Do doctors attending sexual-offence victims have to notify sexual-offence suspects that their patients who were forced to have unprotected sexual intercourse are HIV-positive? What should doctors do?

Abstract

The question has been asked as to whether doctors attending sexual-offence victims have to notify sexual-offence suspects that their patients who were forced to have unprotected sexual intercourse are HIV-positive. It is submitted that the common law requires doctors to warn endangered third parties where such persons may suffer injury as a result of interactions with their patients, and that this applies to patients who have tested positive for HIV. The ethical rules of the Health Professions Council of South Africa also require doctors to breach the confidentiality rule against the consent of their patients who have tested HIV-positive, where the sexual partner of a patient is known, and after counselling such patients still refuse to allow disclosure – provided there is no risk of consequential harm to such patients. The dilemma of doctors treating HIV-positive patients is sometimes resolved where, in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 2007, a court order for the compulsory testing of the suspect has been obtained and the suspect knows his or her HIV status. Recommendations are made for what doctors should do in such cases.