Duty of Confidentiality and HIV/AIDS: PD v Harvey

Abstract

The issue of doctor-patient confidentiality in situations where the doctor can reasonably foresee that third parties associated with the patient could be put at risk by the patient's medical status is a continuing conundrum. In a case heard in the New South Wales Supreme Court in 1999, BT v Oei (1999) NSWSC 1082, the court held that a medical practitioner owed a duty of care to the sexual partner/s of a patient. Where there were signs/symptoms consistent with a diagnosis of HIV infection, the doctor had a duty to strongly advise the patient to be tested. Where the patient's results were positive, the doctor could not inform the partner/s directly; however, there was an obligation to counsel the patient to inform their partner/s of their HIV status, and to instruct the patient regarding the patient's own statutory responsibility to inform partner/s before engaging in sexual intercourse with them. A second case revolving around the issue of risk to third parties is the case of PD v Dr Nicholas Harvey & I Ors (2003) NSWSC 487, heard in the Supreme Court of NSW in 2003. The facts and the law discussed in this report are drawn from and summarised from the judgment of Cripps AJ.