A High Court judge has refused to grant an unprecedented application by the Child and Family Agency, Tusla, for orders permitting a 17-year-old male’s doctor to tell a girl (17), with whom the agency suspects the teenager is having sex, that he has HIV.

Judge Michael Twomey refused the order for reasons including he was not satisfied Tusla had established the two are having sex.

He was also satisfied that, even if they were having unprotected sex, there was a low risk the girl would get HIV; if she did get HIV, it is now not terminal and is treatable, and the public interest is in ensuring that, when people go to their doctors, they can be assured that what they say in confidence will remain confidential.

There is a public interest in ensuring people can remain open and frank with their doctors and in not requiring doctors “to monitor their patients’ sex lives”, he said.

If the girl was willing to have unprotected sex with the youth, and assume all the risks associated with that, then the risk of HIV infection in such circumstances, being somewhere in the region of 0.04 per cent, as well as the fact HIV is not a terminal illness, is not such as to justify breaching a patient’s right to confidentiality, which should be done only in very exceptional circumstances, he ruled.

His conclusions did not involve rejecting the “laudable concerns” on the part of Tusla and the doctors involved for the girl’s welfare, he said.

While equally concerned for her welfare, the court must balance that with the public interest in ensuring that patients with any form of serious communicable disease would continue to have the confidence to seek medical assistance without any concerns that their condition might be revealed to others without their consent, except in the most exceptional circumstances.

Those circumstances involved a real risk of very serious harm or death, he said.

A further reason not to grant the order was that the girl had a remedy under civil and criminal law if she contracted HIV from the youth, he said.

He also expressed reservations about the State getting involved in private matters in the bedroom.

If the order was granted, he was concerned that, in similar future cases regarding serious diseases contractible by sexual intercourse, the court will be involved in determining in a civil case whether two consenting adults are having sex, “or to put it another way, what is going on behind closed bedroom doors”.

He would also have “some unease” about taking a “paternalistic” approach, even one that is well intentioned, but wanted to make clear Tusla had only the best interests of the girl in mind in this matter.

In care

The youth has had HIV since birth and has been in the care of the agency for some years, but also retains a family relationship.

The case was taken by Tusla against the youth and, because he is aged under 18, his mother was also a party. The girl was not a party to the proceedings and was unaware of them.

Tusla sought a declaration it was lawfully entitled to disclose the fact of the male’s HIV status to the female to afford her the opportunity of availing of such medical and healthcare testing, treatment and counselling as may be indicated, notwithstanding his refusal to consent to such disclosure.

It relied on medical opinion, including that of a consultant paediatrician and infectious disease specialist, who said in an affidavit that this was an extremely difficult situation and it was with great reluctance they were advising disclosure of a patient’s status without their consent or support.

This was one of the rare situations where disclosure of patient information without their consent is justifiable to prevent harm to another identifiable person who is potentially at risk, the doctor said.

In opposing the Tusla application, the male maintained he and the girl are friends only and are not having sex. He expressed severe upset and distress about any prospect of the girl or his friends knowing he has HIV.

Tusla said it believed he is having sex with the girl for a number of reasons and was concerned about whether he is using condoms.