AIDS and Professional Secrecy in the United States

Abstract

Objective: To create a legal awareness of AIDS patients' right to privacy among the medical profession.

Discussion and recommendations: Doctors should recognize confidentiality as a patient's right, since in most countries the AIDS patient is practically considered a person who is going through a punishment, having no legal rights, rather than a patient suffering from a grave illness.

Originally the common law did not recognize the concept of professional secrecy as a right of the patient. It was only regarded as an ethical duty not actionable in court. But with the eruption of diseases such as AIDS, statutes requiring written authorization for the release of confidential information were enacted.

A problem with our hospital records is that they are freely available to almost all the staff in the hospitals and sometimes even to outsiders. In the case of AIDS at least, strict measures should be taken to enforce secrecy in relation to all disease-related information such as sexual history, HIV status and CD4 cell counts.

The duty to keep medical information confidential is not absolute. An overriding duty towards society, occurs when the benefits of disclosure outweigh its harm. This Utopian argument is even more convincing when an HIV-positive person is acting irresponsibly, engaging in risky behaviour without warning the partner. All persons who have a compelling interest, such as sexual partners, needle sharers, medical and nursing personnel, should be provided with this information. It should also extend to mortuary attendants when the patient dies.

A person having a STD has a legal duty to take precautions against transmission. In Berner v. Caldwell (543 So. 2d. 686), the US court held that one who knows or should reasonably know that he has genital herpes is under a duty to abstain from sex or warn others before risky contact.

As doctors we should familiarize ourselves now with the concepts and laws regarding patients' rights, without waiting until a malpractice crisis develops to correct ourselves.