Vol 22, 2013 Annals of Health Law 397
DUTY TO WARN OF THE RISK OF HIV/AIDS
other legal obligations of a defendant-physician, such as the obligations of
privacy and confidentiality imposed on a physician for the benefit of a
patient. In evaluating the existence of a duty of care, courts are usually
conscious of the correlation between the alleged duty and an existing legal
obligation. For instance, in C. B.S. Songs Ltd. v Amstrad Consumer Electric
PLC, the House of Lords refused to recognize a duty of care on the part of a
manufacturer of tape-to-tape domestic audio system, which could facilitate
copyright infringement, on the ground that to do so would subvert the
statutory regime on copyright.80 Similarly, it is arguable that imposing on a
physician the duty to warn third parties of the risk of HIV/AIDS infection
would infringe the physician’s obligation of privacy and confidentiality
toward the patient.
The dual obligation of respecting the privacy of patients and maintaining
confidentiality of their medical information has long been recognized as
central to the practice of medicine. Although privacy and confidentiality are
sometimes used interchangeably, the two concepts are not synonymous.81
Privacy refers to the right of everyone to “control access to and/or
distribution of personal information, property, and or knowledge of
personal behaviors.”82 As Warren and Brandeis tersely, but famously, put
it, it is the “right to be let alone.”83 Each of us is entitled to a “zone of
privacy” upon which no one may intrude save with our permission. Our
eating habits, sexual preferences or choice of dressing are considered
private matters that may not be interfered with in the absence of a justifiable
Confidentiality, on the other hand, simply means keeping intimate
information about a person secret.85 There is a legal as well as an ethical
obligation to keep secret information revealed to another in circumstances
80. C. B.S. Songs Ltd. v. Amstrad Consumer Electric Plc.,  2 A. C 605 (H.L.).
81. In England, however, privacy is not yet recognized as giving rise to an independent
tort: Kaye v. Robertson,  F.S.R. 62; R v. Khan,  A. C. 558; Wainright v. Home
Office,  2 A. C. 406 (H.L.). But following the introduction of the Human Rights Act of
1998, incorporating Article 8 (privacy) of the European Convention on Human Rights,
English law now recognizes the values of privacy through the equitable cause of action for
breach of confidence. See Gavin Phillipson & Helen Fenwick, Breach of Confidence as a
Privacy Remedy in the Human Rights Act Era 63 M.L.R. 660, 661 (2000). See also Douglas
v. Hello  1 A. C. 1 (H.L.).
82. Evan G. DeRenzo, Privacy and Confidentiality, in FLETCHER’S INTRODUCTION TO
CLINICAL ETHICS 87-88 (John C. Fletcher, Paul A. Lombardo & Edward M. Spencer eds.,
University Publishing Group, Inc., 3rd ed. 2005).
83. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193,
84. See DeRenzo, supra note 82.
85. For a detailed judicial analysis of the cause of action for breach of confidence see
Attorney-General v. Guardian Newspapers Ltd., (No. 2)  1 A. C 109 (H.L.).