MEDICOLEGAL ISSUES

Medicolegal issues and STIs

Priya Singh

Caring for patients with STIs gives rise to many ethical, moral
and legal dilemmas for doctors. In light of recent prosecutions
for reckless transmission of HIV, patients may also have to make
difficult decisions in sensitive circumstances. This contribution
discusses the situation in the UK.
Recognizing the ethical complexity facing doctors working
in this field, the UK General Medical Council (GMC) published
guidance in 1997, advising on the management of patients with
serious communicable diseases.1 This guidance aims to set out the
principles that should govern clinicians decision-making when
faced with medicolegal and ethical dilemmas. The guidance is
relevant to patients with any disease that may be transmitted from
human to human and that may result in death or serious illness.
In addition, in March 2005, the Royal College of Physicians
produced, in collaboration with the British Association for Sexual
Health and HIV and the Department of Healths Expert Advisory
Group on AIDS, HIV testing for patients attending general medical
services.2 These guidelines include advice on when and how to test
for HIV, obtaining consent, and issues relating to the feedback of
results to patients. The guidelines also include a laminated leaflet,
which can be photocopied and given to the patient.

Consent to testing
The GMC guidance outlines what to consider when gaining consent
to test patients for serious STIs; it includes guidance on testing
unconscious patients and children under 16 years of age, and on
post-mortem testing and testing for research purposes.
The important ethical and legal principles affecting the testing of patients following occupational exposure of a health-care
worker to blood-borne infection are considered. Testing without
consent should be undertaken only in exceptional circumstances.
The guidance cites the example of a patient who may have a
condition for which prophylactic treatment is available (e.g. HIV
infection). If in doubt, clinicians would be wise to take advice
from an experienced colleague on the need to test, and to contact
their medical indemnifier for advice.

Confidentiality
The medicolegal issue causing most concern for clinicians involved
in treating patients with STIs is conflict between their duty of
confidentiality to their patients and requests for information from
(or obligation to disclose information to) third parties.

Priya Singh is Head of the Medical Division at the Medical Protection

Society, London, UK. Conflicts of interest: none.

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Patients expect that their medical information will be kept confidential, and the overriding public policy need is for patients to
remain confident in consulting health-care professionals. However,
the serious nature of the risks associated with the transmission of
some STIs means that clinicians may face the dilemma of whether
to disclose information to avoid serious harm to others.
The three circumstances that most often lead to queries about
disclosure of information are disclosure to other health-care professionals, to sexual contacts and to insurance companies.

The ABI statement applies to insurance products such as income

protection and critical illness cover, and the statement will be
implemented by all ABI member companies (said to provide 97%
of insurance business in the UK) by 30 September 2005.
Disclosure to sexual contacts
To prevent or minimize the risk of individuals with STI infecting
others, doctors may advise informing sexual contacts. This advice
is often not welcomed. There are many reasons why patients may
be unwilling to do this, and in such circumstances clinicians must
decide whether the risk of serious harm or injury to another individual justifies breaching the patients confidentiality. The GMC
guidance is shown in Figure 1.
In some cases, there is clearly an identifiable person at risk
(e.g. a partner), and discussing the GMC guidance with patients
may help to persuade them to make the disclosure themselves.
Clinicians who believe that breaching confidentiality is the correct course of action, having discussed the implications with a
senior colleague, should inform the patient before making the
disclosure.

Disclosure to health-care professionals

Patients may be reluctant to share sensitive information about
themselves with those not directly involved in the treatment of
their STI. An explanation of the need to provide pertinent information to others such as GPs, so that they may provide effective
care, and the benefits of sharing such information, is essential
when initially advising and counselling patients. However, an
informed refusal should be respected, unless the clinician judges
that failure to disclose that information would put a healthcare
worker or other patient at serious risk of death or serious harm.1
When the clinician believes that it is necessary to disclose information without the patients explicit consent, he or she should first
inform the patient of the decision. A clinician who acts against a
patients wishes may later have to justify that decision, and it is
important to make a detailed note of the decision in the clinical
record, with the reasoning behind it.3 Clinicians are expected to
act within their competence and experience and, when necessary,
to discuss the case with more experienced colleagues, particularly
in such sensitive circumstances.

Chaperones
Diagnosing and treating STIs involves intimate examination, and
the GMC advises doctors always to offer a chaperone in these circumstances. Doctors should not assume that they need not offer
a chaperone if they are of the same gender as the patient. The
nature of the examination, not the genders of doctor and patient,
should dictate the need.
If a chaperone is declined because, for example, the patient
finds the presence of another person intrusive, this fact should be
recorded in the patients notes, with any relevant discussion. In
such circumstances, or when no chaperone is available, the doctor
should always be aware that his or her overriding duty is to act in
the patients best interests.
If the doctor believes that it is inappropriate to proceed, it is
reasonable to postpone the examination or to offer referral to
another doctor.
In emergency situations, there is no choice but to proceed
sensitively. The doctor must carefully document the reasons why
it was thought necessary to proceed with an examination in the
absence of a chaperone.
For detailed information on Medical Protection Society (MPS)
advice about the use of chaperones, see the recent article in
Casebook.5
Local policies the Ayling Inquiry into allegations of impropriety arising from primary care consultations recommended that

Disclosure to insurers
Insurance companies increasingly wish to obtain specific medical
information about applicants. Diagnosis of an STI, particularly HIV
infection, may have significant implications for patients, affecting
their insurance and other financial provisions.
In October 2004, following consultation with interested parties,
the Association of British Insurers (ABI) published a Statement
of best practice on HIV and insurance.4 This states which questions insurers can ask to assess the degree of risk pertaining to an
applicant. The questions aim to identify behaviour that increases
the risk of HIV transmission, rather than allowing the insurer to
identify sexual preference.

GMC guidance on breaching patient confidentiality to

avoid serious harm to others
You may disclose information about a patient, whether living or
dead, in order to protect a person from risk of death or serious
harm. For example, you may disclose information to a known
sexual contact of a patient with HIV where you have reason to
think that the patient has not informed that person, and cannot
be persuaded to do so. In such circumstances you should tell
the patient before you make the disclosure, and you must be
prepared to justify the decision to disclose information You must
not disclose information to others, for example relatives, who
have not been, and are not, at risk of infection

An appropriate balance
It means that criminal liability arises where one partner, knowing
that they are infected or may be infected, fails to take precautions
and infects a trusting, unaware partner. But it does not apply
where the other partner knows, or suspects, and is prepared to
take the risk.
Source: Spencer J R. New Law J 2004; 154: 76271.

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all NHS trusts and primary care organizations should develop a

chaperone policy, with appropriate resources to ensure compliance.
Practitioners should be familiar with local policies and with the
NHS Clinical Governance Support Team publication of June 2005,
Guidance on the role and effective use of chaperones in primary
and community care settings.6 This provides a model chaperone
framework. When problems arise, these should be discussed so
that the policy can be amended if required.
Importance of communication MPS experience of indecency
allegations indicates that many arise from basic failures in communication or understanding. It is therefore essential that the
purpose and nature of the examination are explained in relative
detail. The clinician can then be confident of informed consent
from the patient when the examination involves exposure of any
private part of the body such as the breasts or anogenital area.

whether Dicas partners knew that he was HIV positive and had
consented to unprotected intercourse in full knowledge of the
facts. The judge decided instead that any such consent would be
invalid. This followed the finding in an earlier case in which the
House of Lords ruled that a person cannot consent to deliberate
infliction of harm, in that case during sadomasochistic sex.8
Whatever the outcome of Dicas retrial, the Court of Appeal
has established the principle that a person can be convicted of
inflicting grevious bodily harm if he knew that he had a serious
STI and recklessly transmitted that disease, through consensual
sex, to a person who was unaware of and did not consent to the
risk of infection.
Will there be numerous prosecutions of this nature? Probably
not; as J R Spencer QC outlines in several detailed articles on the
Dica case,9 the courts appear simply to have struck an appropriate
balance (Figure 2).

Implications of prosecutions for reckless transmission of HIV

The prosecution of Mohammed Dica7 caused much concern among
clinicians and patient representative groups.
In 1995, Dica was told that he was HIV positive and started
medication. He began relationships with two women, in 1997 and
2000, and in both relationships had unprotected sexual intercourse.
Both women were subsequently found to be HIV positive. Dica
was prosecuted and convicted under Section 20 of the Offences
Against the Person Act (1861), for reckless infliction of grievous
bodily harm.
At the time of writing, Dica is awaiting retrial following the
overturning of his conviction by the Court of Appeal. This was
because the trial judge did not allow evidence to be heard about

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REFERENCES
1 Serious communicable diseases, October 1997. www.gmc-uk.org/
standards
2 www.rcplondon.ac.uk/pubs
3 Keeping medical records. www.mps/org.uk
4 Statement of best practice on HIV and insurance. www.abi.org.uk
5 www.mps.org.uk
6 www.dh.gov.uk
7 R v Dica [2004] EWCA Crim 1103.
8 R v Brown [1994] I AC 212.
9 Spencer J R. Retrial for reckless infection. New Law J 2004; 154:
76271.

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