The Child and Family Agency v A.A.

JudgeMr. Justice Twomey
Judgment Date21 February 2018
Neutral Citation[2018] IEHC 112
Docket Number[2017 No. 9908P],[2017 No. 9908 P]
CourtHigh Court
Date21 February 2018

[2018] IEHC 112


Twomey J.

[2017 No. 9908P]





Constitution – The Child Care Act, 1991 – Health – Declaration – Breach of confidentiality – HIV status – Harm to innocent party – Public interest

Facts: The plaintiff sought a declaration from the Court that it was entitled to disclose the fact of the first defendant's HIV condition and status to the third party to secure her wellbeing. The plaintiff contended that the first defendant had unprotected sexual relationship with the third party. The plaintiff also contended that if there was significant risk of death or harm to an innocent person, the confidentiality might be breached. The first defendant contended that the disclosure of his HIV status would be breach of confidentiality, which would ruin his life.

Mr. Justice Twomey refused to grant the declaration sought by the plaintiff. The Court concluded that if the third party and the first defendant had unprotected sexual relationship, the third party would not be an "innocent third party" in legal sense and it was an individual's responsibility for one's actions. The Court found that the risk of contracting HIV through sexual intercourse was in the order of 0.04% and HIV was not a terminal illness so it would not be justiciable to breach a patient's right to confidentiality, which should only be breached in exceptional circumstances. The Court applied the test laid down in Z v. Finland (1998) 25 EHRR 371 for determining the balancing of interests.

JUDGMENT of Mr. Justice Twomey delivered on the 21st February, 2018.

Can a doctor disclose the HIV status of her patient, without the consent and against the will of that patient, to a person who the doctor believes is having unprotected sex with that patient and so is at risk of contracting HIV? That is the key legal issue to be decided by this Court. The broader issue which lies behind this question is in what circumstances can a doctor breach his or her duty of patient confidentiality because of the risk of harm to a third party?


This case is unprecedented in the Irish courts since it seeks an order to breach patient confidentiality for the benefit of a third party. Counsel indicated that in deciding the key legal issue at stake, this Court was entering unchartered waters as it raises for the first time the issue of how exceptional must the circumstances be for a doctor to breach the confidentiality of a patient. No Irish caselaw was opened to the Court and in relation to the foreign caselaw that was opened to the Court, counsel accepted that the facts of those cases were very different from the facts in this case and so these cases were of limited assistance.


The legal issue at stake is complicated somewhat by the fact that there is also a significant factual dispute between the parties. The doctors in this case have been advised that there is a risk that the defendant (A) is having unprotected sex with (B). While A acknowledges that B is a very good friend of his, he denies that she is his girlfriend and equally denies that they have ever had sex. Accordingly, from his perspective, he can see so no basis for his HIV status to be disclosed to her. B is not a party to these proceedings and is unaware of their existence and is also unaware of the HIV status of A. Medical evidence was provided to the effect that this is one of the rare situations where disclosure of patient information without consent is justifiable in order to prevent harm to another person.


For the reasons set out below, this Court determined that the appropriate test to apply to determine whether patient confidentiality should be breached is whether:

on the balance of probabilities, the failure to breach patient confidentiality creates a significant risk of death or very serious harm to an innocent third party.


Applying this test, this Court concludes that the plaintiff has failed to establish on the balance of probabilities that A is having sex with B, let alone that he is having unprotected sex with her. On this basis, this Court concludes that there is no risk to B of her contracting HIV and so no basis for the breach of patient confidentiality.


However, even if this Court is wrong on this factual dispute and B and A are having sex, this Court also concludes on the basis of the medical evidence that the contracting of HIV, although a significant condition, is no longer a terminal condition, but rather a chronic and lifelong condition that can be managed. Accordingly, it is not a "very serious harm" to justify a breach of patient confidentiality. In addition, there is not, in this Court's view, a " significant risk" of that harm. This is because the risk of contracting HIV through sexual intercourse is in the order of 0.04%. Furthermore, this risk can itself by reduced by 99.9% by the use of condoms (if A is taking his antiretroviral drugs), or by 80% (if A is not taking those drugs). In addition, since the risk of contracting HIV can be reduced so significantly by B (by the use of condoms), this Court also concludes that if B and A were having unprotected sex, B would not be an " innocent third party" in the legal sense (and not in a moral sense) since she would be undertaking an activity which she knows, or should know, carries a risk of contracting sexually transmitted diseases, one of which is HIV.


In all of these circumstances, this Court concludes that there is no basis for breaching A's patient confidentiality, even if he was engaging in unprotected sex with B. To put the matter another way, this Court concludes for the reasons set out below that the public interest in ensuring that patients can have absolute confidence in revealing their most private medical and personal information to doctors, without fear of disclosure to third parties, supersedes the right of B to be warned that if she engages in unprotected sexual intercourse with A, she risks contracting HIV.


Although these proceedings were supported by well-intentioned doctors who had the interests of B at heart, this Court is cognisant of the intended and unintended consequences of the order being sought on all medical professionals. In particular, it seems to this Court that if an order was granted giving a medical professional the right to breach patient confidentiality where a patient has a sexually transmissible disease, that right would necessarily carry with it a responsibility for medical professionals in the future to decide, in cases of sexually transmissible diseases, whether a sexual partner of the patient needed to be notified of the harm to which he or she was exposed. And of course with this responsibility could come liability for those medical professionals who failed to breach patient confidentiality, where that failure leads to harm to a third party. This Court cannot ignore the fact that this is one of the possible consequences of the order being sought by the medical professionals in this case.

Background facts

The plaintiff in this case is the Child and Family Agency (the 'CFA'). The reason for this is because A is a few weeks short of his 18th birthday and has been in the statutory care of the CFA since March, 2015. Currently however he resides quite happily with his family and is likely to do so at least until his 18th birthday. While it was clear from his direct evidence that A is an intelligent and capable person, evidence was also provided to this Court that he has in the past exhibited significant behavioural issues and has taken drugs and alcohol. In this regard, although there is clearly a close relationship between A and his mother, she has had to call the gardaí in relation to his threats and actions on more than one occasion.

The ages of A and B

B is not in the care of the CFA and she is also a few weeks short of her 18th birthday. It was pointed out by counsel for the CFA that the Agency has a duty of care to all children in the State, whether in its care or not. However, counsel for the CFA also accepted that the issue in this case transcends the fact that one is dealing with two people, A and B, who are close to their 18th birthdays and thus still not adults as a matter of law. This is because counsel for CFA indicated to the Court that the CFA would take these proceedings even if both A and B were over 18.


This is not surprising since the key issue at stake for all the parties is whether the CFA (and indeed a doctor or other medical person) is permitted to breach patient confidentiality to prevent harm occurring to a third party, in this case the transmission of HIV, and it is accepted by the CFA that this legal issue arises whether A and B are 17 going on 18 or 18 going on 19.

The CFA, rather than a doctor, seeking to breach doctor/patient confidentiality

It is also relevant to note that nothing much turns on the identity of the plaintiff in this case. It so happens that it is the CFA, rather than a doctor, which is seeking to breach the patient confidentiality that normally exists between medical professionals and a patient. This is because it is the CFA that has the relevant information regarding the HIV status of A, as well as the information regarding the alleged sexual relationship between A and B. However, it could just as easily be a doctor who had the same information and was seeking an order from this Court clarifying the extent of patient confidentiality in these circumstances.

The proceedings

These proceedings were issued by the CFA against A and they were also issued...

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2 cases
  • Cfa v A
    • Ireland
    • Court of Appeal (Ireland)
    • 28 February 2020
    ...the Child and Family Agency (the “CFA”) from the commencement of the proceedings. 3 As appears from the substantive judgment ( [2018] IEHC 112), the central issue was whether a doctor was entitled to disclose the HIV status of her patient, A., a minor, without his consent and against his wi......
  • R v Daryll Rowe
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 1 November 2018
    ...and before sentence she discovered a decision of a senior judge in Ireland in the case of The Child and Family Agency v AA & anor [2018] IEHC 112. Ms Gerry claims that the judge's analysis of the issues in that case has provided this court with the opportunity of considering whether the tra......
2 books & journal articles
  • The Advent of Genetic Medicine - Emerging Legal and Policy Concerns in Ireland
    • Ireland
    • Hibernian Law Journal No. 18-2019, January 2019
    • 1 January 2019
    ...(n 34). 47 Medical Council Guidelines (n 36) para 31.3. 48 ibid para 31.3. 49 In the recent case of he Child and Family Agency v A.A [2018] IEHC 112 [69] Twomey J outlined that conidentiality ought to be breached where there is a ‘public interest in protecting unsuspecting members of the pu......
  • Confidentiality in Disarray: Should Doctors in Ireland Disclose Genetic Information to Patients' Relatives?
    • Ireland
    • Hibernian Law Journal No. 19-2020, January 2020
    • 1 January 2020
    ...medical tool. Unlike infectious diseases, for example, ascertaining genetic information 10 he Child and Family Agency v AA & Anor [2018] IEHC 112 (‘CFA ’). 11 W v Egdell [1989] EWCA Civ 13. 12 For discussion of types and nature of genetic disease see: Laurie, Harmon and Dove (n 6) 202– 206.......

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