PIERCING THE VEIL OF SECRECY IN HIV/AIDS AND OTHER SEXUALLY TRANSMITTED DISEASES: THEORIES OF PRIVACY AND DISCLOSURE IN PARTNER NOTIFICATION

LAWRENCE O. GOSTIN^*
JAMES G. HODGE, JR.

Part 1

Section: 1 2 3

http://www.law.duke.edu/

 
I. INTRODUCTION

At least since their appearance in Western Europe in the late fifteenth century,¹ sexually-transmitted diseases (STDs), or "venereal diseases" as they were once called,² have been characterized by a remarkable paradox. Despite their endemic nature in Europe and North America, STDs were, and still are, a "secret malady."³ Persons have endeavored to keep their sexually-transmitted infections hidden from the social world -- from their sexual partners, families, and communities. At the same time, prevailing social mores have kept STDs from [*pg 11] the public consciousness and consequently have prevented STDs from receiving public action and effective intervention.

Secrecy nurtures disease because it provides an environment conducive to the spread of infection. Where the social construction of sexuality and disease condones secrecy, sex partners are unaware of the risks,⁴ and public health authorities cannot track the epidemic in order to positively intervene. Not surprisingly, one of the earliest recorded public health strategies for STD prevention was to pierce the veil of secrecy surrounding these hidden diseases by notifying sexual partners ("contacts") of infected patients ("index" cases).⁵ Sexual "contact tracing" was supported by the moral theory that sexual partners could take precautions and seek medical treatment if the risk of infection was disclosed.⁶ Once the risks of infection were identified, the incidence of STD infection would decline suggestively as infected persons reduced behaviors that placed them at risk for disease.⁷

Sexual contact tracing probably was practiced years before it became a formal means of STD control.⁸ Originating from the reglementation⁹ of European prostitutes, the earliest reference to contact tracing in contagious disease law dates to the mid-nineteenth century in Europe¹⁰ and to the 1930s in the United States.¹¹ Buttressed by federal financial support and a decade of state STD laws, "contact epidemiology" became a central public health strategy in America to combat the syphilis epidemic.¹² The development of a cure for the disease, penicillin,¹³ in the early 1940s led, however, to significant reductions in the incidence [*pg 12] of syphilis. The effectiveness of contact tracing as a public health practice therefore largely remained unknown despite moral support for the concept.

From its widespread use during the 1930s, the notification of sexual partners (with the assistance of public health authorities) remained an accepted part of the law and practice of STD control throughout this century.¹⁴ This concept of tracking sexual contacts would later be called "partner notification." Recently, the concept of partner notification has expanded to formally include a range of services such as counseling and medical treatment, in addition to notification. Consequently, a preferred terminology has evolved -- "partner notification support services" (PNSS).¹⁵

In instances where contact tracing did not traditionally apply, legal reform, driven by moral justifications and based on theories of tort law, imposed duties on certain persons, generally infected persons and health care workers (HCWs), to notify others of the risk of contracting an STD. Often known collectively as the "duty to warn," these judicially-imposed, common law obligations subsequently have been codified by many state legislatures.¹⁶ The affirmative "duty to warn" is comprised of two obligations based on distinct legal foundations: (1) the duty of infected persons to disclose to partners the risk of exposure; and (2) the duty of health care professionals to warn partners of harm resulting from exposure to infected patients.

The social construction of disease, particularly STDs, perceptively changed during the HIV/AIDS epidemic¹⁷ of the 1980s and 1990s. Infected persons (and, to a certain extent, public health authorities) questioned the theories of disclosure and protection that justified partner notification. During the AIDS epidemic, secrecy and individual privacy reemerged as the prevailing social construct of public health, much as it was in the early days of the syphilis epidemic. As Susan Sontag writes, "More than cancer, but rather like syphilis, AIDS seems to foster ominous fantasies about a disease that is a marker of both individual and social vulnerabilities."¹⁸ Within this context, partner notification has been challenged as an acceptable public health practice or legally-imposed duty, at [*pg 13] least as it relates to a disease like HIV/AIDS, which is deeply private, socially stigmatizing, and medically incurable.¹⁹

In truth, partner notification, whether applied to traditional STDs or to HIV/AIDS, is a highly complex concept that cannot be understood without careful consideration of related issues of public health, ethics, economics, and law. Partner notification has deep roots in the historical, legal, and philosophical heritage of America. To public health practitioners, the traditional practice of partner notification, with its widespread, persistent, and systematic use over time, justifies its continued implementation. Why then, it is often asked, does society refrain from fully utilizing one of the most well-established public health interventions in the HIV/AIDS epidemic?²⁰ Under this perspective, failure to pursue aggressively partner notification demonstrates how civil liberties have trumped privacy in HIV/AIDS policy. These arguments, however, assume that partner notification is effective and that syphilis and HIV/AIDS are truly analogous diseases.

Despite the use of partner notification in all of its forms, it has not been systematically examined from legal, ethical, empirical, and economic perspectives. Based on this analytical examination, it is apparent that although partner notification is well-grounded in the legal and moral traditions of America, there exists a scarcity of empirical and economic evidence demonstrating its cost-effectiveness. Consequently, alternative models are needed for STD prevention and control that are both effective and protective of individual liberties and privacy. In particular, a model of "social network analysis" that promises to inform those at risk of HIV through focused counseling and education may be warranted.

Part I explores the various meanings of partner notification within their historical and legal foundations. Because partner notification has been used to describe quite different kinds of intervention, the concept has created policy confusion. Contact tracing, the patient's duty to disclose, and the health care professional's duty to warn are described as a prerequisite to a more detailed ethical, economic, and public health analysis. Part II examines the legal interests involved with partner notification, particularly contact tracing. The governmental interests for contact tracing are discussed by framing the constitutional and statutory justifications for contact tracing from the state and federal perspectives. Arguments concerning an infected individual's constitutional, statutory, and common law interests in privacy are discussed along with anti-discrimination protections for persons infected with STDs -- particularly those infected with HIV. These interests, while important, do not negate the power of government to implement partner notification. Part III broadens the systematic evaluation, exploring partner notification from normative and consequentialist perspectives. One of the powerful reasons to support partner notification may not necessarily be public health effectiveness, but simply an ethical claim that persons should be [*pg 14] informed about sexual risks despite infringements on the autonomy of infected persons. Principles of feminism suggest that women should be informed of demonstrable risks to their health and empowered to protect themselves. Part IV evaluates the accumulated empirical data about the efficacy of partner notification, looking at how successful this intervention has been, under what circumstances it is likely to be most effective, and whether its effectiveness in a particular setting supports its efficacy as a national practice. Partner notification also is evaluated from an economic perspective. The costs of partner notification in comparison with other public health interventions are analyzed, as well as the likelihood that the practice creates incentives or disincentives for avoidance of risk behavior, promotion of healthy behavior, and access to treatment. Finally, Part V proposes alternative models for partner notification. In conclusion, a "social network analysis" is supported as part of a comprehensive prevention strategy for STDs and HIV/AIDS. This alternative approach can achieve public health objectives with less intrusion on personal liberty and privacy.
II. THE THREE MEANINGS OF PARTNER NOTIFICATION: FROM CONTACT TRACING TO THE DUTIES TO DISCLOSE AND WARN

Partner notification is a highly complex concept. While often simplified to denote the notification of persons who are at risk of becoming infected with a disease, partner notification has at least three distinct, if at times overlapping, meanings: (1) contact tracing; (2) the duty of infected persons to disclose their infection to a sexual partner; and (3) the duty of health care providers to warn of sexual and other risks to the partners of their infected patients.

Contact tracing, whose origins can be traced to the reglementation of prostitutes in sixteenth century Europe, is characteristically a governmental responsibility undertaken by public health authorities. The health department typically interviews an infected patient, called the "index case," who voluntarily discloses the names and locations of past and present sexual partners. These contacts are then located -- traced -- when possible to notify them of their potential exposure to infection. The partner is not informed of the name of the index case by health authorities in an attempt to preserve the confidentiality of the index case. Medical treatment and personal counseling often are offered to contacts at the time of notification. For those persons who are infected, the process is regenerated to determine additional contacts. The principal objective of contact tracing is to reduce disease transmission by locating and containing the spread of a given STD within a certain population.²¹ It seeks to break the chain of transmission by identifying sources through which others in a given population have become infected. In addition, it should stem the tide of new infections by medically intervening to treat the disease and by counseling those infected with STDs to reduce the risk of transmission by disclosing their infection to partners and engaging in "protected" sexual activity (e.g., using a condom).

The second meaning of partner notification, what we term "the duty to disclose," is derived from the legal doctrine of the "right to know." This "right to know" developed from the social hygiene movement of the early 1900s [*pg 15] and likely was influenced by women's organizations and early principles of feminism. It developed under tort law that held that a person has a duty of care toward his sexual partner. This duty may entail an obligation to disclose an STD to a sexual partner or to reasonably protect the partner from avoidable health risks. In some instances, a health department or physician may ask a patient to disclose the STD to his partner, a concept often referred to as "patient referral" since the patient makes the disclosure.

The third meaning of partner notification is derived from a related legal doctrine known as a "duty to warn." Through conversations with an infected patient, a physician may conclude that certain persons are at risk of contracting the disease. Under the "duty to warn," physicians treating a patient for a sexually transmitted disease have a duty to inform fully foreseeable third parties of their exposure to the infection, regardless of whether the patient consented to such notification or the patient's identity was protected.²² This practice is sometimes known as "provider referral," as the health care professional (or public health counselor in contact tracing programs) makes the disclosure.

Similar to theories of tort law later enacted in statutory law, the duty to disclose and the duty to warn have as their principal objective the protection of unaware individuals from exposure to disease by others who know of their infectious conditions and are in control of their actions. The judicial imposition of these duties may have had the unintended result of decreasing the transmission of infectious disease among certain populations. The imposition of these duties thus shared a primary goal with contact tracing: the reduction of infectious disease transmission in society. In this Part, the broad concept of partner notification is developed further by examining the theories underlying these three meanings of partner notification.

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A. Contact Tracing

1. An Historical Perspective

a) Development of Contact Tracing with a Focus on Syphilis. The historical origins of contact tracing date back to the syphilis epidemic beginning at the turn of the sixteenth century in Europe.²³ The appearance of syphilis in Europe has been attributed to the transport of the disease from the New World by the crew of Christopher Columbus after his 1492 expedition, although this attribution has never been confirmed.²⁴ The disease was spread quickly by the dispersion of the multinational mercenary army of the French ruler, Charles VIII, after they suffered an outbreak of what the English called "the Great Pox"²⁵ during the siege of Naples in the Italian Campaign of 1495.²⁶ Syphilis surfaced in Germany, France, and Switzerland in 1495, in Holland and Greece in 1496, in the British Isles in 1497, and in Russia in 1499.²⁷

By 1530, syphilis²⁸ was recognized as a sexually transmitted disease that could be controlled by regulating the sources of infection.²⁹ Early regulations focused on methods developed to control other epidemic diseases such as leprosy and the plague. Syphilitics were banished from the community;³⁰ other communities quarantined those infected in special hospitals created to house and treat [*pg 17] them,³¹ or simply prohibited them from entering public places or from associating with certain persons.³²

i) Reglementation. People saw prostitution as a "reservoir" of venereal diseases such as syphilis. Since prostitution was practiced widely in most of Europe at the inception of the syphilis epidemic, governments subsequently focused regulations on prostitutes in an attempt to thwart a known avenue of disease transmission.³³ Prostitutes were expelled from Bologna, Ferrara, and other cities beginning in 1496.³⁴ A proclamation of the town council of Aberdeen, Scotland in April 1497 ordered that in "protection from the disease which had come out of France and strange parts, all light women desist from their vice and sin of venery and work for their support . . . [or risk] . . . being branded with a hot iron on their cheek and banished."³⁵

Attempts to control syphilis in Europe also involved the medical inspection of prostitutes through regulations that came to be known as reglementation.³⁶ Although early medical treatment for syphilis was highly toxic and therefore largely ineffective,³⁷ reglementation was emphasized as a way to control the spread of the disease through the medical inspection and certification of prostitutes. It was implemented in conjunction with efforts to abolish prostitution completely.³⁸ While efforts to curb prostitution essentially failed, reglementation [*pg 18] was practiced until the nineteenth century in Europe.³⁹ Criticism of government-supported medical inspections of prostitutes, however, was prevalent. Many viewed the government-funded inspections as the countenance of prostitution.⁴⁰ Others questioned the validity of medical findings derived from the inspection process.⁴¹ Although the efficacy of condoms in blocking the transmission of STDs like syphilis was accepted medically, few physicians accepted their use due to opposition from religious and nationalist groups concerned about the concurrent prevention of pregnancy.⁴²

In the United States, the St. Louis Experiment of 1870-1874 established a government-sponsored program requiring the inspection of prostitutes.⁴³ The St. Louis City Council passed the "Social Evil Ordinance" on July 5, 1870, appointing six physicians to inspect all registered public women of the city. Prostitutes afflicted with venereal disease were committed to a special "Social Evil Hospital" until they were certified as cured. Despite the claim of the City Health Officer, William Barrett, that the program had "lessened disease, suffering, and death and reclaimed fallen women,"⁴⁴ the Missouri state legislature nullified it in 1874.⁴⁵ In Illinois, the Board of Health had the authority to hospitalize any [*pg 19] woman suspected of being infected with syphilis and to place placards on her home stating "suspected VD."⁴⁶

Private industries also practiced reglementation. In 1899, the Minnesota Iron Company undertook reglementation in conjunction with their mining operations in the northern part of the state.⁴⁷ A system of thorough and regular examinations was performed among prostitutes working in parlors located on company property. Infected women were treated and forbidden to solicit patrons. Male clients suspected of being infected with an STD were advised to consult a physician and were expelled from the house of prostitution until their STD status was ascertained. When suspected males consulted physicians, the men were questioned about the house where they had contracted their disease. They were asked to provide the names of the women who may have infected them. This crude form of contact tracing resulted in a complaint brought against company parlors and the medical examination of suspected women.⁴⁸

ii) The Progressive Era. At the turn of the twentieth century, societal and medical changes influenced the development of contact tracing. This was the Progressive Era, an age of social reform in which health care professionals and progressive social reformers described venereal disease as a destroyer of the family unit and a social evil.⁴⁹ Three medical breakthroughs were crucial: (1) syphilis and gonorrhea were shown to be caused by infectious organisms transmitted through sexual contact; (2) a reliable diagnostic test for the diseases was developed by Dr. Adolph von Wassermann in 1907; and (3) a medication, Salvarsan, was identified as an effective, although still toxic, treatment for syphilis.⁵⁰

In the United States, dissidents challenged the traditional view of venereal disease as a "medical secret" between the patient and his physician. With enhanced knowledge of the cause and transmission of STDs like syphilis and gonorrhea, "innocent" victims (generally married women) of venereal disease became vocal. Patient confidentiality, primarily among male patients, was considered secondary to the perceived ethical obligation⁵¹ to warn unsuspecting [*pg 20] spouses or fiancées about an infected partner.⁵² Although the belief remained that "[p]rostitution is responsible to the greatest extent for the dissemination of venereal diseases,"⁵³ the concept of contact tracing, which arose from reglementation, was generating more interest, largely due to the perceived injustices suffered by sex partners who were unaware of their risk.⁵⁴

With the return of the United States troops after World War I and the relative failure of the military to stymie STDs among soldiers,⁵⁵ however, federal funding to combat venereal disease decreased significantly. Despite the lobbying efforts of numerous women's groups, by 1921 Congress had discontinued appropriations to the Interdepartmental Social Hygiene Board, which had been created three years earlier for the purpose of protecting troops from venereal disease.⁵⁶ The fiscal ravages of the Great Depression further decreased funding for combating venereal disease. As incidence rates of syphilis infections rose, many social hygienists blamed the increased prevalence on the relaxed sexual morality of the 1920s, not on a pattern of decreased public health funding.⁵⁷ Whether due to changes in sexual morality and behavior or a decrease in public health funding, the syphilis epidemic in the United States had worsened.⁵⁸

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iii) The Influence of Thomas Parran, Surgeon General. By 1936, the New Deal was in full swing. In the spring of that year, President Franklin Delano Roosevelt appointed Thomas Parran as Surgeon General.⁵⁹ With a background in preventive medicine and epidemiology, Parran had as a primary public health goal the control and eradication of the syphilis epidemic. He advocated the reporting of STD infections to state health authorities, notification of the partners of infected persons, compulsory treatment, and isolation of sources of infection when necessary.⁶⁰ Recognizing that a major barrier to the identification and treatment of syphilitics had been the moralization of the disease, Parran explained the disease in terms of costs to the public. It was estimated that fifteen million dollars was spent annually on the ambulatory care of venereal patients, and three times that amount was spent on individuals institutionalized due to insanity, blindness, or paralysis from syphilis.⁶¹ After securing substantial federal funding,⁶² Parran further educated the public about the syphilis threat,⁶³ organized mass screening programs for testing,⁶⁴ and began a national contact tracing program. His five-point program for controlling syphilis consisted of case finding,⁶⁵ prompt therapy at no cost to the patient, contact [*pg 22] tracing and notification, premarital testing⁶⁶ and prenatal testing for congenital syphilis,⁶⁷ and public education.

Studies of the period sought to demonstrate that contact tracing was an important part of syphilis control programs when properly executed.⁶⁸ Two doctors, Dudley C. Smith and William A. Brumfeld, described the essential qualities of a contact tracing program: (1) public health interviewers should emphasize the medical aspects of the disease rather than its moral implications; (2) confidentiality should be stressed throughout; (3) after the names of sex partners and close associates are elicited from the patient, the patient should be encouraged to notify the contacts; (4) public health departments should send a letter advising each contact to seek medical examination; and (5) legal measures to compel compliance should only be used as a last resort.⁶⁹

Parran's efforts in relation to the syphilis epidemic marked the first time in the United States that formal case finding and contact tracing were applied to a sexually transmitted disease on a national scale.⁷⁰ Before the role of contact tracing in reducing infection rates could be explored effectively, the use of penicillin as a potential curative treatment for syphilis had been developed in 1943⁷¹ and, by the end of World War II, it was available to treat the disease.⁷² The advent of penicillin had a remarkable effect on the treatment of syphilis. The inci- [*pg 23] dence of syphilis infections⁷³ and death rates⁷⁴ dropped significantly over time. Syphilis, one of the greatest epidemics in history, finally had been brought under control due in part to an aggressive public health campaign, including contact tracing, and in part to the timely availability of penicillin treatment.⁷⁵ Currently, new cases of syphilis in the United States have fallen to a forty-year low.⁷⁶ Although prevalence rates remain unacceptably high in the southeast and among African-Americans,⁷⁷ the Centers for Disease Control and Prevention (CDC) of the U.S. Department of Health and Human Services is hopeful that transmission of the disease can be eliminated in the United States in the near future.⁷⁸

b) Development of Contact Tracing with a Focus on HIV/AIDS. Of course, syphilis would not be the last STD epidemic of the century. In June 1981, the CDC's Morbidity and Mortality Weekly Report documented an unusual pneumonia in five homosexual men from Los Angeles.⁷⁹ Later identified as the human immunodeficiency virus (HIV), the HIV/AIDS epidemic has presented new challenges for public health officials.⁸⁰ It also has presented chal- [*pg 24] lenges similar to those of earlier STDs like syphilis.⁸¹ One obvious similarity between the modern AIDS epidemic and the syphilis epidemic of the twentieth century is the societal response to the two diseases. Fear and stigmatization of those infected initially prevailed during both epidemics.⁸² The societal response to homosexuals, prostitutes, and injection drug users (IDUs) infected with HIV strangely is similar to the treatment of sex syphilitics and prostitutes during the syphilis epidemic. In contrast, the response to children, hemophiliacs, and heterosexually-infected persons with HIV is significantly more tolerant, like society's response to "innocently" infected wives, mothers, and children with syphilis a century earlier.⁸³

Regardless of the similarities between the syphilis and HIV epidemics, medical evidence also has shown that they are intertwined. Common STDs like syphilis, gonorrhea, chlamydia, and genital herpes are known to increase the risk of HIV infection.⁸⁴ The association between STD infection and HIV may be due as much to risky behaviors, including drug use,⁸⁵ of persons likely to become infected with multiple STDs, in addition to the immune suppressed state of those infected with common STDs.⁸⁶ It only can be guessed as to the course of HIV policy had these findings been known earlier. Almost from the inception of the HIV/AIDS epidemic, issues of patient confidentiality and funding⁸⁷ in the context of contact tracing reemerged. "HIV exceptionalism,"⁸⁸ suggesting that public health activities for HIV were markedly less aggressive than for other STDs, became hotly debated.

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The public health response to AIDS focused on individual responsibility.⁸⁹ The use of contact tracing enraged gay rights organizations,⁹⁰ civil rights groups,⁹¹ and even some public health officials.⁹² Although some states tried to establish mandatory partner notification programs,⁹³ most programs and state educational initiatives centered on individuals protecting themselves from infection.⁹⁴ Public health officials struck a balance between maintaining patient confidentiality and ensuring that known parties were informed of possible exposure to HIV.⁹⁵ As a result, officials attempting to control the epidemic emphasized the personal obligation of the infected to notify their past and future partners.⁹⁶

2. The Contemporary Practice of Contact Tracing. Contact tracing is primarily the responsibility of state health departments. Differing needs of individual communities render contact tracing suitable to [*pg 26] state and local control.⁹⁷ While no federal system of partner notification exists, the CDC, as part of the Department of Health and Human Services, provides funding to state and local health departments to perform a variety of testing, screening, and partner notification services related to the HIV epidemic.⁹⁸ As a condition of funding eligibility, state health departments are required to implement partner notification programs according to CDC guidelines.⁹⁹ Under this system, "standards, procedures, and practices vary widely from state to state."¹⁰⁰ Recently, the CDC proposed new parameters for partner notification, or what it calls "partner notification support services" (PNSS).¹⁰¹ These proposals would require federally-funded contact tracing programs to provide a comprehensive set of supplemental services, including testing, medical treatment, and counseling, in addition to notification assistance.¹⁰²

While states, therefore, are not federally mandated to provide partner notification services,¹⁰³ states that choose to accept federal funding for such programs must adhere to CDC guidelines regarding partner notification. In this way, the CDC guidelines establish national criteria controlling the operation of federally-funded contact tracing programs operated by state and local governments. The guidelines allow public health authorities to practice two primary models of partner notification -- patient referral and provider referral. An additional model known as conditional referral is a hybrid combination of the two,¹⁰⁴ which often prevails in modern practice.

With patient referral, index patients, who are identified through testing at public health clinics, physician referrals, or through contacts of other infected persons, are asked to contact their sex partners and IDUs with whom they have [*pg 27] shared syringes and needles.¹⁰⁵ A public health official assists the index patient by providing counseling, education, contact cards, and telephone or mail reminders to the patient.¹⁰⁶ Patient referral programs provide no assurance that contacts are actually notified, little control over the quality of the information actually conveyed, and no confidentiality protection for the identity of the index patient.¹⁰⁷

Provider referral programs switch the responsibility for notification to trained public health personnel who locate contacts based on names, descriptions, and addresses provided by index patients.¹⁰⁸ Information regarding their exposure, possible infection, and treatment is provided to partners in a counseled environment, preferably during a face-to-face meeting between the contact and a public health professional.¹⁰⁹ The confidentiality of the index patient is protected by declining to reveal the patient's name to contacts,¹¹⁰ although in many instances, contacts are aware of the source of their exposure through their own deduction or other means.¹¹¹ Provider referral programs are more expensive to administer than patient referral programs because of a significant outlay of state personnel and resources. The confidentiality of index patients, however, is protected better through such programs, as is the quality of the information conveyed to contacts. In addition, there exists a greater potential that contacts will be informed.¹¹²

Conditional referral occurs when public health personnel obtain the names and other information about the index patient's contacts, but allow the patient a period of time to notify them directly.¹¹³ If the contacts are not informed within the designated time period, a public health worker informs them of their exposure without revealing the index patient's identity.¹¹⁴ As a hybrid model, conditional referral programs share many of the same weaknesses and benefits of patient referral and provider referral programs mentioned above.

Many states statutorily have authorized public health authorities at the state or local level to utilize contact tracing as part of its comprehensive public health strategy for controlling STDs, including HIV/AIDS. While the law of these jurisdictions varies, Table A below summarily charts the statutory sources and general application of these laws.

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TABLE A - STATUTORY AUTHORIZATION FOR CONTACT TRACING^a

Consider an example of a contact tracing program as an illustration.¹¹⁵ A local health department begins a contact tracing program with the names of 100 [*pg 33] persons (index cases) known to be infected with a certain STD. Based on CDC sex partner indices, each index case will on average report 1.8 total sex partners¹¹⁶ for an aggregate total of 180 sex partners who are potentially identifiable. Of the 100 index cases, half are either married or engaged in a long-term, primarily monogamous sexual relationship. The identity of the marital or other monogamous partner either is already known or is easily obtainable by the health department without the assistance of the index patient. An estimated 50 sexual contacts of the index case are thus readily identifiable. This leaves 130 additional sexual partners whose identities are unknown. The goal of the contact tracing program is to identify, locate, and contact these 130 persons.

Accomplishing this objective requires the participation of as many index cases as possible. Statistics based on a study of 25 HIV-positive women in New Jersey¹¹⁷ reveal that 68% of index cases would voluntarily provide the names of their sex partners to health authorities provided their own identity was not revealed to the contacts. Only 20% of these same index cases would participate, however, if their identities were revealed. As these data indicate, maintaining the confidentiality of index cases is vital to the ability of authorities to track contacts.¹¹⁸ If the program in question is based solely on patient referral where confidentiality is not protected, authorities may expect the participation of only 20% of the index cases, or 20 persons, which in turn would locate approximately 20% of the remaining 130 unidentified, potential contacts, or twenty-six persons. Thus, a patient referral program would potentially locate a total of 76 contacts (50 spouses/long-term partners + 26 other sex partners voluntarily notified), or 42% of all 180 identifiable sex partners.¹¹⁹ Of those persons reached, each would know the source through which they were exposed to infection.

A conditional referral program may fare slightly better than one based solely on patient referral since the health department guarantees that it will not disclose the identities of index cases. The premise of a conditional referral program is, however, that index cases will notify their sexual contacts directly. Only when index cases have failed to do so would health authorities assist. Since the confidentiality of index cases ultimately is not guaranteed, many index cases will not participate voluntarily.

Only through the implementation of a provider referral program can health authorities assure index cases that their identities will not be revealed. Of course, this does not mean that some contacts will not guess correctly the identities of the index cases. Regardless, where 68% of the index cases voluntarily participate with such programs as statistics suggest, approximately 88 of the remaining 130 unidentified potential contacts would be named. A provider referral program thus potentially could locate a total of 138 contacts (50 spouses/long-term partners + 88 other partners voluntarily disclosed), or 77% of all 180 identifiable sex partners.¹²⁰ Of these contacts, only persons who shared sexual or drug relations solely with the index case in the past several years [*pg 34] would know for certain the source through which they were infected or were in danger of being infected. Since confidentiality is preserved, many contacts remain unaware of the source of exposure, although they would be counseled to practice safe sex with every partner to prevent future exposures.¹²¹

Contact tracing in its traditional sense thus arose from a history of government control of STDs. As one form of partner notification, contact tracing represents a traditional activity of the state to protect the public from epidemic diseases. The voluntary nature of participation is a principal feature of traditional contact tracing. Maintaining the confidentiality of index patients, while not a central feature of patient referral and conditional referral systems, is important in encouraging patients to volunteer their partners' names.

B. Duty of Infected Persons to Disclose

While the duties of infected persons to disclose and health care workers (HCWs) to warn partners of exposure to STDs share characteristics with contact tracing, particularly the quintessential feature of notifying sexual partners, significant differences between these duties and contact tracing exist. The differences between the meanings of partner notification confuse policy formulation and mar societal conceptions of contact tracing programs. In this Part the history of the common law duty of infected persons to disclose their infectious condition to their partners is traced and a modern description of the duty to disclose is provided. In the next Part, the duty of HCWs to warn the sexual or needle-sharing partners of their infected patients is explained further.

The underlying tort concept of "duty" is important to understanding the differences between the three meanings of partner notification. A duty is a legal obligation to conform to a certain standard of conduct towards another person.¹²² Of the many factors that determine the existence of a duty, the most important is the foreseeability of risk of harm to another.¹²³ If it is foreseeable that a person's behavior will cause harm to another, that person has a duty to take reasonable [*pg 35] steps or "due care" to avoid such behavior.¹²⁴ In the context of the transmission of infectious diseases, "due care" requires at a minimum disclosing one's condition to others at risk of exposure, including sexual or needle-sharing partners.¹²⁵ The breach of the duty to disclose or warn constitutes tortious, and occasionally criminal, conduct when it results in harm to another.

The duties to disclose and to warn represent a more serious, obligatory side to partner notification. Whether imposed judicially or statutorily, they are grounded in the obligation to do no harm to others. In combination, they require that certain persons, including those infected with STDs and the HCWs treating them, inform foreseeable, unknowing sexual partners of the risks of exposure to [*pg 36] infection.¹²⁶ The impetus of these duties is the protection of individuals, not necessarily the concern for public health as is the focus of contact tracing.

Since these duties traditionally have been imposed on individuals, they generally must be carried out by the individuals upon whom they fall, as opposed to being carried out by government health officials who assist with contact tracing among volunteering individuals. The duties do not present voluntary choices left to the discretion of infected persons and HCWs¹²⁷ since the failure to notify persons at risk when required to do so may result in civil liability and criminal sanctions.¹²⁸ In addition, unlike at least one form of contact tracing (provider referral), the satisfaction of these duties generally breaches the confidentiality of infected persons directly, when imposed on the patient, or indirectly, when imposed on HCWs. Under either circumstance, the identity of the infected person is important to fulfilling the duty: persons are entitled to know the individual source of danger of which they are unaware.¹²⁹

The duty of infected persons to disclose to their partners the threat of STD exposure originates in the general duty to warn of contagious diseases (which itself is based on the duty not to harm others).¹³⁰ Since the turn of the century,¹³¹ civil and criminal courts have imposed duties to disclose on infected persons [*pg 37] who are aware of the danger of infection.¹³² Persons with contagious diseases like whooping cough¹³³ or tuberculosis,¹³⁴ or their guardians,¹³⁵ were required to warn others with whom they came into contact. The same duty has been imposed on other responsible parties, including innkeepers,¹³⁶ parents,¹³⁷ landlords,¹³⁸ and most notably, physicians,¹³⁹ when it is foreseeable that preventable harm will fall on identifiable third parties.¹⁴⁰

[*pg 38]

The judicial origins of the duty to disclose STDs can be traced to 1866.¹⁴¹ Early claims, often brought by aggrieved wives against infected husbands, usually were barred on the basis of the interspousal immunity doctrine.¹⁴² The interspousal immunity doctrine arose from the legal fiction that recognized a husband and his wife as a single identity. As a result, it was considered morally and conceptually objectionable to permit tort suits between spouses.¹⁴³ With the adoption of Married Women's Acts into state law, wives began to achieve separate legal identity from their husbands as states abrogated the doctrine.¹⁴⁴ Although criminal liability for transmission of an STD from a husband to his wife was imposed in the United States as early as 1917,¹⁴⁵ it was not until 1920 that a wife was allowed to bring a civil cause of action against her husband for the transmission of an STD.¹⁴⁶

From its origin in common law, the modern duty to disclose requires infected persons to notify persons exposed to infection, whether sexually or through the sharing of drug injection equipment among IDUs.¹⁴⁷ Spouses and other sexual partners¹⁴⁸ can recover tort damages for breaches of this duty¹⁴⁹ [*pg 39] through actions brought on the varied bases of assault or battery,¹⁵⁰ fraud or misrepresentation,¹⁵¹ infliction of emotional distress,¹⁵² seduction,¹⁵³ and negligence.¹⁵⁴

A crucial issue is whether it is reasonably foreseeable that sexual contact or needle sharing might harm one's partner.¹⁵⁵ In general, a "reasonable person" who knows or should know that they have an STD must communicate this knowledge to any sexual partner prior to sexual relations.¹⁵⁶ The knowledge of infection can be actual or constructive. ¹⁵⁷ In general, "[a]ll courts agree that if [*pg 40] one has actual knowledge of infection with an STD, he or she at the very least has a duty to warn his or her sexual partner."¹⁵⁸

Yet, in some instances, imposing a duty to disclose may be difficult where an infected person is unaware that he is infected since he is not symptomatic.¹⁵⁹ Since some sexually transmitted infections manifest immediate symptoms, it is reasonable to impute knowledge of infection, even though a person actually may not have been diagnosed as infected, and thus impose a duty to disclose.¹⁶⁰ Constructive knowledge of one's infection thus is sufficient to impose liability. To hold otherwise and require actual knowledge may provide an incentive for some persons to avoid diagnosis and treatment in order to avoid knowledge of their own infection.

Some STDs like HIV have long latency periods in which persons may not know that they are infected for months or years.¹⁶¹ HIV has caused courts and commentators to struggle to define when the duty to disclose arises.¹⁶² As one court questioned, "at what level of knowledge of the HIV virus should a [person] foresee potential harm to [his sexual partner] such that [he] acquires a duty to act as a 'reasonably prudent person', as well as to disclose [his] knowledge of the HIV virus to [his sexual partner]."¹⁶³ To date, courts have been reticent to impose [*pg 41] a duty based solely on a person's sexual history.¹⁶⁴ Rather, the person must have had some reasonable basis for knowing their infected status, such as a positive test result, symptomology, or knowledge that a previous sexual partner was infected.

C. Duty of Health Care Workers to Warn