HEALTH LAW AND BIOETHICS MAY 2013 Confidentiality and HIV infection Filipa Alves No

Confidentiality: a basic principle of medical law

Medical confidentiality Hippocratic Oath: “Whatever, in connection with my Professional practice, or not in connection with it, I see or hear in the life of men, which ought not be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.”

Medical confidentiality Declaration of Geneva (World Medical Association, 1948) “I will respect the secrets that are confided in me, even after the patient has died.”

Medical confidentiality WMA International Code of Medical Ethics (London, 1949) “A physician shall respect a patient's right to confidentiality. It is ethical to disclose confidential information when the patient consents to it or when there is a real and imminent threat of harm to the patient or to others and this threat can be only removed by a breach of confidentiality.”

Medical confidentiality European Charter of Medical Ethics (Kos, 2011) Principle 5 The physician is the patient's essential confidant. He betrays this confidence on revealing what he has learned from the patient.

Medical confidentiality Portuguese Medical Association Code of Ethics (2008) Article 85 (General principle) Medical confidentiality is an essential condition of the physician-patient relationship, based on moral, social, professional and ethical interests which presuppose and allow a basis of truth and mutual trust.

Article 86 (The scope of medical confidentiality) 1. Medical confidentiality governs all circumstances as it stems from an inalienable right of all patients. 2. Confidentiality covers all facts of which the physician has become aware while exercising his professional duty or as a result of it and includes particularly: (…) 3. Medical confidentiality is imposed whether the service required has been rendered or not and whether it was remunerated or not. 4. Medical confidentiality is maintained after the death of the patient. The physician shall not send patients for diagnosis or treatment to any entity not bound by medical confidentiality.

Medical confidentiality Portuguese Constitution Article 26 (Other personal rights) 1. Everyone is accorded the rights to personal identity, to the development of personality, to civil capacity, to citizenship, to a good name and reputation, to their image, to speak out, to protect the privacy of their personal and family life, and to legal protection against any form of discrimination. (…)

Article 35 (Use of information technology) 1. Every citizen has the right of access to all computerized data that concern him, which he may require to be corrected and updated, and the right to be informed of the purpose for which they are intended, as laid down by law. (…) 4. Third-party access to personal data is prohibited, save in exceptional cases provided for by law. (…) 7. Personal data contained in manual files enjoy the same protection as that provided for in the previous paragraphs, as laid down by law.

Medical confidentiality Portuguese Penal Code Article 195.º Breach of secrecy Who, without consent, to reveal secrets that others have taken notice because of their condition, occupation, employment, profession or art is punishable with imprisonment up to 1 year or with a fine up to 240 days

Discrimination

The Universal Declaration of Human Rights Article 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Discrimination WMA Statement on HIV/AIDS and the Medical Profession (South Africa, 2006) “Fear of stigma and discrimination is a driving force behind the spread of HIV/AIDS. The social and economic repercussions of being identified as infected can be devastating and can include violence, rejection by family and community members, loss of housing and loss of employment, to name only a few.”

Conflict of interests and duties Confidentiality vs Public health Dilemma

Conflict of interests and duties WMA Statement on HIV/AIDS and the Medical Profession (South Africa, 2006) “Physicians must make all efforts to convince HIV/AIDS patients to take action to notify all partners (sexual and/or injection drug) about their exposure and potential infection. Physicians must be competent to counsel patients about the options for notifying partners.”

Conflict of interests and duties WMA Statement on HIV/AIDS and the Medical Profession (South Africa, 2006) “When all strategies to convince the patient to take such action have been exhausted, and if the physician knows the identity of the patient’s partern(s), the physician is compelled, either by law or by moral obligation, to take action to notify the partner(s) of their potential infection.”

Conflict of interests and duties WMA Statement on HIV/AIDS and the Medical Profession (South Africa, 2006) “National Medical Associations should develop guidelines to assist physicians in decision-making related to notification.(…)” “National Medical Associations should work with the governments to ensure that physicians (…) are afforded adequate legal protection.”

Conflict of interests and duties Portuguese Code of Ethics ( revoked) Article 72 (Precautions which do not violate medical confidentiality) The obligation of medical confidentiality does not prevent the physician from taking the necessary precautions, promoting or participating in health defense measures indispensable to safeguard life and health of people who may come into contact with the patient, particularly members of the family or close circle.

Conflict of interests and duties The opinion of the National Council of Ethics for the Life Sciences (32/CNECV/2000) 1. The physician should continue to make all efforts to quickly persuade the patient about his serious obligation of notify his wife about his disease and risks of transmission. If necessary, the physician should explain to him that, in this specific circumstances of potential danger to the health and life of others, ethical standards of respect for the life of those third parties justify notification.

The opinion of the National Council of Ethics for the Life Sciences (32/CNECV/2000) 2. If the physician can’t persuade his patient, he must inform the patient that he will fulfill his obligation and inform the wife about her husband's HIV status and the risk of transmission, which does not imply in this case a breach of confidentiality. 3. This communication is essential for the patient's wife do diagnostic tests and start treatment, if already infected.

Conflict of interests and duties Portuguese Code of Etchics (2008) Article 89 (Precautions which do not violate medical confidentiality) 1. (…)

Conflict of interests and duties 2. As preservation of life is the fundamental value, the physician shall, when the patient behaves in such a way that he puts the life of another person at real and substantial risk, try to persuade him to change his behaviour, particularly declaring that he, the physician, shall reveal the patient’s situation to interested people. If the patient does not change his behaviour despite the warning, the physician shall inform those at risk if he knows them, after informing the patient what he shall do.

Conflict of interests and duties Conditions for breaching the rule: 1. The patient puts the life of another person at risk; 2. The physician try to persuade him to change his behaviour; 3. The patient does not change his behaviour Physician shall inform individuals at risk

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