Vol 22, 2013 Annals of Health Law 389
DUTY TO WARN OF THE RISK OF HIV/AIDS
patient’s HIV/AIDS status to a third party subject to certain conditions: (a)
the intended recipient of the information is at immediate risk of HIV
transmission, (b) the person living with HIV refused to inform the third
party at risk of HIV transmission after appropriate counseling, (c) the
person living with HIV was informed of the intention to communicate his
or her HIV status to the third party, and (d) the disclosure must not expose
the person living with HIV to physical violence.21 Section 15(4)(c) of the
SADC PF model law further provides that involuntary disclosure of HIV
status might be permitted where the HIV-infected person is dead,
incompetent or unlikely to regain consciousness and “there is or was a
significant risk of transmission of HIV by the person living with HIV to the
In contrast, Article 26 of AWARE-HIV/AIDS’s model law, which
inspired similar provisions in West and Central African regions, “requires a
person diagnosed with HIV to disclose his or her HIV status to a ‘spouse or
regular sexual partner’ as soon as possible and at most within six weeks of
the diagnosis.23 The testing centre shall be required to disclose to spouses
or sexual partners after six weeks.”24 Surprisingly, Uganda, a member state
of SADC, has proposed HIV/AIDS legislation that not only embraces the
broad partner notification provision above but goes farther in authorizing
disclosures of HIV status to any “third party with whom an HIV infected
person is in close and continuous contact including but not limited to a
spouse.”25 Pearshouse noted that HIV/AIDS legislation in Niger, Mali and
Togo faithfully reproduced the AWARE-HIV/AIDS model law’s provision
on the “duty to warn”.26
But not all African countries embraced the mandatory disclosure
requirement above. HIV/AIDS legislation in Sierra Leone, for instance,
empowers, but does not compel, physicians to disclose HIV test results.27
The Sierra Leonean statute provides strict confidentiality of HIV test results
in sections 15 and 18.28 The statute stipulates that where a person fails to
“take all reasonable measures and precautions to prevent the transmission of
HIV to others”29 and neither informed, in advance, “any sexual contact or
21. SADC PF MODEL LAW, supra note 9, §15(4).
22. SADC PF MODEL LAW, supra note 9, § 15(4), at 16.
23. Pearshouse, supra note 8, at 6.
24. Id. at 7.
25. Human Immunodeficiency Virus Control Bill (2008), at § 14 (Uganda).
26. Pearshouse, supra note 8, at 9.
27. See Sierra Leone, supra note 16, § 18.
28. See id. at § 21(1)(a).