HIV status: Who needs to know?

November 2013   Comments

Q: In what circumstances do I have a legal duty to disclose a patient’s HIV status? 

A: In the vast majority of circumstances, a patient’s HIV status should not be revealed to anyone else without the patient’s explicit informed consent, for both legal and ethical reasons. However, there are a couple of specific exceptions.

First, under public health legislation in every province and territory, HIV (and/or AIDS) is a reportable illness. You might be required to report HIV diagnoses to public health authorities. The reportable details could include the patient’s name, risk factors and demographic information. Reporting obligations vary, so check the applicable laws and regulations in your region. (Links to provincial and territorial public health laws are available on the Canadian HIV/AIDS Legal Network website.)

Second, you could consider disclosing a patient’s HIV status to prevent harm to another person, particularly if you believe that the patient is having unprotected sex or sharing drug-injection equipment with a partner who is unaware of the HIV risk. Such situations pose difficult legal and ethical questions.

Professional regulatory bodies, legislatures and courts have recognized that in some circumstances, patient confidentiality may give way to protect others who are thought to be at risk of harm. A patchwork of standards and laws in different regions of the country offer some guidance, but a general rule is that under Canadian law there are three conditions that should be satisfied before you breach confidentiality: there is a clear risk of harm to an identifiable person or group of persons; there is a risk of serious bodily harm or death; and the danger is imminent. Some regulatory bodies also provide specific guidance to their members, such as the College of Nurses of Ontario’s Confidentiality and Privacy — Personal Health Information.

In the rare circumstance that a nurse decides to breach confidentiality to “warn” a third party that he or she is at risk of acquiring HIV, it should be done without identifying the HIV-positive partner, where possible.

In some jurisdictions, legislation authorizes the disclosure of personal health information by some health-care providers to the relevant medical officer of health to prevent the spread of disease and protect public health.

If a person tests positive for HIV (or certain other STIs), public health departments will probably require that his or her sexual and drug-injecting partners be notified. If the person has not already informed them, a public health nurse will likely ask for their names and contact them, indicating that they may have been exposed to HIV. Generally accepted principles of good practice mandate that the person doing the partner notification not reveal the name or other identifying information of the person who is HIV positive.

Q: When do nurses who are living with HIV have an obligation to disclose their HIV status at work, and to whom?

A: As a general rule, people living with HIV are under no legal obligation to disclose this fact in the workplace. However, for health-care providers there may be a (small) risk of HIV transmission in carrying out certain job tasks. Therefore, there are some special, limited requirements about HIV disclosure that are set out by professional regulatory bodies. For example, health-care providers may be required to disclose their status to their regulatory body and may be restricted from performing exposure-prone procedures.

Practice-related HIV-disclosure rules vary, so nurses need to confirm the applicable requirements with their regulatory body. (At the time of this writing, to the best of my knowledge, Alberta is the only province in Canada with a mandatory requirement for nurses living with HIV to report their status to the regulatory body.)

Note that a professional obligation to disclose HIV status to a regulatory body does not mean that a nurse living with HIV also needs to disclose directly to the employer. If accommodation at work is required, he or she does not need to provide a specific diagnosis to the employer when submitting medical documentation explaining the specific limitations or requirements to arrange for the accommodation.

If requesting a medical leave because he or she is no longer able to perform the work, the employee may be able to apply for sick-leave benefits or disability benefits through a group plan sponsored by the union or employer. More detailed medical information, demonstrating that the employee is unable to fulfil the essential duties of the job, would likely be required when the application is made.

Generally speaking, there is no legal obligation to disclose HIV-positive status to patients or clients. In the unlikely event that a possible HIV exposure occurs, they should be informed so that they can seek medical advice about testing and consider whether to receive post-exposure prophylaxis.

Nurses are not required to disclose their HIV status to co-workers. It is up to each individual to determine whether to share such information with them.

Alison Symington, LLB, LLM

Alison Symington, LLB, LLM, is a Senior Policy Analyst with the Canadian HIV/Aids legal network.

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