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HIV and the Law of Confidentiality

Published 1995: Wits Law School Magazine, South Africa

The AIDS (acquired immunodeficiency syndrome) epidemic is a global health problem of extraordinary scale and extreme urgency. It represents an unprecedented challenge to the public health services of virtually every country in the world. In addition to having an incalculable effect on the medical front, AIDS has impacted significantly on jurisprudence.

According to the 1994 World Health Organization report, thirty to forty million men, women and children around the world will be infected with HIV by the year 2000. It is estimated that about 600,000 South Africans were infected with the AIDS virus by the end of 1993 [Star Newspaper - 7/20/1994]. Even more frightening is the opinion that by the turn of the millennium there will be between 600,000 and 1.3 million AIDS orphans in South Africa, many of them with HIV themselves [Weekly Mail and Guardian - 1994].

The unique nature of the AIDS virus has, to a large extent, forced medical and legal institutions to reexamine their existing paradigm of the medical-legal ethics in order to ascertain whether or not these existing bodies of ethics apply equally to the AIDS context. "Informed and rational debate is crucial to the identification of what our responses should be to the AIDS menace, which is scientifically and sociologically effective, ethically and politically coherent, and legally and jurisprudentially defensible" [Justice IA Mohamed, 1993].

Medical confidentially is one of the most crucial ethical considerations in the AIDS setting. Without the promise of confidentiality, it is easy to predict that people, especially those in high-risk groups, will not voluntarily come forward to be tested. The AIDS control effort depends entirely on voluntary participation in programs designed to control the spread of AIDS, therefore confidentiality is essential. In the absence of adequate confidentiality protection, individuals will fear for the invasion of their privacy and the consequent discrimination and stigmatization that this may engender.

Recently, the first-ever AIDS-related judgment was given by the Appellate Division in Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A). Briefly the facts of the case are the following: the plaintiff, McGeary, instituted an action for damages against his general practitioner, Dr Kruger, for divulging the fact that he, McGeary was HIV positive to two other medical practitioners during a friendly game of golf. It was clear from the facts that the two doctors were not involved at all in the provision of care for the plaintiff and that there was no sound reason to suspect that they would do so in the future, The plaintiff's claim was based on the actio injuriarum in that his privacy was invaded and he had been injured in his rights of personality and his rights of privacy.

The judgment came out strongly in favor of upholding confidentiality and the South African Medical and Dental Council's guidelines on the management of patients with HIV or AIDS. The court held that:
"…in the long run, preservation of confidentiality is the only way of securing public health; otherwise doctors will be discredited and future individual patients will not come forward if doctors are going to squeal on them."

Confidentiality is vital to secure public health as well as private health, for unless the infected come forward they cannot be counseled. There are, in the case of HIV and AIDS special circumstances justifying the protection of confidentiality. By the very nature of the disease, it is essential that persons who are at risk should seek medical advice or treatment. Disclosure of the condition has serious personal and social consequences for the patient.

The SAMDC guidelines of disclosure assert that a doctor may only disclose his/her patient's HIV or AIDS status to another healthcare worker or third party after in-depth counseling and after endeavoring to secure the patient's consent for the disclosure. Should the patient still refuse consent, then after informing the patient that he/she is duty bound to make the disclosure, the doctor may breach confidentiality.

The guidelines warn that the "SAMDC would take a very serious view of an act or omission on the part of a medical practitioner which would lead to the unnecessary exposure to HIV infection of another healthcare worker, and would consider disciplinary action against the practitioner concerned." A practitioner who breaches the confidentiality rule however, must be able to justify his/her action.

Mary Crewe, manager of the Community AIDS Center welcomes the McGeary judgment because it affirms the HIV work being done at the present and gives it legal sanction, but it also implies that there is no basis for the claims that protecting the rights and dignity of people with HIV is likely to put the rest of society at risk. Furthermore she says, that it will be hard for doctors or employers to argue that they broke trust because it was in the best interests of society to do so. The judgment should also encourage more people to feel comfortable about being tested.