Arguments against breaching confidentiality

There are of course a number of factors that would prohibit the healthcare worker from informing a patient's partner, the vital one being that of patient confidentiality. Both the medical and nursing professions have codes of professional conduct that prohibit them from disclosing details of patients' treat ment and consultations with others. The Hippocratic Oath states: 'All that may come to my knowledge in the exercise of my profession or outside my profession or in daily commerce with men that ought not to be spread abroad, I will keep secret and will never reveal' (cited in Mason et al. 2002, p. 243), and the General Medical Council offers more recent guidance: 'Patients have a right to expect that information about them will be held in confidence by their doctors. Confidentiality is central to trust between doctors and patients. Without assurances about confidentiality, patients may be reluctant to give doctors the information they need in order to provide good care' (GMC 1998). Equally, the nursing profession are bound by their professional code of conduct: 'You must treat information about patients and clients as confidential and use it only for the purpose for which it was given' (Nursing and Midwifery Council 2004).The codes of conduct and their similar themes interweave confidentiality into everything that doctors and nurses do.

The common argument to support this is that without a strict guarantee of confidentiality patients may disclose less about themselves and their conditions, as a result of which the treatment that they receive may be inferior to that which is required. To consider this in the field of sexual health, confidentiality and the practitioner-patient relationship is of crucial importance. A typical consultation with a sexual health doctor or nurse will call for disclosure of a number of intimate details that include: sexual orientation, details of sexual partners, types of sexual practices, previously diagnosed sexually transmitted infections (STIs), and whether or not safer sex practices were used.

It is important to acknowledge that being armed with this sensitive information regarding a patient's sexual history may put the individual into a very vulnerable position. Therefore a strong ethos of confidentiality within the therapeutic relationship is required. If, as in the legal case of R v Kelly (2001), the police obtain a warrant to look at the individual's medical history, then firm evidence may be gained to build a case following the transmission of HIV, thereby voiding our promise of confidentiality to our patients and harming our reputation as a service.

So if it were to be the healthcare professional's duty to inform the index patients' partner of the HIV diagnosis, how would they overcome the obvious hurdle posed by their professional obligation to respect patient confidentiality? In addition to this, HIV services under the umbrella of sexual health clinics lead patients to believe that all information given remains confidential. The author would argue that patients would confidently assume that they would be treated in the strictest confidence on engaging with the service, holding the belief that the information is confidential or secret (Marshall (Thomas) (Exports) Ltd v Guinle 1979).

It would be easy for the patient to assume that in England a right to privacy may exist in statute or as a result of the evolution of case law. Until recently it has been considered that 'there is no right to privacy in English law, although in practice much that is private can be protected in other ways' (Staunch & Wheat 1998, p. 225).Therefore people can gain legal remedy for such a breach, using, for example, the tort of trespass. In 1998 the European Convention on Human Rights (1998) became part of English law. Article 8 of the Act offers protection for a right to private life. The use of these legal remedies may also imply to the patient that 'Confidential' means confidential. If healthcare workers were to take the lead in breaching that right, then on what grounds could they proceed?

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