Zenger C A
Seminar für öffentliches Recht, Universität Bern.
Schweiz Med Wochenschr. 1991 Aug 24;121(34):1205-11.
The present Swiss legal position on the following two questions is described and discussed. First, under what circumstances can a physician test a patient for HIV antibodies (or, more generally, use diagnostic methods) without the patient's express consent? Second, in what cases can he inform others of the patient's HIV status (or, more generally, breach medical confidentiality) without the patient's agreement? Informed consent of the person involved is the most important justification; as a rule the consent must be signified specifically and expressly both for tests and for the breach of confidentiality. Tacit consent may be assumed only in special circumstances; a request for a checkup, for example, in no way includes (for the present at any rate) tacit consent to HIV testing. Another possible justifying ground is protection of third parties. However, testing (especially secret tests) for the protection of medical and nursing staff is, in the present stage of development, neither suitable nor necessary for such protection and hence is legally unjustifiable. Nor, except in cases of admissible emergency assistance, is confidential notification of sexual partners legally admissible. Finally, there may be a justifying legal basis and overriding public interest in exceptional cases, e.g. where, in certain circumstances, the authorities order an open, compulsory HIV test in an individual case or unlinked tests for epidemiological purposes, or, if need be, for a physician's notification of the public health authorities in cases of desperado behaviour by HIV positive patients.(ABSTRACT TRUNCATED AT 250 WORDS)
