Consent and confidentiality

Part 1


You are about to meet the Lemont family. The physician knows that Janice’s husband, Mike, recently discovered that he is human immunodeficiency virus (HIV) positive. He has been having bisexual relations for some time now. Mike has told the physician that he is happy with Janice and does not want to give up his family life, but has found it difficult to ignore his bisexual tendencies. The physician advised Mike that he had to tell Janice about the HIV as she would need to be tested. He had offered to to tell Janice for him but Mike wanted to do it himself. Janice is now in the physician’s office.

  • Dr. Randall: Hi Janice, how’s everything?

    Janice: Not too bad, I’m a little tired. I guess it’s early pregnancy.

    Dr. Randall: Pregnancy? (taken aback) You think you’re pregnant?

    Janice: I know I am. I did the drugstore test and I feel pregnant and I haven’t had my period in two months.

    Dr. Randall: Ahhh … I didn’t realize you two were trying for another baby … How do you both feel about it?

    Janice: Well, we always thought we’d have another, you know, a second one at some point. But I think Mike’s a little freaked out about it. Sam is finally sleeping through the night and I think he’s worried about sleepless nights again.

    Dr. Randall: Has he told you he’s “freaked out”?

    Janice: No, but I can tell by the way that he’s acting. Like, he’s a bit withdrawn … actually, I’m … I’m a little worried about him. Maybe he’s a little depressed.

    Dr. Randall: Do you think he needs to talk to someone?

    Janice: Well, you know Mike, he keeps things to himself.

    Dr. Randall: Well, let’s confirm that you are pregnant. Um … we’ll do some blood tests. Um … what are your symptoms?

    Janice: Oh, you know, the usual … sore breasts, tired, I feel a little queasy and no period.

    Dr. Randall: Well, it sounds like you are. Um, anything change since the last pregnancy?

    Janice: No.

    Dr. Randall: Not a smoker?

    Janice: No.

    Dr. Randall: No. Any alcohol?

    Janice: No.

    Dr. Randall: Okay. How about street drugs?

    Janice: (laughs) Please … no! And I am taking my folic acid.

    Dr. Randall: Excellent. Good … good … Ah, well, let’s do the blood tests. And if you are concerned about Mike, why don’t you ask him to come in and he and I will talk.

    Janice: Okay, I’ll do that. Thank you.

Reflective exercise 1

The exercises focus on ethical, communication and cultural issues. There are no absolutely right or wrong answers but some answers are better than others.

Read the options and the questions arising from them. To see how the option would occur in the physician-patient relationship, three of them have videos. Use the questions associated with each option to guide your decision making. After completing the exercise, you can read the commentary on the exercise and/or consult some resources.

You have told Janice that she needs the routine antenatal tests.

What would you do?

Dr. Randall: So Janice, as you know, when a woman is pregnant there are certain routine blood tests we do to make sure that everything is okay.

Janice: Yes, I had them last time.

Dr. Randall: Okay. The tests include a hemoglobin, a white count, we did rubella last time so we don’t have to repeat that one, check your urine, all of the routine stuff, and um, HIV.

Janice: HIV?

Dr. Randall: It’s all part of the regular workout.

Janice: Well that’s new.

Dr. Randall: Well, we ah figure if we give it to everyone we can catch the people who really need it.

Janice: Oh.

Dr. Randall: So Janice, as you know, when a woman is pregnant there are certain routine blood tests we do to make sure that everything is okay.

Janice: Yes, I had them last time.

Dr. Randall: Okay. The tests include a hemoglobin, a white cell count, we did rubella last time so we don’t have to do that again, check your urine, all of the routine stuff, and um, HIV.

Janice: HIV? That’s new.

Dr. Randall: Well, um, you know, it’s out there … it’s been around for a while. And uh, do you have any reason to believe that you might be at risk of HIV?

Janice: No, I mean Mike and I we’ve been together forever.

Dr. Randall: And you know for certain that Mike is monogamous?

Janice: (becomes increasingly puzzled) Well as far as I know, I mean I think so …

Dr. Randall: It’s out there, it’s around, you know, it might be a good idea if you two have a talk.

Janice: Are you trying to tell me something?

Dr. Randall: Eh, Janice, before we proceed, uh, there’s something that you and Mike need to discuss together.

Janice: What do you mean?

Dr. Randall: I really can’t say, but I would like the two of you to come in.

Janice: Is something wrong?

Dr. Randall: I really can’t say right now…

Janice: Doctor, I’m not understanding … why do I have to wait until Mike comes in?

Dr. Randall: I’d really rather not say until I can get the two of you into my office together. Do you think you could ask him to come in?

Janice: Yeah … yeah, I guess …

Dr. Randall: Good.

Option 4

You tell Janice that, in addition to the routine antenatal tests, she needs an HIV test. You choose to tell her that Mike is HIV positive because you are obliged to for her own protection.

  • Which principal of physician-patient interaction are you following in this instance?
  • Why would you choose this course of action?

(There is no video for this option.)


Commentary on option 1
Ordinarily, formal consent is not required for low-risk procedures such as routine blood tests. The patient’s obvious agreement to the procedure is sufficient. Perhaps in this instance you want to avoid causing Janice anxiety, because she could very well test negative. While the desire to do no harm (non-maleficence) is commendable, your privileged knowledge in this situation (about Mike) may make this option deceptive. In fact, it could be seen as an example of “therapeutic privilege.” Such paternalistic behaviour is rarely acceptable.

Given the implications of HIV testing, even in a low-risk situation (which this is not), such a test cannot be considered “routine” in the same sense as a hemoglobin or blood glucose test can. One could argue that even with routine tests, if there are important implications for the patient, it would be advisable for the physician to explain why the test is being done and its possible consequences. A patient who is told what the physician is thinking and the reasons for his recommendations is more likely to feel cared for and more willing to participate in their care.

Commentary on option 2
While it might differ by province and territory, guidelines recommend that all pregnant women be screened for HIV and receive counselling for this process. What is discussed during counselling will depend upon the patient’s circumstance. Janice, for instance, does not indulge in high-risk sexual behaviour and therefore the physician must obtain formal written or verbal consent before ordering the test. The physician is expected to inform the woman that the test will be done, to provide counselling and to include the test unless she explicitly opts out. Consider the implications for the physician in how the request for testing for HIV is presented to the patient. Is there sometimes a difference between legal adherence to guidelines and ethical behaviour? In this case, is Janice giving truly informed consent?

Commentary on option 3
You are caught between your duty of confidentiality to Mike and your duty to provide the best care for Janice (beneficence). In telling Janice to speak to Mike about HIV, are you not violating your confidentiality to Mike? Also, in suggesting that they talk, are you abandoning your duty of care to both? Might they seek care elsewhere, and in this circumstance, will that caregiver know of Mike’s status? Sexual conduct is a potentially sensitive topic with a couple. Although you have no reason to suspect abuse will occur in this case, you always have to remember that raising the topic may cause domestic violence. Screening for that possibility or suggesting that the couple come in to talk to you together may be better options.

For additional information, consult the Canadian Medical Association’s Code of Ethics.

Commentary on option 4
With this choice, you have placed a duty to warn above that of confidentiality. This might be appropriate if Mike refused to tell Janice of his HIV status and you were concerned that she remained at risk. Guidelines indicate that if the physician believes that a clear and immediate danger to another individual or society is present, then there is a duty to warn. In this case, is this requirement present? What beneficence will occur to Janice if you tell her? What harm might come if you tell her? This action should only be taken if you have exhausted all other options.

(See the commentary on the Tarasoff case.)

The case continues

The physician decides simply to say that he will request routine blood tests and asks that Janice make a return appointment for the following week.

Click on the audio button to hear the telephone conversation between the physician and Mike. Next view the video.

Dr. Randall: Mike, it’s Dr. Randall here. I’m calling because I just saw Janice and I’m wondering if you’ve told her about the HIV yet?

Mike: Well, no actually. I’ve tried but I didn’t know how to tell her …

Dr. Randall: Are you aware of Janice’s condition?

Mike: You mean that she might be … pregnant?

Dr. Randall: Yes. You know that she might be at risk and the baby also. If Janice is positive she has to have treatment as soon as possible to protect the baby.

Mike: I didn’t know there was treatment. I guess I’m just feeling sick that I might have put the baby at risk. I can’t even think about what it means if Janice …

Dr. Randall: Mike, this is a very difficult situation but there are things we can do. Is there something I can help you with? Would you like me to help you tell Janice?

Mike: Ummm, I don’t know … I should be able to … yeah, I guess I would like that, thanks.

Dr. Randall: Janice is scheduled to come back for her test results tomorrow at 11:00. Can you join her?

Mike: I’ll be there. Thanks Dr. Randall.

After the telephone conversation, Dr. Randall meets with Mike and Janice in his office.

  • Dr. Randall: Hello you two, I’m glad you could both come in today. (Janice smiles at Mike; he looks down)

    Janice: So doc, what’s the good news?

    Dr. Randall: Well, Janice, as you suspected, you are indeed pregnant. Is this something I can congratulate you on?

    Janice: Yeah, I’m pretty happy about it. Not too sure how Mike is feeling though. (she turns to Mike)

    Mike: No, no, I’m happy but I think there might be a problem …

    Janice: What do you mean?

    Dr. Randall: Janice, one of the reasons I asked you to come in here today is because I thought we had something important to discuss. You don’t know about this and I think it’s important that you do. And as your physician I’m very sorry to have to tell you but there are some concerns about Mike’s health. Mike came in for some blood tests for his insurance a couple of weeks ago and the results came back HIV positive.

    Janice: What! (Janice turns to Mike) How? Why didn’t you tell me?

    Mike: I just didn’t know how.

    Dr. Randall: Janice, there’s some things you need to know …

    Janice: Wait! How dare you sit there and tell me this now when you knew all along and you didn’t say anything to me when I was in here before? So that is what the HIV test was all about! How dare you trick me!

    Mike: Janice, honey this has nothing to do with Dr. Ran …

    Janice: The hell it isn’t!

    Dr. Randall: Janice, it’s understandable that you are upset right now and …

    Janice: Understandable? You don’t know how I’m feeling!

    Dr. Randall: No, of course I don’t. But I can see that you are upset. I’m just wondering if we can take a couple steps back and I can give you the information you need. Is that okay?

    Janice: Fine.

    Dr. Randall: Alright, ah … I’m sorry that you think that I’ve betrayed you. I didn’t mean to betray your confidence. That certainly wasn’t my intention. Ah, one of the problems was that I would have been breaching Mike’s confidentiality. He’s my patient too. If I had told you about his condition … I probably didn’t handle this very well. Looking back I probably should have had the both of you in to tell you about this before I actually did the test but many doctors do HIV in pregnancy and, um, I thought that we were under time constraints here and it would be prudent to act as quickly as possible.

    Look, you two have a lot of things that you are going to need to talk about. I’m here if you want to talk to me, but if you wish I can set up an appointment with a counsellor.
    (physician looks uncomfortable)

    Ah … Janice, there are some … there’s something else that you need to know. I am sorry that I have to tell you this. I got the results of your blood tests back today and you need to know that it’s … it isn’t good news.

    Janice: Oh god.

    Dr. Randall: Your tests were positive for HIV. But …

    Mike: Oh no, oh Janice, I’m so sorry. I didn’t …

    Janice: So what? Now you are going to infect all of us, right? What’s going to happen now? What about our babies?

    Dr. Randall: You are going to have a lot of questions, I know and I’m going to be here to give you as much information as I can.

    Janice: What are we supposed to do?

Knowledge check

    Select as many as you think apply.


Next: Part 2