The Child and Family Agency v. A.A. & anor

The plaintiff, the Child and Family Agency, sought permission to disclose the HIV status of A., a minor teenager living with HIV since birth in the plaintiff’s care, to another minor (B.) who the plaintiff believed had a sexual relationship with A. A. denied having a sexual relationship with B. and refused to consent to the disclosure of his HIV status. The plaintiff argued that it was entitled to disclose A.’s status so that B. could obtain testing, medical treatment, and counseling. Citing doctor-patient confidentiality, the High Court refused to order disclosure of A.’s HIV status without his consent. The test applied by the court was whether, on the balance of probabilities, the failure to breach patient confidentiality would create a significant risk of death or very serious harm to an innocent third party. The court concluded that it did not because the plaintiff failed to establish on the balance of probabilities that A. and B. were having unprotected sex. In addition, the court reasoned, if B. was willing to have unprotected sex with A., thereby assuming all the risks associated with unprotected sex, then the “low” risk of HIV infection (due to (i) A. taking anti-retroviral medication, albeit without complete consistency, (ii) A. having an undetectable viral load when tested, and (iii) HIV being a "chronic condition" rather than "a terminal illness") in such circumstances is not such as to justify breaching a patient’s right to confidentiality, which should only be breached in exceptional circumstances. The court repeatedly expressed concerns about "paternalistic" state interference in private matters. Finally, the court emphasized the public interest in HIV-positive people seeking treatment rather than foregoing medical care to avoid potential disclosure of their status or sexual activities.