

Judith Mair PhD, LLB, RM, DNE


Faculty of Health Sciences

The University of Sydney

East Street

Lidcombe NSW 1825


Phone: 0408-265-254

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Title Annotation:Reports
Author:Mair, Judith
Publication:Health Information Management Journal
Geographic Code:8AUST
Date:Oct 1, 2008
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