PA 09-133—HB 6391
Public Health Committee
AN ACT CONCERNING REVISIONS TO THE HIV TESTING CONSENT LAW
SUMMARY: This act revises the law on consent for HIV-related testing. Specifically, it:
1. eliminates the requirement for separate, written or oral consent for HIV testing and instead allows general consent for the performance of medical procedures or tests to suffice;
2. reaffirms that HIV testing is voluntary and that the patient can choose not to be tested;
3. eliminates a prior requirement for extensive pre-test counseling for all HIV tests;
4. adds a requirement that an HIV test subject, when he or she receives a test result, be informed about medical services and local or community-based HIV/AIDS support services agencies; and
5. provides that a medical practitioner cannot be held liable for ordering an HIV test under general consent provisions.
EFFECTIVE DATE: July 1, 2009
GENERAL CONSENT FOR HIV TESTING
The act specifies that a person who gives general consent for medical procedures and tests is not required to also sign or be presented with a specific informed consent form relating to procedures or tests to determine HIV infection or antibodies to HIV. “General consent,” under the act, includes instruction to the patient that (1) as part of the medical procedures or tests, the patient may be tested for HIV and (2) such testing is voluntary and the patient can choose not to be tested for HIV or antibodies to HIV.
Under the act, general consent that includes HIV-related testing must be given without undue inducement or any form of compulsion, fraud, deceit, duress, or other constraint or coercion. (Under prior law, this requirement applied to specific consent for HIV testing. ) The medical record must document a patient's refusal of an HIV-related test.
PRE-TEST INFORMATION AND COUNSELING
Under prior law, informed consent to an HIV-related test had to include a statement to the individual that included (1) an explanation of the test, including the meaning of results and the benefits of early diagnosis and medical intervention; (2) acknowledgement that consent was not a precondition to receiving care but refusal to consent may affect the provider's ability to diagnose and treat; (3) an explanation of the procedures to be followed, including that the test was voluntary, and a statement advising of the availability of anonymous testing; and (4) an explanation of the protections given confidential HIV-related information.
Also under prior law, before obtaining informed consent, the person ordering the test had to explain AIDS and HIV-related illness and provide information about behaviors posing a risk for transmitting HIV infection.
The act eliminates these existing provisions of law governing HIV-specific informed consent.
POST-TEST RESULT COUNSELING
Prior law required the person ordering an HIV-related test to provide the test subject or his or her authorized representative with counseling information when giving the test results. The act instead specifies that such counseling initiatives are required as needed and also adds counseling about available medical services and local or community-based HIV/AIDS support services agencies.
By law, if provided, such counseling or referrals must also address: (1) coping with the emotional consequences of learning the test result; (2) discrimination the test result disclosure could cause; (3) behavior changes to prevent transmitting or contracting HIV infection; (4) information about available treatments; (5) working towards involving a minor's parents or guardian in decisions about medical treatment; and (6) the need of the test subject to notify his or her partners and, as appropriate, provide assistance or referrals for assistance in notifying partners.
CDC HIV Testing Guidelines and Recommendations
In 2006, the federal Centers for Disease Control and Prevention (CDC) revised its HIV testing guidelines by recommending that separate written consent for HIV testing not be required for patients in all health care settings. Instead, general consent for medical care should be considered sufficient to encompass consent for HIV testing, according to the CDC.
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