HIV: Confidentiality and Disclosure

In one line

The Supreme Court said a doctor may tell the fiancée; Parliament said yes, but only after four conditions, and never where telling her will get a woman beaten.

In the wording a student can write in an exam: section 8 prohibits compelled disclosure of HIV status except by order of a court, and prohibits any person from disclosing another's HIV status imparted in confidence or in a fiduciary relationship except with informed consent recorded in writing, subject to six exceptions; and section 9 permits a physician or counsellor, and no other healthcare provider, to disclose a person's HIV-positive status to their partner, but only on four cumulative conditions and subject to three provisos, of which the third forbids disclosure to the partner of a woman where there is a reasonable apprehension of violence, abandonment or severe harm to her or those close to her.

Why the law has this at all

This is the chapter where the case law and the statute meet directly, and the comparison is the whole point.

Mr 'X' v. Hospital 'Z', AIR 1999 SC 495, (1998) 8 SCC 296, held that the Code of Medical Ethics carves out an exception to confidentiality where there is a serious and identifiable risk to a specific person who, if not informed, would be exposed to infection, and that a doctor may consider it a duty to ensure that a sexual partner is informed regardless of the patient's own wishes. On the facts, the appellant's right to confidentiality was not enforceable, because the proposed marriage carried a health risk to an identifiable person.

The order of 10 December 2002 then held that everything in the 1998 judgment beyond that narrow holding was uncalled for.

What the case left was a permission with no procedure. A doctor could tell the partner, and nothing said who could tell, when, after what steps, or what happened where telling the partner would expose the patient to violence. Section 9 supplies all of that, and reading the two together is the best available illustration in this book of the difference between a judicial permission and a legislative scheme.

Section 8: the general rule

Section 8(1), notwithstanding anything in any other law:

• (i) no person shall be compelled to disclose his HIV status except by an order of the court that the disclosure is necessary in the interest of justice for the determination of issues in the matter before it; and
• (ii) no person shall disclose or be compelled to disclose the HIV status or any other private information of another person imparted in confidence or in a relationship of a fiduciary nature, except with the informed consent of that person or their representative obtained in the manner specified in section 5, and the fact of such consent has been recorded in writing by the person making the disclosure.