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:

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.