Some true stories, identifying details removed:
A 30yo gay male who rarely practices safe sex develops a chronic cough and after evaluation by pulmonologists is found to have pneumocystis carinii pneumonia, an infection that's exceedingly rare outside of the context of AIDS (It's an AIDS defining disease in those who have HIV) or immunosuppression for transplants and the like (he doesn't have a transplant). He's told he needs HIV testing and treatment since he nearly certainly has HIV and AIDS, but he's convinced AIDS isn't caused by HIV, so he refuses testing. He says he'd tell any sexual partner about HIV positivity to "let them make their own decision" but since he won't get tested, he says this doesn't matter, and he keeps sleeping around, saying nothing about his condition.
A 42 yo woman with a history of IV drug abuse decides to get tested because a doc who saw her for alcohol abuse in the ER advised it. She's actually picked up hepatitis B, C and HIV, although she feels well. She has a boyfriend now, whom she says she's afraid of losing, because they've been fighting recently, so she says she's going to wait until later to tell him, when things are better, and besides, its such a hard thing to say, but she'll get around to it. She's seen in ID clinic over the next three months and hasn't made any progress towards telling him--or past contacts. She continues to have sex with him--unsafe whenever he doesn't make it otherwise.
What do you do with these people?
Privacy vs Public Safety
Privacy vs Public Safety
I think that most of us could certanly form an opinion of the character of people who act wantonly and recklessly in these matters.
Legally it may be difficult to prosecute under assault and battery statutes, if discovered, only because tainted blood or fluids have not been ruled as dangerous weapons in Massachusetts, or for that matter any other state.
I believe the real problem that you present is one of the physician or other medical person treating these people.
I am sure all would be willing to report such cases, with legal immunity, but that darn old constitution and ethics of professional constraint may be in the way.
The duty of a physician to report a bullet would, even if self inflicted, has been on the books for years, and there the public safety supplanted and rationalized the constitutional issue.
Are diseased persons purposely firing their deadly fluids into unaware persons any more justified in their rights of privacy, than the same person firing a gun at them?
Only public outrage can change this sort of dilemma, and that has been waning in the false belief that AIDS is no longer a problem because of new drugs.
It must be frustrating for health care professionals to feel stifled by a gag order.
We, in the legal profession, are faced with similar problem, but the impact is not the same unless there is a heinous crime involved.
Legally it may be difficult to prosecute under assault and battery statutes, if discovered, only because tainted blood or fluids have not been ruled as dangerous weapons in Massachusetts, or for that matter any other state.
I believe the real problem that you present is one of the physician or other medical person treating these people.
I am sure all would be willing to report such cases, with legal immunity, but that darn old constitution and ethics of professional constraint may be in the way.
The duty of a physician to report a bullet would, even if self inflicted, has been on the books for years, and there the public safety supplanted and rationalized the constitutional issue.
Are diseased persons purposely firing their deadly fluids into unaware persons any more justified in their rights of privacy, than the same person firing a gun at them?
Only public outrage can change this sort of dilemma, and that has been waning in the false belief that AIDS is no longer a problem because of new drugs.
It must be frustrating for health care professionals to feel stifled by a gag order.
We, in the legal profession, are faced with similar problem, but the impact is not the same unless there is a heinous crime involved.
- gmattson
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Privacy vs Public Safety
What is the difference between an individual sending Amthrax through the mail and a person infecting an unsuspecting person with HIV?
I sense that both individuals should be treated the same way in a court of law.
------------------
GEM
I sense that both individuals should be treated the same way in a court of law.
------------------
GEM
Privacy vs Public Safety
I agree that there should be legal consequences; however, if you're having unprotected sex with a crack whore, you can basically assume you're going to get HIV, tests or no tests. The difference between anthrax and HIV is you choose to get HIV.
I think this situation is comparable to challenging someone to a one on one shoot out. If you're killed, there should be reprocussions for the shooter, but you're still asking to be killed.
I think this situation is comparable to challenging someone to a one on one shoot out. If you're killed, there should be reprocussions for the shooter, but you're still asking to be killed.
Privacy vs Public Safety
Ian:
The quick and useful answer is to find the ethical hotline of your medical association; it's bound to have one. I know our bar association does, and it would be incomprehensible to me that a medical association would not have one also.
Call and outline the problem before taking any action. The way it works with the Kentucky Bar Association, if you do so and then rely on the advice given for you actions or inactions you are virtually shielded from any type of ethical complaint.
I have never like the Tarasoff case for the following reason: the psychiatrist who treated Tarasoff's assailant took upon himself the duty to go save her by making a half-assed attempt to notify someone - the campus police, IIRC -. an attempt that did nothing to preserve Tarasoff's life.
Under common law, one has no duty to save another in any and all circumstancea - but when one assumes that duty, one then also assumes the duty to act competently. The justification therefor is that another, seeing your intervention, might believe there was no further need to intervene and do nothing; thus, if your actions might serve to forestall others' actions, you had better act well.
The California court could have found liability and decided Tarasoff on that basis - but, as you know, it did not. It created a new duty, new liability, and new headache.
student
The quick and useful answer is to find the ethical hotline of your medical association; it's bound to have one. I know our bar association does, and it would be incomprehensible to me that a medical association would not have one also.
Call and outline the problem before taking any action. The way it works with the Kentucky Bar Association, if you do so and then rely on the advice given for you actions or inactions you are virtually shielded from any type of ethical complaint.
I have never like the Tarasoff case for the following reason: the psychiatrist who treated Tarasoff's assailant took upon himself the duty to go save her by making a half-assed attempt to notify someone - the campus police, IIRC -. an attempt that did nothing to preserve Tarasoff's life.
Under common law, one has no duty to save another in any and all circumstancea - but when one assumes that duty, one then also assumes the duty to act competently. The justification therefor is that another, seeing your intervention, might believe there was no further need to intervene and do nothing; thus, if your actions might serve to forestall others' actions, you had better act well.
The California court could have found liability and decided Tarasoff on that basis - but, as you know, it did not. It created a new duty, new liability, and new headache.
student
Privacy vs Public Safety
The upshot of this, at least through the consensus ethics opinions, is as TSDguy so delicately put it.
It is assumed that people are aware of the risks of sex, and therefore by engaging in it, they take their own chances. This is especially true for person one above. He was meeting people off an internet chat room. Anyone who hoks up with a stranger for mostly anonymous sex is asking for infection.
Re: professionals being bound by gag rules, we also make those rules. The Tarrasoff ruling involved a psychiatry patient who told his shrink he was going to kill Ms T, and did. The initial ruling--against the opinion of psychiatric associations--was that they HAD to warn the potential victim. The shrinks wanted to preserve the confidentiality of the patient, fearing that if they had to report crimes and potential crimes, the people considering such crimes just wouldn't tell their shrinks, or not go at all. Then the person would have the same risk and the nut wouldn't even be under treatment.
Kind of like the fact that we don't report substance use to police when it comes to our knowledge. Whatever tests we draw (detail: these samples aren't protected by chain of custody so they're not admissible anyway), or whatever stories we hear about illegal substances, we keep to ourselves and use only for the benefit of the patient, because to do otherwise would compromise our ability to learn about and care for all future patients. Many drug using patients, and some cultural groups, are already suspicious enough about docs and other authority figures.
A follow up Tarrasoff ruling further defined the duties of psychiatrists and other proessionals burdened with this kind of info. It's not really nice to just drop the potential victim a line and tell them to watch their backs. So the standard became, taking steps to protect. And that might entail informing the police, taking the patient into custody, etc. The best thing is when you can tell the patient that the potential victim HAS to hear of the threat, and its best if s/he tells him/her. Then as much as possible the patient-shrink-md etc relationship is preserved as much as possible.
Another reason there's so much protection of the sexual realm even if people are being put at risk is the history the united states has toward invasion of that private relam and its sensitivity toward not abusing it. For example, Virginia had a case go to the supreme court, which it won, allowing it to sterilize undesirables. These included women deemed stupid by judges and women who had children out of wedlock--in the test case, because of a sexual assault the woman had no control over!! This awful legislation was overthrown, and now its difficult to sterilize people even when its in their interests. Case in point: severely mentally retarded woman found to have been sexually assaulted by a worker at her home. She has a medical condition that would make pregnancy very dangerous, and her parents wnt her sterilized; the court tells them, she can't consent, even though she probably would if she could! They put the burden on prevention of further assaults, which is something that definitely should be done, but sex among the mentally retarded set in large group homesisn't the easiest to regulate. In short, the state likes to not mess with reproduction even when it has a compelling reason.
Abortion, for example, remains legal, even though it indisputably results in the death of a human being. No reason required--just the mothers wishes. The reason? Privacy. And here the death is nearly certain, and the decendent to be can't take steps to protect him/erself, where with HIV the risk per act depending on act is about 1/200 or so, and the potential victim ought to know better.
I guess it's like smoking. That's physically addictive, unlike sex, and it doesn't really have an upside, unlike sex, ad people know better by now. It's ALWAYS dangerous, unlike sex, and yet tobacco companies continue to make tons of money off the death and suffering of cutomers. 1/3 die of their habits, which is a heck of a lot worse than 1/200 for person A's internet contact saturday night. Maybe its that there isn't ONE cigarette like there is ONE bullet or sexual act that can be blamed, that we don't see it this way.
I don't know how it plays out in mass yet, but in virginia we had some problem patients like the second one who weren't telling their partners. Also had some sleeping with informed HIV negative partners, no condom; the other person was just stupid enough to allow it, and we considered it the patient's responsibility to be their brain, but they declined and went ahead with the risky behavior. And the laws were such that only a deliberate attempt to infect is reportable and prosecutable. Try and prove that in a court of law.
What I'm stuck with is trying to educate the potential killer and the potential victim, and while I can and HAVE informed a bunch of potential victims that these people are out there, I can't give them names.
It is assumed that people are aware of the risks of sex, and therefore by engaging in it, they take their own chances. This is especially true for person one above. He was meeting people off an internet chat room. Anyone who hoks up with a stranger for mostly anonymous sex is asking for infection.
Re: professionals being bound by gag rules, we also make those rules. The Tarrasoff ruling involved a psychiatry patient who told his shrink he was going to kill Ms T, and did. The initial ruling--against the opinion of psychiatric associations--was that they HAD to warn the potential victim. The shrinks wanted to preserve the confidentiality of the patient, fearing that if they had to report crimes and potential crimes, the people considering such crimes just wouldn't tell their shrinks, or not go at all. Then the person would have the same risk and the nut wouldn't even be under treatment.
Kind of like the fact that we don't report substance use to police when it comes to our knowledge. Whatever tests we draw (detail: these samples aren't protected by chain of custody so they're not admissible anyway), or whatever stories we hear about illegal substances, we keep to ourselves and use only for the benefit of the patient, because to do otherwise would compromise our ability to learn about and care for all future patients. Many drug using patients, and some cultural groups, are already suspicious enough about docs and other authority figures.
A follow up Tarrasoff ruling further defined the duties of psychiatrists and other proessionals burdened with this kind of info. It's not really nice to just drop the potential victim a line and tell them to watch their backs. So the standard became, taking steps to protect. And that might entail informing the police, taking the patient into custody, etc. The best thing is when you can tell the patient that the potential victim HAS to hear of the threat, and its best if s/he tells him/her. Then as much as possible the patient-shrink-md etc relationship is preserved as much as possible.
Another reason there's so much protection of the sexual realm even if people are being put at risk is the history the united states has toward invasion of that private relam and its sensitivity toward not abusing it. For example, Virginia had a case go to the supreme court, which it won, allowing it to sterilize undesirables. These included women deemed stupid by judges and women who had children out of wedlock--in the test case, because of a sexual assault the woman had no control over!! This awful legislation was overthrown, and now its difficult to sterilize people even when its in their interests. Case in point: severely mentally retarded woman found to have been sexually assaulted by a worker at her home. She has a medical condition that would make pregnancy very dangerous, and her parents wnt her sterilized; the court tells them, she can't consent, even though she probably would if she could! They put the burden on prevention of further assaults, which is something that definitely should be done, but sex among the mentally retarded set in large group homesisn't the easiest to regulate. In short, the state likes to not mess with reproduction even when it has a compelling reason.
Abortion, for example, remains legal, even though it indisputably results in the death of a human being. No reason required--just the mothers wishes. The reason? Privacy. And here the death is nearly certain, and the decendent to be can't take steps to protect him/erself, where with HIV the risk per act depending on act is about 1/200 or so, and the potential victim ought to know better.
I guess it's like smoking. That's physically addictive, unlike sex, and it doesn't really have an upside, unlike sex, ad people know better by now. It's ALWAYS dangerous, unlike sex, and yet tobacco companies continue to make tons of money off the death and suffering of cutomers. 1/3 die of their habits, which is a heck of a lot worse than 1/200 for person A's internet contact saturday night. Maybe its that there isn't ONE cigarette like there is ONE bullet or sexual act that can be blamed, that we don't see it this way.
I don't know how it plays out in mass yet, but in virginia we had some problem patients like the second one who weren't telling their partners. Also had some sleeping with informed HIV negative partners, no condom; the other person was just stupid enough to allow it, and we considered it the patient's responsibility to be their brain, but they declined and went ahead with the risky behavior. And the laws were such that only a deliberate attempt to infect is reportable and prosecutable. Try and prove that in a court of law.
What I'm stuck with is trying to educate the potential killer and the potential victim, and while I can and HAVE informed a bunch of potential victims that these people are out there, I can't give them names.