The right to confidentiality in the context of HIV/AIDS

Abstract

The purpose of this study is to investigate the right to confidentiality in the context of HIV/AIDS through an interdisciplinary lens. This study indicates that whilst confidentiality is important and should be preserved in order to protect persons living with HIV/AIDS against stigmatisation, discrimination and victimisation, this should be balanced by other equally important interests, such as the protection of public health and individual third parties who may be affected by the intentional or negligent infection of others with HIV. As the consideration of the legal issues relating to confidentiality and privacy cannot be divorced from the social context in which HIV/AIDS plays out in South African communities, the study will examine, amongst others, the victimisation, discrimination and stigmatisation experienced by persons living with HIV/AIDS, followed by a critical exploration of the present legal and ethical framework governing privacy and confidentiality, including medical confidentiality, as well as the duty to disclose a positive HIV-status, in the context of HIV/AIDS. Possible limitations on the right to privacy in this context are also examined, which include, amongst others, a consideration of making HIV/AIDS notifiable diseases in South Africa. The study suggests that it is imperative that legal interventions aimed at curbing the spread of HIV will need to be mindful of the unique social, cultural and economic forces that impact on the duty to disclose a positive HIV-status to partners and other affected third parties. Insights gained from philosophical theories relating to Africanism, individualism, communitarianism and utilitarianism are valuable tools in facilitating a clearer understanding of relevant social and cultural factors that keep South African society locked in the present stalemate with regard to the disclosure of HIV status.