Adwait Mehta1, Janso Padickakudi1
1RCSI medical student
Royal College of Surgeons in Ireland Student Medical Journal 2010; 3: 20-24.
The RCSIsmj Ethics Challenge 2009 presented the case of a rural GP in Ireland who has diagnosed one of his patients, Richard, as HIV positive. Given a troublesome marriage in which Richard and his wife Sheila have stopped any form of intimacy, the GP is threatened with litigation should Richardâ€™s HIV status become known to Sheila. The age-old notion of patient confidentiality is, clearly, at the centre of this ethical dilemma. This article aims to identify the ethical issues raised by the case, to addressÂ these academically and to suggest how the situation might be addressed in a satisfactory manner.1 Throughout the article weaknesses of the arguments are also identified. The underlying question that is posed is of interest to medical students who will encounter ethical dilemmas throughout their careers: how is it possible for a GP to reconcile his professional duty of confidentiality with protecting the welfare and health of another patient and of society in general?
The case raises key ethical issues, which merit academic discussion. The core issues are:
- Richardâ€™s autonomy and right to confidentiality;
- Sheilaâ€™s autonomy and right to health;
- the GPâ€™s dilemma in respecting Richardâ€™s confidentiality while simultaneously safeguarding the health of Sheila and of society at large;
- the GPâ€™s â€œduty to warnâ€;
- the GPâ€™s choice of method of disclosure;
- Richardâ€™s and the GPâ€™s responsibility to prevent transmission; and,
- the GPâ€™s responsibility to notify authorities.
Background â€“ ethics
Before the case is tackled it is important to establish basic principles of ethics and law that can be referred to in our line of argument. There are four basic principles of ethics (the â€œBelmont principlesâ€) that must form the basis of all medical decisions for doctors:
- beneficence: an obligation to provide the most beneficial treatment;
- non-maleficence: the duty to protect persons from harm;
- autonomy: the patientâ€™s right to an informed, uncoerced decision with regard to their diagnosis and treatment (informed consent and patient confidentiality are extrapolations of this principle); and,
- justice: the physicianâ€™s responsibility to provide equal medical care to all.2
The main conflict for the GP in this situation is the balance between Richardâ€™s autonomy in terms of confidentiality, and non- maleficence towards Sheila, who is at a potential risk of contracting HIV.
Background â€“ Irish Medical Council guidelines
According to the Irish Medical Council (IMC), there are four circumstances in which exceptions to confidentiality may be justified without the patientâ€™s consent:3
- When ordered by a judge in a court of law, or by a tribunal established by an act of the Oireachtas.
- When necessary to protect the interests of the patient.
- When necessary to protect the welfare of society.
- When necessary to safeguard the welfare of another individual or patient.
The IMC further stipulates that in cases where one of the above is satisfied, notifications to third parties should, if possible, be made with the informed consent of the patient.3
In accordance with point 4 of the IMC framework, the GP is obliged to safeguard Sheilaâ€™s welfare by informing her of Richardâ€™s diagnosis. Although the couple is currently not intimate with each other, a legitimate potential risk of transmission exists
due to the nature of their relationship (i.e., marriage).4
Also, the IMC guideline to protect the welfare of society is pertinent to this case and will be explored in more detail shortly. Does the GP need to be concerned about the welfare of society? Are there any guidelines that require him to alert the authorities to prevent local transmission?
Legal issues and physician litigation
Despite such guidelines, physician liability and potential legal cases must still be addressed. To illustrate physician immunity, a case in India (where the Medical Council employs almost identical ethical guidelines)5 is used here.
The â€˜Mr X vs. Hospital Zâ€™ case involved a manâ€™s claim for damages against a hospital whose staff informed his future wifeâ€™s family of his HIV status. The court held that the future wifeâ€™s right to health, and the provision of the Indian Penal Code, which makes it an offence to knowingly risk spread of an infectious disease, legally negated the patientâ€™s right to confidentiality. Furthermore, the Indian Code of Medical Ethics permits the disclosure of otherwise confidential information when there is a health risk to another person.6 Thus, the GP in this case should receive a favourable verdict if a legal case is filed against him. Naturally, this conclusion must be drawn cautiously since it is based on the assumption that no other factors confound the case.
The Tarasoff case and the â€œduty to warnâ€
The Tarasoff case was a landmark trial in the USA in which Prosenjit Poddar had informed counsellors of a fantasy to harm an unnamed love interest, who was readily identifiable as Tatiana Tarasoff. Poddarâ€™s healthcare providers raised concern but efforts to commit him as an inpatient were dropped as authorities found him to be â€œrationalâ€. Two months later, Poddar stabbed Tarasoff to death. The courts ruled that counsellors had had the â€œduty to warnâ€ Tarasoff. The conclusion of the trial has altered the practice of healthcare. It is now widely accepted that a patientâ€™s â€œprotective privilege ends where the public peril beginsâ€.7
Applying both current Irish legal requirements and the Tarasoff case to our dilemma, there seems to be an obligation on the GP to inform Sheila. The weakness of this argument, however, is that the breach of confidentiality and consequent repercussions are based on assumptions of how Richard will act, not on his actions themselves. We assume that he will have intercourse with his wife. But how can the GP justify pre-emptively disrupting Richardâ€™s life despite knowing that Richard and Sheila are not sexually intimate?
From an academic perspective, the literature shows that anywhere between 40 and 65% of HIV-positive individuals (both heterosexual and homosexual) fail to disclose their condition to all of their sexual partners.8,9,10 For argumentâ€™s sake, if we assume that Richard will fall into this category, then we must further examine disclosure, reasons for non-disclosure and the benefits of disclosure of HIV status in order to obtain the best outcome for all those involved.
HIV status disclosure has long been recognised as a complex interaction of individual beliefs, social support, and relationship types and their sexual nature.11 In the current biopsychosocial model of healthcare, it is paramount to recognise these factors in the prevention of further HIV transmission.12,13,14,15
Thus, the following question arises: to whom does the patient need to disclose their HIV status? Is it only to sexual partners? Or is it also to friends, family, employers, healthcare providers or even strangers? Commonly cited reasons for non-disclosure include stigma, need for privacy, fear of rejection by sexual partners, denial, low viral load, type of sex, location of sexual encounter, legal reprisal (fear of arrest), and condom use (no need to disclose).9,16,17 Interestingly, research shows that individuals who self-identify as homosexuals, ethnic minorities, sex workers, or those who report depression, are less likely to disclose.17,18
Open disclosure has been found to lower infection rates, as persons are motivated to adopt safer sex practices.12 It is also recognised that non-disclosure plays a central role in global HIV transmission and is associated with greater sexual risk taking.13,14 Social analysis has shown that HIV disclosure to oneâ€™s family, friends, and lovers â€“ although potentially socially detrimental â€“ was also found to be positively related to social support and the use of more adaptive coping strategies.19 The implications of this literature on our case are that these are the issues that Richard needs to have addressed before he can disclose his status to his wife. His main concern is further marital discord, perhaps even separation from his wife. Undeniably, Sheila is at risk of infection. However, being the immediate patient, the GPâ€™s role would be to address Richardâ€™s underlying concerns. The communication involved in this type of counselling would ensure that the GP has done everything in his power to gain informed consent from Richard before informing Sheila. This step is not strictly necessary â€“ it is merely humane.
HIV in stable relationships
With an increasing number of HIV infections occurring in stable relationships, the burden of coping with HIV notification and its economic, emotional and physical impacts is well established. In contrast, little has been written on the impact of HIV disclosure on partnership durability or dissolution. The literature, using cohorts from Northern Thailand, Uganda and Malawi, identifies the following six factors that determine marital stability in couples in which only one partner is HIV positive:20,21,22
- gender (males are more likely to divorce an HIV-positive wife than vice versa);
- duration of partnership before disclosure;
- economic constraints;
- the role of the extended family for social support;
- fear of stigmatisation by community; and,
- the existence of children, which is strongly correlated with a decision to stay in the marriage.
The weakness of this approach is that the presence of risk factors predisposes to, but does not predetermine, individual behaviour. Consequently, although Sheila is a female and the couple has two children, it would be impossible to judge Sheilaâ€™s reaction. Furthermore, a particular weakness of this argument is that conclusions based on this literature need to be drawn with caution because of differences in cultural, economic and religious circumstances.
The next issue that we explore is the role of the GP and how he can best address this situation.
The literature suggests three methods of partner notification. Partners may be notified: by index case â€“ â€œpatient/self-referralâ€; by a healthcare worker â€“ â€œprovider referralâ€;23 or, by â€œcontract referralâ€, in which healthcare workers encourage index patients to notify their partners.24 Although all three approaches have been shown to be successful methods of disclosure,25 researchers in North America have shown that provider referral generally ensures that more partners are notified and medically evaluated than self-referral does.26,27,28
In the last decade, literature has been published regarding recommendations and guidelines for breaking bad news.29 However, it is important to note that there is little evidence about the best approach, so most guidelines are based on opinion.30 Buckman developed a six-step protocol that the GP may employ in this circumstance. The model is based on private meetings with no time constraints, in which both partners can have all their ideas, expectations, concerns and questions addressed.29
This academic point addresses one of the core issues in our case, and suggests that the GP should inform Sheila personally in order to ensure her safety. A compromise solution between the methods of disclosure could be a combination of the three approaches. For example, the GP could encourage Richard to notify Sheila during a joint consultation in his practice. This method would change the dynamics of confidentiality between the GP and his patients and ensure that accurate information is conveyed to Sheila. The session may also be used to answer any medical questions that Sheila may have.
Viral load, the chief predictor of HIV transmission, is dramatically reduced by successful antiretroviral treatment.31,32 Promoting both condom use and antiretrovirals will further reduce the chances of transmission.33 It is important to keep in mind that the risk of transmission increases both with increasing number of encounters and the nature of encounters. Encouraging abstinence is a possible measure; however, it is generally less utilised in the setting of serodiscordant couples.34,35 Recently, international research has made it clear that male circumcision can be efficacious in reducing the risk of HIV transmission from men to women.36
In keeping with non-maleficence, it is essential for the GP to address prevention of HIV transmission between Richard and Sheila. Whatever the result of the marriage, it is crucial that the GP educates both Richard and Sheila on HIV prevention for the benefit of Sheila and all their future potential sexual partners.
In a broader sense, the GPâ€™s responsibility for reporting Richardâ€™s HIV status to public authorities is disputable. In Ireland37 and the United Kingdom,38 in contrast to the USA,39 HIV is not a notifiable disease. This is despite evidence that many Irish healthcare professionals believe that HIV should be notifiable.40 Reports recognise that the current status of notification in Ireland has significant implications for epidemiological studies and causes considerable underestimation of the prevalence of HIV.40
Breach of confidentiality is a contentious issue that requires ethical sensibilities and a thorough understanding of current legal
guidelines. Both of these must then be synthesised into a plan of action for the GP involved in the case. Given the information presented, we therefore suggest that the GP take the following approach:
- applying the Belmont principle of non-maleficence, the IMC guideline of disclosure to safeguard the well-being of a third party, and the â€œduty to warnâ€, the GP should set out to inform Sheila of Richardâ€™s HIV status;
- the GP should address Richardâ€™s reasons for non-disclosure and counsel him on the benefits of disclosure. This is in line with the Belmont principle of beneficence;
- the GP must progress to inform Sheila; he may do this himself, or by encouraging Richard to do so. This needs to happen in private, with sufficient time for both Richard and Sheila to ask questions and voice concerns;
- Richard and Sheila should both be counselled in the prevention of HIV transmission and safe sex practices; and,
- as HIV is not notifiable in Ireland, authorities need not be informed in this instance.
In conclusion, it is evident that the management of a couple in which one partner has been diagnosed as HIV positive is a complex issue. The Hippocratic Oath, in which doctors swear to confidentiality, should be implemented with consideration for the ethical and legal context.
The GPâ€™s approach in this case should be to keep Richardâ€™s HIV status confidential in terms of the broader community. Unless he has occupational exposure that may put others at risk, there is no utilitarian benefit of disclosing his status to the community. The weakness of this approach is that HIV surveillance and epidemiology is impeded, but its strength is that it upholds the patientâ€™s confidentiality and dignity.
- Royal College of Surgeons in Ireland. Ethics Challenge. Royal College of Surgeons in Ireland Student Medical Journal 2008; 2 (1): 5.
- The Belmont Report. Ethical principles and guidelines for the protection of human subjects of research. Cited October 12, 2009. Available from: http://ohsr.od.nih.gov/guidelines/belmont.html.
- Irish Medical Council. A Guide to Ethical Conduct and Behaviour (6th ed.). Cited October 12, 2009. Available from: http://www.medicalcoun- cil.ie/_fileupload/standards/Ethical_Guide_6th_Edition.pdf.
- Van Der Straten A, GÃ³mez CA, Saul J, Quan J, Padian N. Sexual risk behaviours among heterosexual HIV serodiscordant couples in the era of post-exposure prevention and viral suppressive therapy. AIDS 2000; 14 (4): F47-54.
- NO. MCI-211 (2)/2003-Ethical/ MEDICAL COUNCIL OF INDIA. NEW DELHI-110002. Cited October 15, 2009. Available from: http://www.mciindia.org/meetings/Ethics/2003/Ethical%20Minu tes%2022%20&%2023%20.11.2003.pdf.
- Dickens BM, Cook RJ. Ethical and legal issues in reproductive health law and ethics in conflict over confidentiality? International Journal of Gynecology & Obstetrics 2000; 70 (3): 385-91.
- Bayer R, Toomey KE. HIV prevention and the two faces of partner notification. Am J Public Health 1992; 82 (8): 1158-64.
- Ainslie DC. AIDS and sex: is warning a moral obligation? Health Care Analysis 2002; 10 (1): 49-66.
- Garbach PM, Galea JT, Aman B, Shin A, Celum C, Kerndt P et al. Donâ€™t ask, donâ€™t tell: patterns of HIV disclosure among HIV positive men who have sex with men with recent STI practising high risk behaviour in Los Angeles and Seattle. Sexually Transmitted Infections 2004; 80 (6): 512-7.
- Simbayi LC et al. Disclosure of HIV status to sex partners and sexual risk behaviours among HIV-positive men and women, Cape Town, South Africa. Sexually Transmitted Infections 2007; 83: 29-34.
- Sullivan KM. Male self-disclosure of HIV positive serostatus to sex partners: a review of the literature. J Assoc Nurses AIDS Care 2005; 16: 33-65.
- Sturdevant MS, Belzer M, Weissman G, Friedman LB, Sarr M, Muenz LR et al. Relationship of unsafe sexual behaviour and the characteristics of sexual partners of HIV infected and HIV uninfected adolescent females. Journal of Adolescent Health 2001; 29 (3 Suppl.): 64-71.
- De Rosa CJ, Marks G. Preventive counselling of HIV-positive men and self-disclosure of serostatus to sex partners: new opportunities for prevention. Health Psychology 1998; 17 (3): 224-31.
- Hyde J, Appleby PR, Weiss G, Bailey J, Morgan X. Group-level interventions for persons living with HIV: a catalyst for individual change. AIDS Education and Prevention 2005; 17 (Suppl. A): 53- 65.
- Smith RC. The biopsychosocial revolution. Interviewing and provider-patient relationships becoming key issues for primary care. Gen Intern Med 2002; 17 (4): 309-10.
- Carr RL, Gramling LF. Stigma: a health barrier for women with HIV/AIDS. Journal of the Association of Nurses in AIDS Care 2004; 15 (5): 30-9.
- Derlega V, Winstead B, Greene K, Serovich J, Elwood WN. Perceived HIV-related stigma and HIV disclosure to relationship partners after finding out about the seropositive diagnosis. Journal of Health Psychology 2002; 7 (4): 415-32.
- Knight KR, Purcell D, Dawson-Rose C, Halkitis PN, Gomez CA, Team SUIS. Sexual risk taking among HIV-positive injection drug users: contexts, characteristics, and implications for prevention. AIDS Education and Prevention 2005; 17 (Suppl. A): 76-88.
- Simoni JM, Demas P, Mason HR, Drossman JA, Davis ML. HIV disclosure among women of African descent: associations with coping, social support, and psychological adaptation. AIDS and Behavior 2000; 4 (2).
- Boileau C et al. Sexual and marital trajectories and HIV infection among ever-married women in rural Malawi. Sex Transm Infect 2009; 85 (Suppl_1): i27-i33.
- Tangmunkongvorakul A, Celentano DD, Burke JG, de Boer MA, Wongpan P, Suriyanon V. Factors influencing marital stability among HIV discordant couples in northern Thailand. AIDS Care 1999; 11 (5): 511-24.
- Amanyire MB. Discordant couples! A silent high-risk group in HIV transmission, a case of Uganda. Int Conf AIDS 1998; 12: 374 (abstract no. 23165). Available at: http://gateway.nlm.nih.gov/MeetingAbstracts/ma?f=102228795 .html.
- Hogben M et al. The effectiveness of HIV partner counselling and referral services in increasing identification of HIV-positive individuals: a systematic review. American Journal of Preventive Medicine 2007; 33 (2): S89-S100.
- Mathews C et al. Strategies for partner notification for sexually transmitted diseases (review). Cochrane Database Syst Rev 2001; 4: CD002843.
- HIV Partner Counselling and Referral Services. Cited October 12, 2009. Available from: http://www.cdc.gov/hiv/topics/prev_prog/AHP/resources/guidel ines/Interim_partnercounsel.htm.
- Macke BA, Maher JE. Partner notification in the United States: an evidence-based review. Am J Prev Med 1999; 17: 230-42.
- Oxman AD, Scott EA, Sellors JW et al. Partner notification for sexually transmitted diseases: an overview of the evidence. Can J Public Health 1994; 85 (Suppl. 1): S41-7 (abstract).
- West GR, Stark KA. Partner notification for HIV prevention: a critical reexamination. AIDS Education Prevention: official publication of the International Society for AIDS education 1997; 9 (3, Suppl.): 68-78.
- Farber NJ et al. The good news about giving bad news to patients. J Gen Intern Med 2002; 17 (12): 914-22.
- Walsh RA, Girgis A, Sanson-Fisher RW. Breaking bad news. 2: what evidence is available to guide clinicians? Behav Med 1998; 24: 61-72.
- Quinn TC, Wawer MJ, Sewankambo N et al. Viral load and heterosexual transmission of human immunodeficiency virus type 1. N Engl J Med 2000; 342: 921-9.
- Vernazza PL, Troiani L, Flepp MJ et al. Potent antiretroviral treatment of HIV infection results in suppression of the seminal shedding of HIV. AIDS 2000; 14: 117-21.
- Garnett GP, Gazzard B. Risk of HIV transmission in discordant couples. Lancet 2008; 372 (9635): 270-1.
- Bunnell RE et al. Living with discordance: knowledge, challenges, and prevention strategies of HIV-discordant couples in Uganda. AIDS Care 2005; 17 (8): 999-1012.
- Allen S et al. Sexual behavior of HIV discordant couples after HIV counselling and testing. AIDS 2003; 17 (5): 733-40.
- Sullivan PS, Kilmarx PH, Peterman TA et al. Male circumcision for prevention of HIV transmission: what the new data mean for HIV prevention in the US. PLoS Med 2007; 4 (7): e223.
- Notifiable Diseases Sub-Committee of the Scientific Advisory Committee, National Disease Surveillance Centre. Review of Notifiable Diseases and the Process of Notification. Cited October 13, 2009. Available from: http://www.hpsc.ie/hpsc/NotifiableDiseases/NotificationLegislati onandProcess/ReviewofNotifiableDiseasesandtheProcessofNotific ation/File,3550,en.pdf.
- List of Notifiable Diseases. Cited October 13, 2009. Available from: http://www.hpa.org.uk/HPA /Topics/InfectiousDiseases/InfectionsAZ/1234432664900/.
- Summary of Notifiable Diseases â€“ United States, 2006. Cited October 12, 2009. Available from: http://www.cdc.gov/mmwr/ preview/mmwrhtml/mm5553a1.htm.
- Health Protection Surveillance Centre. HIV and AIDS in Ireland. Cited October 12, 2009. Available from: http://www.hpsc.ie/hpsc/A-Z/HepatitisHIVAIDSandSTIs/HIVand AIDS/SurveillanceReports/File,3276,en.pdf.