HIV is one of the deadliest diseases present in the world nowadays. Since this disease transmits majorly through unprotected sex, therefore this disease carries a lot of social stigma with it. Being diagnosed with HIV is a piece of very shocking news for a person. This is a very sensitive information and these types of sensitive information should only be disclosed to a patient’s Spouse by the patient themselves. It has been found that “Self-disclosure of sensitive information is generally thought to have beneficial effects on an individual’s health.” Also, In the article published by WHO: Gender Dimensions of HIV Status Disclosure it was stated that “women who disclose their status to their partners by their-selves may be more likely to participate in Prevention of Mother to Child Transmission (PMTCT) programs.” Moreover, in an article by AIDS Legal Counsel of Chicago , it was stated that “The only sexual partner your doctor is allowed to tell is your legal husband, wife, or civil union partner. Even then, the doctor must first give you a chance to tell your Spouse or civil union partner yourself.”
All these articles published by international journals have one similar thinking and understanding pattern. The publishers of these journals understand the importance of the confidentiality of the sensitive HIV positive reports of a patient. These articles clearly show that the report of being HIV positive is a very sensitive information, and this information should be informed to the Spouse of the patient, by the patient only. If these sensitive information are informed to the Spouse of the patient by the doctors or any third person, other than the patient, leads a very several psychological damage to the Spouse and to the individual itself. Therefore, all these articles have laid down the common finding that the HIV Positive report shall be disclosed to the Spouse only through the patient themselves.
Now here the question rises are that what is the law in India regarding the disclosure of the HIV to the patient’s Spouse from the doctor?
Regarding this question, in a very famous case Mr. X vs Z Hospital, the Supreme Court of India had passed a judgement in the year 1998. The Supreme Court of India laid down the decision that the doctors would not be held liable for infringement of any Fundamental Rights, mainly Right To Privacy of the HIV positive patient by disclosing the fact that the patient has been diagnosed with HIV to the Spouse of the patient without the knowledge or consent of the patient. The Supreme Court in the judgement stated that the Right to Privacy in India is not treated as an absolute right. Moreover, the Supreme Court said that since the spouse/fiancé of the person has Right to Know and Right to Live a Healthy Life, which is also a fundamental right guaranteed under Article 21 of The Constitution of India, therefore, the doctors disclosing the HIV positive reports to the spouse/fiancé of the patient would not be considered illegal.
It is well-established law that Right to know is a fundamental right that is given to each and every citizen of India. The supreme court held that since the Spouse’s/ fiancé have Right to Know, therefore the doctors would not be held liable for the disclosure of the reports of HIV positive person. Here, it can be seen that the supreme court is only concerned about the Right to know and Right to live a Healthy life of the Spouse of the HIV positive person.
The Right to Know of the patient’s Spouse can be achieved in two ways. I) The patient discloses the fact about being HIV positive by themselves. II) The doctor discloses the fact directly to the patient’s spouse/fiancé.
Now, according to the Section 269 and 270 of the IPC the HIV positive person cannot have any sexual intercourse either vaginal, anal or oral with anyone without disclosing the fact that they are HIV positive. Basically, the patient is already bounded by law under the section 269 and 270 of the Indian penal code, to disclose the fact to their partners that they are suffering from HIV, before having intercourse. If the person knowingly transmits the HIV to any other person, then s/he would be liable under the section 269 and 270 of the IPC.
“269. Negligent act likely to spread infection of disease dangerous to life -Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”
“270. Malignant act likely to spread infection of disease dangerous to life -Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
Now the question arises is that, when the patient is already bound by law under section 269 and 270 of the Indian Penal Code to disclose the fact to their partners that they are suffering from HIV, before having intercourse, then what is the authority of doctors to interfere in between the HIV positive patient and their Spouse. The interference and disclosure by a doctor about their patient’s HIV report, even to the spouse/ fiancé would amount to the violation of the patient’s Right to be Let Alone (“right to let alone” means freedom “in” doing whatever s/he wants with his/herself private affairs that do not involve others) and Right to privacy which is guaranteed under the Article 19 and Article 21 of The Constitution of India. It has been seen in many cases that, in comparison of self-disclosure, when the Spouse of the HIV positive person gets this sensitive information from the doctors or any other person, it creates a devastating and negative effect in the mind of the Spouse/ fiancé which can further lead to abandonment and divorce, and in the case of wife being HIV positive, it further leads to domestic violence, rather than support.
Moreover, if the doctor thinks that their patient would not disclose the fact to their spouse/ fiancé then in that case, they should firstly do a proper counselling of the patient. Even if there is a reasonable apprehension that still the patient is not going to disclose the fact, then in that case the doctor should inform the authorities like the National AIDS Control Organisation, Ministry of Health & Family Welfare, Government of India. Further, if the authorities take no action regarding it, in that case only the doctor should tell the spouse/fiancé directly. But afterwards the doctor should be answerable and should show that there was a reasonable apprehension that the patient is not going to tell their spouse/fiancé and for the interest of the public the doctor has to disclose the fact to the patient’s spouse/ fiancé by themselves.
CONCLUSION
The Indian laws till now, didn’t understands the importance of self-disclosure in the sensitive cases like HIV/AIDS and allowed the doctors to disclose this sensitive information directly to the spouse/fiancé of the patient, even without informing or taking consent from their patient. Since, the HIV/AIDS carries a lot of social stigma with itself, when these sensitive information reaches to the patient’s spouse/fiancé from third person, it generally leads a very several psychological damage to the Spouse and to the individual itself which further leads to abandonment, and in the case of wife being HIV positive, it further leads to domestic violence, instead of support. To stop these, the government should enact some laws prohibiting the doctors from disclosing the Spouse of the HIV patient, directly without the consent of the patient. Moreover, a proper procedure should be enacted discussing the condition and the procedure through which the doctors can directly disclose the report of HIV positive patient to the patient’s spouse/fiancé.
