HIV: The Storm: Legal and Ethical Issues

HIV

The Storm

Chapter 4: Legal and Ethical Issues

Sarah had to deal with external realities in addition to her internal states. Since she didn't know when she contracted HIV, she was very afraid that her daughter Rebecca might also have it. Early in her pregnancy Sarah had been tested for HIV, as part of the routine blood work she received at the clinic where she went for prenatal care. In California, prenatal check-ups regularly include HIV testing, because administration of medication (currently zidovudine- ZDV or AZT) during pregnancy, labor and delivery and for the first six weeks of the infant's life can often prevent mother-to-fetus transmission of the virus. So, while Sarah knew she did not have HIV early in her pregnancy, she did not know if she had been infected during pregnancy.
Sarah was overwhelmed with her grief, her anxiety for her daughter, and with the question of when and how she became infected.

Sarah had been counseled regarding "partner notification" when she received her positive diagnosis, but so far she had been unable to do anything about it. She had the look of shock and horror, the DSM diagnosis of "looking like a deer in the headlights syndrome".
There is an on-going debate regarding mandatory name reporting of people who test positive for HIV. For more on this debate, please go to the SF AIDS Foundation. According to the NASTAD HIV Prevention Community Planning Bulletin (Feb.'98) "thirty-one states currently conducting some form of named HIV surveillance".

Several states now offer assistance to people newly diagnosed in letting their partners know of their HIV status.

In Duchess county, New York, there is a Partner Notification Assistance Program. PNAP counselors can assist the client with HIV in one of three ways:

A PNAP counselor will notify the partner(s) of the individuals infected with HIV directly. The identity of the person infected with the HIV will never be disclosed, nor will location and time.

During a joint counseling session a PNAP counselor will assist an individual infected with HIV in notifying his or her partner(s) .

PNAP counselors can work with people with HIV to give them advice on how to notify their partner(s) directly.

PNAP staff also inform persons with HIV and their partner(s) about the availability of testing and medical services.

Sarah did not know what to do. "When I think about calling Stan (her ex-husband), I get really scared. I am so afraid that he will try to get custody of Rebecca. When I think about getting Rebecca tested, I feel like dying. And when I think about calling back that witch, Dr. Marten, I shake. I want to kill her. And I am too afraid to call Joe or Alan (the two men she had been involved with since her marriage ended); I just don't know what to do. So, I do nothing. And if Sam finds out, I know he will leave me. I don't know what to do."

As the therapist, what do you do at this point?
Do you encourage Sarah to get her daughter tested?
What are the ethical implications of her not notifying her past and current partners?
How about her health? There are now treatments available for HIV; yet Sarah has not gone to a doctor. Is the therapist, who sits with her and waits for her to be ready, endangering Sarah's life?
Sarah was having sex with Sam, a man she hoped to marry. She had not yet told him of her HIV status, although she also had not had intercourse with him since her positive diagnosis and had used latex condoms for some time previous to her diagnosis. How does the Tarasoff ruling apply? What would you do, as Sarah's therapist?

What exactly does the Tarasoff legal ruling mandate? In a 1976 case Tarasoff v Regents of the University of California,it was held that "the right to privacy ends where the public peril begins" and that "clear and immediate probability of physical harm" to others allows for the breaking of confidentiality. For a discussion on this, go to "Confidentiality, Privacy, and the 'Right to Know'" By Lawrence O. Gostin, JD, in which he states, "Is there any principled way to reconcile the dual obligations of the right to privacy and the right to know? If
the ethical and legal right to privacy is taken seriously, then it should yield only where absolutely necessary
to avert serious harm. Accordingly, the right to confidentiality should be near absolute in cases in which the
risk of contracting HIV is remote....The strongest claim to a right to know exists where there is an ongoing sexual or needle-sharing relationship. In such cases, the law should give health care professionals a power, not a duty, to disclose if,
in their judgment, it is necessary to avert a significant risk of transmission." The complete article may be found at http://www.ama-assn.org/special/hiv/policy/confide.htm. Another article, "Physician's Duties to Patients and Third Parties Further Defined" by Jason F. Kaar, Maj, USAF, JA reviews recent lawsuits arising from the Tarasoff decision and HIV and AIDS diagnoses. It may be found at: http://www.afip.org/Departments/legalmed/openfile97/grandrnds97.pdf. It is also advisable to consult with an attorney if you have questions or concerns about your obligation. Many professional organizations have legal counsel available who will not charge for a consultation.

Now the clinical picture with Sarah becomes obscured with the legal and ethical issues. Clinically, she was depressed. She felt frightened and paralyzed. She was not ready to do anything, until she came out of her state of shock. However, by not letting Sam know, she was potentially jeopardizing his life. If Sam was not HIV positive, he had a chance to protect himself. If he already had HIV, was Sarah preventing him from getting treatment?
Sarah also had an obligation to her daughter, Rebecca. If Rebecca was HIV positive, she could also benefit from treatment.
How to handle this? Sarah had never returned the calls of Dr. Marten, the ob-gyn who had suggested that Sarah get tested. I did not want Sarah to quit therapy, yet lives were at stake.
I asked Sarah what she was going to do.

"I don't know!!"
Tears started rolling down her cheeks.
She had moved from paralysis into her feelings.
She cried for a while hunched over.
Finally, she looked at me.
"I need to do something, don't I?" I nodded yes. Sarah heaved a big sigh. "Okay", she said, "I guess I have the whole rest of my life to figure this out, and to feel all my feelings, but" (and here her voice get shrill and angry) "if I ever figure out how I got this, I will kill him. And if Rebecca has it, he is going to be one sorry dead man!"
Yet, in switching to anger, Sarah could now take action. She realized that she had not been given the choice. Whoever infected her did not let her know he was HIV positive, if he even knew. She did not want to do that to Sam, as she did not want to carry guilt on top of all her other feelings.
Sarah said she would do two things: she would get Rebecca tested, and she would tell Sam. She decided not to invite Sam to a therapy session. She would rather tell him herself. She agreed to call if she needed help.
She also said she would think about what the counselor at the clinic where she got tested had said about her options regarding informing past partners.

Chapter 5

Table of contents

To order

www.psychceu.com

e-mail us!

Frequently Asked Questions

888-777-3773