There are few professions which are more affected by HIV/AIDS than the health profession. Doctors, nurses and other health care workers are increasingly exposed to HIV/AIDS and it is, therefore, necessary for clear and definite guidelines to be laid down. Guidelines on national level existed for medical practitioners to guide them in the handling of patients who are affected with HIV, and/or the Hepatitis B virus, but for nurses and other health care workers, no such guidelines exist. The serious legal implications which surround HIV/AIDS confirm the urgent need for accepted national guidelines for the different professions. This discussion consists out of two parts: Part One deals with the South African Medical Associations and the Health Professions Council of South Africa’s ethical guidelines regarding HIV/AIDS and Part Two will deal with other ethical guidelines, the South African Law Commission’s work, legislation and policy documents of the Department of Health.

INTRODUCTION
Doctors, nurses and other health care workers are increasingly exposed to HIV/AIDS patients and it is, therefore, necessary that clear and definite guide-lines be laid down. For years official guidelines on national level existed for medical practitioners to guide them in the dealing with patients who are affected with HIV/AIDS and/or the Hepatitis B virus. For nurses and other health care professions, no such official guidelines exist. We will focus on the following:

1. The South African Medical Association’s revised HIV/AIDS Ethical Guidelines;
2. The Health Professions Council of South Africa’s document: The Management of Patients with HIV Infection or AIDS;
3. Other Professional Boards of the Health Services Professions;
4. The South African Nurse’s Council;
5. The South African Law Commission’s reports on HIV/AIDS;
6. Responses of the Department of Health regarding HIV/AIDS;
7. Legislation and regulations regarding the handling of persons with HIV/AIDS;
8. A Draft National Policy on Testing for HIV;
9. The recognition by our Supreme Court of Appeal of the legal status of guidelines set down by a professional board.

The serious legal implications, both criminal and civil, which surrounds HIV/AIDS, confirm the urgent need for acceptable uniform guidelines for the whole spectrum of health care workers.

THE SOUTH AFRICAN MEDICAL ASSOCIATION’S REVISED HIV/AIDS ETHICAL GUIDELINES
The HIV/AIDS Ethical Guidelines of the South African Medical Association, which currently is the only representative body of practising physicians in South Africa, are practical and to the point. It gives specific guidance for specific circumstances and it enables the practitioner to do his or her duty towards the patient who is infected by HIV/AIDS or the Hepatitis B virus, in a legally and ethically correct manner.

The guidelines are divided in six categories, namely:

1. The doctor’s duty towards patients;
2. Testing for HIV;
3. Consent for HIV testing;
4. Confidentiality between health care workers;
5. Confidentiality and sexual part ner(s); and
6. Duties of doctors infected with HIV.

The South African Medical Association recommends the following guidelines:
The doctor’s duty towards patients

• Ethically no doctor may refuse to treat any patient whose condition is within the doctor’s current realm of competence solely on the grounds that the patient is or may be HIV seropositive.
• A doctor is not ethically or legally obliged to put his/her life at risk by undertaking interventional treatment of a patient in circumstances where facilities for the application of universal precautions do not exist.
• No doctor may withhold normal clinical standards of treatment from any patient solely on the grounds that the patient is HIV seropositive, unless such variation of treatment is determined by the patient’s interest.

Testing for HIV

• The only effective way to increase the protection of health care workers against the risk of occupationally acquired HIV infection lies in the adoption of internationally recognised and approved universal precautions in all institutions and in all clinical situations.
• The HIV serostatus of any patient should not be determined as a routine prior to surgery or other interventions. In those procedures which are perceived by the surgical team to pose an exceptionally high risk of percutaneous inoculation injury, or of skin/mucous membrane contamination despite the application of standard universal precautions, appropriate additional special precautions must be universally applied.
  However, where pre-treatment HIV testing is clearly necessary for determining which treatment may be in the patient’s best interest (ie, operations in which a state of immunocompromise would effect the outcome), HIV testing with the patient’s free and informed consent is obviously acceptable.
• Where any risk of virus transmission exists, universal precautions must be applied. These should be applied with sufficient uniformity as to render the pre-treatment knowledge of a patient’s HIV status irrelevant.
• In regard to the prevention of HIV transmission in the health care setting, doctors (and other health care workers) have an ethical duty to apply universal precautions in every clinical encounter, and to act as if every patient whom he/she treats, is HIV positive. The doctor has a responsibility not only to himself/herself and his/her family, but also to all other health care workers who could become infected as a result of the doctor’s neglect of universal precautions. It must be noted that, to date, the majority of health care workers sustaining occupationally acquired HIV infection have been non-professional workers infected as a result of the carelessness of professionals in disposing contaminated sharps. Failure to apply universal precautions also poses a significant risk of patient-to-patient transmission of infection resulting from the doctor’s or nurse’s activities.

Consent to HIV testing

• As a general rule, a doctor should investigate or treat a patient for HIV infection only with the informed consent of the patient. Every effort should be made to adhere to this principle, including provision for skilled pretest counselling by the doctor or an appropriate counsellor. The patient should whenever possible, clearly understand what advantages or disadvantages testing may hold for him/her, why the doctor wants this information and what influence the result of such test may have on his/her treatment. The counselling procedure should be one that is appropriate to the setting and is the least burdensome to the person being tested, as well as to those responsible for testing. Guidelines on appropriate counselling may be found in the South African Medical Association HIV/AID Clinical Guidelines booklet.
• When the patient is unable to give consent (ie. in emergency settings), vicarious consent must be sought where possible (ie. the consent of another person legally competent to give consent on behalf of the patient). If this is not possible under the circumstances, the doctor may decide what is in the best interest of the patient.
• If the patient is unwilling to consent to an investigation necessary for accurate diagnosis, the doctor is free to discontinue treatment of the patient. However, the doctor must be able to prove that he cannot proceed with appropriate treatment without knowledge of the HIV status. In this situation, however, it remains the doctor’s duty to ensure that the patient continues to receive all necessary symptomatic or palliative care, provided either by himself or by other sources. Where it is appropriate and practicable, the doctor should treat a patient who refuses the necessary HIV testing as if the patient is HIV seropositive.
• The South African Medical Association urges all doctors to respect the patient’s right to decide whether he/she will undergo HIV testing or not. Nonetheless, when a doctor or other health care worker has sustained an injury which carries the risk of transmission of HIV, he/she has a right to information about the HIV serostatus of the patient whose body fluid may have contaminated him/her. If in this situation, the patient refuses consent to HIV testing, or is not in a fit state to give consent (for example: unconscious or confused) the doctor is advised to have the test performed on blood obtained for other purposes, and to inform the patient that the test has been performed. All requests for consent to testing must be accompanied by full counselling concerning the possible consequences to the patient of a positive result.
• When a doctor has gained knowledge of a patient’s HIV serostatus against that patient’s wishes (for example: where a risk bearing “exposure” of a health care worker has occurred), or without the patient’s consent (for example: in an emergency situation involving an unconscious patient), he/she should inform the patient that a test has had to be performed, but he/she must convey the result of the test to the patient only with the patient’s informed consent and after counselling. In other words, the patient must be told that he/she has the right to refuse to be informed about the result of the test, and that the result will then be known only to the at-risk health care workers. In this way, the conflicting rights of the patient (not to be tested) and of the health care workers (to information crucial to his/her welfare) are reconciled.

Confidentiality between health care workers

• Doctors should use their discretion whether or not to confidentially discuss a patient’s serostatus with any other health care worker who is at risk of infection from the patient. It is essential to attempt to obtain the patient’s free and informed consent to this disclosure, but exceptional circumstances may necessitate the transmission of this information to other health care workers without the patient’s consent.
• Doctors may divulge information on the serostatus of a patient to other health care workers without the patient’s consent only when all of the following circumstances exist:
  1. An identifiable health care worker or team is at risk.
  2. The doctor is not certain that universal precautions are being applied.
  3. The doctor has informed the patient that under the circumstances he/she is obliged to inform the other health care workers involved.
• The health care workers or team thus informed is duty bound to maintain confidentiality.
• Where such information may affect the treatment of the patient in the patient’s own best interest, the doctor should be duty bound confidentially to discuss the patient’s serostatus with all members of the health care team administering such treatment, but only with the patient’s consent.

Confidentiality and sexual partners

• Doctors should use their discretion whether or not to ensure that third parties who are at risk of infection, particularly known sex partners of an HIV positive patient, are made aware of the situation. This should preferably be done by the patient, or with the consent and participation of the patient. If the patient withholds co-operation, this may be done directly and without the patient’s consent. However, the risk to a third party would have to be grave and clearly defined before such a breach of the doctor’s duty of confidentiality could be justified.
• Doctors may divulge information on the serostatus of a patient to third parties without the patient’s consent only when all of the following circumstances exist:
  1. An identifiable third party is at risk.
  2. The patient, after appropriate counselling, does not personally inform the third party.
  3. The doctor has informed the patient that he/she intends breaking confidentiality under the circumstances.
• Where the patient has a known sexual partner, every effort should be made to encourage shared counselling, at both the pre and post test phase.
• In general, no doctor may transmit confidential information of his/her patient to any third party without the consent of the patient, or in the case of a deceased patient, without the written consent of his next-of-kin or of the executor of his/her estate.

Duties of doctors infected with HIV

• Any doctor who has reason to believe that he/she is likely to have been exposed to infection with HIV, has a responsibility to have his/her HIV status ascertained, and/or to act as if their serostatus were positive.
• Any doctor who finds or suspects himself/herself to be HIV positive must regularly seek counselling from an appropriate professional source, preferably one designated for this purpose by a medical academic institution. This is to ensure that there is no risk to the patients, and no compromise in the physical or mental ability of the doctor to perform his or her professional duties competently or safely. Counsellors must of course be familiar with current recommendations so that unnecessary, onerous, and scientifically unjustifiable restrictions are not placed on the professional activities of the HIV positive doctor.
• Infected doctors may continue to practice, after they have sought and implemented the counsellor’s advice on the extent to which they should limit or adjust their professional practice in order to protect their patients. Any doctor who has counselled a colleague who is infected with HIV and is aware that advice is not being followed, has a responsibility to inform an appropriate body that the doctor’s fitness to practice may be seriously impaired.
• The HIV positive doctor has the same right to confidentiality as does any other patient. Knowledge of his/her serostatus may only be shared with others under the circumstances defined above in the section dealing with confidentiality. It is important to bear in mind that in case of the health care workers it is particularly difficult in an institution to maintain full confidentiality and great care must be taken in this respect.
• Health care workers who are exposed to possible virus transmission should record the injury and must undergo serial blood tests to ascertain their serostatus at the time of injury, and thereby rule out/confirm seroconversion with subsequent blood tests at 3 and 6 months after the injury.

THE HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA’S DOCUMENT: THE MANAGEMENT OF PATIENTS WITH HIV INFECTION OR AIDS
The Health Professions Council of South Africa (HPCSA previously the South African Medical and Dental Council) also issued a document regarding guidelines for handling HIV/AIDS (1989 and revised in 1993). The document, The management of patients with HIV infection or AIDS, states that HIV infection and AIDS have emerged as the most challenging health matter of modern lifetime.

General guidelines
The HPCSA acknowledges that although infection with the HIV and AIDS viruses is incurable at the moment, HIV/AIDS is considered as a manageable life-threatening disease. The health care worker has a big responsibility towards the individual patient, the other health care workers, other parties that might be in danger of contracting the disease from the patient, the community, himself/herself and his/her family. Universal precautions should be adhered to in all health care encounters to minimise exposure of health care workers and their patients.

There is no persuasive evidence that knowledge of a patient’s HIV positive status diminishes the incidence of exposure incidents. Routine or universal testing of a patient in the health care setting is therefore unjustifiable and undesirable. Pre-testing may be approved of when certain well defined high risk procedures are to be undertaken.

Post-exposure treatment of health care workers in whom inoculation or significant contamination might have occurred, may be beneficial and should be considered in consultation with the Infection Control Medical Officer of the Institution, or other designated person.

A good patient-doctor relationship and mutual trust are essential pre-requisites for the implementation of reasonable and equitable guidelines that will ensure that the requirements of both health care workers and patients are satisfied. Education and training are essential components of the successful implementation of universal precautions, that is those precautions which should be universally applied to prevent transmission of HIV and other diseases in the health care settings.

ETHICAL CONSIDERATIONS AND RECOMMENDATIONS IN THE MANAGEMENT OF PATIENTS WITH HIV INFECTION OR AIDS.
Knowledge of the HIV status of patients
If a patient is known to be HIV seropositive, “extended” universal precautionary measures, such as special gloves, clothing and lace masks, should be used. The number of assistants at operations should be limited and inexperienced personnel should not be allowed to performed the surgery. The selective use of such expensive measures will be costeffective.

Testing patients for HIV antibodies
Informed consent
A patient should be tested for HIV infection only if he/she gives informed consent.

Refusal to have blood tested for HIV antibodies It is justifiable to test for HIV without the patient’s consent, but only:

1. In emergency situations where infection is suspected and it is impossible to obtain consent, subject to conditions below.
2. If a health care worker is inoculated during the course of patient management and the HIV status of the patient is unknown and the patient refused consent.

In view of the fact that immediate post-exposure measures may be beneficial to the health care worker, information as to the HIV status of the source patient may be obtained in the following ways:

1. Testing any existing blood samples. This should be done with the source patient’s consent, but if consent is withheld, the specimen may nevertheless be tested. If, in the latter situation, the test is positive, the source patient must be counselled and, if requested, informed about the result.
2. Testing a blood specimen to be collected from the source patient. The informed consent of the patient must be obtained but, if he/she refuses to give it, the Medical Officer of Health should be approached in terms of the communicable diseases regulations for the necessary statutory authorization.

If the patient is unable to give informed consent, and is likely to remain unable for a significant length of time in relation to the prophylactic needs of the health care worker or other patients, then every reasonable attempt should be made to obtain appropriate vicarious consent. Vicarious consent means the consent of the patient’s closest relative or, in the case of a minor, the consent of the medical superintendent in the absence of a relative.

The doctor’s duty towards HIV positive patients
No doctor may ethically refuse to treat any patient solely on the grounds that the patient is, or may be HIV seropositive. No doctor may withhold normal standards of treatment from any patient solely on the grounds that the patient is HIV seropositive, unless such variation of treatment is determined to be in the patient’s interest and not by perceived potential risk to the health care worker.

Confidentiality
The results of HIV positive patients should be treated at the highest possible level of confidentiality. The transmission of clinical data to those medical colleagues and health care workers directly involved, or who will probably become involved with the care of the patient, will dictate the extent of disclosure of such confidential information.

The principle of professional secrecy applies in respect of the patient. The decision whether to divulge the information to other parties involved must therefore be in consultation with the patient. If the patient’s consent cannot be obtained, the health care worker should use his or her discretion whether or not to divulge the information to other parties involved. Such a decision must be made with the greatest care, after explanation to the patient and with acceptance of full responsibility at all times.

The report of HIV test results by a laboratory as is the case with all laboratory test results, should be considered as confidential information. Breach of confidentiality is however, more likely to occur in the ward, hospital or doctor’s reception area, than in the laboratory. It is therefore essential that health care institutions, pathologists and doctors formulate a clear policy as to how such laboratory results will be communicated and how confidentiality of results will be maintained.

Doctors infected with HIV
Any doctor who finds himself to be HIV positive must seek counselling from an appropriate professional source, preferably one designated for the purpose by a medical academic institution. Counsellors must of course be familiar with recommendations such as those of the Centre for Disease Control so that unnecessary, onerous and scientifically unjustifiable restrictions are not placed on the professional activities of a HIV positive doctor.

Infected doctors may continue to practice. They must however seek and implement the counsellor’s advice on the extent to which they should limit or adjust their professional practice in order to protect their patients.

This discussion will continue with PART TWO in the next issue.

BIBLIOGRAPHY

1. DENOSA, 1998. Policy Statement on HIV/AIDS.
2. Medical Association of South Africa, 1995. HIV/AIDS Ethical Guidelines.
3. Ngwena C, 1998. Legal Responses to AIDS: South Africa in Fanskowski S Legal responsibilities to AIDS in comparative perspective Kluwer Law International: London.
4. South African Council for Health Professions, 1993. Management of patients with HIV.
5. South African Law Commission, 1997. First Interim Report on Aspects of the Law Relating to AIDS: Disposable Syringes, Needles and other Hazardous Material, Universal Work Place Infection Control Measures, National Compulsory Standard for Condoms, Regulations to Communicable Diseases and the Notification of Notifiable Medical Conditions, National Policy on HIV Testing and Informed Consent Pretoria.
6. South African Law Commission, 1998. Second Interim Report on Aspects of the Law Relating to AIDS: Pre-Employment and HIV Testing Pretoria.
7. South African Law Commission, 1998. Third Interim Report on Aspects of the Law Relating to AIDS: HIV/AIDS Discrimination in Schools Pretoria.
8. South African Law Commission, 1998. Aspects of the Law Relating to AIDS: The Need for a Statutory Offence Aimed at Harmful HIV Related Behaviour, Discussion Paper 80 Pretoria.