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AIDS and
Confidentiality
Contact Tracing and "Duty to inform"
http://students.washington.edu/aed/archivemidget/980303.htm
The scenario that immediately comes to in a discussion of
AIDS and confidentiality is that of an individual with HIV who
refuses to tell his/her partners. The debate about how to handle
such a situation has several sources. One approach stems from
the existing STD control policies, called contact tracing, and
the other from a psychotherapy court decision, which gave rise
to the "duty to warn" premise.
Contact tracing in the context of STDs before HIV relied on
the patient's cooperation and this cooperation was secured by
the fact that the anonymity of the index patient (that is, the
patient who is to serve as the reference point for all contact
traces - the one in the doctorís office) would be preserved. The
people being notified would then be able to begin treatment. In
the initial stages of the AIDS epidemic, several facts about HIV
led to the opposition of contact tracing; namely, the fact that
it was untreatable in the early stages (and ultimately
incurable) and the fact that it was initially spread most
commonly by homosexual contact. Thus the battle began between
invasion of privacy vs. potential benefit. Although the benefit
to society was significant in that contact tracing had the
potential to help curb the spread of the disease, the
individuals themselves became threatened by the fact that they
were then labeled as homosexual/bisexual and therefore faced
potential discrimination. (Through the mid 1980Õs, sodomy was a
crime in 24 states; the Supreme Court upheld Bowers v Hartwick,
effectively making anti-sodomy laws enforceable by the states.)
Opponents of contact tracing advocated general education as the
more effective and efficient (less resource intensive) and less
invasive mode of influencing behavioral change. By the late
1980's, however, the objections to the invasion of privacy were
assuaged. The new debate now focused on the confidentiality of
the index patient, especially in the context of noncompliance.
Whereas the contact tracing policy arose from the public
health sector, the 'duty to warn' came from the clinical side of
health care. This debate eventually began to center on
confidentiality, but it had its roots in a much different forum.
In the case Tarasoff v Regents of California in 1974, the court
ruled that Tarasoff, a psychotherapist, was obligated to take
steps to protect the former girlfriend of one of his patients
when he learned that his patient was planning on murdering her.
This is the conception of the duty to warn or protect. The idea
that an innocent third party who is at risk for serious harm
should be protected at the expense of an individualís
confidentiality was not at issue so much as whether or not the
threat of the breach of confidentiality would prevent patients
from seeking treatment. "Would the recognition of a legal duty
to warn or protect so subvert the trust necessary to the
therapeutic relationship that patients with violent fantasies
would be constrained from talking about them with their
therapists? Would the reduction in candor ultimately harm the
public good by limiting the capacity of therapists to help their
patients control their dangerous behaviors?"4
Case #1:
Mr. Smith goes to Dr. Berger
for a routine checkup. During the visit Dr. Berger notices
symptoms that are most likely linked with AIDS. When questioned
as to his risk factors concerning the disease, Mr. Smith replies
that he currently has several homosexual partners. Dr. Berger
recommends that Mr. Smith get an HIV test but Mr. Smith refuses.
Furthermore, Mr. Smith refuses to tell his wife that he may have
AIDS and continues to have intercourse with her and with his
extramarital partners. He does consent to use a condom with her,
however. What should Dr. Berger do? Try to articulate
specifically the trade off that exists in such a situation.
2
Commentary
According to Bayer and Toomey, the above dilemma is
particularly difficult because the spouse is in the position of
complete ignorance of the risk. "Other physicians extended their
concern to those who might have reason to know but might
nevertheless be ignorant of the risk to which they have been
exposed, for example the gay male partner in a long-standing,
apparently monogamous relationship. The choices to be made would
be all the more difficult given the extraordinary efforts that
had been made to protect the confidentiality and rights of those
infected with HIV."4
They posit that the clearest moral argument on this matter
was made by Grant Gillett:
In asking that his affairs be
concealed from others, a person is demanding either the right to
preserve himself from the horrors that might befall him if the
facts about his life were generally known or that his
sensitivity as an individual be respected and protected. On
either count it is inconsistent for him to claim some moral
justification for that demand when it is made solely with the
aim of allowing him to inflict comparable disregard or harm upon
another.
In a slightly different stance, Benjamin Freedman, the author
of the article from which this situation was taken, states that
the morality of this situation is also contingent upon the
marriage conditions that existed between the couple. Freedman
states that if the relationship was an "open" marriage, then the
risks assumed by the wife are greater2 (and perhaps
the husbandís plea for confidentiality more valid). This second
case, where the marriage is overtly not monogamous, is probably
closer to the case of the gay couple mentioned by Bayer and
Toomey. 4
Case #2:
"Consider ... the case of a woman who has been raped. She
insists that the rapist, following his (ex hypothesi,
near-instant) conviction, be tested for HIV antibodies; and;
that she be told the results. One might reasonably ask why she
does not instead herself have a blood test and rest satisfied
with that. If the odds of infection from a single episode of
intercourse are low, and her concern is her own HIV status, that
seems logical. But she responds that a meaningful antibody test
cannot be performed on her for at least another 90 days, the
earliest point at which the ëwindow periodí, of infection
without antibody formation, might be presumed over. She adds
that the violent circumstances of a rape enhance the risks of
viral transmission above those of ordinary sexual intercourse.
She does not want to endure coming months of total uncertainty.
Does she have the right to have this demand respected?"
Commentary
Freedman draws parallels between the two above cases, saying
that in the both cases, the women were exposed to the risk of
contracting HIV, but whereas the woman in the second case was
aware of the possible risk, Ms. Smith was unaware of the risk.
Going back to the Smiths, then, "when he exposes her to a risk
of sexual transmission, has he performed an act of aggression,
entitling her to restitution - with his physicianís disclosure
then vindicating her right?"2
If the possibility of a physician being morally justified in
violating patient confidentiality exists, should the decision be
mandated one way or another by law, or should this decision be
left to the discretion of the physician? How should a physician
go about informing a person at risk?
Below is the reaction of various medical associations in
regard to this controversy:
"Although the American College of Obstetrics and Gynecology
maintained in a set of ethical guidelines that the wishes of the
patient took precedence over any other concern, even in the case
of STDs, the American Psychiatric Association, the American
Academy of Family Physicians, and the American Medical
Association have all supported the warning of unsuspecting
partners by physicians as a matter of professional ethics."
4
The AMA recommends that the physician should enlist the
assistance of local public health departments to undertake the
necessary warning instead of becoming directly involved in the
notification of someone who is not their patient. James E.
Davis, the president of the AMA in 1988 when this policy was put
forth said:
This is a landmark in the history of medical ethics. We are
saying for the first time that, because of the danger to the
public health and the danger to unknowing partners who may be
contaminated with this lethal disease, the physician may be
required to violate patient confidentiality.... The physician
has a responsibility to inform the spouse. This is more than an
option. This is a professional responsibility. 4
Public heath officials eventually ended up settling on a
compromise between mandated notification of risk and elective
notification, which they termed "privilege to disclose." The
doctrine was designed to free "physicians from liability for
either breaching confidentiality or not warning those who were
at risk." 4 Out of the 21 states that adopted
regulations regarding this particular breach of confidentiality
between 1987 and 1989, only two opted for mandatory
notification. New Yorkís 1988 law allows disclosure only when
all of the following conditions are met:
(1) the physician reasonably believes that notification is
medically appropriate and that there is a significant risk of
infection; (2) the patient has been counseled regarding the need
to notify partners; (3) the physician has reason to believe that
the patient will not notify partners; and (4) the patient has
been informed of the physicianís intent to notify partners and
has been given the opportunity to express a preference as to
whether the partners should be notified by the physician
directly or by a public health officer. 4
In contrast, California, Florida, Wisconsin and the District
of Columbia all have confidentiality laws that prevent the
doctor from ever disclosing HIV blood tests to a third party
without the consent of the patient. 6
Is the identification of the index patient necessary in order
for the notification to serve its protective function?
What are the exact circumstances that a moral justification
exists for the violation of confidentiality?
Case #3:
"JM, a 32-year-old bisexual man, was diagnosed as having AIDS
after he developed Pneumosystis carinii pneumonia. His wife was
aware of, and accepting of, his bisexuality. He told his parents
of the diagnosis, but said that he had acquired the infection
from a tattoo. He asked his doctor to corroborate his statement,
should his doctor ever speak to his parents."1
Is confidentiality even an issue in this case? Pretend that
this is a very small community. What are the other options for
the physician?
Letís turn the tables a bit. What are the patientís rights
when the doctor has HIV?
Case #4:
The following is not really a case study. It is a summary of
the original court case on the subject of doctors with AIDS.
Dr. John Doe, a neurologist at Cook County Hospital, Chicago,
was diagnosed with AIDS in late 1986. After returning from
medical leave, he voluntarily informed the chairman of his
division about his diagnosis. The division chairman allowed Dr.
Doe to continue clinical practice, but the hospitalís medical
director and the County Board of Commissioners who oversee the
public hospital voted to remove Dr. Doe from all patient care
activities. The hospitalís executive medical staff restored Dr.
Doeís clinical privileges, and this decision was reaffirmed by a
joint committee convened to evaluate this case. The joint
committee concluded that no restrictions on Dr. Doeís practice
were necessary. Despite this recommendation, the County Board of
Commissioners again voted to bar Dr. Doe from all forms of
clinical practice.
The County Board of Commissioners passed a resolution to
restrict Dr. Doe to teaching, research, and administrative
activities, although he was allowed to continue clinical care
pending the report of a special hearing committee appointed by
the board to decide the case. The hearing committee found that
to prohibit patient contact would be "Unreasonable," But
nonetheless they agreed to allow the medical director to define
the limits of Dr. Doeís direct patient care activities by
excluding certain "invasive" procedures. The medical director
ordered Dr. Doe not to perform arterial blood sampling, lumbar
punctures, electromyograms, and oral, anal, and vaginal physical
examinations.
Dr. Doe claimed that the medical directorís restrictions
effectively prevented him from providing comprehensive and
complete care to his patients. To continue his clinical
practice, Dr. Doe sued the medical director and the county board
in Federal District Court. Dr. Doe alleged that the defendantsí
conduct discriminated against a handicapped person in violation
of section 504 of the Rehabilitation Act and also that the
restrictions on his practice violated his constitutional right
to equal protection under the law. He also claimed that the
doctrine of informed consent did not require him (or the
hospital) to disclose negligible risks to his patients and that
the medical directorís notion of invasive procedures was
contrary to CDC guidelines.
The suit was settled in February 1988 by a consent decree that
allowed Dr. Doe to continue his clinical practice in compliance
with applicable CDC guidelines. The parties agreed with the
current consensus of scientific opinion that there is no
significant risk of HIB transmission to Dr. Doeís patients. Dr.
Doe agreed to have his practice monitored and to undergo regular
medical follow-up. If he posed a significant health or safety
risk to himself or others, Dr. Doe agreed to limit or modify his
clinical duties. No ruling was stipulated as to the
applicability of the Rehabilitation Act or the equal protection
clause of the Fourteenth Amendment.
Discussion
This is the first case settled in federal court in which an
HIV-infected physician sued his employer for discrimination. The
significance of this case is limited as a matter of law and
precedent because it was settled by a consent decree rather than
by a judicial finding. Nevertheless, its analysis clarifies the
ethical debate about what restrictions, if any, should be
imposed on the HIV-infected physician. 3
"Does Dr. Doe pose a risk?"
"Should Dr. Doe disclose his HIV status to his patients?"
"What are the obligations of a public hospital?" 3
Further Legal Cases:
JAOA Editorial Comments
Patientsí right to know if their physician has the acquired
immunodeficiency disease (AIDS) outweighs the physicianís right
to privacy, ruled a New Jersey Superior Court.
ëThe ultimate risk to the patient is so absolute, so
devastating, that it is untenable to argue against informed
consent, combined with a restriction on procedures which present
any risk to the patient,í said Superior Court Justice Philip S.
Carchman in his decision.
ëAt a minimum, the physician must withdraw from performing
any invasive procedure which would pose a risk to the patient.í
This ruling is the first time patientsí right to know was
pitted against HIV-infected healthcare workersí right to
privacy.
Plastic surgeon William Behringer, MD, filed a discrimination
lawsuit against The Medical Center at Princeton, saying his
suspension violated a New Jersey law that prohibits
discrimination against AIDS-infected persons. The hospital had
suspended Dr. Behringer after he tested positive for the human
immunodeficiency virus in 1987.
Dr. Behringer died in 1989 and his estate continued the
lawsuit..
In his decision, Justice Carchman upheld the hospitalís right
to suspend Dr. Behringer. However, he said that the hospital
violated Dr. Behringerís right to confidentiality when the
institution failed to keep private the information about Dr.
Behringerís illness. Justice Carchman also noted that Dr.
Behringer lost approximately $600,000 from his practice during
the 2 years after the public disclosure of his illness.
ëAIDS is such an emotional subject that right-to-know is
given disproportionate significance,í says Roger Bernstein, an
attorney for Dr. Behringerís estate.
Damages were expected to be awarded at a later date, reports
the April 26 issue of the Chicago Sun-Times. 5
Articles Cited
1.
Dunbar, Scott and Susan Rehm. "On visibility: AIDS, deception by
patients, and the responsibility of the doctor." Journal of
Medical Ethics. Dec. 1992, p. 180-185.
2.
Benjamin Freedman. "Violating Confidentiality." Theoretical
Medicine, Dec. 1991, p. 309-323.
3.
Gramelspracher, Gregory P., Steven H. Miles and Christine K.
Cassel. "When the Doctor Has AIDS." The Journal of Infectious
Diseases. Aug. 1990, p. 534-537.
4.
Bayer, Ronald, and Kathleen E. Toomey. "HIV Prevention and the
Two Faces of Partner Notification." American Journal of
Public Health. Aug 1992, p. 1158-1164.
5.
"Editorial Comments." Journal of the American Osteopathic
Association, June 1991, p. 526.
6.
Matthews, Neslund. "The initial Impact of AIDS on Public Health
Law in the United States ñ 1986." JAMA. 1987 257(3):
344-352.
Other Articles
Obade, Claire C. "Whisper Down the Lane: AIDS, Privacy, and the
Hospital ëGrapevine.í" The Journal of Clinical Ethics.
Summer 1991, p. 133-137
Dickens, Bernard M. "Legal Limits of AIDS Confidentiality."
JAMA. 17 June 1988, p. 3449-3452.
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