Legal Issues Regarding Confidentiality and Consent in HIV Testing in Hong Kong

Case Background

The patient was a 52-year-old male who lived with his wife and had no children. He was generally in good health prior to 2006. He was diagnosed with Burkitt’s lymphoma in 2006, which was managed by an oncologist at a major hospital in Hong Kong. In 2007, the patient displayed flu-like symptoms and was admitted to hospital. His condition deteriorated rapidly soon after admission, with reduced LOC, severe hypoxia and Type II respiratory failure. He was admitted to the intensive care unit and was intubated/ventilated. The patient’s condition worsened despite various changes in treatment. The oncologist was consulted but there was no evidence of a relapse of Burkitt’s lymphoma. At that point, the healthcare team suspected that the patient could be immunocompromised. The risk factor screening indicated: the absence of intravenous drug abuse, the patient was heterosexual, and there had been no previous blood transfusion. The patient’s blood sample was sent for HIV testing and the result was positive. The patient’s wife was unaware of the testing. There was disagreement among the healthcare team members on whether it was appropriate to disclose the patient’s HIV status to his wife without his consent; and, if it was judged appropriate to do so, how this disclosure should take place. Given the patient’s critical condition with an estimated mortality rate of 80%, what was the optimal timing to disclose his condition.

Introduction to the Key Medico-Legal Issues

The scenario raises two main contentious issues concerning the legal duties of medical professionals with regards to patient consent and confidentiality issues in the context of HIV diagnostic testing:

1. 1. Should the healthcare team have performed the HIV testing on a critically ill, unconscious patient without his consent?

2. 2. Should the healthcare team disclose the patient’s HIV status to his wife without his consent?

By and large, there is a dearth of legislation or case law in Hong Kong that can provide a clear or definitive answer to these issues in the medical setting. This case note will focus on the applicable governing principles from the Medical Council of Hong Kong’s Code of Professional Conduct for the Guidance of Registered Medical Practitioners (MCHK Code) and the Department of Health’s Guidelines on Principles of consent, discussion and confidentiality required of the diagnostic HIV test (DoH Guidelines) (July 2011).

For a comparative perspective, I will draw on some salient points from English medical law including the UK General Medical Council’s code of professional conduct. Nascent medico-legal principles in Hong Kong have commonly looked to the English experience. This type of comparison can further illuminate important contrasts between the professional regulatory approaches adopted within the two jurisdictions.

I. HIV Testing and Patient Consent

General Requirement of Consent

Under common law, it is a well-established fundamental principle that a competent adult has the right to self-determination and autonomy, and that a medical professional should obtain that person’s valid consent prior to any medical treatment.¹ Under the MCHK Code, consent to diagnostic procedures and medical treatment has to be given voluntarily by the patient after the medical practitioner has explained to the patient the relevant aspects of the proposed procedure/treatment and the patient has properly understood its nature and implications.² Without this crucial consent, the medical practitioner may be subject to both tort and criminal liability for battery and assault.³

Such consent may be implied or express,⁴ although the MCHK Code states that “express and specific consent is required for major treatments, invasive procedures and any treatment which may have significant risk”.⁵ A notable exception to the requirement of prior consent concerns “treatments for dealing with emergency situations”.⁶

Under the DoH Guidelines, the patient must give informed consent before a diagnostic HIV test can be performed. The importance of requiring pre-testing informed consent for such tests has been highlighted as respecting patient autonomy as well as being a “prudent” measure given the continual stigmatising nature of an HIV diagnosis.^7...