Wisconsin Lawyer: HIV Confidentiality: Who has the Right to Know?:

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    HIV Confidentiality: Who has the Right to Know?

    Although HIV infections continue to occur at an alarming rate, medications are drastically reducing the number of deaths from aids and improving the quality of life of HIV-infected people. Lawyers who advise HIV-positive clients need to emphasize that the best way to avoid stigmatization and discrimination is to be selective in whom clients entrust with information about their HIV status.

    Christopher Krimmer

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    Wisconsin Lawyer
    Vol. 76, No. 2, February 2003

    HIV Confidentiality:
    Who has the Right to Know?

    Although HIV infections continue to occur at an alarming rate, medications are drastically reducing the number of deaths from aids and improving the quality of life of HIV-infected people. Lawyers who advise HIV-positive clients need to emphasize that the best way to avoid stigmatization and discrimination is to be selective in whom clients entrust with information about their HIV status.

    Sidebars:

    illustration of face and 

lockby Christopher S. Krimmer

    Whether you are a sole practitioner in Superior or work for a large law firm in Milwaukee, the chance that you will be confronted with a legal issue involving the confidentiality of human immunodeficiency virus (HIV) becomes more likely by the year.

    Wisconsin has approximately 8,000 residents living with HIV and AIDS.1 Nationally, the number of HIV infections continues to increase annually by 45,000. We are reaching close to one million Americans afflicted with HIV and AIDS.2

    During the late 1980s to early 1990s, the conceptive period of the HIV epidemic, people with AIDS mostly consulted lawyers for emergency wills and power of attorney documents. Fortunately, the advent of new medications has drastically reduced the number of people dying from AIDS.3 In 1993, Wisconsin lost 370 people from AIDS. Last year, the number declined to 92 people.4 HIV-positive persons are doing things never dreamed of a mere 10 years ago. They are returning to work, purchasing real estate, starting businesses, and planning families.

    An essential element to meeting these personal and professional goals is achieved by protecting the confidentiality of their HIV status. It is the success of keeping their medical status confidential that helps protect HIV-positive persons against stigmatization and discrimination. It is important for lawyers who work with HIV-positive clients or have clients who work with the HIV population to know what laws protect this information.

    Wisconsin's HIV Confidentiality Statute: Wis. Stat. Section 252.15

    The AIDS Resource Center of Wisconsin's Legal Services Program (ARCW) is a nonprofit agency that provides legal representation to people living with HIV and AIDS throughout Wisconsin. In 2002, the attorneys at the ARCW provided representation and consultations to more than 400 people living in the state with HIV and AIDS. The biggest misconception among these clients was the protection of their HIV status. Most clients believed that once they told someone else about their HIV status, the other person had a legal duty not to further disclose that person's HIV status to additional people. Often, the ARCW receives calls from clients who want to stop an ex-boyfriend or ex-girlfriend from telling mutual friends about the client's HIV status. Unfortunately, Wisconsin's HIV confidentiality statute distinguishes a person's HIV status from a person's HIV test result.

    The Wisconsin HIV confidentiality statute was enacted to acknowledge the highly sensitive nature of a person's HIV test result.5 It provides that no health care provider, blood bank, or testing site may disclose an individual's test results.6 A person's right to confidentiality in his or her HIV test results is premised on the idea that people will be more likely to seek HIV testing if they know that this information will remain private.

    In Wisconsin, patients are offered either a confidential HIV test or an anonymous HIV test. A confidential test for HIV usually is conducted by a person's personal physician and the test results recorded in the patient's medical file. If a person elects to have an anonymous test, which is offered by various health care organizations, the person chooses a numerical code instead of providing his or her name.

    If a person elects a confidential test, the testing site or health-care provider must maintain that person's test results in the strictest of confidence. The test results can be disclosed only with specific consent by the patient or, without the patient's consent, to a limited group of people as permitted under the Wisconsin HIV confidentiality statute. For example, the health-care provider can disclose a patient's HIV status - without the person's consent - to other health-care providers of the patient;7 to a parent of a patient who is 14 or younger;8 to the person who holds the patient's power of attorney for health care, if the patient has been declared incompetent;9 and to a first responder who had been significantly exposed by the patient.10 Additionally, a health-care provider must provide the identity of all HIV-positive patients to the state epidemiologist for the purpose of partner notification and epidemiological surveillance.11 For this reason, many individuals choose to be tested anonymously.

    It is important to note that the statute broadly defines the term "health care provider" to include not only physicians and nurses but also pharmacists, social workers, occupational therapists, dietitians, and even acupuncturists.12 It does not include, however, the people who are most likely to learn about a person's HIV status from the client: family members, partners, and friends. This is why it is pivotal that a person living with HIV be cautious in deciding who to entrust with this information.

    Even though the Wisconsin HIV confidentiality statute may not apply, an ex-boyfriend or ex-girlfriend who discloses a person's HIV status to others may still face legal liability. The person whose HIV status was disclosed may seek a remedy by traditional causes of action such as intentional infliction of emotional distress and invasion of privacy.13

    If the defendant's conduct is extreme and outrageous, and accompanied with a purposeful intent to cause emotional distress, the HIV-positive person may recover for his or her emotional distress.14 For example, this may occur when the person has a falling out with a friend and that friend intentionally discloses the person's HIV status to the person's employer or family.

    In Wisconsin, a person's right to privacy is codified at Wis. Stat. section 895.50. A plaintiff must prove that the defendant gave publicity to a matter concerning the private life of another without any legitimate public purpose in the disclosure. HIV-positive plaintiffs have successfully argued that "public" can consist of as few as five people.15 The challenge in these cases is finding witnesses who are willing to step forward to implicate the defendant. It is difficult to ascertain who knows the information and how they learned about it.

    A guiding principle in advising clients with HIV is to emphasize to them that the best way to avoid stigmatization or discrimination is to be selective in who they entrust with this information. If they do tell their HIV status to others who then violate their trust, they should be aware that there are some limited remedies available to them.

    HIV Confidentiality and Criminal Law

    The single biggest caveat to advising a client to be cautious about sharing his or her HIV status involves disclosure to sexual partners. If a person with HIV engages in unprotected sexual intercourse with another person, he or she may face criminal liability for that conduct.

    Christopher S. KrimmerChristopher S. Krimmer, U.W. 1997, practices with the AIDS Resource Center of Wisconsin's Legal Services Program, Milwaukee. The author thanks program associate Dawn Caldart for contributing to this article.

    Wisconsin does not have a criminal statute that specifically criminalizes HIV exposure through sexual intercourse. Rather, prosecutions can be pursued with charges of reckless endangerment, assault and battery, or even negligent homicide, depending on the circumstances.

    The criminal charge in Wisconsin most commonly used by prosecutors in this situation is reckless endangerment. The crime requires proof that the defendant recklessly endangered the safety of another with utter disregard of human life.16 A prosecutor could argue that an HIV-positive defendant who knowingly engages in unprotected sex is recklessly endangering the safety of the sexual partner. Reckless endangerment is a felony that can carry a prison term of up to 10 years.17

    People who were unaware of their HIV status or were aware of their HIV status but practiced safe sex likely would not be prosecuted criminally. Additionally, people who tell their HIV status to a sex partner, who nonetheless consents to unprotected sex, also likely would not be prosecuted under this statute. An HIV transmission case is generally very difficult to prosecute since it turns on whether disclosure was made or not. It ultimately becomes a "he said, she said" case.

    Some public health officials question the wisdom of criminally prosecuting people for transmitting HIV.18 Fewer people may be willing to be tested for HIV if they know that there are punitive ramifications. The populations most vulnerable to HIV may lose trust and confidence in public health programs and not seek HIV counseling, education, and treatment. As a result, more people will unknowingly infect others with the virus.

    Lawyers who advise HIV-positive persons must strike a delicate balance of notifying clients of this potential criminal liability while also encouraging them to be selective in whom they choose to tell about their HIV status. A lawyer who has a client who is HIV positive and who wants to protect the client's privacy while avoiding any potential for criminal charges would serve the client well by explaining the legal importance of practicing safe sex.19 It is advisable to refer the HIV-positive client to an AIDS community-based organization or infectious disease control physician who can make certain that the client is aware of the precautions that should be taken to prevent HIV transmission.

    Confidentiality in the Workplace

    One of the many benefits of the new HIV medications is that many people with HIV feel well enough to work. State and federal laws encourage people living with HIV to continue to be productive members of the workforce by protecting their right to confidentiality.

    Wisconsin law allows the state epidemiologist and Department of Health and Family Services (DHFS) to identify occupations in which an HIV-infected person's performance would pose a significant risk of transmitting HIV to other individuals.20 To date, the DHFS has not identified any such occupation.21

    Employment applications cannot ask an applicant about his or her HIV status.22 Nonetheless, many people with HIV will inadvertently disclose their HIV status. Frequently, an employment application will ask the applicant if he or she has any health conditions that would affect his or her ability to perform the functions of the job. Although this is a permissible question under the law, many HIV-positive persons construe the question as a request for a list of their health problems. Applicants who are HIV-positive and asymptomatic can truthfully answer "no" to this question. The disclosure of the applicant's HIV status becomes relevant only if the HIV has progressed to such a degree that the applicant would require a reasonable accommodation under the Americans with Disabilities Act (ADA) in the performance of his or her duties.

    Applicants or current employees who request a reasonable accommodation because HIV is affecting their ability to perform their job may need to disclose their current health status to the employer. The employer has a right to determine whether the person's health condition rises to the level of a disability as defined in the ADA. A lawyer assisting an HIV-positive individual who wants a reasonable accommodation should send the request for accommodation with a reminder that the employer has a duty to keep this medical information confidential and separate from the employee's personnel file.23

    Aside from a request for a reasonable accommodation, an employer should not learn of an employee's HIV status unless the employee voluntarily discloses this information. If an employee does tell the employer of his or her HIV status, the employer cannot discriminate against that employee in any aspect of employment. The employer cannot request the employee to take another job within the business, isolate the individual from other coworkers, or reduce the employee's salary or benefits.24

    Conclusion

    As we enter into the next decade of HIV, lawyers should be aware of the dynamics of this disease and how it intersects various areas of the law. The legal issues people with HIV are confronted with today are far different from the legal concerns that arose in the early years of the epidemic. The advent of new HIV medications has allowed HIV-positive people a future - a future that is premised substantially on their right to the same rights and privileges enjoyed by all people. These rights and privileges are best achieved when persons with HIV realize what rights they have as to the confidentiality of their medical information and when they have a duty to disclose or not to disclose. Lawyers should be prepared to advise HIV-positive clients of these rights and the remedies available when these rights have been violated.

    Endnotes

    1See Wisconsin AIDS/HIV Update 22, Wisconsin AIDS/HIV Program, Division of Public Health, DHFS (Winter 2002).

    2See Centers for Disease Control & Prevention, HIV and AIDS - United States, 1981 - 2001. MMWR 2001:50, 430-434.

    3See Anti-HIV Therapy Fact Sheet Number 05-June 2002 (visited Nov. 10, 2002) <www.aidsmap.com>.

    4See supra note 1 at 27.

    5See generally Wis. Stat. § 252.15.

    6See Wis. Stat. § 252.15(5).

    7See Wis. Stat. § 252.15(5)(a)2.

    8See Wis. Stat. § 252.15(5)(a)15.

    9See Wis. Stat. § 252.15(5)(a)1.

    10See Wis. Stat. § 252.15(5)(a)11., 18.

    11See Wis. Stat. § 252.15(5)(a)6.

    12See Wis. Stat. § 252.15(1)(ar)1. (citing Wis. Stat. § 146.81(1)).

    13See Wis. Stat. § 895.50.

    14See Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 695, 271 N.W.2d 368 (1978).

    15See Hillman v. Columbia County, 164 Wis. 2d 376, 474 N.W.2d 913, 920 n.9 (Ct. App. 1991) (citing Beard v. Akzona Inc., 517 F. Supp. 128, 133 (E.D. Tenn. 1981)).

    16See Wis. Stat. § 941.30.

    17See Wis. Stat. § 939.50 (second-degree recklessly endangering the safety of another is Class E felony that carries prison term of up to five years).

    18For a more in-depth discussion of the policy implications of criminal transmission of HIV, see Richard Elliott, Criminal Law, Public Health and HIV Transmission: A Policy Options Paper (UNAIDS, June 2002).

    19The person with HIV who knowingly transmits HIV to a sexual partner also may be held liable in a civil action for assault and battery and intentional infliction of emotional distress. See, e.g., Syring v. Tucker, 174 Wis. 2d 787, 498 N.W.2d 370 (1993).

    20See Wis. Stat. § 103.15(2).

    21Letter from Jeffrey P. Davis., M.D., State Epidemiologist and Chief Medical Officer for Communicable Diseases, Wis. Dept. Health and Family Services, Div. Public Health, to Christopher Krimmer, AIDS Resource Center of Wisconsin, Legal Services Program (Nov. 15, 2002).

    Although Wisconsin has not identified any occupation that carries a significant risk of transmission, it should be noted that courts in other states and federal circuits have found that even a remote and theoretical risk of HIV transmission allows an employer to terminate or restrict an HIV-positive employee's work, especially if the employee works in the health care field. See, e.g., Wadell v. Valley Forge Dental Assocs. Inc., D.C. Docket No. 99-00262-CV-CAP-1 (Ct. App. 11th Cir. 2001).

    22See 42 U.S.C.A. § 12112(a) (1990).

    23See 42 U.S.C.A. § 12112(d)(3) (1990).

    24See 42 U.S.C.A. § 12112(b) (1990).




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