Vol 22, 2013 Annals of Health Law 405
DUTY TO WARN OF THE RISK OF HIV/AIDS
resulting from the notification.”119 Even in the U.S., where involuntary
disclosure of sero-status is quite established, either on a mandatory or
discretionary basis depending on the jurisdiction,120 it has been suggested
that physicians must weigh and balance the benefits of notification against
the seriousness of potential harms.121 Physicians must consider that “a high
risk that an infected patient will be subject to immediate violence or death
outweighs the risk that she will transmit HIV to her partner.”122 Finally, the
foregoing analysis suggests that policy considerations deriving from the
potentials for violence against an African victim of HIV are likely to
militate against the finding of a duty to warn of HIV infection in African
common law courts.
Whether or not a physician has a duty to warn a third party of the risk of
HIV infection remains a hotly debated issue in Africa. Africa, especially
southern Africa, is the epicenter of HIV/AIDS.123 An increasing number of
African countries have sought to combat the pandemic (partly) by the
promulgation of HIV/AIDS-specific legislation and policy. A good number
of HIV/AIDS-specific legislation in the continent derives from sub-regional
model laws, especially those developed by AWARE-HIV/AIDS and the
SADC PF. Both model laws have contrasting provisions on partner
notification, with the result that sub-Saharan African countries show an
interesting mix of regimes on partner notification obligations.
While some countries favor mandatory partner notification and some
merely empower the disclosure of sero-status, others maintain strict
confidentiality of HIV test results except in narrowly defined
circumstances. The general statutory trend, however, seems to be in the
direction of mandatory notification of sero-status, especially in the West
and Central African regions. Absent legislative regulation, however, the
duty to warn depends on the legal systems of African countries. For
common law African countries, this will depend on the law of negligence
119. SADC PF MODEL LAW, supra note 9, at §15(4)(b)(iii)(bb).
120. The Ryan White Comprehensive AIDS Resources Emergency (CARE) Act of
1990, Pub. L. No. 104-06, §8, 110 Stat. 1346, 1372 (codified at 42 U.S. C. § 300ff – 27a
(2000)). Requires States, as a condition for receiving federal HIV prevention funds, to adopt
legislative or administrative actions necessary for ensuring that “good faith effort” is made to
notify current and former spouses of HIV infected patients that they may have been exposed
to HIV and need to be tested. See generally Pottker-Fishel, supra note 38, at 166.
121. Nicole S. McKinney, A Legal and Ethical Analysis of Third Party Notification of
HIV, 16 THE AM. ASS’N. OF BEHAV. & SOC. SCI. J., 46, 55 (2012).
122. North & Rothenberg, supra note 114, at 1195.