The next time the issue of HIV infected healthcare professionals arrived before the courts46 the newspaper had gained the details of such a dentist and intended to publish not the individuals name, but the employing health authority and / or the practitioners specialty and date of infection. The Court of Appeal faced a first in that both parties evoked their human rights (the practitioner Article 8 and press Article 10) and that the practitioner had already challenged existing government policy questioning the governments right to view his patients retrospectively.
The court again reiterated the previous ruling placing the public interest HIV patients confidence in having his privacy preserved before any public interest in discovering the dentists identity, although it did allow partial publication of the story, disallowing any reference to the actual health authority, but allowing the patients specialty as a dentist to be disclosed.
According to some this action facilitated greater public debate by appropriating more interest to freedom of expression that the previous ruling had48 but what is not open for debate is the continuance of the traditionally high level of confidence which can rightly be anticipated by the STD patient seeking medical help, this is indeed a matter of public interest as this level of faith is essential to ensure as many sufferers as possible seek advice that has the potential to cure or treat or educate them as to best practice to ensure that the problem is contained.
The GMC have put in place sufficient guidelines as regard STD’s allowing the ethical breaching of the principle in set circumstances Emson insists that even if the principle of confidentiality is slightly and necessarily eroded by various statutes and common law precedent the principle of patient confidentiality will always remain and concomitantly the doctor will often find himself in the difficult ethical terrain of apparent conflict of interests, the weighing up of benefits, when to breach confidences in order to protect either others or the patient himself49.
This is part of contemporary doctoring and as with the rest of medicine, should become the finely honed skill of the competent physician. There may of course arise the situation where the AIDS patient and their partner are both patients of the same doctor. In this instance the doctor owes the same duty of care to both, the partner is not simply a third party but the partner patient is of equal standing to the AIDS patient.
Echoing a turn of the century case American case50 it has been held in England that a doctor has been negligibly liable for failing to ward his patient of the obvious danger of contracting a highly contagious disease, blatantly breaching his duty of care51. While obviously not an STD, this case reiterates the underlying responsibility of a doctor to warn his patient of foreseeable harm, it was to be anticipated in this case that the puerperal fever would be easily contracted, on this basis an extensions of the same principle could easily be applied to the identifiable patient partner of an AIDS, or other STD patient.
This was the case in California where it was the found that the doctor’s patient sexual partner was owed a duty of care by the physician when after receiving a blood transfusion the partner contracted HIV ignorant to the fact of disease due to the information being concealed by the doctor. The doctor was liable to the partner of the patent, but not to third parties as a whole.
Public Danger and Purported Threats Psychiatric patients can as also as a by-product of their disease or their medication present a threat to society. Given that the potential to harm is not constrained to sexual intercourse or mingling of blood and fluids, the danger is potentially wider spread. The British case of Edgell52 examined the scope of medical confidentiality and its limits of application.
W’s solicitors had engaged Edgell to write a report on their behalf to support their clients appeal for conditional discharge – he was at that time being compulsory detained after a fatal shooting which had killed five. Edgell managed to uncover W’s continuing fascination with explosives and on this basis his counsel withdrew application for discharge, refusing to forward the report to the authorities.
This Edgell did of his own accord and in addition pursued the Home Office to take note of his findings in relation to W’s case review. His solicitors sought an injunction and damages against Edgell citing breach of confidence. The court of appeal immediately dispensed with the private interest of both W and Edgell concerning itself only with the matters of public interest and deciding that Edgell had acted properly in attempting to avoid a “real” risk of danger to the public ruled that he had been justified in his actions.
Although setting out a number of limitations to the justified breach, (below) as with the New Zealand High Court53 the law Lords failed to answer the specify if the doctor will be justified in breaching confidentiality if he actually believes that this type of risk has arisen or whether he requires objective proof that such a risk of physical harm exists.
Interestingly it was never clarified if Edgell had discovered new information regarding his subject, in which case the breach was justified, or whether Edgell simply disagreed with the others finding and construed this outcome then arguably this is nothing more than a differing of expert opinion. 55 The psychiatrist as the patient’s doctor faces unique challenges with regards to the maintenance of patient’s confidentiality. If the patient communicates to his doctor a desire to harm any person(s) other than themselves the doctor then has to utilise his own medical judgement and acumen to decipher the realness of any risk.
This obvious short falling is indicative of the ill defined limitations placed on the justification of breaking a confidence based on a threat of serious harm: I. It must be shown that there is a serious and real risk to the public. The risk must be of significant and quantifiable harm, normally of a physical nature to the victim. II. The risk must be current, a retrospective threat of harm is insufficient to justify the breach56 III. The disclosure must only have been to the appropriate authority or individuals i. e. hospital officials home office
The situation is very different in the US following the case concerning fatal obsession of a UCLA student57 who, prior to murdering the object of his obsession (Tatiana Tarasoff) had expressed his homicidal intent to his campus psychologist. When the deceased’s parents later prosecuted they claimed that being in receipt of this information created a duty which should have resulted in them being warned of this threat to their daughter. At first hearing the court agreed, the psychiatrist was indeed under a duty to warn, on second hearing (Tarasoff II) this principle was communicated as being a duty to protect.
On being reassured that a patient is a violent danger an other the psychiatrist is obliged to protect the intended victim by warning them, informing the police or by taking whatever steps maybe necessary. 58 The jurisprudence underpinning this ruling established the obligation as a result of the existence of a special relationship that of doctor patient, and on entering into this relationship the psychiatrist assumed responsibility not only for his patient, but anyone likely to be harmed by him.
59 Later clarified by the Californian Supreme Court the physician is not liable for harm inflicted on any third party associated with his patient, but only a readily identifiable victim. 60 Tarsoff has been adopted in one three ways by most other USA states, indicating a general nationwide acceptance of the physicians principle duty to warn. It has been adopted expressly, applying an exact and accurate interpretation of the ruling to cases of similar circumstances.
In the second format is an extension of Tarasoff, the principle of liability has evolved to include a specific class of victims,61 and the inclusion of any foreseeable victims62 and accepting the Tarasoff principle but refusing to apply it in instances of liability of imposition of liability. 63 64 Not all of the patients have even been potentially violent, in one instance the patient herself was unaware of her diseased state that resulted in her death and her litigious partner contracting AIDS.
Even so, it is unlikely and undesirable that we will ever adopt the same position in the UK, the only case even suggesting that this might be the position66 was subsequently viewed as being of uncertain authority based as it was on the degree of licensed control that the hospital psychiatrist held over the patient that established a duty of care. This is a type of control that that is unknown to the general psychiatrist and so duty of care is established on proximity.
This was reiterated when the courts examined the potential liability of a doctor for non-disclosure which arguably resulted in the torture and ultimate death of a young girl67. The action in negligence was brought by the girl’s mother against the psychiatrist of the mental patient perpetrator who had suggested that he would act in exactly this manner on release. The non-identifiably of the victim by the psychiatrist, the lack of proximity between the doctor and either the victim or her mother led the courts to deny that any duty of care existed.