Patient confidentiality in STIs: current guidance ... - Wiley Online Library

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10.1576/toag.8.4.240.27274 www.rcog.org.uk/togonline

The Obstetrician & Gynaecologist

Risk management Patient confidentiality in STIs: current guidance and legal issues Authors Sameena Kausar / Caroline S Bradbeer

Key content: • Patient confidentiality is a key tenet in all areas of medicine. However, circumstances exist where confidentiality must be broken in the patient’s or society’s best interests. • It is permissible to over-rule a patient’s desire for anonymity where it could endanger the life of another health care professional or patient. • Where a doctor has a serious communicable disease and there is reason to believe they are practising in a way that places patients or others at risk, there is a duty to inform an appropriate person at the doctor’s place of work. • As a general principle, disclosure without consent should always be discussed with other senior colleagues, the General Medical Council or medical defence agencies and only carried out if there is a clear indication.

Learning objectives: • To present the General Medical Council guidance on serious communicable diseases and patient confidentiality. • To discuss legal precedents from the UK and abroad. • To consider legal opinion on this aspect of confidentiality excluding issues related to Fraser competence and child protection.

Ethical issues: • When should confidential information be disclosed without the consent of patients? Keywords confidentiality / guidelines / genitourinary medicine / HIV / sexually transmitted infections Please cite this article as: Kausar S, Bradbeer CS. Patient confidentiality in STIs: current guidance and legal issues. The Obstetrician & Gynaecologist 2006;8:240–244.

Author details Sameena Kausar MBBS Senior House Officer in Genitourinary Medicine Guy’s and St Thomas’ Hospital, London, SE1 7EH, UK E-mail: [email protected] (corresponding author)

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Caroline S Bradbeer FRCP Consultant in Genitourinary Medicine Guy’s and St Thomas’ Hospital, Harrison Wing, 2nd floor, Lambeth Street, London, SE1 9RT, UK

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Introduction ‘Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, whichought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.’ (The Hippocratic Oath)1 In the Hippocratic Oath, allegedly the sine qua non for doctors, the words ‘which ought not to be spoken of abroad’ are notable and seem to leave the door open for certain situations in which information ought to be spoken about. All medical professionals receiving personal information in order to provide care are bound by a legal duty of confidence, whether or not they have contractual or professional obligation to protect confidentiality. This is especially relevant with regards to sexually transmitted infections (STIs), since personal information concerning STIs is generally regarded as sensitive and private by patients. Health care providers, especially doctors, have to be careful and vigilant in protecting patients’ confidentiality. For example, merely confirming that a patient has attended a genitourinary medicine clinic amounts to a breach of confidentiality. However, it may sometimes be necessary for the treating clinician to disclose the details of a patient’s sexual health to other doctors or health authorities involved in their management. Paradoxically, genitourinary medicine services are probably the main area of medicine where confidentiality may need to be broken.

Disclosure to other medical carers The General Medical Council’s (GMC’s) guidelines have set a code of practice for UK doctors and are invaluable in guiding any health care provider in these, often tricky, situations. Most patients understand and accept that information may be shared within the health care team in order to provide for their care and it is the duty of the clinician to ensure that they are aware that this may be necessary in their interests. It is particularly important to check that the patient understands what information is to be shared and with whom (for example, identifiable information to be shared with anyone employed by another organisation or agency that is contributing to his or her care).2 GMC guidance in ‘Confidentiality: Protecting and Providing Information’2 states that in instances where information has to be forwarded to other agencies, such as public health surveillance departments, the patient’s consent must be obtained, data should be anonymised where possible and only the minimum information necessary should be provided. It should be borne in mind that any information that has to be shared © 2006 Royal College of Obstetricians and Gynaecologists

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with other health care providers must be compliant with the Data Protection Act 1998 and the Caldicott Principles. These specify that the information can only be shared for a justifiable purpose, with the minimum necessary patient-identifiable information used and revealed, on a strict need-toknow basis, to a responsible individual who understands and complies with the law. GMC guidance3 states that, if a patient is diagnosed with a serious communicable disease, in addition to explaining the ways of protecting others from infection, the medical, social and occupational implications have to be explained to the patient. Moreover, it has to be made clear to the patient that other health care providers involved in their care might have to be informed of their condition, in order for them to provide adequate clinical management. In paragraph 19,3 the GMC guidance states: ‘If patients still refuse to allow other health care workers to be informed, you must respect the patients’ wishes, except where you judge that failure to disclose the information would put a health care worker or other patient at serious risk of death or serious harm. Such situations may arise, for example, when dealing with violent patients, with severe mental illness or disability. If you are in doubt about whether disclosure is appropriate, you should seek advice from an experienced colleague. You should inform patients before disclosing information. Such occasions are likely to arise rarely and you must be prepared to justify a decision to disclose information against a patient’s wishes.’ The work of genitourinary medicine clinics in the UK is regulated by the National Health Service (NHS) Venereal Diseases Regulation (1974), the NHS Trust and the Venereal Diseases Directive (1991), the NHS Trusts and Primary Care Trusts (Sexually Transmitted Diseases) Directions (2000)4 and the Venereal Diseases Act (1974) (in Scotland). Genitourinary medicine clinics are able to share information about their patients through the network of health advisers but it is accepted practice that a patient’s general practitioner may not be routinely informed when they attend a clinic.5 This may cause confusion if another hospital department becomes involved in the patient’s care, since the general practitioner is likely to be informed of the episode by default, as part of routine hospital practice. The treating clinician should, therefore, be aware that the general practitioner of a person referred from a genitourinary service may not be aware of the details of the clinic attendance and, indeed, the patient may have specifically requested this information to be withheld. In these circumstances, and provided it is not detrimental to the patient’s 241

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health, their wishes must be respected. It follows that the treating clinician has the responsibility of providing and arranging the necessary aftercare of the patient.

Disclosure to a partner The English and Scottish courts have recently confirmed that the reckless transmission of human immunodeficiency virus (HIV) can amount to a criminal offence.6–10 The offence is not confined to HIV, as acknowledged by the judgement.8 This has led to some concern as to whether a doctor could, in certain circumstances, be liable for the onward transmission of HIV by a patient. Although no case has been brought to a court in the UK, there have been a few cases in the USA, Australia and Canada where a doctor has been held liable for the onward transmission of HIV by a patient.11 In the case of PD v Harvey12 in New South Wales (Australia), PD was not informed of her partner’s HIV positive status after the couple had attended the doctor jointly for pre-test counselling. The court held the doctor liable for failing to prevent HIV transmission due to inadequate advice provided at the time of the joint consultation (especially concerning the questions related to mutual disclosure of results and the possibility of discordant results) and also for not informing PD, despite her position as the doctor’s patient. The doctor independently owed a duty of care regardless of the doctor’s relationship with the HIV positive patient.11,12 The GMC guidance3 on serious communicable diseases states that: ‘You may disclose information about a patient, whether living or dead, in order to protect a person from risk of death or serious harm. For example, you may disclose information to a known sexual contact of a patient with HIV where you have reason to think that the patient has not informed that person, and cannot be persuaded to do so. In such circumstances you should tell the patient before you make the disclosure, and you must be prepared to justify a decision to disclose information.’ It is noteworthy here that this guideline does not specify that the partner of the infected patient has to be a patient of the clinician. US legal opinion is similar with regards to HIV status: most state laws permit, but do not require, doctors to inform a patient’s spouse or sexual partners if the test results are HIV positive. In those states, doctors who do so are protected from breach of confidentiality claims as long as they act ‘in good faith’ when relaying this information.

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Disclosure to an employer Rice13 quotes a case of an HIV positive patient (a dental hygienist) who sued his doctor for revealing his HIV status to his employers despite his objections. The judge ruled in the doctor’s favour, stating that it was reasonably necessary to protect the clinic’s personnel and patients from the risk to which the hygienist exposed them. Given those risks, the rights of the employers to know the hygienist’s HIV status before being exposed to the risk of a fatal disease took precedence over the individual’s right to privacy. In addition, the hygienist’s employers had a duty to provide information to any patients that the individual might treat. The GMC’s guidance on treating colleagues with serious communicable diseases states: ‘If you are treating a doctor or other health care worker with a serious communicable disease you must provide the confidentiality and support to which every patient is entitled.’ The following point goes on to say: ‘If you know, or have good reason to believe, that a medical colleague or health care worker who has or may have a serious communicable disease, is practising, or has practised, in a way which places patients at risk, you must inform an appropriate person in the health care worker’s employing authority, for example an occupational health physician, or where appropriate, the relevant regulatory body. Such cases are likely to arise very rarely. Wherever possible you should inform the health care worker concerned before passing information to an employer or regulatory body.’ Similarly, the advice given by the Department of Health14 for the management of HIV infected health care workers has three main principles: there is a duty to protect patients; there is a duty of confidentiality towards infected health care workers; infected health care staff should avoid carrying out certain procedures where exposure of patients to HIV is possible.

Disclosure of HIV in pregnant women The issues relating to HIV in pregnant women are detailed in the British HIV Association’s guidelines.15 Antenatal HIV testing of all pregnant women is an effective way of preventing mother–child transmission. A positive test in a pregnant woman has a significant impact on the psychosocial, emotional and economic aspects of her life, especially if there is discordance between the couple.16 About 20–80% of couples are discordant. Studies showed that 26% of female patients had HIV negative partners17,18 and about 30–75% had disclosed their status to their partners.17–20 There are situations where a newly diagnosed HIV positive woman refuses to disclose © 2006 Royal College of Obstetricians and Gynaecologists

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to a current sexual partner, or appears to want to delay disclosure indefinitely. These cases should be dealt with on an individual basis and priority should be given to finding the causes of nondisclosure. These issues must be properly addressed and discussed with patients.15 Since the support from health care workers such as midwives, counsellors, doctors and health advisers plays an important role, importance of disclosure to appropriate health workers should be emphasised. Studies have shown that providing joint counselling and testing to both partners together leads to a greater acceptance and less abandonment of HIV positive females and promotes reduction of mother–child transmission.21 In cases of reverse discordance (where the male partner is HIV positive and the female partner HIV negative) there is an increased risk of vertical transmission associated with seroconversion in pregnancy and breastfeeding.20,22 If the male partner is reluctant to inform his partner, the issue of disclosure without consent should be based on weighing the potential harms and benefits of nondisclosure. It is of the utmost importance to consider the risk of HIV to the baby in order to determine whether breach of confidentiality is justified. There has been concern that forced disclosure can have a negative impact on HIV testing uptake. It could also mean that, by compelling doctors to disclose HIV infection to sexual contacts, they would lose the trust of their patients.23

Disclosure after a patient’s death A doctor is still obliged to keep personal information confidential after a patient’s death. The GMC’s guidance in ‘Confidentiality: Protecting and Providing Information’2 states that: ‘If the patient had asked for information to remain confidential, his or her views should be respected. Where you are unaware of any directions from the patient, you should consider requests for information taking into account: whether the disclosure of information may cause distress to, or be of benefit to, the patient’s partner or family; whether disclosure of information about the patient will in effect disclose information about the patient’s family or other people; whether the information is already public knowledge or can be anonymised; the purpose of the disclosure.’ This is in accordance with the GMC’s guidance on serious communicable diseases,3 where it is stated that: ‘where a communicable disease contributed to the cause of death, this must be recorded on the death certificate. You should also pass information about serious communicable diseases to the relevant authorities for the purpose of communicable disease control and surveillance.’


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Paragraph 21 of the same guideline goes on to state that:‘a patient’s death does not of itself release a doctor from the obligation to maintain confidentiality. But in some circumstances disclosures can be justified because they protect other people from serious harm or because they are required by law.’

Summary With regards to civil liability, there is, at present, no reported decision by the UK courts to hold a doctor liable in damages for the onward transmission of HIV by one of his or her patients. Providing proper advice to the HIV positive patient will discharge the doctor’s legal duty unless the doctor has reason to believe that the patient will not follow the advice, or if the third party is also a patient of the doctor. Where there is an identifiable third party (who is not a patient of the doctor) there is a possibility that the UK courts might hold that simply giving proper advice to the patient is insufficient. The third party or the appropriate authority might need to be informed of the risk, despite the patient’s wishes. Disclosure without consent must always follow prior consultation with senior colleagues and/or advice should be sought from the GMC or defence societies, as appropriate. With regards to criminal liability, both English and Scottish law establish that criminal liability will not normally be imposed for an omission to act, unless a legal duty to act is specifically recognised.11 Sexually transmitted infections are complex as they have a tremendous impact on both the physical and emotional wellbeing of the patient and those in contact with them. The health care provider has to tread a perilous path when dealing with issues pertaining to disclosure. In cases where disclosure becomes necessary, the health care provider may come up against the wishes of the patient and, at best, risk losing their trust or, at worst, end up in a courtroom. The rule of thumb should always be to seek the patient’s consent before disclosing any information to a third party, but, in the event of a patient’s refusal, careful adherence to the GMC guidelines will hopefully prevent any unnecessary litigation. The primary learning points from this article are given in Box 1.

• Patient confidentiality should be respected at all times but is not absolute.

Box 1

Learning points

• It may be to the patient’s benefit that details of STIs are given to their medical carer and the patient must be made aware of this benefit. • Information can be divulged without the patient’s knowledge and express consent only when failure to do so puts the patient, their carers or the clinical staff at grave risk of serious harm or death. This would include situations where the index case patient continues to put an unsuspecting sexual partner or an unborn child at risk of infection. It does not include testing before invasive procedures for the protection of staff.

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References 1 The Hippocratic oath. 4th Century BC, (English translation of the original Greek version) [http://members.tripod.com/nktiuro/hippocra.htm http://www.pccef.org/resources/hippocraticoath.htm http://en.wikipedia.org/wiki/Hippocratic_Oath http://www.bbc.co.uk/dna/h2g2/A1103798] 2 General Medical Council. Confidentiality: Protecting and Providing information [http://www.gmc-uk.org/guidance/library/confidentiality.asp] 3 General Medical Council. Serious Communicable Diseases [http://www.gmc-uk.org/global_sections/sitemap_frameset.htm] 4 Department of Health. NHS Trusts and Primary Care Trusts (Sexually Transmitted Diseases) Directions 2000 [http://www.dh.gov.uk/ PublicationsAndStatistics/Publications/PublicationsLegislation/ PublicationsLegislationArticle/fs/en?CONTENT_ID=4083027&chk= eFwepg] 5 Medical Society for the Study of Venereal Diseases. Genitourinary medicine induction pack [http://www.bashh.org/education/clin_ed/ induction_pack.pdf] 6 Nigel Bunyan, ‘Refugee infected woman with HIV,’ Daily Telegraph, 10 January 2004 [http://www.portal.telegraph.co.uk/news/main.jhtml?xml= /news/2004/01/10/nhiv10.xml&sSheet=/news/2004/01/10/ ixhome.html] 7 David Ward, “‘Predator’ who gave women HIV gets 10 years,” The Guardian, 15 May 2004. [http://www.guardian.co.uk/aids/story/ 0,7369,1217456,00.html] 8 National AIDS Trust. Criminal Prosecution of HIVTransmission. NAT Policy Update; 2006 [http://www.nat.org.uk/document/68] 9 R v Feston Konzani (2005). EWCA Crim 706. Case No. 200303166 D4 [www.hmcourts-service.gov.uk/judgmentsfiles/j3177/r-v-feston_konzani. htm] 10 Terence Higgins Trust. Criminal prosecutions for transmitting HIV [http://www.tht.org.uk/informationresources/prosecutions/ recentcourtcases/kouassiadaye.htm] 11 Chalmers J. Criminalization of HIV transmission: can doctors be liable for the onward transmission of HIV? Int J STD Aids 2004;15:782_7. 12 McSherry B: PD v Harvey and Chen [2003] NSWSC 487. J Law Med 2003, 11(1):18–19.


13 Rice B: HIV. To tell or not to tell. Med Econ 2003, 80(9):35–38. 14 HIV Infected Health Care Workers: Guidance on Management and Patient Notification. Department of Health, 2005. [http://www.dh.gov.uk/ assetRoot/04/11/64/16/04116416.pdf] 15 Hawkins D, Blott M, Clayden P, de Ruiter A, Foster G, Gilling-Smith C, Gosrani B, Lyall H, Mercey D, Newell ML et al: Guidelines for the management of HIV infection in pregnant women and the prevention of mother-to-child transmission of HIV. HIV Med 2005, 6 Suppl 2:107–148. 16 Manopaiboon C, Shaffer N, Clark L, Bhadrakom C, Siriwasin W, Chearskul S, Suteewan W, Kaewkungwal J, Bennetts A, Mastro TD: Impact of HIV on families of HIV-infected women who have recently given birth, Bangkok, Thailand. J Acquir Immune Defic Syndr Hum Retrovirol 1998, 18(1):54–63. 17 Siriwasin W, Shaffer N, Roongpisuthipong A, Bhiraleus P, Chinayon P, Wasi C, Singhanati S, Chotpitayasunondh T, Chearskul S, Pokapanichwong W et al: HIV prevalence, risk, and partner serodiscordance among pregnant women in Bangkok. Bangkok Collaborative Perinatal HIVTransmission Study Group. Jama 1998, 280(1):49–54. 18 Freeman EE, Glynn JR: Factors affecting HIV concordancy in married couples in four African cities. Aids 2004, 18(12):1715–1721. 19 Lurie MN, Williams BG, Zuma K, Mkaya-Mwamburi D, Garnett GP, Sweat MD, Gittelsohn J, Karim SS: Who infects whom? HIV-1 concordance and discordance among migrant and non-migrant couples in South Africa. Aids 2003, 17(15):2245–2252. 20 Wood C, Kumalo P, Ainsworth J, Govind A, Meates M: Disclosure, discordance and decisions— the psychosocial impact of antenatal HIV testing. In: Sixth International Congress on Drug Therapy in HIV Infection: 17–21 Nov 2002; Glasgow, UK; 2002. 21 World Health Organization. HIV-infected women and their families: psychosocial support and related issues. [www.who.int/reproductivehealth/publications/rhr_03_07/index.html] 22 Embree JE, Njenga S, Datta P, Nagelkerke NJ, Ndinya-Achola JO, Mohammed Z, Ramdahin S, Bwayo JJ, Plummer FA: Risk factors for postnatal mother-child transmission of HIV-1. Aids 2000, 14(16):2535–2541. 23 Gostin LO: Confidentiality vs the duty to warn: ethical and legal dilemmas in the HIV epidemic. J Int Assoc Physicians AIDS Care 1995, 1(8):33–34.

Instructions for CPD Questions Please submit your answers online using the CPD submission system, which can be found on the RCOG website (www.rcog.org.uk). Please sign in as a registered user, then from the menu on the left choose ‘Fellows and Members’ proceed to ‘TOG Online’ and then select ‘CPD submission’. Further instructions are available online. Please note that the CPD answer cards have been withdrawn and all responses must now be submitted online. The College has decided that an appropriate achievement mark for these tests is 70%.You are responsible for printing your certificate of completion and retaining it in your CPD file as evidence of this activity. You will be able to determine your percentage mark by referring to the test answers, which will be printed in the second following issue of the journal. Please note that all tests are valid for CPD purposes for a maximum of six months. The closing date for submitting your answers for this issue is shown above the questions. It will not normally be possible to re-attempt tests. You must be a registered CPD participant in order to submit your answers. Those readers who are not registered for CPD at the College are encouraged to participate in this CPD exercise but cannot submit their answers online.You can assess yourself when the answers are published. Please direct all questions or problems to the CPD Office, Clinical Governance and Standards Department, Royal College of Obstetricians and Gynaecologists, 27 Sussex Place, Regent’s Park, London NW1 4RG. Tel +44(0)20 7772 6307 or email: [email protected]

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