The emergence of AIDS in the 1980s demonstrated the tension between the protection of individual rights and the enforcement of broadly applicable police-power measures to protect public health. Another significant challenge was the threat of a multidrug-resistant form of tuberculosis in the late 1980s and 1990s. Communicable diseases generally are reportable under health codes, and those reports to a health department are normally protective of the patient's privacy. Special confidentiality protections are particularly applicable to reports of sexually transmitted diseases and, in earlier times, tuberculosis. Special privacy protections originated in the protection of patients against stigma because a report of certain diseases was regarded as a social disgrace. The knowledge that the report of a communicable disease might result in stigmatization and discrimination was undesirable from the point of view of public health because patients were less likely to seek treatment if their confidentiality was breached.

When AIDS emerged in 1981, most other communicable diseases no longer represented major public health problems, and the history of reports to health departments and the possibility of contact investigations to trace potentially exposed persons, particularly in the area of sexually transmitted diseases, had been forgotten. Constitutional protection of privacy as a part of due process had developed earlier in the context of the right of a pregnant woman to choose to terminate her pregnancy. Privacy protections and related protections of personal autonomy are asserted to protect against the disclosure of human immunodeficiency virus (HIV) status even though AIDS is now a reportable disease in all the states.

Because transmission of HIV was associated first with homosexual intercourse and later with intravenous drug use, there were compelling reasons to protect the identity of persons who were HIV-positive. Privacy protections also interfered with giving notice of exposure and risk to persons who had been exposed because that information, unless disclosed voluntarily, inevitably would breach the patient's confidentiality. Patient privacy continued to have broad legal protection, and the tension between the protection of individual privacy and the need for public information in order to protect the public health is a continuing one, even though there is today in 2003 both greater tolerance of what had earlier been considered deviant sexual behavior. Many more persons freely acknowledge their sexual preferences and "come out of the closet." At the same time, the medical and public view of HIV/AIDS has changed in view of the decline in HIV morbidity and mortality during the late 1990s, attributable to combination antiretroviral therapy. This decline appears to have ended, and in 2003 new outbreaks of primary and secondary syphilis among men who have sex with men and increases in newly diagnosed human immunodeficiency virus (HIV) infections among such men and among heterosexuals have been increasing. As a result there are new concerns that HIV incidence may be increasing. Earlier programs focused on prevention efforts targeted at persons at risk for becoming infected with HIV and on programs to reduce sexual and drug using risk behavior. More recent efforts are focused in 2003 on prevention efforts for persons living with HIV. During 1981 to 2001, an estimated 1.3 to 1.4 million persons in the United States were infected with HIV, and 816,149 cases of AIDS and 467,910 deaths were reported to CDC. During the late 1990s, after the introduction of combination antiretroviral therapy, the number of new AIDS cases and deaths among adults and adolescents declined substantially. The annual number of incident AIDS cases and deaths have remained stable since 1998, at approximately 40,000 and 16,000, respectively. The number of children in whom AIDS attributed to perinatal HIV transmission was diagnosed peaked in 1992 at 954 and declined 89 percent to 101 in 2001. (Morbidity and Mortality Weekly Report, 2003).

The Morbidity and Mortality Weekly Report (2003) notes that since early 1990 an estimated 40,000 new HIV infections have occurred annually in the United States and the number of persons living with HIV continues to increase. Of an estimated 850,000 to 950,000 persons living with HIV an estimated 180,000 to 280,000 (25%) are unaware of their serostatus. The report points to new and faster tests for HIV which creates a new prospect for expanding testing, identification, and treatment of HIV infections. Thus, testing and more information will be used to reduce the number of HIV infections by working with persons diagnosed with HIV and their partners. There will consequently be increased emphasis on partner notification (Morbidity and Mortality Weekly Report; HIV/AIDS Surveilance Report, 2001).

It is notable that the new program returns to the earlier methods applied to deal with sexually transmitted diseases (STDs) such as routine screening, identification of new cases, partner notification, and prevention services for those who are infected. The change in approach is a reversal of earlier emphasis on privacy where for sometime a New York physician who diagnosed a patient as HIV positive could, but was not under any legal compulsion, to inform the patient's spouse or other sexual partners.

Because persons who are HIV-positive and have a defective immune system are more likely to contract tuberculosis than are others, the recurrence of tuberculosis in a multidrug-resistant form creates a situation in which the disclosure of a patient's affliction with tuberculosis may be regarded, often erroneously, as an indication of positive HIV status, aggravating the problem of maintaining confidentiality. Privacy is now an aspect of personhood, and protection against the invasion of privacy--in this case the invasion of informational privacy--is constitutionally granted by the Fifth Amendment (Tribe). Ethical protection of privacy is based on privacy as an aspect of personhood that is protectable to the same extent that a person's physical integrity is. Violations of privacy are ethically justifiable only if disclosure serves a greater good. Thus, whether a patient's HIV status should be disclosed to others depends on the need of those persons to know and the uses and benefits that may result from the disclosure (Bayer).

Bibliography:

1)         Bayer, Ronald. 1989. Private Acts, Social Consequences: AIDS and the Politics of Public Health. New York: Free Press.

2)         Tribe, Laurence H. 1978. "Rights of Privacy and Personhood." In American Constitutional Law. Mineola, NY: Foundation Press.

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