The High Court refused an application by the Child and Family Agency (CFA) to disclose a teenager’s HIV status to a close friend without his consent, finding that the agency had not shown on the balance of probabilities that they were having sex.
The judgment, delivered by Mr Justice Twomey on 21 February 2018, concerned A, a minor represented in the proceedings by a solicitor and next friend, Gina Cleary, and his mother, C. The CFA sought a declaration that it could tell B, who was not a party to the case, about A’s condition so she could seek testing, treatment or counselling.
A denied that B was his girlfriend or that they had ever had sex. The CFA said they were in a relationship and relied on their frequent contact, social media photographs, evidence that B had been found in A’s bed when gardaí were looking for him, and other circumstantial evidence. A said they were close friends. The court found there was a possibility they had sexual intercourse, but concluded the evidence did not establish that it was more likely than not. It also found that, even if they had sex, it was more likely than not that they used condoms.
The court set a test for such applications: whether, on the balance of probabilities, keeping the information confidential creates a significant risk of death or very serious harm to an innocent third party. It accepted that confidentiality may be breached in exceptional circumstances, but said it must be weighed against the public interest in patients being able to share private medical information with doctors without fear of disclosure.
The judge considered the application even on the assumption that A and B had unprotected sex. Medical evidence described HIV as a chronic, manageable condition and put the risk of transmission from an instance of unprotected sex at about 0.04%, while noting uncertainty around that estimate. The court concluded that the risk and the nature of the condition did not meet the threshold for disclosure. It also reasoned that a person choosing to have unprotected sex would not be an “innocent third party” in the legal sense used in the judgment.
The court rejected the CFA’s application for an order authorising disclosure. It stressed that the decision reflected a balance between B’s welfare and the public interest in medical confidentiality, and was not a rejection of the concerns raised by the doctors and the agency.