Vol 22, 2013 Annals of Health Law 399
DUTY TO WARN OF THE RISK OF HIV/AIDS
true of HIV/AIDS patients given their vulnerability to rejection,
abandonment, violence and other forms of social stigmatization.89 A
powerful argument by gay rights groups and human rights campaigners is
the fear that test results might be released to people that could stigmatize or
in some other ways negatively treat the individual would hardly incentivize
testing.90 Without assurance of secrecy about their seropositive status, these
patients would be unlikely to seek treatment. Finally, without
confidentiality, some patients might decline treatment entirely, thereby
threatening public health.
Despite its value, confidentiality obligation is not absolute but subject to
the dictates of public health and individual security.91 For example, the
Court of Appeal in W v. Egdell held that the publication of a confidential
medical report concerning a person suffering from mental illness was not in
breach of confidence as it was necessary in the interest of public safety.92
In other words, entitlement of patients to confidentiality and associated
privacy interests are not sacrosanct and do not override other rights such as
the right to be healthy.93 At issue here is the legitimacy of prioritizing the
privacy rights of the HIV patient over the pressing need to protect his
partners or others at risk of infection. As previously stated, the duty to
maintain confidentiality, while important, is not absolute.94 Rather, it is
what philosophers term a “prima facie duty,” and therefore must yield to
superior claims in appropriate circumstances.95 A duty is considered prima
facie when it is required to be performed unless a more important
consideration dictates otherwise. As the Tarasoff court aptly noted: “The
protective privilege ends where the public peril begins.”96 Put differently,
89. See Jane M. Simoni & David W. Pantalone, Secrets and Safety in the Age of AIDS:
Does HIV Disclosure Lead to Safer Sex? 12 TOPICS IN HIV MED. 109, 110 (2004).
90. Swartz, supra note 87, at 45.
91. See Schering Chemicals LTD. v. Falkman LTD.  2 W.L.R 848 (Civ) 869
(Eng.); see also Beloff v. Pressdram,  1 All E.R. 241 (Civ) 260 (Eng.).
92. W v. Egdell,  2 W.L.R 689 (Civ) 690 (Eng.). See also X v. Y,  2 All
E.R. 648 (Civ) 649 (Eng.).
93. In this context, the term “right to life” recognizes that for the vast majority of HIV
patients in resource poor countries, death is the inevitable result of infection and therefore
the right to receive notice of a partner’s HIV infection should be seen as a critical insurance
against death. As of 2008, 33.4 million people were living with HIV/AIDS in different parts
of the world, out of which sub-Sahara Africa accounted for 22.4 million, or 67 percent. See
JOINT UNITED NATIONS PROGRAMME ON HIV/AIDS, AIDS EPIDEMIC UPDATE 7, 21 (2009).
Most of the infected in Africa would likely face untimely death due to unavailability of
antiretroviral drugs in the region.
94. See Schering Chemicals, 2 W.L.R at 869.
95. See generally W.D. ROSS, THE RIGHT AND THE GOOD 18-20 (1930). This suggests
that, while there is accepted that there is a duty to be truthful, ethically justifiable to be noncompliant where truth would unjustifiably result in someone’s death. See Id.