The Court of Justice of the Canton of Geneva reproved a physician for acts deemed justified by the Medical Secrecy Commission and the Supervisory Commission of Health Professions and Patients' Rights. Although certain situations may require a physician to act quickly and beyond certain established boundaries, these remain the exception.

Facts

In August 2012 a father of three children went to see his physician with tiredness and rashes and was sent for comprehensive blood tests without being informed specifically that he would also be tested for the HIV virus. The results revealed that he had been HIV positive for the past 10 years. Upon receiving the results, the physician called him immediately to make an appointment. As the patient could not attend an appointment immediately, the physician informed him of the results by telephone.

The physician was further concerned for the health of his patient's family and third parties in general. Although he was also the children's physician and had not yet noticed any symptoms, he believed that they should be tested with the required consent of the mother. However, the patient refused to inform his spouse that he was HIV positive. They were separated and had a difficult relationship. Further, the patient feared that his medical situation could compromise his request for child custody. Given the patient's difficult family context, of which Juvenile Services were aware, and that the patient did not always attend his appointments, the physician requested that the Medical Secrecy Commission lift the secrecy obligations in order to inform the spouse of the situation. The request was granted.

The patient appealed against the Medical Secrecy Commission decision.(1) As the spouse had already been notified and the situation was irreversible, the court decided to rule as a matter of principle and concluded that the commission had violated the patient's right to be heard during the process, since the patient had not been given the chance to dispute the physician's allegations. The physician's medical secrecy had therefore been unduly lifted.

The patient later filed a complaint with the Supervisory Commission on the grounds that had been tested without his knowledge and had been informed of the diagnosis by telephone.(2)

Information and free and informed consent

The Supervisory Commission rejected the complaint on the basis that although the patient's consent should have been requested, implied consent had been given. The commission observed that HIV treatments have improved to the point that with correct and timely treatment, lives can be saved and complications related to the virus avoided. The patient did not demonstrate that he would have opposed the test had he been duly informed; the test did not put his health at risk and he had benefited from the results. As the patient had probably already been HIV positive before the conception of his last child, it was necessary for the entire family to undergo HIV testing and be treated accordingly. The family's behaviour made it impossible to announce the results differently.

The patient appealed(3) and the court observed that according to the Health Act of the Canton of Geneva (interpreted notably with the Code of Ethics of the Swiss Medical Federation related to the duty of information and the Medical-Ethical Guidelines of the Swiss Academy of Medical Sciences in relation to the rights of patients to self-determination), a patient has the right to be informed in an appropriate manner of the purpose of a diagnostic test – including blood tests – which may not be performed without the patient's free and informed consent.(4) HIV blood tests are no exception and it is commonly accepted that a patient has the right to decide whether to be tested.(5)

Implied consent must remain the exception. If a patient is capable of judgement and there is no emergency (eg, imminent surgery), a physician may not bypass the patient's right to make his or her own health decisions after a personal balance of interests. This is true even if the patient ultimately benefits from the diagnosis and if the physician acts in the patient's best interest.

Diagnosis announcement

The court reminded the physician and the Supervisory Commission that telephone announcements do not comply entirely with Article 10 of the Code of Ethics of the Swiss Medical Federation. Although sometimes justified and accepted (eg, if the patient deliberately consults an anonymous HIV detection centre),(6) the case at hand does not fall in this category. The patient was not informed or prepared for such a diagnosis, and he learned concurrently that he had been tested for the HIV virus and had tested positive. As the patient had been HIV positive for the past 10 years, the physician could have waited.

Emergencies and third-party protection

The physician claimed that he had acted as in an emergency because his patient could not readily meet him and it was imperative to protect the spouse and children. The court pointed out that HIV does not appear on the list of transmissible diseases under the law on the fight against transmissible diseases (the Epidemic Act), even in the revised version set to enter into force on January 1 2016.(7) The freedom of an individual to disclose whether he or she is HIV positive therefore remains intact.

The court further observed that the Swiss government has informed the population of the necessity of HIV protection during sexual intercourse and provides for criminal penalties if a person knowingly risks infecting others.(8) There is no political will to impose or even allow such disclosure by physicians.

Comment

When confronted with a HIV diagnosis, physicians must inform their patients of the nature of the analysis and, unless facing a serious, concrete and imminent threat to the patient's or others' health, must not disclose the diagnosis,(9) even with the best interests of their patients or third parties at heart.

For further information on this topic please contact Deborah Lechtman or Georges Racine at Lalive by telephone (+41 22 319 87 00) or email (dlechtman@lalive.com or gracine@lalive.ch). The Lalive website can be accessed at www.lalive.ch.

Endnotes

(1) Court of Justice of the Canton of Geneva, ATA/376/2013, June 18 2013.

(2) Court of Justice of the Canton of Geneva, ATA/558/2015, June 2 2015.

(3) Ibid.

(4) See Articles 45 and 46 of the Health Act of the Canton of Geneva, K 1 03; Article 10 of the Code of Ethics of the Swiss Medical Federation, related to the duty of information; the Medical-Ethical Guidelines of the Swiss Academy of Medical Sciences in relation to the rights of patients to self-determination, Pages 3 and 9; Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, November 4 1950, which grants the right to self-determination in the medical field.

(5) With regard to HIV, the court observed that the Swiss Public Health Agency specifies that patient's consent is required before undertaking blood tests; see www.prevention.ch/informationssurletestvih.htm. The World Health Organisation requires that blood tests are confidential and allowed only with the patient's informed consent (http://data.unaids.org/una-docs/hivtestingpolicy_fr.pdf).

(6) The decision refers to the following website: www.prevention.ch/informationssurletestvih.htm.

(7) See the Epidemic Act, RS 818.101 and Article 118(2) of the Federal Consitution. See www.admin.ch/gov/fr/accueil/documentation/communiques.msg-id-57029.html.

(8) Decision of the Federal Court, 134 IV 193, June 13 2008.

(9) The court observed that these principles match the European Medical Ethics guidelines; www.wma.net/fr/30publications/30ethicsmanual/pdf/chap_2_fr.pdf.

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