HIV-Related Issues
CONFIDENTIALITY
As with all medical information there is a presumption of confidentiality on the part of
the physician. Because of the social stigma of HIV there is an additional layer of
confidentiality and consent required. When a patient enters the hospital or other health-care
facility there is general consent given that allows the routine testing of blood for chemistry
and hematology and so on. There is an additional HIV-related consent required to test for
HIV. When a patient signs a release to distribute or transmit medical information there is an
additional consent required for HIV or AIDS-related information. You cannot mandate
automatic HIV testing of patients without their specific informed consent that you will be
testing for HIV.
For example, a woman comes at 10 weeks of pregnancy for prenatal care. She has a
history of sexually transmitted diseases such as gonorrhea. You offer HIV testing,
which the patient refuses, as a routine part of prenatal care. She returns at 14 and 18
weeks of pregnancy but is still refusing because of anxiety that she may be positive.
You inform the patient that there are medications that can reduce transmission from
mother to child to less than 2 percent. She persists in her refusal. What should you do
now?
Although there are medications to prevent transmission of HIV to the fetus during
pregnancy, you cannot compel mandatory testing of pregnant women. The woman has the
right to refuse testing as well as to refuse antiretroviral. Therefore, you should offer HIV
testing universally to all pregnant women—but there is no mandatory testing of the pregnant
woman without her express consent to do so. If the woman is found to be HIV-positive you
cannot mandate the use of antiretroviral even though they are safe and effective in preventing
transmission of the virus from mother to child. Although from time to time, there is
aberrancy in the legal system that tries to prosecute a drug-using or alcohol-using pregnant
woman, the autonomy of the mother legally outweighs the safety of the fetus.
For example, an HIV-positive woman comes to labor and delivery at 40 weeks of
pregnancy. She has a very low CD4 count (less than 50) and a high viral load (more
than 500,000). You offer her a Caesarian section and intravenous zidovu¬dine, which
can cut the transmission rate in half even on the day of delivery. The woman is anxious,
but clearly has the capacity to understand the implications of this decision on both her
health and the health of her child. She is still refusing the C-section and medications.
What should you do next?
Fortunately this circumstance is rare and the HIV perinatal transmission rate in the
United States is well under 5 %. However, a woman’s right to choose her own forms of
health care is considered superior to virtually all other treatment concerns. The wrong answer
in a question like this would be to give the medications anyway, to get a court order to
compel the patient to take the zidovudine, to ask the father for consent for either the
zidovudine or the C-section, or to sedate the patient and perform the C-section.
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The autonomy of the mother is legally superior to beneficence for the fetus. Although a
40-week fetus is a viable child, the fetus is still inside the woman’s body and doesn’t become
a person until it is delivered. A woman has the right to refuse HIV testing in pregnancy, to
refuse antiretroviral medications in pregnancy, and to refuse a C-section even if it will
markedly benefit the child.
PARTNER NOTIFICATION
The high level of confidentiality concerning HIV can only be breached under very
specific circumstances such as when the health of a third party is at risk. A circumstance such
as this would be when an HIV-positive person has a sexual or needle-sharing partner that is
at risk. The method of notification follows the steps of first counseling a patient to notify his
partners voluntarily. This would be ideal and follows the general theme of USM.LE, which is
to first answer “encourage discussions” when listed as one of the choices. If the patient is
either emotionally unable or unwilling to notify their partners the next step is to notify the
Department of Health to start the process of contact tracing. The health department
interviews the patient and attempts to construct a list of partners in order to notify them.
This is a voluntary process and there is neither a penalty nor criminal threat of
prosecution if the patient chooses not to comply. The health department then sends notice to
the partner that there is a health-related issue to discuss and the partner is notified in person
of their potential exposure to HIV. At this point voluntary confidential testing is offered. The
name of the source patient is never revealed to the partner and the confidentiality of the
original partner is maintained.
If the patient is still unwilling to disclose the names of his contacts you cannot compel
him to do so. There is no incarceration or criminal penalty for not disclosing these names. If
a patient will not notify his partners and you have certain knowledge of the partner at risk,
you have legal immunity to carry out the notification yourself. There is legal protection if
you do notify the partner, but it is not mandatory for you to do so. No one has ever been
successfully prosecuted for violating a patient’s confidentiality if it is to warn another person
who is at risk.
For example, you have a patient in your clinic who is accompanied by her
boyfriend. She is clearly having unprotected sex because she is pregnant. When you ask
if her boyfriend knows her HIV status she says, “Of course not—he might leave me if I
told him.” You have a protracted discussion about the critical importance of not putting
her partner at risk. You strongly encourage her to tell him her HIV status. On a
subsequent visit, when you ask her if she has notified her partner she says, “Not yet.”
You know the boyfriend because he accompanies her to the office visits. What should
you do?
You have both a duty to the patient in terms of her health care and her confidentiality.
However, you also have a duty to protect the partner. You have legal immunity if you notify
the partner. At this point cither you can ask the health department to notify the partner or you
may do it yourself. If the partner were to seroconvert for HIV and you did not make sure he
was notified you would be legally liable because you did not follow your duty to warn. This
is similar to having a psychiatric patient who told you he was going to harm someone.
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Although you have a duty to maintain the confidentiality of the patient, you also have a duty
to inform the person at risk.
HIV-POSITIVE HEALTH-CARE WORKERS
There is no duty on the part of an HIV-positive health-care worker to inform his patients
of his HIV status. Universal precautions are supposed to be maintained. These should protect
the patients. An HIV-positive physician who practices high-risk surgical and obstetric
procedures is expected to maintain precautions to protect the patients from transmission,
REFUSAL TO TREAT HIV-POSITIVE PATIENTS
It is ethically unacceptable to refuse to treat HIV or take care of HIV-positive patients
simply because they are HIV-positive. If you have a physician to whom you refer patients for
various treatments, it would not be ethical for that person to discriminate only on the basis of
the patient being HIV-positive. On the other hand, you cannot compel a physician: to take
over the management of any patient if the physician doesn’t want to do so. If your question
brings up the subject of refusal, the best answer is to refer the patient to someone else who
will perform the care.