In the New South Wales case of PD v Harvey [2003] NSWSC 487, PD asked her future husband (FH) to attend a medical practice for testing of HIV and other diseases, as FH came from Ghana, which has a higher incidence of HIV than Australia. They jointly attended an appointment with a medical practitioner. They told him they were having a sexual relationship but were using condoms. PD wanted to ensure it was safe to engage in sexual intercourse with FH without the use of condoms. Blood tests were performed, and the medical practitioner told them to return to the practice for the test results. The medical practitioner did not discuss with them how they would receive their results (i.e. either individually or together), nor did the medical practitioner inform either of them that in the absence of their 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 condomless sex based on the test results FH received.
PD was informed that her results were negative via a copy of her results that were presented to her by a member of reception staff. She asked the reception staff member about the status of FH’s results but was told they were confidential. The medical practitioner called FH to advise him he was HIV- and hepatitis B-positive, and made a follow-up appointment for him. The medical practitioner did not raise any issues arising from the joint consultation, including whether FH would discuss his results with PD.
FH visited the practice and saw the medical director, who was unaware of FH’s relationship with PD. This medical practitioner 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 5 weeks, PD returned to the practice for a prescription for the contraceptive pill and in February 1999 she attended the practice 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.
PD and FH began to have condomless sex until around March–April 1999. At that time, PD believed that FH was HIV-negative. Sometime in May, the medical practitioner who had ordered the initial HIV tests 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. Neither PD or FH were contacted by the medical practitioner at this time. 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 acquired 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 medical practitioners 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 medical practitioners did have a duty to prevent foreseeable harm to PD, but for different reasons.
The judge found that:
- the medical practitioners had failed to provide proper pre- and post-test counselling, including the communication of results in the context of a joint consultation and the duty of confidentiality
- medical practitioners have an obligation to let patients know about the ‘prospect of discordant results’, meaning where one person has a positive result and the other is negative, it is not enough for the medical practitioner to assume the person with an HIV-positive result will tell the other person. The medical practitioner is not obliged to tell the non-HIV-positive patient of the HIV-positive patient’s results; however, they are obliged to take other steps to ensure the non-HIV-positive patient ‘is aware of the danger they are in’, as far as is legally permissible
- 3 avenues were open to the medical practitioners (in this particular case)
- seek expert advice, for example, from the [clinic], which was an HIV specialist clinic nearby
- seek advice from the Medical Defence Union
- contacted the Department of Health.
A referral to an immunology clinic, without more, was not enough to discharge their duty of care. For these reasons, both medical practitioners were found to have breached their duty to PD.
The decision states (at [70]):
‘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’.
Note: Since the PD v Harvey decision in 2003, changes to contact tracing and notification requirements have been enacted and legislation has been updated. For contact tracing requirements in your jurisdiction, refer to Contact Tracing and HIV public health notification requirements.
The decision noted (at [10]):
‘[A]t the first (and only) joint consultation [the medical practitioner] 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. But the topic was not raised.’
Had the medical practitioner ordering the tests sought and received both patients’ consent to disclose test results, the practitioner could have disclosed PH’s results to PD without breaching confidentiality.
Many of the judge’s findings were based on the inadequacy or absence of the practitioner’s medical records. Notably, there was no mention on either patients’ 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. The medical director was found to be vicariously liable for the omissions of the first medical practitioner. Had the notes been cross-referenced, the doctors may have realised the weight of the developing situation and contacted PD before she acquired HIV.
The 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.
For commentary on this case see this article in the University of Western Sydney Law Review.