Harvey v. PD 

59 NSWLR 639;[2004] NSWCA 97 
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The Respondent, PD, was a patient of the Alpha Medical Centre (the Centre) from October 1997 until February 1999. On 16 November 1998, she participated in a joint medical consultation with her husband-to-be, FH. The Appellants, Dr. Harvey and Dr. Chen, were their treating physicians. The couple met with Dr. Harvey for the purpose of undergoing blood tests to ensure that neither were HIV-positive or suffering from other sexually transmitted diseases. At the time, PD and FH were not living together and had not had unprotected sex. The Appellant did not inform either PD or FH that their consent would be required for him to disclose the HIV status of one to the other. The trial judge found that PD “reasonably” believed that she would have access to FH’s results and that he would have access to hers.

On 23 November 1998, the Appellant received PD’s test results, which were negative for both Hepatitis B and HIV. The following day, he received FH’s test results, which were positive for Hepatitis B and HIV. PD returned to the Centre to receive a copy of her test results and she requested FH’s results as well. The receptionist informed her that his results were confidential and could not be given to her. On 24 November 1998, the Appellant called FH and informed him that he had “very bad news” and that he had tested positive for HIV. The Appellant informed FH that it was unlikely that he would be able to have children and instructed him not to have unprotected sex. The Appellant did not ask whether FH would share his results with PD, nor did he seek FH’s consent to inform PD.

PD informed FH of her negative test results. FH said that he had also tested negative. She pressed him for a copy of his results and was shown a forged or fraudulently obtained report confirming his deception. PD and FH began living together and married in July 1999. In September 1999, while pregnant, PD discovered that the she was HIV-positive. She gave birth to their child in February 2000.

The trial judge found that the Appellants breached their duty of care to the Respondent by, among other things: failing to discuss with PD and FH at the initial consultation the method by which they wanted to receive their test results, given the distinct possibility of discordant results; permitting a receptionist, rather than a medical practitioner, to divulge PD’s test results to her, failing to provide pre-test counseling to PD and FH; failing to provide adequate post-test counseling to FH, especially in relation to his obligation to disclosure his HIV status to sexual partners; failing to ask FH whether he intended to inform PD of his condition; and failing to take steps designed to make PD aware that she was exposed to the danger of infection at a time when the Appellants knew or ought to have known such was the case.

This finding was challenged on appeal and a cross-appeal was launched by PD. The Appellants relied on s 17 of the Public Health Act 1991 (NSW) (the Act).  Section 17(2)(b) requires doctors to take all reasonable steps to prevent disclosure of information relating to a patient’s HIV status to another person. The Appellants argued that this provision created a positive obligation to take steps to prevent disclosure and thus they could not lawfully have done anything to protect PD.

PD and FH divorced in May 2001. Later that year, PD began a new relationship, became engaged and had a child. The child was born without HIV. On cross-appeal, PD sought the costs associated with the care of her second child for the period during which she would be incapacitated due to HIV/AIDS.

The Court held that Dr. Harvey owed both PD and FH a duty to address, during the initial consultation, the need for consent to disclose and the possibility of discordant results. This duty arises from the obligation the law imposes on medical practitioners to exercise reasonable care and skill not just in treatment but also in the provision of professional advice.

The Court found that section 17(2)(b) of the Act did not preclude the provision of pre-test counseling addressing the need for consent to disclose, how to receive test results, and dealing with the possibility of discordant results. The Court declared that it would be unreasonable to prevent a doctor from raising such issues during pre-test counseling simply because doing so might encourage a patient’s consent to a process of mutual disclosure via the medical practitioner. Moreover, at that time of pre-test counseling, there would be no test results yet to be disclosed. The Court thus held that there was nothing unreasonable in taking a lead from the couple’s own wishes expressed in their joint consultation in order to facilitate mutual disclosure in the presence of their doctor.

The trial judge had found, as a matter of fact, that it was likely that both parties would have allowed disclosure to one another had appropriate pre-test counseling occurred. It also found that if FH had refused his consent to mutual disclosure PD would have discontinued the relationship. The Court thus held that the failure to provide adequate pre-test counseling was the cause of the damage suffered by PD.

The Court held that there was no need to consider post-test counseling as it had already found that the Respondent’s loss resulted from Dr. Harvey’s negligence in failing to provide pre-test counseling.

The Court also considered whether Dr. Harvey’s negligence resulted in the need for additional childcare for PD’s second child, or whether this loss resulted from PD’s independent act. The Court held that Dr. Harvey’s negligence was a historical cause of the damages related to the care of PD’s second child. However, the Court held that it was not reasonable for PD to recover these additional damages. The potential for damages of an indeterminate amount was a serious concern. The Court further held that the causal link between Dr. Harvey’s negligence and PD’s loss was attenuated by her independent decision to have the child, knowing of her condition.

“The taking of all reasonable steps to prevent disclosure does not extend to require the further unreasonable step of holding back from counselling on those three matters.” Para. 89.

“There is nothing unreasonable in taking a lead from the couple’s own expressed needs in their joint consultation and seek to facilitate a situation of mutual disclosure in the presence of their doctor.  Indeed it would call for unreasonable steps on the part of the doctor to deny in those circumstances that important element of counselling.” Para. 90.

“Had Dr. Harvey fulfilled his duty to address in the course of the initial joint consultation the question of mutual disclosure of results and the possibility of discordant results the probable result is that Dr. Harvey would have secured the consent of FH as well as PD to receiving those results together from Dr. Harvey and each would have consented to their respective results being known to the other through Dr. Harvey at a further joint consultation.  But in the contingency that FH refused, the finding remains that PD would have terminated her relationship with FH.  In either case, PD would have escaped the injury she suffered because FH would not have been in a position to deceive her.” Para. 109.