HIV Testing, AIDS, and Confidentiality on the Golf Course: Ars Muta, Vita Brevis
Simpson, Michael A., Humane Health Care International
Arecent case that began in golfcourse gossip set landmark legal precedents in South Africa concerning an important aspect of medical ethics and communication. (1),(2) The case led to the country's first Supreme Court decision on medical confidentiality, and the first appellate decision on medical and ethical aspects of AIDS. The names of the patient and the doctors, though widelydisclosed in the South African media at the time, will be protected in this paper. The case and aspects of the opinion are offered as material for further discussion and consideration, because so far they have been reported and discussed only in brief articles in minor publications. (3), (4) (5)
Mr. M, a young businessman, had lived in a homosexual relationship with Mr. V, in the town of Brakpan, near Johannesburg, South Africa. They were well-known members of that community, and the nature of their relationship seemed rather broadly known. In 1990, they began a new business. Mr. M applied for life insurance, and was asked to have a routine medical examination, which included a test for HIV. For this checkup, he visited his general practitioner, Dr. K, his physician for eight or nine years. The doctor took a blood sample for HIV testing, and the laboratory informed him that his patient was HIV-positive. He called his patient to come in for an appointment and told him the result. Understandably, Mr. M was very distressed, and also worried about the possibility of others learning the results. He discussed this with his doctor, who promised to respect his wish that this be kept confidential.
The next afternoon, Dr. K was playing golf with two friends, one a dentist, who had treated Mr. M some 30 months earlier, the other Dr. X, another GP who had once given Mr. M a prescription. Both, like Dr. K, were social acquaintances of the patient: Mr. M was involved in business with Dr. X's wife. Dr. K's ex-wife and her parents were friends of Mr. V. Both Dr. X and the dentist told the news to their wives. By the end of the week, much of the business and social community in Brakpan, where Mr. M worked and socialized, knew his HIV status. Mr. M soon realized this, and tried to discover who had breached his confidence. He brought a case in the provincial division of the Supreme Court of South Africa, alleging that the doctor had disclosed the result of his HIV test to others, in breach of a duty of confidentiality. Mr. M sued Dr. K, initially for R 50,000 damages (later increased to R 250,000), claiming that there had been a breach of the duty of confidentiality based in their doctor-patient relationship, and an invasion of his "rights of personality" and of privacy. Initially, he also sued Dr. J, owner of the laboratory where his blood was tested, but at the trial, the matter only proceeded against Dr. K.
Earlier, Mr. M had complained that Mrs. B, Dr. K's receptionist, had revealed his HIV status to his doctor's former wife, Mrs. K, but the receptionist denied this. The court found that Mr. M had failed to prove that the receptionist had made a disclosure, and that Dr. K had strictly enjoined all his employees to keep all information about his patients, which they might come across in their work, strictly confidential.
Dr. K denied having made a disclosure. Alternatively, he argued that it had been justified in law, among other reasons, because it had been made on a privileged occasion, was true, and was in the public interest. He testified that the dentist was both his patient and Mr. M's dentist. Thus, he said, he was concerned that the dentist might have become infected while treating Mr. M, and felt constrained to tell the dentist of Mr. M's HIV status, so that the dentist could evaluate his own risk of exposure to the virus. He admitted he had not intended to discuss this with his dentist friend while they were playing golf.
He claimed that, during the game, they began a general discussion about HIV infections, and, to emphasize how relevant the problem was, he told the other two that a patient of his, whom they both knew, had proved HIV-positive. …