Guide to Australian HIV Laws and Policies for Healthcare Professionals

Duty of care to third parties and civil liability

In the vast majority of instances, both doctor and HIV-positive patient have a perceived ethical obligation and a strong desire to prevent harm to other contacts of the patient. In practical terms, notifying third parties is usually discussed with the patient and a planned stepwise approach initiated starting with the patient communicating with the third party, then the doctor, patient and third party communicating jointly, and finally the doctor and the third party speaking in the absence of the patient.

Clearly defining health care providers’ duty to third parties is hindered by the lack of related case law (three cases of relevance are included below). Health care providers do not owe ‘a duty to the world at large. Nor (with limited statutory exceptions) do doctors have a duty to come to the rescue of strangers, in actual or potential peril’ (Rowe et al^[1], 2009), however, health care providers may owe a duty of care to persons other than their patient where it is reasonably foreseeable that the patient’s actions might harm those persons. In such cases, health care providers could be held liable for injuries or harm suffered by third parties as a result of their acts and omissions.

The US case of Tarasoff v. Regents of the University of California, although not binding in Australia, is frequently cited as a reference for Australian consideration. That case established that a therapist had a duty to warn a third party of the risk of harm in circumstances where the therapist was aware that his patient (who suffered from a serious mental illness) was threatening to harm the third party. The Tarasoff decision has been endorsed in later US cases. In Australia, the situation is perhaps less clear. While not responsible for the actions of a patient, a health care provider remains responsible for his or her own actions in counselling the patient, and might be held liable for not having taken sufficient steps to avert the risk that the patient may cause harm to a third party.

Godwin et al^[2], (1993) suggest:

“Perhaps, at a minimum … the health professional’s duty would require that reasonable steps are taken to minimise the risk of infection to third parties, which in practical terms would include sufficient counselling to attempt to persuade the patient to reduce or eliminate the risk to third parties.”

The following three cases have considered a number of issues related to practitioners’ duty of care to third parties:

The New South Wales case of BT v. Oei [1999] NSWSC 082 directly addresses the point of duty of care to a third party sexual partner. In that case, the defendant doctor was found to have a duty of care to a patient’s sexual partner, even though the partner was not herself a patient of the doctor. The case involved a man (AT) who reported a flu-like illness in late 1991 and developed acute hepatitis B and a urinary tract infection in early 1992. A woman called BT subsequently formed a sexual relationship with AT and contracted HIV. Despite Dr Oei’s testimony to the contrary, the court found that Dr Oei did not recommend HIV testing. As a result, AT was unaware of his HIV status and subsequently passed the virus to BT. BT sued the doctor claiming that his failure to diagnose AT’s HIV infection was negligent. BT asserted, and the court agreed, that the doctor should have advised AT to have an HIV test when AT first presented. The doctor owed a duty of care to AT. The court considered whether the doctor also owed a duty of care to BT, and found that he did. Justice Bell, in finding for BT, took note of the provisions of in the Public Health Act 1991 (New South Wales), which requires a doctor who believes a patient has HIV infection to inform that patient of the danger he/she poses to others and to advise the measures he/she should take to protect others from cross-infection. Justice Bell found the doctor negligent in not suspecting the presence of HIV infection. If he had suspected HIV infection and had followed the dictates of the Public Health Act then, on the balance of probabilities, AT’s HIV status would have been diagnosed early enough for him to have practised safe sex with BT, and BT, again on the balance of probabilities, would not have contracted HIV infection. Thus, Dr Oei was found negligent and in breach of the duty of care owed to his patient’s sexual partner.

Note: Although the Public Health Act 1991 has been repealed, similar provisions apply at section 78 of the Public Health Act 2010 and regulation 40 of the Public Health Regulations 2012.

An unreported NSW case (settled in 2009) relates to a woman who attended a Bondi medical centre and requested HIV and other tests during 2004. Her HIV results were indeterminate (inconclusive) suggesting she may have been infected with HIV. Instead of phoning her to tell her urgent follow up tests were required, the medical centre sent her a recall letter but sent it to an old address as the centre had not updated their records to show a current address.

Some three weeks later, the woman returned to the medical centre of her own accord and saw a different doctor. That doctor failed to properly check her file and told her that her results were all clear (except for Candida). Some three weeks after that, the medical centre contacted the woman by phone to tell her to come in for further tests. In the interim, the woman had slept with her partner while menstruating and HIV had been transmitted.

The woman’s (now former) partner initiated legal action against the Director of the medical centre and the second treating doctor, who admitted liability before the NSW Supreme Court and agreed to pay $745,000 plus $197,500 in court costs.

In 2011, the doctors won a counter-claim against the company that managed the clinic in which they worked. They argued that they provided medical services but the company ran the clinic which included employing administrative staff responsible for maintaining patient records and implementing procedures for recalling patients. It was undisputed that the company had full ownership and control of patient records. The company’s Reception Training Manual, Policy and Procedures Manual and Treatment Room Policy (pathology collection) all emphasised the importance of keeping and maintaining current patient records, particularly when blood tests were carried out, yet neither the receptionist nor nurse taking the blood test had confirmed the patient’s current contact details.

The NSW Supreme Court agreed the company shared liability and that consequently the company should pay 40% of costs. That decision was upheld by the NSW Court of Appeal in late 2012 (see decision here).

Although not critical to the case, the judgement considered the doctor’s efforts to locate the patient once the error had been realised, suggesting that courts may expect significant efforts to be made. The judgement describes the doctor’s process of trying Directory Assistance, making numerous calls to a specialist sexual health clinic, and contacting the Department of Health as ‘not particularly impressive’. It states ‘there was no attempt to check relevant surnames in the phone book, not only to locate [the patient], but a family member, no attempt to check the Electoral Roll and no attempt to locate [the patient] or a family member through the police service. ... I am satisfied that much more could and should have been done.’

In the New South Wales case of PD, PD asked her future husband (FH) to attend a medical practice for testing of HIV and other diseases as her future husband came from an area in Africa with a high incidence of HIV infection. They jointly attended Dr Y, a general practitioner, and told him they were having a sexual relationship but were using condoms. PD wanted to ensure it was safe to practice unsafe sexual intercourse with FH. Blood tests were performed and Dr Y told them to return to the practice for the test results. He did not inform either of them that in the absence of consent, he would not be able to disclose any information about one person’s HIV status to the other. He did not record that they had had a joint consultation or that PD was considering having unsafe sex based on the test results.

PD was informed that her results were negative. She asked a member of the practice’s staff the status of FH’s results but was told they were confidential. Dr Y rang FH, advised him he was positive for HIV and hepatitis B, and made a follow-up appointment for him. Dr Y did not raise any issue arising from the joint consultation or ask whether he was planning to tell PD.

FH visited the practice and saw the medical director, Dr X, who was unaware of FH’s relationship with PD. Dr X referred FH to an immunology clinic. There is no record of FH having attended the follow-up appointment. When PD telephoned FH to communicate her negative result, FH lied and told her his result was also negative. He later showed her a forged document which confirmed the negative result. Within five weeks PD returned to the practice for a prescription for the contraceptive pill and in February of 1999 she attended for vaccines to travel to Ghana. The joint consultation and the results of the tests were not referred to directly or indirectly on either occasion (note – she did not see Dr Y).

PD and FH began to have unprotected sex until around March-April 1999 on the basis of her belief that FH was HIV negative. Sometime in May, Dr Y received a questionnaire from the Department of Health seeking information concerning FH’s HIV status which had been notified to the Department by the serum laboratory. Although PD and FH were living together at this time, neither was contacted by Dr Y. The practice then received a letter from the immunology clinic advising it had no information that FH had ever attended despite an appointment having been made. Again, no attempt was made to contact PD or FH.

FH and PD were married. PD contracted HIV in late 1999. She discovered her status after becoming pregnant with their child. By that time, the relationship had ended and FH had left Australia. PD sued the doctors who had seen her, alleging that they had a duty to inform her of her partner’s test results in order to prevent her from foreseeable harm. The court found the doctors did have a duty to prevent harm from coming to the plaintiff, but for different reasons. The judge found that the doctors had failed to:

provide proper pre- and post-test counselling, which was required to meet health department guidelines
contact FH to tell him that, unless he attended the HIV clinic and demonstrated to them that he had informed his fiancée of his HIV status, they were legally required to refer him to the Director-General of the Department of Health as a person known to be HIV positive who was not attending for review and was putting others at risk
then refer him to the Department of Health if necessary.

The decision states:

Ordinarily if an appointment is made for a patient and that patient does not keep the appointment it may be that the medical practitioner is not under an obligation to chase them up. But in the present case most GPs, I think, would consider they had an obligation to ensure a person in FH’s position kept an appointment with [the immunology clinic]. They would recognise a public duty to prevent, as far as possible, the spread of HIV into the community and, in the particulars of the present case, to protect, as far as they were legally able to do so, their own patient. Once they became aware FH had not kept his appointment the Director-General could have been informed.

It would not have been necessary for the doctors to breach their duty of confidentiality to FH to prevent foreseeable harm to PD, because they had a statutory duty not to breach confidentiality except to report FH to the health department (with immunity from civil action for breach of confidentiality). Health department officers would have performed the necessary contact tracing and notification.

The decision notes that:

At the first (and only) joint consultation Dr X did not inform either PD or FH that unless consent were given he was legally prohibited from disclosing any information concerning HIV or acquired immune deficiency syndrome (AIDS) about one to the other. How the information was to be dealt with was simply not discussed. The plaintiff believed, and as I find, on reasonable grounds, that she would have FH’s results and he would have hers.

Had Dr X sought both partners’ consent to disclose test results during the initial consultation, Dr X could have disclosed PH’s results to PD without breaching confidentiality principles.

Many of the judge’s findings were based on the inadequacy or absence of Dr X’s clinical records (i.e. he did not believe the doctor’s assertions). Notably, there was no mention on either patient’s card of a joint consultation having been held and there was no mention on PD’s card that she was about to enter a new relationship. Dr X was found to be vicariously liable for the omissions of Dr Y. Had the notes been cross-referenced, the doctors may have realised the weight of the developing situation and contacted PD before she contracted HIV.

Full text of the decision, which is recommended reading given the number of important issues considered (including the calculation to assess damages), is available here.

1. Rowe L, Morris, Donovan B, Watts I. General Practice – A Safe Place: Tips and Tools. Sydney: Royal Australian College of General Practitioners; 2009. (last accessed November 2012).

2. Godwin J, Hamblin J, Patterson D, Buchanan D. HIV/AIDS Legal Guide (2nd edition) Sydney: Australian Federation of AIDS Organisations, The Federation Press; 1993.