Clinical Perspectives from Japan

As members of a clinical ethics consultation team, we (Matsumura, Sato and Kodama) recently dealt with a case very similar to the one in Hong Kong (we have dramatised the actual case below).

The Japanese Case: The patient is a male in his 40s. He had begun to make mistakes more frequently at work when his memory and concentration skills started to decline after a prolonged period of coughing. He went to the hospital to be examined, accompanied by his concerned wife. A brain lymphoma and pneumocystis pneumonia were suspected in imaging tests. The brain lesion was definitively diagnosed as a lymphoma, and detailed examinations revealed that he is HIV-positive. Currently, the patient’s impaired awareness is progressing rapidly; he has difficulty carrying on a conversation with his doctor, and whether he understands the details of what is discussed is unclear. He needs to begin AIDS treatment as soon as tomorrow. Because the diagnosis was only just confirmed, the medical team intends to notify the patient shortly. However, whether or not the patient will understand the complicated treatment plan is unclear. Development of both a lymphoma and pneumonia indicates a condition for which immunodeficiency has progressed to a great degree. His prognosis is extremely poor, the treatment is risky, and complications (adverse events) are likely to arise one after another.

In this case, we were confronted with the issue of the permissibility of notifying the wife of the patient’s HIV status without his consent when the patient is thought to lack judgment. Two issues were apparently intertwined here. One was whether to disclose the HIV status of the patient to his wife, considering her risk of HIV infection. The other was to explain to the wife (a key person in the present case) the patient’s HIV status as part of the process of explaining his symptoms. In Japan, the common practice is to obtain consent from relatives when carrying out treatment if the patient’s consent cannot be obtained. Notably, it is a crime for a doctor or other medical professional to disclose a person’s confidential information obtained in the course of work without a justifiable reason (Penal code article 134, unlawful disclosure of confidential information). As a violation of civil law in terms of the obligation of secrecy in a contractual agreement to provide medical treatment, such an act could also give rise to liability claims. Therefore, in such cases, disclosure of the patient’s HIV status to his wife requires careful consideration and judgment.

The first issue (notifying the partner) has long been a problem with AIDS. For HIV testing results, the general rule has been to notify the patient, and as a general rule, patient consent is required even for notifying family or sexual partners. However, according to Article 23 of the Personal Information Protection Act, provision of personal data to a third party is considered permissible when it is necessary to protect a person’s life, body or property, even if obtaining consent from the patient is difficult. Therefore, we reasoned that, if the examination of the patient confirmed that he was incapable of making judgments, then notifying his wife without his consent could be justified, given her risk of HIV infection.

The second issue is whether or not to explain the patient’s HIV status to his wife when performing anti-HIV therapy. Presumably in the Hong Kong case, another possible option may have been to disclose information to the wife after the patient had died. At least in Japanese cases, if the possibility of proactive treatment (anti-HIV therapy in this case) remains and patient consent for treatment cannot be obtained, it is common to obtain consent from the wife—the key person in the case considered here. However, this requires explaining the details of the treatment to the wife, which would reveal the patient’s HIV status in the process. Although we considered the possibility of informing the wife by making the patient’s symptoms and details of the treatment vague, we reasoned that the consent obtained by doing...