Introduction
This section deals with some of the ethical and medico-legal aspects specific to HIV infection and GUM. Most medico-legal problems arise from:
• failure to appreciate legal responsibilities
• problems in clinical management
• medication errors
• administrative errors
• failure of communication and inadequate clinical records.
Awareness and adherence to relevant law and General Medical Council (GMC) guidance is essential. If in doubt seek advice from experienced colleagues, professional bodies, or medico-legal defence organizations.
Confidentiality
Common law and the Data Protection Act 1998 protect personal health information. Confidentiality is central to the trust between patient and healthcare professional (HCP). Without its explicit assurance, the patient may not volunteer a full history and medical care may be compromised. It is particularly important for those dealing with STIs where patients provide highly sensitive information. This is formally recognized by the NHS Trusts and Primary Care Trusts (Sexually Transmitted Diseases) Directions 2000. These apply to any healthcare setting and not just GUM clinics.
To maintain confidentiality the following practices should be adopted:
• anonymize patient data on records/forms/specimens by using identification (ID) numbers, dates of birth, or Soundex codes (Chapter 1, Table 1.2)
• offer the patient a choice on how they would like to be called from the waiting room
• do not discuss patients outside the health team or where the conversation may be overheard by others
• ensure that any consultations are in private, e.g. triage patients in a separate room, not at reception
• disclose information to general practitioner only following consent from the patient (unless it falls within the STD Directions 2000).
Public interest
There are some situations when confidentiality may need to be broken, however, it is vital to consider any decisions in accordance with up to date GMC guidance. These instances usually include disclosures where there is felt to be a risk of harm to the patient or others.
Specific regulations apply to ‘serious communicable diseases’ including HIV, Hepatitis B and C, the latter two (and also Hepatitis A) being notifiable. Problems may also be encountered if the patient is unable to take responsibility for his/her management (e.g. prisoners, patients who lack capacity, children). Before sharing any confidential information, this should be discussed and explained to the patient (and ideally their consent sought) and with senior colleagues. All NHS organizations will have a Caldicott Guardian (a senior person responsible for protecting the confidentiality of patient information) and their opinion should be sought if a breach of confidentiality is being considered.
Consent
It is good practice and a legal requirement to obtain consent from a patient before treatment. Failure to do so can result in complaints to the individual’s employing authority or relevant professional body, criminal proceedings for assault or indecent assault, and civil proceedings (e.g. if injuries arise following treatment without informed consent). To be valid, consent must be given voluntarily by a competent, fully informed patient. A detailed discussion, clearly recorded in the notes, is required.
Consent is required for investigations, treatment, disclosure of information, research, photography/video recording, and teaching (e.g. medical students observing a consultation). In certain circumstances, the use of a signed consent form is required. It must be made clear that refusal to participate in such activities will not compromise clinical care.
The person obtaining consent must be fully aware of the situation, ideally directly involved in it, and able to answer any queries. To help understanding, and therefore the ability to give valid consent, information should be provided clearly, using written or visual aids. If the patient cannot understand English, an interpreter, accredited if possible, should be provided and additional time set aside. In certain situations, it is helpful to involve another member of the health team, such as a HA. It may be necessary to provide time, over a number of sessions, to allow the patient to reach their informed decision.
To obtain consent for a screening test, the patient should be aware of the following points.
• Description of the test:
• Why the test is being taken?
• What does it involve?
• The likelihood of receiving +ve or –ve results.
• Implications of a +ve result to the person and their partner(s).
• Any medical, social, or financial implications.
• Requirement for follow-up tests/treatment.
Mental Capacity Act 2005 (enacted October 2007)
• Applies to England and Wales (similar principles apply in Scotland) to people aged 16 years and over.
• Statutory framework, largely based on common law, to empower and protect vulnerable people who may be unable to make their own decisions.
It clarifies who can decide when and how to proceed. It also enables people to plan for a time when they may lose capacity through Lasting Powers of Attorney and Advanced Decisions. It only applies if the person is shown to lack capacity. When capacity to decide is lacking, the doctor should provide treatment in the patient’s best interests under the common law doctrine of necessity, unless limitations apply.
Key principles
• A person must be assumed to have capacity unless it is established that they lack capacity.
• A person is not to be treated as unable to make a decision unless all practical steps to help them to do so have been taken without success.
• A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.
• An act done or decision made under the Act for, or on behalf of, a person who lacks capacity must be done, or made, in his/her best interests.
• Before the act is done or the decision is made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Capacity
For the purposes of the Act, a person lacks capacity in relation to a matter if, at the material time, they are unable to make a decision for themselves in relation to the matter because of an impairment of or a disturbance in the functioning of the mind or brain. Capacity is decision specific; therefore, a person may lack capacity to make some decisions, but retain capacity to make others. It does not matter whether the impairment or disturbance is permanent (e.g. a learning disability or dementia) or temporary (e.g. alcohol/drug use, sedation or anaesthesia, mental illness). Therefore, capacity can fluctuate and the assessment made is relevant to the person’s state at that time.
Capacity assessment
A person is unable to make a decision for themselves if they are unable:
• to understand the information relevant to the decision (the information must be presented in a way appropriate to the individual)
• to retain that information (if only for a short time, may still be regarded as able to make the decision)
• to use or weigh that information as part of the process of making the decision or
• to communicate their decision (whether by talking, using sign language, or any other means).
It is good practice for professionals carrying out a proper capacity assessment to record the findings in the relevant professional records.
Best interests
This has no statutory definition, but:
• Consider:
• whether (and if so, when) person will have capacity
• if practicable, encouraging participation
• if possible, the person’s past wishes, beliefs, values, etc.
• Take into account (if practicable and appropriate) the views of anyone named by the person to be consulted, e.g. carer, anyone interested in person’s welfare, in possession of the patients’ Lasting Powers of Attorney, Court Deputy.
• When in relation to ‘life-sustaining treatment’, not to be motivated to bring about death when considering whether the treatment is in the best interests of the person concerned.
Exceptions
• Where the person has made a valid advance decision to refuse treatment.
• In specific circumstances the involvement of a person who lacks capacity in research.
Ultimately the Court of Protection can be asked to make a decision.
Always ensure that a written record is made of the process followed.
Consent: children
The age of consent for medical treatment in England, Scotland, Wales, and Northern Ireland is 16.
Competence
England and Wales
Any competent person, regardless of age, can give consent for medical treatment. A patient is competent if they can understand the choices and their consequences, including the nature, purpose, and possible risk of any treatment or non-treatment. Although parental support should be encouraged, if the patient does not wish the parent’s involvement, this view should not be overridden. When establishing if a patient under the age of 16 years is competent the Fraser Ruling (Gillick competence) should be followed. The Gillick case (Gillick v West Norfolk and Wisbech Health Authority [1985], 3 All ER 402 HL) established the current legal position in England and Wales. Although this ruling was directed towards contraceptive services, it can be extrapolated to include the management of STIs and details the following points:
• The patient should be encouraged to inform his/her parents of the consultation.
• The patient must understand the potential risks and benefits of the treatment and advice.
• The HCP must take into account whether the patient is likely to engage in sexual activity without contraception.
• The HCP must assess whether the patient’s physical or mental health, or both, are likely to suffer if they do not receive contraceptive advice or supplies.
• The HCP must consider whether the patient’s best interests would require the provision of contraceptive advice or methods, or both, without parental consent.
Guidance published in 2004 highlights that where a request for contraception is made by a person under the age of 16, doctors and other HCPs should establish a rapport with the young person and give them the time and support to make an informed choice. They should do this by discussing:
• the emotional and physical implications of sexual activity, including the risks of pregnancy and STIs
• whether the relationship is mutually agreed or whether there may be coercion or abuse
• the benefits of informing their GP
• encouraging discussion with a parent or carer.
Any refusal should be respected. In the case of termination of pregnancy, where the young woman is competent to consent, but cannot be persuaded to involve a parent, every effort should be made to help her find another adult to provide support.
Scotland
Gillick competency is not relevant in Scotland. The Age of Legal Capacity (Scotland) Act 1991 gives statutory power to the minor to consent to medical or dental treatment. This act goes beyond the Fraser Ruling, stating that children <16 years have the legal capacity to consent to any surgical, medical, or dental treatment or procedure as long as that child is capable of understanding the nature and consequences of the proposed treatment or procedure. In England and Wales, if a child refuses treatment, this can be overruled by a person with parental responsibility for the child or by the court. This is not the case in Scotland where the Age of legal Capacity (Scotland) Act protects the child’s right to refuse examination or treatment, presuming the child has the capacity under the legislation.
Immature patients
GMC guidelines state that if a doctor does not consider the patient to be capable of giving consent because of immaturity, the relevant information may be disclosed to an appropriate person or authority, if it is thought to be in the best interests of the patient. However, the following conditions should be met:
• the patient does not have sufficient understanding to appreciate the implications of advice or treatment
• the patient cannot be persuaded to involve an appropriate person in the consultation
• the doctor believes it is in the best medical interests of the patient.
Child protection issues
There is a duty of confidentiality to all patients, irrespective of their age. The exception is when disclosure of information is in their best medical interests, or the patient or other vulnerable person is at risk of harm. The HCP must be prepared to justify their decision to their professional body. Under such circumstances, if the patient cannot be persuaded to make a voluntary disclosure, the HCP should explain to the patient that confidentiality cannot be preserved. However, confidentiality is important for young people and it is important to ensure that there is no breach when that young person is not at risk.
The age of a ‘child’ for child protection purposes has been raised from 16 years to 18 years in the UK.
Social services are the lead agency for child protection with statutory responsibilities and the police have powers to intervene when there are concerns about a child’s welfare.
Child abuse is almost always committed by a perpetrator known (and often trusted) by the child. Abuse may be:
• physical
• emotional
• sexual
• neglect
• this also includes the abuse of an unborn child (e.g. drug misuse during pregnancy), which may lead to inclusion on the Child Protection Register after the 20th week of pregnancy.
Sexual activity and abuse
Although the legal age of consent for sex is 16 years for both heterosexual and homosexual sex in the uk, an estimated 25% of boys and girls are sexually active below this age.
Under 13 years
Not legally capable of consenting to sexual activity; penetrative sex is classed as rape. Any offence under the Sexual Offences Act 2003 is very serious and should be taken to indicate a risk of significant harm to the child. All cases should be discussed with the child protection lead within the organization, with the presumption that the case will then be reported to social services. There may be situations where reporting is not considered to be necessary, but all must be fully documented, including the reasons where a decision is taken not to share information.
The age of criminal responsibility in the UK is 10 years (except Scotland, where it is 8 years).
13–15 years
Sexual activity with a child aged under 16 years is an offence. Where consensual it may be less serious than if the child were under 13, and the law is not intended to prosecute mutually agreed sexual activity between young people of a similar age, unless it involves abuse or exploitation. However, it may have serious welfare consequences. In every case of sexual activity involving a child aged 13–15 years consideration should be given as to whether there should be a discussion with other agencies and whether a referral should be made to social services. The professional should make this assessment using the considerations detailed in Box 2.1. Where confidentiality needs to be preserved, a discussion can still take place as long as the child is not identified. All cases should be fully documented and include detailed reasons where a decision is taken not to share information.
16 and 17 years
It is an offence for a person to have a sexual relationship with a 16- or 17-year-old if that person holds a position of trust or authority in relation to them. Otherwise, although sexual activity is unlikely to involve an offence, it may still involve harm or the risk of harm.
Box 2.1 Child assessment for risk
The following considerations should be taken into account when assessing the extent to which a child (or other children) may be suffering or be at risk of harm and, therefore, the need to hold a strategy discussion in order to share information:
• The age of the child: sexual activity at a young age is a very strong indicator that there are risks to the welfare of the child (whether boy or girl) and, possibly, others.
• The level of maturity and understanding of the child.
• What is known about the child’s living circumstances or background.
• Age imbalance: in particular where there is a significant age difference.
• Overt aggression or power imbalance.
• Coercion or bribery.
• Familial child sex offences.
• Behaviour of the child, i.e. being withdrawn or anxious.
• The misuse of substances as a disinhibitor.
• Whether the child’s own behaviour, because of the misuse of substances, places them at risk of harm so that they are unable to make an informed choice about any activity.
• Whether any attempts to secure secrecy have been made by the sexual partner, beyond what would be considered usual in a teenage relationship.
• Whether the child denies, minimizes, or accepts concerns.
• Whether the methods used are consistent with grooming.
• Whether the sexual partner(s) is known to one of the agencies.
Sourced from Working Together to Safeguard Children (2018) 
https://www.gov.uk/government/publications/working-together-to-safeguard-children--2
Child sexual exploitation
Definition
Sexual exploitation of children and young people under 18 years of age involves exploitative situations, contexts, and relationships where young people (or a third person or persons) receive ‘something’ (e.g. food, accommodation, drugs, alcohol, cigarettes, affection, gifts, money) as a result of them performing, and/or another or others performing on them, sexual activities. Child sexual exploitation (CSE) can occur through the use of technology without the child’s immediate recognition; e.g. being persuaded to post sexual images on the Internet/mobile phones without immediate payment or gain. In all cases, those exploiting the child/young person have power over them by virtue of their age, gender, intellect, physical strength, and/or economic or other resources. Violence, coercion, and intimidation are common, involvement in exploitative relationships being characterized, in the main, by the child or young person’s limited availability of choice resulting from their social/economic and/or emotional vulnerability.
Background
CSE occurs across all social and ethnic backgrounds. Often unreported and hidden, there are many reasons why young people delay or do not disclose, particularly if the young person does not recognize that they are being exploited. Any child can be at risk and, although the majority of perpetrators are male, it can be perpetrated by women and by all ages, and may involve heterosexual and/or same-sex relationships. Furthermore, the child that is being exploited may also be involved in exploiting others. There may be many perpetrators or just one. Internal trafficking and networks may be involved. Grooming of children is common. It is the power imbalance between the perpetrator and victim that is key; this may be obvious (i.e. significant age difference), but may be more subtle.
Recognition
Box 2.2 highlights vulnerabilities that may predispose some children to CSE and Box 2.3 highlights behaviours/signs to look out for that are seen more frequently in exploited children. Routinely, questioning should therefore aim to cover these issues. Confidentiality should be explained, and capacity considered.
It is important to ensure privacy for all young people seen in a sexual health setting and to ensure they are seen alone for at least part of the consultation. Understandably, victims of CSE may find it hard to establish a rapport, particularly with people they see as having power, such as healthcare professionals. Their behaviour may be challenging. Examples of questions that can be used to explore sexual activity include: ‘Are you in a relationship?’ ‘Can you tell me about it?’ ‘Are you happy?’ ‘What’s going well?’ ‘How were things at the beginning of the relationship?’ ‘Has anything changed, such as how you feel about yourself, or how your partner treats you?’ ‘Are you happy with the sex you’re having?’ ‘Do you feel good about yourself?’
Management
CSE is always a safeguarding issue. If the clinician has concerns (even in the absence of clear disclosure from a child), it is imperative that they raise these concerns with the child and share information by following local safeguarding protocols. If the clinician has any concerns about a child’s physical or mental health, then these should be appropriately managed. Clear documentation is important, both for the sharing of information and for use as evidence should a court case ensue.
Box 2.2 Risk factors or vulnerabilities associated with risk of child sexual exploitation
Relationships
• Friends with young people who are sexually exploited.
• Gang association, either through relatives, peers, or intimate relationships (in cases of gang-associated child sexual exploitation only).
• Being unsure about their sexual orientation or unable to disclose sexual orientation to their families.
• History of abuse (including familial child sexual abuse, risk of forced marriage, risk of honour-based violence, physical and emotional abuse, and neglect).
Home life
• Homelessness.
• Living in a chaotic or dysfunctional household (including parental substance use, domestic violence, parental mental health issues, parental criminality).
• Living in a gang neighbourhood.
• Living in residential care.
• Living in hostel, bed and breakfast accommodation, or a foyer.
• Attending school with children and young people who are already sexually exploited.
• Young carer.
• Recent bereavement or loss.
Mental health
• Learning disabilities.
• Low self-esteem or self-confidence.
Box 2.3 Signs or behaviours indicating that someone may be affected by child sexual exploitation
Relationships
• Evidence of sexual bullying and/or vulnerability through the Internet and/or social networking sites.
• Recruiting others into exploitative situations.
• Repeat sexually transmitted infections, pregnancy, or termination of pregnancy (TOP).
• Exhibiting inappropriate sexualized behaviour for stage of development.
• Anxieties around sexual health (suggesting a lack of autonomy).
• Forming new relationships with people outside of their social circle.
Consent
• Receipt of gifts from unknown sources.
• New possessions.
• Unexplained gifts.
• New clothes or jewellery.
• Mobile phones or money that cannot be accounted for.
• Change in physical appearance.
• Rapid change in weight.
• Unkempt appearance.
• Physical or unexplained injuries.
Home life
• Missing from home or care.
• Drug or alcohol misuse.
• Involvement in offending.
• Estranged from their family.
• Absence from school.
• Deterioration in academic achievement.
Mental health
• Poor mental health.
• Self-harm.
• Thoughts of or attempts at suicide.
Sexual offences
These include both ♂ and ♀, and apply irrespective of the relationship between those involved, e.g. a ♂ can be convicted of raping his wife.
Rape
• In law, rape can only be committed using the penis; it cannot be committed with an object.
• Penetration has to be proven in order to show that intercourse has taken place.
• It is not necessary for ejaculation to have taken place in order to prove the offence of rape.
• Intentional penetration of the penis by the assailant into the vagina, mouth, or anus of another person, without that person’s consent or if that person is under 13 years of age (consent irrelevant if <13 years).
Sexual assault by penetration
It is an offence for someone intentionally to penetrate the vagina or anus of another person with a part of their body or anything else without their consent. The purpose also has to be sexual, defined as:
• a reasonable person would always consider it to be so
• if a reasonable person may consider it to be sexual, depending on the circumstances and intention.
Sexual assault
Any unwanted sexual behaviour or touching of another person without reasonable belief that they consented. Touching covers all physical contact of a sexual nature (as defined previously), whether with a part of the body or anything else, or through clothing. It may include forced acts of oral sex, and forcing someone to watch pornography or masturbation.
Causing a person to engage in sexual activity without consent
This offence covers non-consensual activity not within the definition of rape or sexual assault. It applies when a person intentionally causes another to engage in sexual activity without consent. Examples: person A forces person B to masturbate; A forces B to manually stimulate a third person; A compels B to penetrate her/him.
Indecent exposure
It is an offence for someone, ♂ or ♀, to expose their genitals if they intended another person to see them, and be caused alarm or distress.
Incest: sex with a family member
In England and Wales, the Sexual Offences Act 2003 replaced the offence of incest with two new, wider groups of offences—familial child sex offences (sections 25–29) and sex with an adult relative (sections 64–65).
The Act makes illegal sexual activity or consenting to sexual activity with someone who is related as a parent (including adoptive), grandparent, child (including adopted), grandchild, sibling, half-sibling, uncle, aunt, nephew, or niece (the last four related consanguineously). Legal provisions governing child protection apply when a sexual act or encouragement of a sexual act involves those aged under 18 and cover situations where the alleged assailant lives under the same roof as the child or young person, or is in a position of trust. Criminal Law (Consolidation) (Scotland) Act 1995 and Sexual Offences (Northern Ireland) Order 2008 provide a similar legal framework in Scotland and Northern Ireland, respectively.
Female genital mutilation
Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.
Procedures are mostly carried out on young girls, generally between infancy and adolescence, but occasionally on adult women, for sociocultural reasons. More than 3 million girls are estimated to be at risk of FGM annually, and >200 million girls and women alive today have been ‘cut’. The practice is centred on 30 countries in Africa (predominantly west, east, and north-eastern countries), the Middle East, and Asia. As FGM may also continue as a practice among migrants from these areas, it is a global concern.
Classification
See Box 2.4
Box 2.4 Classification of FGM
• Type 1 (clitoridectomy): the partial or total removal of the clitoris or more rarely only the prepuce.
• Type 2 (excision): the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora.
• Type 3 (infibulation): narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the labia minora or labia majora, sometimes through stitching, with or without clitoridectomy.
• Type 4: this includes all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping, and cauterizing the genital area.
• Deinfibulation: refers to the practice of cutting open the sealed vaginal opening in a woman who has been infibulated, which is often necessary for improving health and well-being, as well as to allow intercourse or to facilitate childbirth.
Complications
• Immediate: severe pain, haemorrhage, swelling, infection (tetanus, blood-borne virus), urinary retention, death.
• Delayed: urinary problems [dysuria, urinary tract infection (UTI)], dysmenorrhoea, scarring (keloid), dyspareunia, anorgasmia, obstructed labour, post-partum haemorrhage, neonatal death, psychological problems (depression, anxiety, PTSD, low self-esteem).
Legal issues
FGM is recognized internationally as a violation of the human rights of girls and women. It reflects deep-rooted inequality between the sexes and constitutes an extreme form of discrimination against women. It is nearly always carried out on minors and is a violation of the rights of children.
In the UK it is a criminal offence to perform FGM, to fail to protect a girl from FGM, or to assist a non-UK person to perform FGM on a girl overseas. Any child/young woman (<18 years) either identified to have had FGM or considered to be at risk, must be reported to the police. There is a mandatory reporting duty placed on the individual regulated professional first recognizing this to do so.
Local safeguarding policies for FGM should be developed and followed.
Consent: other specific issues
Epidemiological studies
Testing for epidemiological purposes [e.g. for HIV, hepatitis C virus (HCV)] is important for planning disease management, but raises ethical issues. It generally involves screening surplus material (e.g. serum) taken for other tests to allow meaningful epidemiological data to be obtained, ensuring that it cannot be linked to the anonymous individual. However, it is acknowledged that the information gained will not directly benefit that person. It is generally agreed that the benefit to public health outweighs the ethical dilemma of testing without consent to avoid biased sampling. Written information explaining the nature of this testing should be available to patients within the clinic as leaflets or posters, which must highlight the option to refuse without prejudice.
Testing in error
GMC guidance states that mistakes should be acknowledged, with an apology and appropriate support offered. The patient must be given the choice as to whether they are given the result of the test. If the patient refuses to receive a +ve result (with health implications for that individual, partners, and others), advice should be obtained from professional bodies.
Occupational exposure to infection
In the case of a needlestick injury or other occupational exposure to a HCP, it may be important to determine whether the patient has a blood-borne infection, such as HIV. If unconscious, the GMC advises that such testing should not be requested until consciousness has been regained and agreement obtained. In the event of a patient being unable to give consent for any reason, testing should not be carried out for the sole benefit of the healthcare worker (HCW). If the source’s status is not known, this should be discussed with occupational health and legal advice sought.
Post-mortem testing for sexually transmitted blood-borne infections (HIV, hepatitis B and C, syphilis)
If a member of staff has been exposed to the blood or body fluids of a deceased patient, screening is permitted, although the agreement of a close relative or next of kin should be sought. Any person who is brainstem dead and being considered for organ donation requires screening for such infections, and this should be explained to the relatives.
Where a post-mortem is required, the deceased may be screened for these infections if relevant to the cause of death. Information should be disclosed regarding a +ve diagnosis to any persons known to be at risk of the infection, e.g. sexual contacts; otherwise, it must remain confidential.
Professional duty of candour
All organizations and individuals providing care to NHS patients in the UK have a duty of candour. Healthcare professionals must tell the patient (or, where appropriate, the patient’s advocate, carer, or family) when something has gone wrong, apologize to the patient (or, where appropriate, the patient’s advocate, carer, or family), offer an appropriate remedy or support to put matters right (if possible), and explain fully to the patient (or, where appropriate, the patient’s advocate, carer, or family) the short- and long-term effects of what has happened.
Intimate examinations and chaperones
In 2001, the GMC produced guidance on the use of chaperones (Box 2.5), which was reinforced in the Ayling Report published in 2004, recommending that trained chaperones are made available for all intimate examinations. The GMC issued revised guidance in 2006 under Maintaining Boundaries. It stresses the importance of patient perception as to what may be construed as being intimate. This is most likely to include examination of the breasts, genitalia, or rectum, but could also include any examination where it is necessary to touch or even be close to the patient (e.g. fundoscopy).
Box 2.5 GMC guidance on the intimate examination and conduct
Before conducting an intimate examination
• Explain to the patient why an examination is necessary and give the patient an opportunity to ask questions.
• Explain what the examination will involve, in a way the patient can understand, so that the patient has a clear idea of what to expect, including any potential pain or discomfort.
• Obtain the patient’s permission before the examination and record that permission has been obtained.
• Give the patient privacy to undress and dress, and keep the patient covered as much as possible to maintain their dignity. Do not assist the patient in removing clothing unless you have clarified with them that your assistance is required.
During the examination
• Explain what you are going to do before you do it and, if this differs from what you have already outlined to the patient, explain why and seek the patient’s permission.
• Be prepared to discontinue the examination if the patient asks you to.
• Keep discussion relevant and do not make unnecessary personal comments.
Chaperones
You should record any discussion about chaperones and its outcome. If a chaperone is present, you should record that fact and make a note of their identity. If the patient does not want a chaperone, you should record that the offer was made and declined.
Chaperones
The GMC advises that, wherever possible, the patient should be offered the security of having an impartial observer (a ‘chaperone’) present during an intimate examination. This applies whether or not the examiner is of the same gender as the patient. A chaperone does not have to be medically qualified, but ideally should:
• be sensitive and respectful of the patient’s dignity and confidentiality
• be prepared to reassure the patient if he/she shows signs of distress or discomfort
• be familiar with the procedures involved in routine intimate examinations
• be prepared to raise concerns about a doctor if misconduct occurs.
In GUM the use of friends and relatives (as endorsed in the Ayling Report) is not advised, as their use could compromise either the disclosure of important information, which may only be volunteered during the examination, or the personal relationship with the chaperone. In addition, it is unlikely that such a person will be familiar with the procedures involved and the doctor could be at risk of malicious accusations through collusion.
In GUM, it is standard accepted practice to provide a chaperone when ♀ patients are examined by ♂ doctors. In all situations it is recommended that a chaperone be offered for intimate examination in GUM, although the acceptance rate may be low. A report from an Australian sexual health clinic published in 2007 records that only 7.3% and 6% of ♂ patients expressed a desire for a chaperone when being examined by ♂ and ♀ practitioners, respectively. The equivalent figures for ♀ patients were 26.8% and 5.5%.
In some scenarios a healthcare professional may wish to be accompanied by a chaperone, but this may be declined by the patient. Guidance is clear that a chaperone cannot be enforced in this scenario, but arrangements can be made for the patient to be seen by another professional (who is happy to examine them alone), as long as any resultant delay doesn’t compromise the patient’s health.
Electronic technology
The use of computer records, e-mails, faxes, and text messages have revolutionized the way healthcare professionals communicate with each other and also with patients. This technology, however, has the potential for breaching patient confidentiality. The GMC has guidelines for the security of personal information by electronic processing. If necessary, specialist advice should be sought on the security of such information.
Increasingly, video and telephone consultations are becoming part of clinical practice. Practitioners should check their indemnity covers them for such consultations.
To maintain patient confidentiality and confidence in the service, computerized medical record systems must overtly exhibit a high level of security. Many clinics have stand-alone systems, but if linked to a network, robust systems must be in place to ensure that sensitive patient information cannot be accessed by any unauthorized personnel, including HCPs working in other services. Individual computers should be password protected, especially for patient-related information, with the level of information accessible appropriate to the staff member involved. As with written records, patients have the right of access to all electronically held material, with the exclusion of third-party information.
Computers and fax machines should be kept in a secure setting, computer passwords should be changed regularly, and any information sent by e-mail should be encrypted as it may be intercepted. The use of pre-arranged codes can help protect confidentiality.
Recording consultations
Although the GMC expects doctors to obtain patients’ consent to make a visual or audio recording, patients do not need their doctor’s permission to record a consultation, because they are only processing their own personal information and are, therefore, exempt from data protection principles.
If you suspect a patient is covertly recording you, you may be upset by the intrusion, but your duty of care means you would not be justified in refusing to continue to treat the patient.
Section 36 of the Data Protection Act 1998 states: ‘Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs are exempt from data protection principles.’
Partner notification issues
Patient with an STI and an unaware regular sexual partner
If a person infected with an STI is reluctant to inform sexual partners, you may disclose information about a patient, whether living or dead, in order to protect a person from risk of serious harm. For example, you may potentially disclose information to a known sexual contact of a patient with HIV where you have reason to think that the patient has not informed that person and cannot be persuaded to do so. This would clearly be a difficult situation and, in such circumstances, you should tell the patient before you make the disclosure and you must be prepared to justify a decision to disclose information. In such circumstances clear documentation and discussion with colleagues, defence unions, and Trust legal teams is vital.
Patient with an STI and unaware casual sexual partners
This situation is more difficult. The patient must be counselled that they have a duty to inform any sexual partners of their infection. This is especially relevant to someone who has a chronic infection, such as HIV, or hepatitis B and C viruses, and remains infectious. It is also essential to document such advice in the patient’s case records.
Ethically, the same principles apply to the other STIs, although the consequences compared with HIV infection, are generally less serious.
Criminalization of HIV transmission
Numerous prosecutions have taken place in the UK, to date, for the ‘reckless’ transmission of HIV, but the potential for prosecution is there for the transmission of other STIs, too. These have been based on causing grievous bodily harm under Section 20 of the Offences against the Person Act. Guidance from the Crown Prosecution includes the following criteria:
• The defendant needs to have known they were infectious to others and how the infection is transmitted. Patients with a fully suppressed viral load and those using condoms are unlikely to face prosecution.
• The defendant needs to have known they were infectious at the time of transmission or have good reason to believe they were infected, without actually being tested.
• The defendant did not disclose their HIV status to their partner prior to consensual sex.
• Phylogenetic analysis of the HIV in both must be used to show that they are probably from the same source of infection.
• Transmission must actually take place for a ‘reckless’ charge. However, there is a charge of ‘attempted intentional transmission’.
HIV-infected healthcare workers
The GMC advises that doctors or other HCPs with a serious communicable disease, such as HIV, are entitled to the same level of confidentiality and support as any other patient.
Previously, HCWs known to be living with HIV were banned from performing exposure-prone procedures (EPPs). Since 2013, this advice has been lifted, provided that HCWs are on effective combination antiretroviral drug therapy, with a very low or undetectable viral load, and are regularly monitored by both their treating and occupational health physicians.
If there is knowledge or good reason to believe that a HCW is practising, or has practised, in a way that places patients at risk, an appropriate person in the HCW’s employing authority, e.g. an occupational health physician, or a relevant regulatory body must be informed. Wherever possible, the HCW concerned must be advised before such information is passed on to an employer or regulatory body. The Public Interest Disclosure Act 1998 protects any employee who discloses concerns about a colleague in the public’s best interests.
Death
Living wills
These allow competent people to give instructions about what is to be done if they subsequently lose the capacity to decide or communicate.
• Advance statements: these are not legally binding. They are a statement written on preferences of care, such as type of diet preferred (e.g. vegetarian) and type of bathing preferred. They can be overridden in the individual’s ‘best interests’.
• Advance decisions: these are legally binding. They document decisions to refuse certain treatments should they lose capacity. However, strict formalities are required when that treatment would be required to sustain life.
• Lasting power of attorney: a person can appoint another to act on their behalf if they should lose capacity in the future. The attorney is able to make both health and welfare decisions.
Death certificates
GMC guidance states that if HIV or any other STI has contributed to the death it is unlawful to omit this from the death certificate.
Writing statements and court appearances
Statements may be required for a variety of reasons—from insurance companies, solicitors, or a police statement.
Before writing a statement, the following should be established:
• What questions the enquirer wants answered. Exclude irrelevant information.
• Whether the information is to be provided as a professional witness (a factual report concerning a patient to whom the doctor has provided care) or an expert witness (to give an opinion concerning a patient who may not have been under the care of that individual).
• Has the patient given consent? Always check that the patient understands what the information is for and that they have consented to it being passed onto a third party, even if the person requesting the information states that the patient has given consent. However, consent is not required for a coroner’s statement or if demanded by an order of the court.
• Is the statement required to deal with criticism regarding the medical management of the patient? Always consult defence organizations prior to sending any completed statement.
Doctors are usually only required in court if there is dispute as to the contents of any statements provided. If called to court because of the medical management of a patient, the doctor involved should contact his/her defence organization for advice.
Legislation pertinent to GUM
Venereal Diseases Regulations 1916
Enacted as a response to the STI epidemic affecting soldiers in the First World War, these regulations promoted the establishment of sexual health clinics, which were confidential and free (30 years before the NHS was established).
Venereal Diseases Act 1917
On 24 of May 1917, the Venereal Disease Act 1917 was enacted. This was ‘An Act to prevent the treatment of Venereal Disease otherwise than by duly qualified medical Practitioners, and to control the supply of Remedies therefor; and for other matters connected therewith.’
NHS Trusts and Primary Care Trusts (Sexually Transmitted Diseases) Directions 2000
These came into force on 1 April 2000 replacing the 1974 Venereal Diseases Regulations and apply only to England.
Confidentiality of information
Every NHS Trust and Primary Care Trust shall take all necessary steps to secure that any information capable of identifying an individual obtained by any of their members or employees with respect to persons examined or treated for any sexually transmitted disease shall not be disclosed except:
• for the purposes of communicating that information to a medical practitioner, or to a person employed under the direction of a medical practitioner in connection with the treatment of persons suffering from such disease or the spread thereof; and
• for the purpose of such treatment or prevention.
National Health Service Act 1977 (Schedule 12, Section 77)
The Act states that no charge is to be made to patients in relation to any medication or investigation required in the treatment of venereal diseases. Treatment for sexually transmitted infections (referred to as venereal disease in the text) should be available free of charge.
The Sexual Offences Act 1967
This Act permitted ‘male homosexual practices’ by two consenting adults in private, for the first time in the UK. The age of consent for sex between men was lowered from 21 to 18. The Sexual Offences (Amendment) Act 2000 then equalized that age of consent to 16.
Sexual Offences Act 2003 (enacted May 2004)
This act more closely defines ‘consent’ and the abuse of trust, especially with regard to children. The age of a ‘child’ set in the Protection of Children Act 1978 has been raised from 16 to 18 years. Although it should not alter normal practice, clinic staff need to be aware that ‘children’ up to the age of 18 years fall within its protection. It redefines ‘sexual’ with, for example, attention to ‘grooming’, use of the Internet, child pornography, prostitution, administration of a substance with intent to commit a sexual offence, and other miscellaneous offences, including voyeurism and bestiality.
It protects the public, especially children, from sexual harm. Sexual offences prevention orders replace sex offenders and restraining orders. In addition, new sexual harm and foreign travel orders have been created.
In view of concerns expressed by those providing sexual healthcare and advice to young people, a statute has been introduced to ensure that a person does not commit an offence if the action taken is to:
• protect the child from STIs
• protect the physical safety of the child
• prevent the child from becoming pregnant
• promote the child’s well-being with advice.
It is conditional that such action does not cause or encourage a child’s participation, and is not for the purpose of obtaining sexual gratification.
Anyone who acts to protect a child (e.g. teachers, relatives, friends), and not just HCPs, are now covered.
Public Health (Control of Diseases) Act 1984 or Public Health (Infectious diseases) Regulations 1988
These Acts list notifiable diseases. Among the many infections, it should be remembered that acute infectious hepatitis and hepatitis A, B, and C infections are all notifiable. Any doctor who makes the diagnosis is required by statute to notify the proper officer of their local authority.