620: HIV Confidentiality

HIV transmission

cannot occur urine, kissing or tears. Isolated reports through human bites & tattoos.

low risk behaviors

confidentiality should not be breached; cannot occur urine, kissing or tears. Isolated reports through human bites & tattoos.

annual infections in all states ___________ from 2008-2014.

decreased or remained stable

According to the CDC roughly _____ people in the US are living with AIDS

20,000

Tarasoff v. Regents of Univ. of Cal.

"When the avoidance of foreseeable harm to a third person requires a defendant to control the conduct of a person with whom the defendant has a special relationship (such as physician and patient) or to warn the person of risks involved in certain conduct, the defendant's duty extends to the third person with whom the defendant does not have a special relationship."

According to the CDC 1.1 million Americans are infected, ___ in ___ don't know it

1 in 7

____ of homosexual or bisexual men being tested for HIV said they would not tell their primary sexual partners if they tested positive _____ would not contact previous partners

12%, 27%

From 2008 to 2014, the estimated number of annual HIV infections in the U.S. declined ____

18%.

____ of these males reported they would lie about being HIV positive

20%

____ of single, sexually active heterosexual males lied about previous sexual behaviors

35%

An estimated _____ Americans became newly infected with HIV in 2014.

37,600

The statutes applying to each profession are each worded slightly differently.

All authorize disclosure but it's not required. They don't place 'affirmative duty' on the mental health professional to warn either potential victims or law enforcement. They don't say to whom the information may be disclosed.

CT Partner Notification Laws

Connecticut statutes allow, but do not require, psychologists, psychiatrists, marital and family therapists, social workers, and licensed professional counselors to disclose information that would otherwise be confidential between the patient and therapist when they believe a serious risk of imminent personal injury to the patient or third parties exists.

Does the CDC share information?

CDC does not share this information with anyone else, including insurance companies.

CDC

Centers for Disease Control and Prevention; Federal agency responsible for tracking national public health trends.

What population is most affected?

Gay and bisexual men, particularly young African American gay and bisexual men

intermediate risk behaviors

HIV positive clients who engage in safe sex but do not inform their partners of their infection are identified

What happens if you test positive for HIV?

If your HIV test is positive, the clinic or other testing site will report the results to your state health department; They do this so that public health officials can monitor what's happening with the HIV epidemic in your city and state. (It's important for them to know this, because Federal and state funding for HIV services is often targeted to areas where the epidemic is strongest.)Your state health department will then remove all of your personal information (name, address, etc.) from your test results and send the information to the U.S. Centers for Disease Control and Prevention (CDC).

Reisner v. Regents of Univ. of Cal.,

In April of 1985, 12-year old Jennifer Lawson was infected via a blood transfusion during surgery. The day after, her doctor discovered the blood was contaminated with HIV antibodies. The doctor continued to treat her but did not disclose to Lawson or her parents. 3 years later, she's dating Daniel Reisner and they become intimate. Two years after that, the doctor told 17-year old Lawson she had AIDS. She told Reisner and died a month later. He subsequently found out he was HIV positive. He sued Lawson's doctor and others for negligence. The defendants claimed, as Reisner was unidentified to them, they owed no duty to warn. The ruling was in favor of Reisner. As Lawson did not know she was HIV positive, she could not warn Reisner. When Lawson was diagnosed with AIDS in March of 1990, she and her parents immediately told Reisner. He got tested immediately and found out he was HIV positive. In suing for damages, Reisner was addressing the duty to warn. The decision in favor of Riesner relied on Tarasoff v. Regents of Univ. of Cal.

CT Common Law

Mental health professionals may be held civilly liable if they fail to warn an identifiable victim of an imminent physical threat. CT's Supreme Court has not found a violation of the duty to warn in factual situations to date. CT courts have held the duty to warn still exists. A duty to control also exists under certain circumstances.

Duty to Warn Case History

Reisner v. Regents of Univ. of Cal, Rosa Health Care Corp, PD v. Dr Nicholas Harvey

HIV (Human Immunodeficiency Virus)

Sexually transmitted infection that is spread through contact with infected blood or sexual fluids or from mother to child during pregnancy, childbirth or breast feeding Destroys CD4 cells, a specific type of white blood cells that help the body fight disease

"duty to warn"

Some states also have laws that require clinic staff to notify a "third party" if they know that person has a significant risk for exposure to HIV from a patient the staff member knows is infected with HIV.

What US region is most affected?

Southern states bear the greatest burden of HIV, accounting for 50% of new infections in 2014.

Common law duty to warn initially articulated in 1976 in

Tarasoff v. Regents

AIDs (Acquired Immunodeficiency Syndrome)

The most severe stage, consists of a badly damaged immune system which leads to opportunistic illnesses

Rosa Health Care Corp,

There was an original hearing on this case in February of 1996, with the Court denying Linda Balderas Garcia's claim against Santa Rosa Health Care Corporation for negligently failing to notify her that her former husband, Aldalberto Balderas probably had AIDS. Santa Rosa claimed they owed no duty to warn Garcia and that the statute of limitations barred her claim. Balderas was a hemophiliac who in 1980, had been allegedly infected with the AIDS virus from injected blood supplied by Santa Rosa to help a blood clot. In the mid-1980's, as knowledge of AIDS increased, Santa Rosa became aware that Balderas had probably been infected by its blood products. They scheduled him for annual physical examinations, but never notified him he might be infected with HIV. Balderas did not keep his annual appointments, so didn't learn of his infection with AIDS until he became sick and was tested in December of 1989. Balderas and Garcia met in 1987 and married in March of 1988. In this appeal in 1996, Garcia was alleging negligent failure to notify and intentional infliction of emotional distress. Garcia alleged her own possible infection with AIDS and the resulting emotional distress at having placed herself at risk during the year she lived with Balderas. The court found the following in favor of Garcia

PD v. Dr Nicholas Harvey

This was a successful lawsuit filed in Australia for breach of contract and negligence for failure to ensure that a man who tested positive for HIV told his wife about the result. In November of 1998, PD, a Sydney woman, and her fiance (FH) sought testing for sexually transmitted diseases including HIV. The general practitioner, Dr. Harvey, did not mention the procedure required to obtain consent to disclose PD's or FH's results to one another, even though he knew they were considering unprotected sex. PD relied on a negative result which was either fraudulent or forged by FH, and then contracted HIV. She discovered the true result when she found the laboratory report 15 months later, shortly before the birth of their child. PD had a caesarian section to prevent spread of the infection to the child. PD continued to see Dr. Harvey from 1997 until 1999. At no time did Dr. Harvey speak to FH about disclosing to PD, nor did he suggest a joint consultation or mention the test results at all. Dr. Harvey, in 1998, had noted in FH's file that he was about to engage in a new relationship. He did advise FH to seek further treatment at an immunology clinic, and the clinic contacted Dr. Harvey in 1999 to say FH had never followed up. No attempt was made by Dr. Harvey to contact PD or FH as he believed he had no further obligation. In the Court's decision in favor of the plaintiff, it is noted that "this case was decided very much on the facts and according to the principle of High Court of Australia in Rogers v Whitaker

high risk behaviors

Unprotected sexual contact, sharing needles

a fiduciary relationship

a relationship of special trust. Occurs once the therapist agrees to work with client

Resulting from Tarasoff, the therapeutic relationship must contain:

a) a fiduciary relationship b) Identifiability- the duty to protect extends only to identifiable victims, not the public at large c) Foreseeability- the danger must be foreseeable before the duty to protect is invoked

The Health Insurance Portability and Accountability Act of 1996 (HIPAA)

addresses some of the barriers to healthcare facing people with HIV, as well as other vulnerable populations.

Duty to Warn

in determining whether to impose a duty, the court must consider the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury and the consequences of placing that burden on the actor.

Liability in negligence is premised on the finding of a duty, a breach of duty which proximately causes

injuries, and damages resulting from that breach.

partner-notification laws

meaning that, if you test positive for HIV, you (or your healthcare provider) may be legally obligated to tell your sex or needle-sharing partner(s). In some states, if you are HIV-positive and don't tell your partner(s), you can be charged with a crime.

The Americans with Disabilities Act of 1990 (ADA)

prohibits employment discrimination on the basis of disability. If you are living with HIV or AIDS, you are protected against discrimination under Section 504 of the Rehabilitation Act of 1973 and Title II.

Some health departments require healthcare providers to

report the name of your sex and needle-sharing partner(s) if they know that information-even if you refuse to report that information yourself.

Ryan White HIV/AIDS Program

requires that health departments receiving money from the Ryan White program show "good faith" efforts to notify the marriage partners of a patient with HIV.

Under these laws, discrimination means

that you are not allowed to participate in a service that is offered to others, or you are denied a benefit, because of your HIV disease.

Foreseeability

the danger must be foreseeable before the duty to protect is invoked

Identifiability

the duty to protect extends only to identifiable victims, not the public at large

The Tarasoff decision said that

therapists have a duty to warn potential victims when they become aware of serious danger put forth by their patients.

Mental health professionals may disclose privileged communications without the patient's consent in certain circumstances: Marital or family therapists:

when they believe "in good faith that the failure to disclose such communications presents a clear and present danger to the health and safety of any individual"(CGS 52-146p(c)(2)).