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.