High Court – HIV, Privacy, Public interest & Responsibility

 

The High Court address HIV, the right to privacy, public interest and personal responsibility

A recent High Court decision by Judge Michael Twomey, (The Child and Family Agency v AA & Anor [2018] IEHC 112), addressed HIV, the right to privacy, public interest and personal responsibility.

Background

The case involved a 17-year-old boy (A), who was in State care and had contracted HIV from his mother during pregnancy. ‘A’ had begun to spending time with a 17-year-old girl (B), who was unaware that ‘A’ had a diagnosis of HIV.

‘A’ denied that there was a sexual relationship between him and ‘B’ but due to their conduct the Child and Family Agency (CFA) had reason to believe that they were in fact engaging in sexual activity.

In MQ v Gleeson, the court stated that the duty imposed on the CFA in Section 3 of the Childcare Act 1991 was a duty to protect all children, not just those in State care. The court further stated that the duty of the CFA extended to children who were likely to be subject to a specific potential risk.

The CFA in acknowledging that their duties were not limited to children in statutory care, applied to the High Court to seek permission to breach A’s confidentiality in order to protect B from the potential risk of contracting HIV.

Decision

The High Court considered the duties of the CFA and aligned them with that of Doctors. The court confirmed that the test for breaching confidentiality was whether there was a significant risk of death or very serious harm to a member of the public. The public interest in protecting an unsuspecting member of the public justifies the breach of confidentiality.

The High Court concluded that in these circumstances, the CFA were not entitled to breach ‘A’s’ confidentiality to warn ‘B’ of the potential risk. They stated that while HIV is still considered a significant disease, it is no longer a terminal disease and can be managed.

In this regard, the High Court felt that there was a greater public interest in ensuring that people with HIV were not deterred from making complete disclosure with their Doctor and seeking proper medical attention.

While the High Court accepted that parties were minors, they further noted that they were both imminently due to turn 18 and therefore, ‘B’ must bear some personal responsibility for any potential outcome in deciding to engage in sexual activity with ‘A’ and could not be considered an innocent party if she chose to take such a risk.

If you require any further information on the above topic please do not hesitate to contact Brendan Dillon on 01-2960666.