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MEDICOLEGAL ISSUES

Medicolegal issues and STIs
Priya Singh

Caring for patients with STIs gives rise to many ethical, moral
and legal dilemmas for doctors. In light of recent prosecutions
for reckless transmission of HIV, patients may also have to make
difficult decisions in sensitive circumstances. This contribution
discusses the situation in the UK.
Recognizing the ethical complexity facing doctors working
in this field, the UK General Medical Council (GMC) published
guidance in 1997, advising on the management of patients with
serious communicable diseases.1 This guidance aims to set out the
principles that should govern clinicians’ decision-making when
faced with medicolegal and ethical dilemmas. The guidance is
relevant to patients with any disease that may be transmitted from
human to human and that may result in death or serious illness.
In addition, in March 2005, the Royal College of Physicians
produced, in collaboration with the British Association for Sexual
Health and HIV and the Department of Health’s Expert Advisory
Group on AIDS, HIV testing for patients attending general medical
services.2 These guidelines include advice on when and how to test
for HIV, obtaining consent, and issues relating to the feedback of
results to patients. The guidelines also include a laminated leaflet,
which can be photocopied and given to the patient.

Consent to testing
The GMC guidance outlines what to consider when gaining consent
to test patients for serious STIs; it includes guidance on testing
unconscious patients and children under 16 years of age, and on
post-mortem testing and testing for research purposes.
The important ethical and legal principles affecting the testing of patients following occupational exposure of a health-care
worker to blood-borne infection are considered. Testing without
consent should be undertaken only in exceptional circumstances.
The guidance cites the example of a patient who may have a
condition for which prophylactic treatment is available (e.g. HIV
infection). If in doubt, clinicians would be wise to take advice
from an experienced colleague on the need to test, and to contact
their medical indemnifier for advice.

Confidentiality
The medicolegal issue causing most concern for clinicians involved
in treating patients with STIs is conflict between their duty of
confidentiality to their patients and requests for information from
(or obligation to disclose information to) third parties.

Priya Singh is Head of the Medical Division at the Medical Protection
Society, London, UK. Conflicts of interest: none.

MEDICINE 33:9

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© 2005 The Medicine Publishing Company Ltd

see the recent article in Casebook. the doctor should always be aware that his or her overriding duty is to act in the patient’s best interests. and are not. to discuss the case with more experienced colleagues. or when no chaperone is available. there is no choice but to proceed sensitively. and discussing the GMC guidance with patients may help to persuade them to make the disclosure themselves. should inform the patient before making the disclosure. may have significant implications for patients. In some cases. and the GMC advises doctors always to offer a chaperone in these circumstances. and the benefits of sharing such information. GMC guidance on breaching patient confidentiality to avoid serious harm to others ‘You may disclose information about a patient. it is reasonable to postpone the examination or to offer referral to another doctor. and the overriding public policy need is for patients to remain confident in consulting health-care professionals. fails to take precautions and infects a trusting. is essential when initially advising and counselling patients. 1 MEDICINE 33:9 2 35 © 2005 The Medicine Publishing Company Ltd . or suspects. having discussed the implications with a senior colleague. However. unaware partner.5 Local policies – the Ayling Inquiry into allegations of impropriety arising from primary care consultations recommended that Disclosure to insurers Insurance companies increasingly wish to obtain specific medical information about applicants. New Law J 2004. The GMC guidance is shown in Figure 1. and the statement will be implemented by all ABI member companies (said to provide 97% of insurance business in the UK) by 30 September 2005. in order to protect a person from risk of death or serious harm.4 This states which questions insurers can ask to assess the degree of risk pertaining to an applicant. The three circumstances that most often lead to queries about disclosure of information are disclosure to other health-care professionals. 154: 762–71. the patient finds the presence of another person intrusive. and cannot be persuaded to do so. there is clearly an identifiable person at risk (e. and is prepared to take the risk. who have not been. But it does not apply where the other partner knows. Doctors should not assume that they need not offer a chaperone if they are of the same gender as the patient. whether living or dead. knowing that they are infected or may be infected. Clinicians who believe that breaching confidentiality is the correct course of action. Disclosure to sexual contacts To prevent or minimize the risk of individuals with STI infecting others. In such circumstances you should tell the patient before you make the disclosure. particularly HIV infection. he or she should first inform the patient of the decision. unless the clinician judges that failure to disclose that information ‘would put a healthcare worker or other patient at serious risk of death or serious harm’. For example. and in such circumstances clinicians must decide whether the risk of serious harm or injury to another individual justifies breaching the patient’s confidentiality.’ Source: Spencer J R. The questions aim to identify behaviour that increases the risk of HIV transmission. In October 2004.1 When the clinician believes that it is necessary to disclose information without the patient’s explicit consent. For detailed information on Medical Protection Society (MPS) advice about the use of chaperones. This advice is often not welcomed. a partner). the Association of British Insurers (ABI) published a Statement of best practice on HIV and insurance. and it is important to make a detailed note of the decision in the clinical record. The nature of the examination. so that they may provide effective care. Diagnosis of an STI. for example relatives.g. The doctor must carefully document the reasons why it was thought necessary to proceed with an examination in the absence of a chaperone.MEDICOLEGAL ISSUES Patients expect that their medical information will be kept confidential. with the reasoning behind it. particularly in such sensitive circumstances. at risk of infection…’ An appropriate balance ‘It means that criminal liability arises where one partner. you may disclose information to a known sexual contact of a patient with HIV where you have reason to think that the patient has not informed that person. • In emergency situations. A clinician who acts against a patient’s wishes may later have to justify that decision. In such circumstances. Chaperones Diagnosing and treating STIs involves intimate examination. for example. If a chaperone is declined because. not the genders of doctor and patient. The ABI statement applies to insurance products such as income protection and critical illness cover. this fact should be recorded in the patient’s notes. An explanation of the need to provide pertinent information to others such as GPs. affecting their insurance and other financial provisions. doctors may advise informing sexual contacts. rather than allowing the insurer to identify sexual preference. when necessary.3 Clinicians are expected to act within their competence and experience and. should dictate the need. an informed refusal should be respected. and you must be prepared to justify the decision to disclose information… You must not disclose information to others. the serious nature of the risks associated with the transmission of some STIs means that clinicians may face the dilemma of whether to disclose information to avoid serious harm to others. There are many reasons why patients may be unwilling to do this. following consultation with interested parties. with any relevant discussion. to sexual contacts and to insurance companies. • If the doctor believes that it is inappropriate to proceed. Disclosure to health-care professionals Patients may be reluctant to share sensitive information about themselves with those not directly involved in the treatment of their STI. However.

rcplondon. 9 Spencer J R. as J R Spencer QC outlines in several detailed articles on the Dica case. New Law J 2004.uk 6 www.org/ standards 2 www. www.org.mps. In 1995.abi. www. in that case during sadomasochistic sex.uk 4 Statement of best practice on HIV and insurance. He began relationships with two women. This followed the finding in an earlier case in which the House of Lords ruled that a person cannot consent to deliberate infliction of harm. 8 R v Brown [1994] I AC 212.ac. October 1997. Dica was prosecuted and convicted under Section 20 of the Offences Against the Person Act (1861). At the time of writing.  Implications of prosecutions for reckless transmission of HIV The prosecution of Mohammed Dica7 caused much concern among clinicians and patient representative groups. Importance of communication – MPS experience of indecency allegations indicates that many arise from basic failures in communication or understanding. Both women were subsequently found to be HIV positive. these should be discussed so that the policy can be amended if required. the Court of Appeal has established the principle that a person can be convicted of inflicting grevious bodily harm if he knew that he had a serious STI and recklessly transmitted that disease. through consensual sex. Dica is awaiting retrial following the overturning of his conviction by the Court of Appeal. for reckless infliction of grievous bodily harm. When problems arise.org. The clinician can then be confident of informed consent from the patient when the examination involves exposure of any ‘private’ part of the body such as the breasts or anogenital area.dh.uk 5 www.8 Whatever the outcome of Dica’s retrial.mps/org. whether Dica’s partners knew that he was HIV positive and had consented to unprotected intercourse in full knowledge of the facts.gov.uk/pubs 3 Keeping medical records.9 the courts appear simply to have struck an appropriate balance (Figure 2). with appropriate resources to ensure compliance.gmc-uk.MEDICOLEGAL ISSUES all NHS trusts and primary care organizations should develop a chaperone policy. and in both relationships had unprotected sexual intercourse. It is therefore essential that the purpose and nature of the examination are explained in relative detail. Practitioners should be familiar with local policies and with the NHS Clinical Governance Support Team publication of June 2005. Retrial for reckless infection.6 This provides a model chaperone framework. Dica was told that he was HIV positive and started medication. This was because the trial judge did not allow evidence to be heard about MEDICINE 33:9 REFERENCES 1 Serious communicable diseases.uk 7 R v Dica [2004] EWCA Crim 1103. The judge decided instead that any such consent would be invalid. Guidance on the role and effective use of chaperones in primary and community care settings. in 1997 and 2000. 36 © 2005 The Medicine Publishing Company Ltd . 154: 762–71. to a person who was unaware of and did not consent to the risk of infection. www. Will there be numerous prosecutions of this nature? Probably not.