Vol 22, 2013 Annals of Health Law 390
DUTY TO WARN OF THE RISK OF HIV/AIDS
person with whom needles are shared, of that fact,”30 nor required “any
medical practitioner. . . to inform and counsel a sexual partner of the HIV
status,”31 then a medical practitioner responsible for the treatment of that
person “may inform any sexual partner of that person, of the HIV status of
The Sierra Leonean approach resonates with the cautious and measured
disclosure requirement under the SADC PF model law. Yet a few African
countries, like Mauritius, impose a strict ban on the disclosure of “any
information concerning the result of an HIV test or related medical
assessments to any other person”.33 Exceptions are made, however, for
voluntary disclosures of HIV status and disclosures ordered by a court or
made to a treating heath care worker or for purposes of epidemiological
study, research and compilation of statistical data.34 Otherwise, the
Mauritian legislation simply requires that a person who tested positive to
HIV should be counseled on “the importance [of disclosing] his status to his
spouse, sexual partner or children.”35 Kenyan HIV/AIDS legislation
substantially mirrors the Mauritian legislation on the issue of disclosure.36
Nigeria, on the other hand, has no HIV/AIDS specific legislation, but a
pending bill – National Health Act 2008 (passed by both Houses of the
legislature and awaiting Presidential assent) – containing a general
provision for the confidentiality of all health information, including
HIV/AIDS status, with exceptions for voluntary disclosures and disclosures
made in the interests of public health or ordered by the court.37 As the
analysis above shows, it may be surmised that while Africa presents an
interesting mix of disclosure regimes, the legislative trend, especially in the
West and Central African regions, generally favors a duty to warn of the
risk of HIV/AIDS infection.
III. COMMON LAW DUTY TO WARN
Absent statutory regulation, as highlighted above, whether or not there
exists a duty to warn of the risk of HIV/AIDS infection ultimately depends
on the dynamics of common law, particularly the law of negligence. Where
30. See id. at § 21(1)(b).
31. See id. at § 21(4).
32. See id. at § 21(7)-(8).
33. Mauritius, supra note 18, at § 13(4).
34. See id. at § 13(4)(a)-(d) and (5).
35. See id. at § 11(2)(b)(iii).
36. Kenya, supra note 17, at § 22.
37. An Act to Provide a Framework for the Regulation, Development and Management
of a National Health Systemand Set Standards for Rendering Health Services in the
Federation, and Other Matters Connected Therewith (2008) § 26 (Uganda).