THE ILLEGALITY OF DISCLOSURE OF HIV STATUS OF PATIENTS TO THE SPOUSE

This is a topical issue in the medical field especially in Obstetrics and Gynecology specialization. A woman comes in for antenatal care in the hospital. The Obstetrician does the booking or labour ward investigations and discovers that the woman is HIV positive. This woman is married. She knows that her husband is HIV negative. Her husband is not aware that she is positive. If they continued having coitus without safety measures, the husband will get infected with the virus. She is not ready to disclose her status to her husband by any means possible.

The nagging question here is: IS IT LAWFUL FOR THE MEDICAL PRACTITIONER TO INFORM THE HUSBAND OF THIS WOMAN ABOUT THE WIFE'S HIV STATUS SO THAT HE COULD BE MORE CIRCUMSPECT AND CAREFUL ABOUT CONTRACTING THE DISEASE.

Section 37 of the Constitution of the Federal Republic of Nigeria as amended states:

37. The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.

The legal implication of this provision, if taken alone, is that the privacy of citizens, the privacy of the homes of citizens, the privacy of the correspondence of the citizens, the privacy of telephone conversations of the citizens and the privacy of the telegraphic communications of the citizens, are all fundamental rights of citizens which are constitutionally guaranteed and protected. Therefore, nobody can legally invade the privacy of any citizen of Nigeria.

However, the privacy of citizens of Nigeria is not absolutely guaranteed and protected by the Constitution of the Federal Republic of Nigeria as amended. This is because this same Constitution derogated the privacy rights of citizens in Section 45 when it stipulated:

45. (1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons

The legal implication of this provision is that a justifiable law validly made by Legislature can be used to derogate the privacy rights of citizens. These justifiable laws include legislations, subsidiary laws and case laws. These laws must have been made in the interest of public safety, public order, public morality, public health or for the purpose of the protection of the rights and freedom of other persons.

Any law that does not meet these requirements cannot be used to derogate the privacy rights of citizens in Nigeria. From the foregoing, it is abundantly clear that a medical practitioner cannot on his own breech the privacy rights of his patients. These privacy rights are constitutionally guaranteed and protected. These privacy rights include the investigation results of the patient that came to the knowledge of the practitioners.

However, where a justifiable law, validly made, gives the medical practitioner the authority to breech the privacy rights of his patient, the practitioner can do that by following strictly the provisions of that law. These justifiable laws must comply with section 45 of the Constitution of the Federal Republic of Nigeria as amended, being laws made in the interest of public safety, public order, public morality, public health or for the purpose of the protection of the rights and freedom of other persons. The husband of the patient has a right to life. This right to life can be laboriously extended to the right not to be infected with a deadly disease, including HIV. While HIV infection disclosure might not qualify as a disclosure in the interest of public health, it will definitely qualify as a purpose for the rights and freedom of other persons, as provided by Section 45. The interest of the rights of the husband is at stake if the infection is not disclosed pronto.

The Obstetrician is only empowered to protect that right if a law authorizes him to do so, and this has to be done within the ambits of that law,  if the law is justifiable law; making sure that the disclosure is strictly for the protection of the right to life of the husband and not for the consumption of the general public through the husband after disclosure. In other words, no such justifiable law can give the husband an unlimited opportunity to the confidential information about the infected wife. The implication is that such justifiable law shall smite such husband (together with any other persons whose interest of their rights require disclosure) with equal confidentiality scrutiny and conditions, to that which is required of the medical practitioner. The infected woman shall have the protected legal right to take out an action in damages against the husband that discloses her status to a third party after the medical disclosure by the medical practitioner. Some people have even contended, though not commended, that justifiable laws under Section 45 could include criminalization of HIV infection by a known positive patient. It is submitted that there is no such intention discernible from the intendments of Section 45 of the Nigerian Constitution as amended.

There are a myriad of Nigerian laws that have provided for patients confidentiality. These laws include the National Health Act 2014, HIV and AIDS (Anti-Discrimination) Act 2014, and the Code of Ethics for Medical Practitioners in Nigeria 2008. These laws did not authorize the medical practitioners to altruistically disclose the retroviral status of their patients under their care to the spouses or close relatives of the patients caring for them. While some of the laws made provisions for the reporting by a practitioner of zoonotic, airborne or aerosolized highly infectious and contagious public health diseases (HIV is not one of those), none, to the best knowledge of the author of this article, made reference to a kindred of medical practitioners' reporting or notifications without consent or statutory or judicial obligations, in the case of private venereal diseases contracted in the processes of the private sexual experiences of willing actors including marital spouses.

Awkadigwe Fredrick Ikenna (MBBS, LLB, DSC, MWACS)
awkadigweikenna@gmail.com
08039555380