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Counselling obligations and duty of care to a sexual partner

In PD v Dr Nicholas Harvey & 1 Ors [2003] NSWSC 487, PD and her future husband (FH) attended a medical practice for testing of HIV and other diseases. They saw Dr Harvey, who informed them to attend when the results were returned but did not inform them that, in the absence of their consent, he would not be able to disclose any information about one person’s HIV status to the other.

PD was informed that her results were negative. She asked a practice staff member the status of FH’s results but was told the results were confidential. FH’s results were positive for HIV and hepatitis B. Dr Harvey rang FH and advised that he had tested positive and made him a follow-up appointment at the practice. Dr Harvey neither raised any issue arising from the joint consultation nor asked whether FH was proposing to tell PD. FH visited the practice and saw the medical director, Dr Chen, who was unaware of FH’s relationship with PD. Dr Chen referred FH to an immunology clinic but there was no record of FH having attended the follow-up appointment.

FH lied and told PD his result was negative. Despite PD returning to the clinic on two subsequent occasions for different reasons, she did not see Dr Harvey, and these matters were not discussed. PD discovered she was infected with HIV when she was pregnant with their child. PD sued the doctors who had seen her, alleging that they had a duty to prevent her from foreseeable harm.
The Court found for her but for different reasons, namely because the doctors had failed to:

  • Provide pre-test counselling according to health department guidelines;
  • Obtain advice from, for instance, an HIV specialist clinic, or the Department of Health
  • Follow up with the immunology clinic and report FH to the health department as permitted by law.

An appeal by the clinic was dismissed and the findings at first instance were upheld: see Harvey & 1 Ors v PD [2004] NSWCA 97.

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