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The case reported by Katumba-Lunyenya et al raises a number of ethical and legal issues, particularly in relation to consent and disclosure of information.
The primary duty of the paediatrician is to act in the child’s best interests as established by the Children Act1 and subsequent case law.2 Although Article 8 of the Human Rights Act 1998, the right for “respect of family and private life”, is relevant, the House of Lords has determined that there is nothing in the Human Rights Act that will alter the interests of the child being paramount.3 Article 8 is not an absolute right and may be breached if the person:
acts in accordance with the law
is pursuing a legitimate aim
has sufficient and relevant reason
Clearly, the mother was giving informed consent for neonatal intensive care and for the team’s management. We are told that the father was the husband and hence also had legal parental responsibility. Although it is always good clinical practice to involve both parents in obtaining consent, in law only the consent of one with parental responsibility is required to proceed, and in emergency no consent is required but the baby’s best interest prevails.4
In relation to HIV infected mothers, the courts have acted to require testing and treatment of infants for possible HIV infection against parental opposition.5
In relation to child protection, a paediatrician does not owe a duty of care to parents.6 However, in this case, does the paediatrician owe a duty of care to the spouse of a mother with HIV infection? Professor Sir Ian Kennedy writes that the duty to warn, established in the leading Unites States case of Tarasoff7 and tested in the United Kingdom8 in the context of HIV infection, will be problematic. Generally, people are not responsible for the consequences of unlawful acts committed by others. However, the General Medical Guidance is helpful in that a doctor may disclose that a patient is HIV positive to the patient’s known sexual partner only when there is a serious and identifiable risk to that person. The doctor should, however, first try to persuade the patient to disclose the information voluntarily. If the patient refuses, the doctor should warn the patient that confidentiality will be breached.9,10
Hence, as highlighted by other commentaries, the increasing prevalence of HIV positive mothers will mean that the problems encountered in this case are likely to be encountered increasingly in neonatal and obstetric care.
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