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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”


AIDS and Confidentiality

Contact Tracing and "Duty to inform"

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


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?"


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.


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.