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Saturday 10 October 2009


What you should know about HIV and confidentiality

Posted in: Features, HIV
By Jay Bennie - 28th May 2009

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As Auckland police investigate claims that a rogue HIV positive man has for over a year been seducing young gay men and knowingly infecting them with HIV, GayNZ.com presents a series of feature articles on issues arising from the allegations.



PART 2: PRIVACY AND THE HEALTH PROFESSIONALS

The implications of an alleged HIV+ predator infecting young gay men in our communities for a year or more are sinking in, and one of the first questions to emerge is: "Why didn't someone do something sooner?"

Let's start at very beginning. A young man arrives at a sexual health clinic asking for an HIV test. Anticipating the possibility that their client may test positive and that he, along with his test results and any other relevant information, may need to be passed on to, say, an HIV specialist, the young man is asked to sign a form approving this specific transfer of information.

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Bruce Kilmister of Body Positive Auckland
Bruce Kilmister of Body Positive Auckland explains: "If we receive a positive response to a rapid test then blood must be drawn from the client and referred through to a [the hospital lab] for a confirmatory Western Blot test. If that result confirms HIV then we make a referral to an Infectious Diseases physician or Sexual Health specialist. The client has signed the consent forms before we perform a test. The client also signs a consent form for us to share his / her information with medical physicians only."

That need to maintain client confidentiality is a legal requirement in
New Zealand under such laws as the Privacy Act (1993) and the Health Information Privacy Code (1994). It also makes practical sense as who, the thinking goes, would ever test for HIV if they believed their intimate personal information could radiate out uncontrolled through varying levels of the health bureaucracy or become the subject of water cooler chatter at the sexual health clinic. Thus, "even staff at Body Positive are restricted from accessing information from the client files maintained by counsellors and social workers," says Kilmister. At the NZ AIDS Foundation's Burnett Centre, located adjacent to the organisation's head office, non-Burnett staff must ask permission to even enter the Centre.


INFORM, ENCOURAGE, SUPPORT

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Rachael Le Mesurier of the NZAF
But there may be a need for other people to be informed. For instance, the person who may have been the source of the young man's infection, or anyone to whom the infection may have been passed on. "When a person has a positive test result for HIV at an NZAF centre they are encouraged and supported to disclose that information to their sexual partners, previous partners, or anyone from whom they think they may have acquired HIV," says AIDS Foundation Executive Director Rachael Le Mesurier.

Encouraged and supported. New Zealand's approach to containing the HIV epidemic and treating those with the virus is based on our local infections being overwhelmingly within the specific population sub-group of men who have sex with men. Also the fact that HIV transmission requires a much more intimate physical connection between two people than, say, sneezing in a crowded 747. And the belief that more men will come forward to test, and if positive adopt safe sex practices, if they are treated sensitively and their information is kept confidential.

Under the elderly Public Health Act 1956, which could not have predicted the emergence of HIV, health care professionals are not required to disclose an HIV positive person's identity to those authorities with the responsibility and powers to aggressively 'track and trace' health threats and proactively head off those threats. Therefore privacy legislation rules.

However valuable or even vital it may be, short of a court order to provide the details an HIV positive person's information must remain locked in his personal file, accessible only to the person who put it there. And a court order is unlikely to happen without a formal police investigation which cannot happen unless a victim makes a formal complaint to the police. That's a step which even police Adult Sexual Assault Team leader Detective Sergeant Andy King admits can be perceived as frightening to take, although he insists the reality of dealing with his team is quite different with the possible complainant in control of the process.


If the newly-diagnosed HIV positive man feels able to identify his past and present partners' identities to his counsellor but unable to discuss the matter directly with those partners a limited track and trace process is available. With his permission the partners' identities and contact details can be passed, stripped of any information regarding the source of the information or his health status, to a second counsellor who has no contact with the source of the information. "That counsellor will contact the individual to let them know there is reason to believe they may have come into contact with HIV, and that it is recommended that they visit the NZAF, a sexual health service or their GP to have an HIV test," says Le Mesurier.

And that is where the process, designed to reach out to those who may be infected and to support them through voluntary testing and any medical consequences, generally ends.


THE REALITY OF CONFIDENTIALY

Let's apply the process to what may have happened in a situation whereby an HIV positive man appears to be transmitting HIV to some of his sex partners who know his identity.

Some of his victims take an HIV test at the NZAF or Body Positive Auckland or a Sexual Health Clinic or through their own GP. Assuming they use a real name when signing up for a test, the identities of those who test positive are not known to anyone other than their doctor or specific sexual health service counsellor. A number of victims may test positive, be supported and assisted by different counsellors at different sexual health agencies and their alleged contacts or sex partners contacted by yet other counsellors. But due to professional and legal requirements no one can cross reference names or file contents.

Of course it is possible that just occasionally one counsellor sees the same name crop up more than once. Perhaps his or her own client mentions a likely source's name and he or she is later passed the same name to follow up anonymously on behalf of a fellow counsellor. That counsellor can take the matter no further. He or she is still constrained by the privacy legislation not to share any of the information with any other person or agency.

Though seriously concerned that the two or three dots he or she has connected may point to more dots and create a picture of interconnected and ongoing infections, the counsellor is gagged by privacy legislation which is not trumped by the Public Health Act 1956.

The newly-HIV positive person knows who he may have got the virus from but may not know if he is part of a tragic pattern or if the alleged infector is even aware he is HIV positive. In an emotional or frightened or protective frame of mind he may not want the information passed on.

So, the health professionals are unlikely to detect a pattern and even if they do are not allowed to take the matter further without the client's consent.

As for the alleged infector, he perhaps doesn't know he has the virus to pass on.

Or he becomes aware through one or more anonymised contact calls, or through personal feedback from those he may have infected, that he may, just may, have the virus. In which case there is no requirement to actually take a test and he can elect to remain technically ignorant of his HIV status.

Or he may know that he definitely has the virus or is highly likely to have it, and that the chances that he has passed it on are high and still do nothing to check his HIV status or modify his sexual habits.


RISK AND OBLIGATIONS

According to Body Positive's guidelines to newly-diagnosed HIV positive people, if a GP or test counsellor knows specifically who might be at real risk of subsequent infection from this client the health professional is obliged to ensure the person at risk is brought into the picture, usually through the Medical Officer of Health who has broader powers to act than GPs, clinicians and counsellors. But this can only happen if the HIV positive person identifies specifically who they are placing at risk.

The only glimmer of light would be if a GP or sexual health professional became aware of the alleged infector's identity plus his confirmed HIV positive status and positive test date plus the identity of any victims who were infected after that date or any identified person at risk of infection. It's not impossible but it's a tall order.

Essentially, the only person who can get the ball rolling to stop the pattern of infection is one of the infected victims. And there are any number of reasons why they might not feel able to take that step. They may not even be aware that they are part of 'a situation.'

Perhaps some less formal process can come into play?


What options are available to someone who smells a rat and is not so constrained by legal or professional restrictions will be the subject of PART 3 of our series.


Jay Bennie - 28th May 2009

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