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Keeping schtum

16 Jul 2019 / Human rights Print

Keeping schtum

The seminal case of Child and Family Agency v AA & Anor involved a child (‘S’) who was in the care of the State and the subject of a full care order to the age of 18, pursuant to the Childcare Act 1991.

Having contracted HIV in utero, S was now 17 years old and, in residential care, had begun to spend time with another minor, H.

Concern

S denied any sexual relationship between the two but, due to the conduct of the two young people, the Child and Family Agency (CFA) had cause for concern that they were engaging in sexual activity.

Of significance to the CFA was the fact that S had previously been unable to maintain his medication regimen with sufficient regularity to ensure virological suppression.

In circumstances where the CFA believed that S was having unprotected sexual intercourse with H, and where S had previously been unable to maintain his medication, the CFA was concerned that the chance of transmission of HIV to H was a real possibility.

Guardian

While it was clear that the CFA had an obligation to S as his guardian, there was a competing responsibility towards H, which, arguably, the non-State guardian might not have had.

In light of the competing interests of S and H, and the conflicting duties of the State to same, did the obligation to protect H override the right to confidentiality of S? Presented with this significant ethical and legal dilemma, the CFA sought a declaration from the High Court confirming that it was lawful to breach S’s confidentiality for the benefit of H.

Section 3 obligations

Section 3 of the Childcare Act 1991 imposes, as a primary function of the CFA, a duty to promote the welfare of children who are not receiving adequate care and protection. This statutory obligation, having been considered in the 1998 case of MQ v Gleeson, outlined in the broadest possible terms that the CFA had a duty to protect all children.

As set out by Barr J in MQ, this duty imposed on the State (identified then as the Health Board) extended not just to children who had been exposed to a known risk, but also to children who were likely to be subject to a specific potential risk that might arise.

Where that risk may be known or may reasonably be suspected of occurring, there is an obligation on the CFA to protect the children from this prospective harm. In other words, there is a duty to prevent harm from occurring, as well as to stop the perpetuation of harm.

The CFA, in recognition that its obligations were not limited to children in statutory care, wished to take steps to protect H from a potential risk that was known to the CFA by virtue of its status as guardian to S.

Standard of proof

The court found on the facts that S and H could be engaging in sexual activity but, in order to conclude that fact, on the balance of probabilities, something more was required.

In particular, the issue of proofs merits consideration. The minor S was in the care of the State. He was monitored in a way that few private adult citizens might be (save, perhaps, in psychiatric inpatient care).

The two young people had been found in bed together, their social media accounts had been considered, and S’s residential unit had logged records of his comings and goings.

While it is acknowledged that S denied any intimacy within this relationship, it is difficult to see circumstances where the burden of proof would be discharged to breach confidentiality on foot of a denial by the ‘patient’ when the above evidence was not considered sufficient.

Confidentiality

The court considered previous case law in relation to patient confidentiality, in particular the 1990 case of W v Edgell and Tarasoff v Regents of University of California (1976).

In endorsing Edgell, the court confirmed that, where there was a significant risk of death to a member or members of the public from a known killer, a doctor will be entitled to breach patient confidentiality in order to seek to prevent the death of an innocent third party.

The court further remarked that not only would they be entitled to breach confidentiality, but they would have an active duty to seek to prevent innocent death. This right to break confidentiality may also result in liability for failure to exercise that right where the failure leads to a personal injury to a third party.

These remarks (see paragraph 60 in particular) do not appear to have drawn a distinction between the CFA’s obligations to the minor and an individual doctor’s responsibilities.

The court remarked that the facts of this case could just as easily be a medical professional with the same information as the CFA seeking the order.

However, one has to question whether or not the level of detailed information that the CFA had as a result of their specific parentage and guardianship of a child led to a rather unique set of circumstances.

Medical intervention

Not only is the minor H known to the CFA in terms of the exact nature of his drug compliance, his whereabouts and his day-to-day life are known in the detail that, except for the most significant medical intervention, would not be available to a medical professional.

By contrast, the CFA, as the guardian of a minor, will oftentimes find themselves in receipt of significant materials and information that may relate to the actions of a minor in their care. On that basis alone, the duties and responsibilities of the CFA must be different to that of a doctor.

Confidentiality

So, is there a duty to breach confidentiality where the risk of harm falls short of death? The court, having considered this question, found that the disclosure could be made where there was a risk of death or very serious harm.

The court found that the public interest in protecting unsuspecting members of the public from very serious harm should take precedence over the interest of the patient keeping medical information confidential.

The court concluded that, while HIV is still a significant disease, it had regard to the medical evidence that it was no longer a terminal disease; rather, it is a chronic condition that people can manage.

It was for this reason that the court found that there was a greater public interest in ensuring that persons with HIV were not disincentivised from seeking proper medical attention and complete disclosure with their doctor.

In refusing the application, the court ultimately found that HIV did not amount to very serious harm.

Personal responsibility

Among the final remarks of the court worth considering is its view on personal responsibility. A pertinent factor con-templated by Mr Justice Twomey, in deciding against the applicant, was whether there was any scope for a civil or criminal action against a parent, to include the State agency.

While such actions are possible under the Civil Liability and Court Act 2004, and the Non-Fatal Offences Against the Person Act 1997, it was the view of the court that H must bear some responsibility for any potential outcome in deciding to engage in unprotected sex with S (if such activity was, in fact, occurring).

Endorsing the 2017 decision of O’Flynn v Cherry Hill Inns Ltd, Mr Justice Twomey approved the proposition that adults must take responsibility for their own safety and cannot absolve themselves of accountability for their actions.

Minors

While the court accepted that S and H were minors, the court was cognisant that both were imminently due to turn 18.

It was the view of the court that H was taking a known risk if engaging in unprotected sexual activity and, while the risk of disease transference was, in fact, real as opposed to hypothetical, she could not be considered an ‘innocent party’ if she chose to take such a risk.

Perhaps one criticism of this judgment might be the amalgamation of duties of the CFA with those of doctors. The court, in its eagerness to consider the obligation of medical professionals, did not substantially deal with the extremely difficult position in which the CFA found itself.

On the one hand, the CFA had a specific duty to provide S with care and protection and, on the other, it also had a particular duty to protect H from a harm that was known to it. The dicta in MQ couched this obligation in the strongest possible terms.

While it was the court’s view that it was irrelevant whether it was the CFA or the medical practitioner that brought the application, it is difficult to agree with this conclusion. While it is clear that the duty of a medical doctor to protect third parties may exist, it is not a statutory duty.

Information

While patients often divulge significant information to their doctors, can it be said that a doctor is as likely to hold as much information on a child as a parent?

The conflicting obligations of the CFA as both parent and guardian of children at large brought with it significant conflict between private life rights, confidentiality, and public interest.

While clarity on the rights and obligations of confidentiality is welcome, the dicta identified above may serve to undermine the State’s section 3 responsibilities in due course.

Aisling Mulligan and Fiona Wood
Aisling Mulligan is a practising barrister and Fiona Wood is an associate in the health and social care department of ByrneWallace