In the vast majority of instances, both health practitioners and the person living with HIV perceive an ethical obligation, and a have strong desire, to prevent harm to contacts of the patient. In practical terms, notifying third parties is usually discussed with the patient and a planned stepwise approach initiated. This approach starts with the patient communicating with the third party(ies). The medical practitioner, patient and third party(ies) will then communicate jointly, and finally the medical practitioner and the third party(ies) will speak in the absence of the patient. Healthcare 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, healthcare providers could be held liable for injuries or harm suffered by third parties because of their acts and omissions.
In Australia, there is no general ‘duty to warn’. However, there are circumstances where exceptions to confidentiality are permitted in certain circumstances when a health practitioner receives information that a patient may cause harm to a third party.
The United States case of Tarasoff v Regents of the University of California (1976) (Tarasoff) has previously been cited in some Australian decisions where a general duty to warn a third party has been considered. In Australia, a general ‘duty to warn’ a third party in circumstances that are similar to those in Tarasoff has not been accepted in Australian common law.
Rather, the law in Australia focuses on the ‘very exceptional circumstances’ where patient confidentiality may be waived (Kadian v Richards (2004) 61 NSWLR 222, citing W v Edgell [1990] Ch 359; Christoph Liedermann, ‘Chapter 20 Health and Guardship, Confidentiality and Health Information Privacy, Exceptions to the Duty of Confidentiality, Duty to Warn’ in Thomson Reuters (ed), Laws of Australia (last review 1 March 2021)). These ‘very exceptional circumstances’ are very narrow circumstances where ‘information which the doctor obtains is information which, if not disclosed, could endanger the lives or health of others’ (Kadian v Richards (2004) 61 NSWLR 222, citing W v Edgell [1990] Ch 359).
If a situation arises where a clinician receives information that there may be a risk of harm to a third party or a there is a concern about an HIV-positive person’s behaviour, specific advice should be sought from the health department and medical indemnity insurer prior to taking any course of action. The 3 cases discussed in this section have considered circumstances that are relevant to a practitioner’s duty of care to third parties.
