Duty of Confidentiality and HIV/AIDS

The duty to maintain patient confidentiality is an ethical and legal priority for all health professionals. There is a common law duty in addition to statutory duties imposed by various privacy statutes. An ethical dilemma can arise when a patient is diagnosed with HIV/AIDS because a practitioner becomes aware that third parties can be placed at risk of a serious infection if the patient passes the disease on to those parties. The question arises as to what extent a medical practitioner, should he or she suspect a patient to be a risk of being HIV positive, is legally and ethically obliged to counsel the patient to undergo HIV antibody testing. In a case heard in the New South Wales Supreme Court in 1999, BT v Oei (1999) NSWSC 1082, a medical practitioner was held to owe a duty of care to the sexual partner/s of a patient whom he should have counselled to have HIV testing, who in fact tested positive after a period of time and had in turn infected his wife.