LA DIVULGATION PAR LE MEDECIN DE L'EXISTENCE D'UNE MALADIE TRANSMISSIBLE SEXUELLEMENT

Abstract

In relation to sexually transmissible diseases, particularly the AIDS virus, legal conflicts may arise in an acute way. When there is no specific legislation which provides that a doctor, must or may warn a spouse or partner, should the traditional privilege of the patient prevail over the interest of those persons? In the context of the private doctor-patient relationship two possible grounds justifying disclosure to the spouse or partner are analysed, the public interest and the protection of the person. Leaving aside the former as justification for individual decision it is on the basis of the second that the question of disclosure is considered. There being, except for the case of a double contractual relationship, no common law duty imposed on the doctor when the legislature itself has refused to take a position the author suggests that disclosure is left to the discretion of the doctor, and sets out the conditions which might justify a derogation from professional confidentiality. The author then briefly considers the defences available to a doctor in a civil action, either by a patient, or by it spouse or partner not advised of the risk.