Ira Glasser, the executive director of the American Civil Liberties Union, has regularly proclaimed that "the ACLU sees no conflict between civil liberties and sound public health policies."
This is nonsense. Consider the following conflict, as told to me by a physician during a recent Washington meeting of the American Society of Internal Medicine. At the physician's hospital, a surgeon has become infected with the AIDS virus. I asked if his patients are being informed. She shook her head in embarrassment. "We have no policy on that," she said. The surgeon, who continued practicing, has, after all, a right to privacy.
Another physician present was appalled. "The duty to warn a patient that he or she may be at risk," he said, "is a compelling ethic." The surgeon in question, however, is now himself a patient, and accordingly, his doctor is prohibited -- according to the laws of the state in which he practices -- from disclosing the surgeon's infection to anyone without the surgeon's consent.
So here, in collision, are the civil liberties of the infected surgeon and his patients' rights to informed consent, not only as to how they are being treated but also as to whether they might be at particular risk from the person who will be treating them.
The patient-doctor privilege creates many more problems with regard to AIDS than the occasional surgeon who may be infectious. The privacy of many other infected patients is also absolutely protected, and the result is that large numbers of people who sleep with these patients may be ignorant of the possibility that they, too, may become infected with the AIDS virus.
Few public health officials have been actively concerned about this way of spreading the infection, with the passive consent of the healing professions. The standard notion is that if everyone is educated about AIDS, everyone will practice "safe" sex and the physician-patient privilege can remain intact. If some folks miss the public service ad or pay it no mind, whatever happens to them is their own fault. This country, after all, was built on self-reliance.
In a remarkable change of direction from this myopic view of those who may be exposed to the AIDS virus, Dr. Stephen Joseph, New York City's health commissioner, has broken ranks. He has proposed state legislation that would add to certain protections of patient confidentiality in AIDS cases but would also make clear that doctors and hospitals have a duty, whennecessary, to inform the sex partners of patients carrying the AIDS virus that they themselves may now be in danger of becoming infected.
The proposed bill would safeguard physicians from any liability for having made the disclosure. Current New York State law, like those of a number of other states, forbids giving sex partners such information without the written consent of the patient.
During a report on Joseph's testimony at a legislative hearing on AIDS, The New York Times included a brief but powerful paragraph that it thought was testimony on behalf of the new legislation:
"The City Health Department says that 1,005 women have contracted AIDS and that many of them did not know their spouses or sex partners were infected."
There is no indication that the ACLU has said anything about the civil liberties of those women.
Joseph's legislation is opposed by the New York State Department of Health; its officials are still taking the AIDS-establishment line that patient confidentiality must not be violated under any circumstances, and that people at high risk will be scared away from doctors and hospitals if they know their sex partners will be told that they test positive.
On the other hand, Joseph insists that "a physician and a public health authority acting as a physician have the ethical obligation and moral duty to issue such a warning when there is a clear risk of infection, even without the explicit consent of the patient." It is not known yet whether Gov. Mario Cuomo will side with Joseph's clear medical and ethical imperative or will support the rehearsed responses of his state health department.
At that legislative hearing, two representatives of homosexual rights organizations gave qualified support to Joseph's proposal, and this too was a significant change in direction. Said Joseph: "I'm sure all of us are changing our positions as the epidemic grows. We have to be flexible."
Not all doctors and public health authorities are rethinking their positions, but Dr. Stephen Joseph's decision may have a considerable national impact on the AIDS debate because he is a widely respected member of the AIDS establishment. But he is also, it turns out, an independent member who recognizes that there is sometimes a conflict between civil liberties and sound public health policies -- and that the conflict must be dealt with rather than whistled away.