The recent Centers for Disease Control and Prevention (CDC) report on dramatic increases in sexually transmitted infections (STIs) in the US is alarming. (N.Y. Times. August 28, 2018. https://www.nytimes.com/2018/08/28/health/std-chlamydia-gonorrhea-syphilis.html) Data from the CDC shows that for the last four years new infections of chlamydia, gonorrhea, and syphilis have risen sharply to a record of more than 2 million. While several explanations for the increase in sexually transmitted diseases (STDs) are offered by public-health officials — strained systems for prevention and treatment, deteriorating public health services, the opioid epidemic, an increase in the number of individuals who do not know they are infected, inadequate funding of preventative public health programs and an increase in casual sex, there may be another more likely explanation — the failure of physicians, public health professions and infected individuals to warn sexual partners of exposure to STIs — known as partner notification or contact tracing. This failure is integrally associated with ethical views of autonomy which emphasize, in countries such as the US, individual rights and privacy as primary in spite of potential harm to others thereby challenging ethical and legal principles related to a duty to warn.
Autonomy is a central value in Western philosophy. In decision-making related to healthcare, autonomy is the concept that individuals must be free from coercion in their decision-making but also fully informed about the benefits and risks of their decision. Surprisingly, in most instances, benefits and risks are focused on the individual and rarely take into account the impact of individual decisions on the benefits or risks to others. The tension between autonomy and benefit vs harm to other individuals or the community as a whole has been persistent. Extreme interpretations have resulted in abuses on both sides. Diminution of autonomy has resulted in forced medical procedures that have benefited science but not individuals. Complete dismissal of autonomy has resulted in marginalization of vulnerable populations reducing them to mere chattel. On the other hand, insistence on autonomy cannot be absolute. Without restraints it can result in significant harm to individuals and societies when power is placed in the hands of a few or when for example in health care, individuals refuse immunization thereby extending the risks of infection to others. Extreme interpretations of autonomy also conflict with legal concepts of a duty to inform as has been established in tort law to protect individuals from defective manufactured products, adverse drug effects, and exposure to environmental hazards. The failure to acknowledge the legal (ethical) duty to inform others of the risks and dangers of exposure to a potentially lethal infection such as HIV has resulted in millions of unnecessary HIV infections deaths, and continuation of the HIV epidemic.
Caution in determining the balance between autonomy and the protection of others from harm is warranted. The history of sexually transmitted infectious disease epidemics, including HIV, is replete with examples of discrimination against individuals who are infected often placing blame on marginalized groups, especially women. For that reason, early in the AIDS epidemic arguments were put forward that without a known cause of AIDS and the lack of treatment, contact tracing was of no benefit but potential harm. Retrospectively, this was a misguided argument as further exposure to AIDS, even if the cause was not known could have prevented additional cases and early recognition could have delayed the onset of disease progression through the provision of prophylactic antibiotics to prevent opportunistic infections. HIV became the exception to the historical public health approach of using contact tracing to control sexually transmitted infections.
The legal duty to warn has rarely been applied to transmission of HIV infection. In tort law the concept of a duty to warn has been applied to a number of circumstances where a party may be held liable for injuries caused to another or where a party had the opportunity to warn the other of a hazard but failed to do so. The difficulty is that transmission of HIV infection is most often not viewed as an injury or hazard but rather as a consequence of consensual sexual intercourse. However it is apparent that the injury caused by HIV infection is as devastating as physical injury but occurs over a longer period of time as the complications of HIV infection progress and, without treatment, results in death. Numerous recent studies now show a clear association of HIV infection and violence against women. In some studies 50% of women who are HIV-infected stem from circumstances of intimate partner violence where HIV infection is yet another form of violence against women.
An ethical duty to warn has not been fully applied to HIV transmission and partner notification. In Tarasoff v. Regents of the University of California, the Supreme Court of California held that mental health professionals had a duty to protect individuals who are being threatened with harm by a patient. The decision has received considerable discussion and debate as to the circumstances to which the Tarasoff principle can be applied. It has not been applied to HIV but, health care professionals are certainly aware that when they diagnose HIV infection, there are others at risk of harm and even death if HIV infection is not prevented or treated. It is possible therefore that the principle of a duty to warn could a be interpreted as duty to employ contact tracing as a means of avoiding irreversible harm to sexual partners who are exposed to or already are infected with HIV.
The risk-benefit ratio in favor of contact tracing has changed significantly — millions of HIV infections could be prevented and individuals who were already infected could be identified, treated and lead long and productive lives. In the more than two decades that have passed since 1996, new HIV infections continued at a rate of 2 million men, women and children each year. Only 53% of the estimated 37 million infected individuals worldwide are on treatment after more than two decades of the availability of potent therapy. An estimated 10 million individuals do not know they are infected and are likely, without treatment, to progress to AIDS and transmit HIV infection to sexual partners were unaware of their risk.
A concern that the failure to fully employ contact tracing in HIV infected individuals, would “spill over” into the control of other STDs seems to have come to fruition. This may be due to a misguided interpretation that STIs discriminate only against the individual who is infected when in fact, the failure to identify individuals at risk of infection, or already infected, discriminates against them by by denying them their right to health and well-being. STIs, including HIV, have inappropriately been provided a sanctuary of protection that results in perpetuation of new infections and the epidemic itself. It seems unconscionable that healthcare professionals and public health organizations, knowing that STIs, which include HIV (and are both preventable and treatable) would not exert every effort to identify those at risk of infection and in need of treatment.
Legal and ethical tensions between a duty to inform and confidentially certainly exist but contact tracing cannot be ignored without acknowledging that without it, a much greater form of discrimination has been created by denying millions of individuals protection from, and treatment for, HIV. Continuing down the path of a truncated public-health approach that avoids fully identifying those who are infected and those who are at risk of infection will surely result in worsening upsurges of STDs in the U.S. and globally as issues of drug resistance, treatment availability and cost worsen. A moral health crisis has been reached in the control of STDs. The current status of the U.S. and global epidemics of STDs will result in tens of millions of new infection over the next decade. The urgency of doing all that we can to stop the spread of STDs has faltered.
Beauchamp T.L., Childress J.F. (2001), Principles of Biomedical Ethics (5th ed). Oxford University Press, New York
Buchanan A.E., Brock D.W. (1990), Deciding for Others: The Ethics of Surrogate Decision Making. Cambridge University Press, New York
Joint Project on Legal and Ethical Issues. HIV Testing and Confidentiality: Final Report. 1998
Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976)