Mandatory disclosure is an issue that affects many different facets of life. The set of laws and regulations known as mandatory disclosure are designed to provide various entities with information to protect the interests of businesses, the legal system and individuals. The purpose of this discussion is to explore the concept of authorized mandatory disclosure as it pertains to define mandatory disclosure, examine different types of authorized mandated disclosure, Code of Ethics and Mandatory State of Illinois Reporting.
To mandate simply means to assign as a mandate to require as by law; make mandatory. A mandate can also be defined as "an authoritative command; especially: a formal order from a superior court or official to an inferior one ("mandates")." There are many mandates in society that are in place to ensure that business and legal actions are conducted in a consistent and streamline manner.
Disclosure is defined as the release of information about a person or entity, or a corporation. The filing of documents and statements required by law; in litigation, the release of documents and other information subpoenaed or otherwise sought by the other side. Disclosures allow everyone involved in a transaction or interaction to present the relevant information.
Authorization simply means to give official approval to or permission for. An example of this is A housing project approved by the city. Authorization gives an entity the right to act in certain ways. As such authorization is usually handle by people who are in positions of authority or government representatives.
Authorized mandatory disclosure is a regulatory tool that exists within the context of business, healthcare, and the criminal justice system. In each instance there are different regulations that must be adhered to; mandatory disclosure laws are always designed to protect all parties in any given situation or action. The next section of the discussion will focus on the different type of authorized mandated disclosure.
Different types of authorized mandated disclosure
Full Disclosure vs. Anonymous Disclosure
Full disclosure basically refers to the practice of revealing the whole truth regardless of the discipline that the term is being applied to. For instance, in the context of cash tender offers in the United States, the concept of full disclosure is governed by Williams Act. In fact
"The Williams Act of 1968 amended the Securities and Exchange Act of 1934 (15 U.S.C.A. § 78a et seq.) to require mandatory disclosure of information regarding cash tender offers. When an individual, group, or corporation seeks to acquire control of another corporation, it may make a tender offer. A tender offer is a proposal to buy shares of stock from the stockholders for cash or some type of corporate security of the acquiring company. Since the mid-1960s, cash tender offers for corporate takeovers have become favored over the traditional alternative, the proxy campaign. A proxy campaign is an attempt to obtain the votes of enough shareholders to gain control of the corporation's board of directors. Because of abuses with cash tender offers, Congress passed the Williams Act in 1968, whose purpose is to require full and fair disclosure for the benefit of stockholders, while at the same time providing the offeror and management equal opportunity to fairly present their cases ("Williams Act")."
In other realms, such as healthcare, the laws that govern full disclosure involves wording and details that are relevant to the medical community. However in each situation involving full disclosure the basic premise is to reveal the whole truth.
The major difference between anonymous disclosure and full disclosure is that with anonymous disclosure the person revealing the information or the whole truth may not be known or may be held in secret. In many cases anonymous disclosure is allowed and used when the person disclosing the information needs to be protected from the entity the information is about. In addition Garde-Perik et al. (2008) found that People often choose anonymous disclosure because they want to ensure their privacy. On the other hand people choose full disclosure because of the expected benefits.
The difficult issues of HIV status disclosures (Holmes, 2006)
Whether disclosure is full or anonymous, there are many difficulties that can arise as a result of certain types of disclosure. These difficulties frequently arise as it pertains to HIV status disclosures. Throughout the world there have been cases of individuals who, knowingly withheld their HIV status from HIV negative partners and infected the partner. In some instances the individuals have been charged with assault and even murder. These charges are leveled because in many countries there are laws that mandate that people who know of their positive HIV status reveal that status to sexual partners. For instance, Holmes (2006) explains "The Supreme Court of Canada ruled that: every HIV-positive person has a legal obligation to disclose his or her HIV status where he or she engages in a sexual activity that poses a significant risk of serious bodily harm [italics added] (i.e., transmission of HIV) to another person. (Canadian AIDS Society, 2004, pp. 1-5 quoted I Holmes, 2006)." Subsequent to the passing of this law, the Canadian AIDS Society has established various guidelines as it pertains to consent. In addition there are laws that are specifically designed to address the responsibility of healthcare professionals related to disclosure and HIV-positive clients. To this end the law in Canada asserts that when healthcare professionals are counseling individuals who are HIV positive the helatcare professionals are not legally obligated to tell law enforcement officials that the HIV positive client is involved in activities that may be criminal. On the other hand there are two instances under which health professionals could have legal action brought against them. In the first instance civil action could be brought if the partner of an HIV positive client believes that the healthcare professional did not attempt to prevent the partner from being exposed to HIV. A healthcare professional can also have legal action brought against breech of confidentiality by an HIV-positive client if the nurse discloses the HIV status.
Additionally, this issue of disclosing an HIV status becomes complicated when people knowingly engage in risky behaviors such as barebacking and bug chasing. Barebacking is a practice that occurs mostly amongst certain people in the gay community in which "refers to voluntary unprotected anal intercourse and constitutes a sexual practice in which condom use is explicitly and consciously excluded." The author also explains that the popularity of this practice has increased drastically in recent years. Bug chasing is a practice in which HIV negative people seek out people who are HIV positive to have unprotected sex with. The HIV negative people do this with the intention of catching HIV (the bug).
Both barebacking and bug chasing pose difficult questions as it relates to the disclosure of HIV status particularly as it realtes to the aforementioned laws. The first difficulty arises in that the two laws under which legal action can be brought are in conflict with one another. How can a nurse on the one hand be responsible for not disclosing information to the partner of an HIV positive client and/or the other hand be punished for disclosing the HIV status of a patient.
This is just one example of the issues that arise as it relates to disclosure in a medical context. In many cases the laws that govern mandated disclosure in the medical context were not written with practices such as barebacking and bug chasing in mind. In addition health care professionals have difficult dilemmas that can end in legal action against them if they choose to disclose information that might save lives.
Calculating Risk & benefits of disclosure in African-American Women who have HIV
There are both risks and benefits associated with disclosing HIV status amongst African-American Women. Black & Shandor (2002) examines the amount of disclosure that HIV positive African-American women chose to engage in once they learned of their HIV status. The research found that the decision of who to disclose the information to had a great deal to do with factors such as stigma, shame and a simultaneous need for support. As it pertains to the issue of stigma there is a great deal of negativity surrounding an HIV positive status in society in general. This stigma is compounded in communities where a HIV positive status is associated with being a homosexual. In such cases disclosing one's positive HIV status can be difficult. In addition to the stigma there is also a shame attached to being infected with the virus. Both the stigma and the shame often prevent African-American women from disclosing their HIV status. On the other hand disclosure is often needed because once status is disclosed; the proper support can be sought and achieved. Such support is essential and necessary for anyone living with HIV.
The research found that amongst the women in the study the "Risks of telling were fueled by societal and experienced stigma associated with HIV, whereas the benefits were primarily fueled by personal…