Policy responses and statements

Name of organisation:

Department of Health

Name of policy document:

Policy consultation on confidentiality and disclosure of patient information - HIV and sexually transmitted infection (STIs)

Deadline for response:

31 October 2006

Background: The Department of Health (DH) is undertaking a consultation to clarify policy on patient confidentiality and disclosure of information on STIs including HIV. The outcome will benefit those who use services in that they will know what to expect. This paper also takes account of representations to DH from sexual health professionals seeking clarification of the circumstances when they may need to disclose confidential information, including about a patient’s HIV status, both with and without the patient’s consent.

This paper takes account of a recent High Court decision involving as claimants, the Health Protection Agency (HPA), an acute hospital trust and a primary care trust. The claimants were seeking a declaration relating to the common law on disclosure, the duties imposed by the European Convention on Human Rights and application of the legislation on disclosure of information on sexually transmitted infection (including HIV). However, the Judge decided not to make a decision.

The Department of Health invited comments on the questions set out in this paper plus any other relevant issues. Additionally, Annex 3 sets out scenarios which illustrate some of the dilemmas in this area. These were included to ground some of the consultation questions in the real situations in which health care professionals from time to time find themselves. The scenarios invited responses on what you would do or how you would advise a colleague seeking professional advice from you. Comments on the scenarios were also invited from other interested groups.

COMMENTS ON
DEPARTMENT OF HEALTH POLICY CONSULTATION
ON CONFIDENTIALITY AND DISCLOSURE OF
PATIENT INFORMATION: HIV AND
SEXUALLY TRANSMITTED INFECTION (STIs)

The Royal College of Physicians of Edinburgh is pleased to respond to the Department of Health on its Policy consultation on confidentiality and disclosure of patient information: HIV and sexually transmitted infection (STIs).  The College notes that the document makes no references to the VD Act (Scotland) or to Scottish law and so realises that this document may have different applicability in Scotland compared to the rest of the UK.  However, basic principles with respect to clinical practice, GMC and NHS guidance and the ECHR apply across all of the UK.

Uncertainty exists on some legal issues relating to disclosure of information on STIs including HIV, so the College welcomes this initiative.  Clarity is required and consistency with the GMC’s recommendations should be a priority.  Patients need to remain confident in the processes for maintaining confidentiality to ensure they are not deterred from accessing essential services for treatment of STIs and HIV.

The consultation document clearly sets out the statutes which relate to medical confidentiality in this area including:

• NHS Code of Practice (2003)

• Human Rights Act (1998)

• NHS (Venereal Diseases) regulation 1974/ NHS Trusts and PCTs (Sexually Transmitted Diseases) directions 2000

The breaching of medical confidentiality is clearly a serious step for a physician to take and must be justified by significant benefits for an individual or the public in general.  HIV remains a serious condition associated with considerable morbidity, both physical and psychological, despite advances in therapy.  All reasonable measures should therefore be taken to prevent the transmission of HIV and in certain circumstances this may involve the breaking of medical confidentiality. 

Any breach of medical confidentiality should be predicated on the following principles:

• The patient should have been made aware of the risks of transmission of HIV through sexual contact.

• The patient should have been informed that failure to inform their partner of their HIV status and subsequent transmission of infection may lead to criminal prosecution.

• The patient should be given sufficient time to inform their partner themselves before confidentiality is broached.  This time period will be variable but a period of two to three months would be reasonable where the patient reports the use of condoms. 

• Prior to informing a partner of their potential risk of infection, the index patient should be told that it is going to happen.

• After informing a partner of potential infection, the index patient should be told that this has been done. 

The paper raises a number of specific questions.

Para 5.2:  A strict interpretation of the Sexually Transmitted Diseases regulations results in a highly restrictive approach to information sharing and most GUM clinicians would take an approach that includes disclosure with consent.  The most commonly held interpretation is likely to be option (iii).  Most clinicians would not consider that the regulations might be interpreted as excluding disclosure with the consent of the patients.  But there is variation of interpretation among experienced GU physicians suggesting that the regulations should be redrafted, revoked or supported by additional guidance.

Para 6.2:  There are separate references to the 1916, 1974 and 2000 regulations throughout the document.  It would be helpful to include these (or extracts from them) as an annex.

Para 7.2:  This raises the issue of informing a partner of potential infection without the index patient’s consent.

• It would be justifiable to contact the partner without the index patient’s consent subject to the principles above.

• This would apply whether or not the partner was a patient of the treatment centre involved with the index patient.

• Disclosure to a known partner might not take place where they are un-contactable, for example, resident abroad.

• The initial decision on whether disclosure should be made or not should lie with the physician in consultation with other health care professionals and should be clearly documented in the case record.  The physician should be aware that any decision may need to be justified in the courts and that they may wish to seek legal advice from their Trust.

• The VD Regulations/Directions on STIs only provide for disclosure to other health care professionals.  As such, they would appear to have been superseded by the NHS Code of Practice (2003) and Human Rights Act 1998.

• It would be inappropriate for the health care professional to inform an individual that they could report their partner to the police for reckless transmission of HIV or other serious STI, since the provision of legal advice is not within their area of expertise.  However, each new patient diagnosed with HIV should be informed that the transmission of the infection to others, who are unaware of their HIV status, may result in a criminal prosecution. 

Para 8:  This section deals with disclosure to those who are not sexual contacts, such as relatives, social service departments and the police.

• Disclosure of HIV or other serious STIs to those who are not sexual contacts should only occur in exceptional circumstances where there is a significant risk of transmission of HIV, for example, history of disruptive behaviour including biting of carers. 

Para 10.1:  It is noted that primary care are playing an increasing role in the testing and treatment of STIs.  A query is raised as to whether the VD Regulations/Directions on STIs should also apply in primary care. 

• The VD Regulations/Directions on STIs appear to have been largely superseded by the Human Rights Act and NHS Code of Practise.  Sharing information for the benefit of the individual patient or public health benefit should apply equally in this setting.

Para 11.2:  The use of anonymised information for surveillance and monitoring is noted to be of benefit both to the individual patient and to society. 

• The provision of such information for this purpose is appropriate, assuming appropriate safeguards are in place to ensure anonymity and prevent misuse.

Annex 3 describes a number of clinical scenarios and requests how a GUM clinician or a health adviser should respond to each.

SCENARIO 1

As the health adviser you have reason to believe that an HIV infected male patient has not told his current female sexual partner of his HIV status.  You think he is not using a condom consistently and he has already infected a previous female sexual partner who is being cared for in a different clinic.  His viral load is such that he is not yet on antiretroviral medication.  He has had other casual partnerships as well as the current “steady” sexual relationship.
What do you think you should do?

General: The basic principles outlined above should be adhered to, to ensure that the patient is aware of the risk of transmission of HIV and given an opportunity to inform their partner before the health care professional does so.