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Please don't tell!

If there were a home health nurse to care for this patient, presumably there would be no reason to breach confidentiality since the expectation would be that she would follow universal precautions. Of course, universal precautions could be explained to the patient's sister. In an ideal world this would seem to be a satisfactory response that protects both Carlos's rights and Consuela's welfare. But the world is not ideal.

We know that health professionals, who surely ought to have the knowledge that would motivate them to take universal precautions seriously, often fail to take just such precautions. It is easy to imagine that Consuela could be equally casual or careless, especially when she had not been specifically warned that her brother was HIV-infected. Given this possibility, does the physician have a duty to warn that would justify breaching confidentiality? I shall argue that he may not breach confidentiality but he must be reasonably attentive to Consuela's safety. Ordinarily the conditions that must be met to invoke a duty to warn are: (1) an imminent threat of serious and irreversible harm, (2) no alternative to averting that threat other than this breach of confidentiality, and (3) proportionality between the harm averted by this breach of confidentiality and the harm associated with such a breach. In my judgment, none of these conditions are satisfactorily met.

No one doubts that becoming HIV-infected represents a serious and irreversible harm. But, in reality, is that threat imminent enough to justify breaching confidentiality? If we were talking about two individuals who were going to have sexual intercourse on repeated occasions, then the imminence condition would likely be met. But the patient's sister will be caring for his wound for only a week or two, and wound care does not by itself involve any exchange of body fluids. If we had two-hundred and forty surgeons operating on two-hundred and forty HIV-infected patients, and if each of those surgeons nicked himself while doing surgery, then the likelihood is that only one of them would become HIV-infected. Using this as a reference point, the likelihood of this young woman seroconverting if her intact skin comes into contact with the blood of this patient is very remote at best.

Moreover in this instance there are alternatives. A frank and serious discussion with Consuela about the need for universal precautions, plus monitored, thorough training in correct wound care, fulfills what I would regard as a reasonable duty to warn in these cirto be given to Carlos so that he can monitor her performance. He can be reminded that this is a small price for protecting his confidentiality as well as his sister's health. It might also be necessary to provide gloves and other such equipment required to observe universal precautions.

We can imagine easily enough that there might be a lapse in conscientiousness on Consuela's part, that she might come into contact with his blood. But even if this were to happen, the likelihood of her seroconverting is remote at best. This is where proportionality between the harm averted by the breach and the harm associated with it comes in. For if confidentiality were breached and she were informed of his HIV status, this would likely have very serious consequences for Carlos. As a layperson with no professional duty to preserve confidentiality herself, Consuela might inform other family members, which could lead to his being ostracized from the family. And even if she kept the information confidential, she might be too afraid to provide the care for Carlos, who might then end up with no one to care for him.

The right of confidentiality is a right that can be freely waived. The physician could engage Carlos in a frank moral discussion aimed at persuading hm that the reasonable and decent thing to do is to inform his sister of his HIV status. Perhaps the physician offers assurances that she would be able to keep that information in strict confidence. The patient agrees. Then what happens? It is easy to imagine that Consuela balks at caring for her brother, for fear of infection.

Medicaid would still refuse to pay for home nursing care because a caregiver would still be in the home, albeit a terrified caregiver. Consuela's response may not be rational, but it is certainly possible. If she were to react in this way it would be an easy "out" to say that it was Carlos who freely agreed to the release of the confidential information so now he'll just have to live with those consequences. But the matter is really more complex than that. At the very least the physician would have to apprise Carlos of the fact that his sister might divulge his HIV status to some number of other in dividuals. But if the physician impresses this possibility on Carlos vividly enough, Carlos might be even more reluctant to self-disclose his HIV status to Consuela. In that case the physician is morally obligated to respect that confidentiality.

Leonard M. Fleck is associate professor, Center for Ethics and Humanities in the Life Sciences, Michigan State University, East Lansing, Mich.
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Title Annotation:case study with commentaries on whether physicians are morally obligated to divulge a patient's HIV status to warn a caregiver against the patient's will
Author:Fleck, Leonard M.; Angell, Marcia
Publication:The Hastings Center Report
Date:Nov 1, 1991
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