TELLING THE TRUTH ABOUT AIDS
that the public's right to know comes first
AS a rule I have little sympathy with newspapers in search of 'disclosures' which run up against court injunctions. The media's howls of outrage about censorship over the Peter Wright affair seemed to me humbug. When a judge tells a newspaper it can't print something he is nearly always right and acting in the public interest. But I am disturbed by the judgment delivered last Friday against the News of the World. In effect a High Court judge endorsed the attempt by the British medical establish- ment to stop the media from printing stories about doctors with Aids.
The most intense and minatory secrecy had been imposed on the case, heard entirely in camera. It was listed only as 'X v. Y' and the judge, Mr Justice Rose, gave his judgment in secret, without naming any of the parties, though copies of it were handed to the press. There appear to be many details of the case which the media is forbidden to publish on pain of imprison- ment. But what seems to have happened is as follows.
In February information from hospital records was supplied to the News of the World about two doctors who had con- tracted Aids and were receiving teatment. (The newspaper stated last Sunday, as the judgment implies, that both doctors are not simply HIV positive or mere carriers but have what is termed 'fully-blown Aids'.) When inquiries were made at the hospital where the two doctors were being treated, the local Health Authority went to court and obtained an injunction against the newspaper and against the other Mur- doch papers, the Sun, Times and Sunday Times, designed to prevent them from printing the information and conducting further investigations. However on 15 March the News of the World did print a story under the headline 'Scandal of Docs with Aids'. Hence the action for contempt, which took place on 12-19 October, the reserved judgment being delivered on 6 November. The judge fined the paper £10,000 for the contempt, and ordered it to pay three quarters of the Health Author- ity's costs. The total bill to the paper so far is £200,000.
During the case, a senior medical expert gave evidence for the Health Authority. His views seem to have endorsed the Government's policy on Aids and its much criticised advertising campaign. One of the assumptions of the campaign is that Aids is unlikely to be transmitted by non-sexual physical contact. In his evidence, the wit- ness apparently defined the risk of a patient contracting Aids from his doctor as `slight', and insisted that confidentiality protecting such a doctor must be absolute. On the issue of a patient's moral right to know if his doctor has Aids, the witness seems to have said that such a right would depend on whether, if he did know, more or fewer patients would suffer. It emerged, and this will doubtless astonish most peo- ple, that a doctor with Aids is' under no obligation at all to tell his patients. Indeed, he does not even need to inform the British Medical Association, the General Medical Council or the Department of Health.
'One... two... three... four... five...' There is no way, at present, in which such a doctor can be prevented from practising.
Many of the technical matters which impinged on the case, especially the key one of how the disease is transmitted, and therefore how risky it is for patients to be treated by a doctor who himself has it, are matters of continuing controversy, since our knowledge of the entire subject is still fragmentary and constantly being revised. It is therefore extremely unfortunate that the evidence on both sides in this case could not be given in public and so reported. The judge appears to have accepted the views of the medical estab- lishment and he ruled that, although there might be 'some public interest' in disclo- sure, this was 'substantially outweighed when measured against the public interest in relation to loyalty and confidentiality, both generally and with particular refer- ence to Aids patients' hospital records'.
Judge Rose imposed a permanent in- junction on the News of the World, pre- venting it from pursuing the story. If it does so its editor will go to gaol. Indeed, the paper now admits it can do nothing further, beyond urging readers to write to the Department of Health on the subject. To judge by the patchy and inadequate way the case has been reported in the media (the Mail on Sunday was one honourable exception), editors and televi- sion producers have been effectively scared off by legal threats.
But many people may feel that the public interest in disclosure is much greater than the judge allowed. There are over two million cases of Aids in America already, and forecasts of a million cases over here within the next five years. So it is no longer a rare or exotic disease but a growing peril to us all. Aids is usually fatal and perhaps invariably so. The death is horrible. There is no cure, and none in sight. Where life is at stake the right to self-defence is inherent and absolute. People are thus justified in going to almost any lengths to protect themselves against accidental infection. One way they can do so is by avoiding bodily contact with those who have Aids. That certainly, indeed especially, includes doctors. How many people would be pre- pared to be treated by a doctor with Aids? Would you, reader? Would Judge Rose?
A needful element in self-protection is knowledge. That is where the media comes in. It has not merely a right but a duty to help the public by revealing relevant facts, especially when those in authority are reluctant to do so. Whether a paper has a moral right to get those facts by paying for access to confidential records is another matter. Almost certainly not, but one would need to know all the circumstances of the case to decide, and the secrecy imposed by the law prevents this. In short we have here a classic case where Parlia- ment must come to the rescue of an inhibited Fourth Estate and bring this business into the open, where it belongs.
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