HIV Confidentiality vs. Duty to Warn, a Maze

by chelseajin

Second rule of working in healthcare:
Patient-Doctor confidentiality.

It’s a pretty sacred and iron-clad oath that a physician/nurse/etc takes when they speak to anyone. Most things, ie: illicit drug use, pregnancy woes, illnesses all fall into the sweet confidance of your physician, who swears never to tell unless you’re going to cause deadly harm to yourself or others. But what if you had HIV and you didn’t want anyone to know? You were married, and you had slept with someone who gave you HIV, and you didn’t want your spouse to know…and you had the full intention of sleeping with them the next time it came up.

This is the situation we had to role-play in our Patient-Doctor classes. What was the procedure? Because of patient doctor confidentiality, we had to keep our mouths shut to the spouse. Our only recourse was to try and convince our patient that they had to tell their partner what was going on. If they didn’t want to, they’d didn’t have to. Meanwhile, we had to counsel the unknowing spouse that we couldn’t tell them who had given it to them (although I think it’d be obvious they didn’t pick it up form a toilet seat if they were monogamous), and to forget about that and just get treatment.
Ridiculous.

The reasoning behind this is that we want to preserve confidentiality, and that people should be taking universal measures when it comes to their health, like always using condoms when having sex. This is similar to a situation if a doctor was accidentally exposed to blood from a patient, and wanted to know if that person had HIV (or any other STD), they couldn’t directly ask the patient unless given permission, and would just have to get tested for the disease.

On the flip side is the a duty to warn. I lifted the term from another Act, but it seemed well-put. (Perhaps it’s related to the Tarasoff Decision, which arose from a psychiatric case where a woman was killed by a psychiatric patient, not sure) But in spirit it is very related:

“…indicating that a party will be held liable for injuries caused to another, where the party had the opportunity to warn the other of a hazard and failed to do so.” (wikipedia)

More specifically, NYS has these laws in place for intentionally transmitting HIV to someone:
[NY Pub. Health Law § 2307 provides that someone knowingly infected with an “infectious venereal disease” who has sexual intercourse with another is guilty of a misdemeanor, but there is no indication in NY statutes that HIV infection is considered a “venereal disease.”] (lambdalegal)

New York – The applicable part of the law is reckless endangerment in the first degree for engaging in ‘conduct which creates a grave risk of death to another person’. (avert.org)

So it seems that reckless endangerment of someone is illegal, but where does that leave me and my role-play? I know that many of my classmates had problems with how we were supposed to handle the case. It seems extremely apparent to us that a married couple will inevitably have sexual relations. And even though HIV is not transmitted 100% through sex each time, there is a significantly higher transmission rate between them than between 2 people who don’t have it. Counseling us to try to convince the affected spouse to tell their partner, but then letting them on their merry way if they don’t, seems like an absolute contradiction to our oath of not to harm.

I understand confidentiality. I understand that there’s an intense stigma and embarrassing linked to having any chronic condition, especially HIV, but this is reckless endangerment right here! So it’s acceptable to let this person go, but not acceptable if it happens between 2 people who are not married? What is the distinction here? Did I miss something because I had the opportunity to look this up in a bit more detail while the doctors I asked did not? (Although this hardly seems like an excuse being that one of them was an infectious disease expert).






Sources:
http://www.aidslaw.org/confidentiality.pdf (For Louisiana, but a nice starter)
http://www.aclu.org/files/images/asset_upload_file292_35655.pdf ** (ACLU has the same parameters as lambda legal, the only difference being the parenthetical Lambda Legal provides about “venereal diseases”…probably because it’s always written STDs and HIV/AIDS, which is very confusing…)
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