Public Act No. 09-133, An Act Concerning Revisions to the HIV Testing Consent Law (the “Act”), now makes it easier for providers to perform routine HIV testing by removing what were perceived as certain legal barriers by the Centers for Disease Control and Prevention. The Act eliminates the requirement for specific informed consent for HIV testing and permits general consent without pre-test counseling and with post-test counseling as needed. The Act became effective July 1, 2009.
I. Consent Requirement.
(a) General Consent. The Act eliminates the requirement to obtain informed consent specific to HIV testing. Now, a health care provider may obtain a patient’s “general consent” prior to an HIV test, provided that there is notice to the patient that (1) as part of 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. A health care provider who makes a good faith effort to obtain general consent is not liable for ordering an HIV test without obtaining specific informed consent.
(b) No Pre-Test Information or Counseling. The Act eliminates the requirement to provide any pre-test information (other than general consent) or counseling.
(c) When a Patient Declines. If a patient declines an HIV test, the decision by the patient must be documented in the medical record and the test must not be performed.
(d) Minors. A minor still has the right to consent to an HIV test without the consent of a parent or guardian.
(e) Laboratories Performing HIV Tests. The Act eliminates the requirement that laboratories performing an HIV test receive written certification that consent has been obtained by the provider or that the test is being ordered without consent pursuant to one of the exceptions discussed below.
II. Exceptions to Consent Requirement.
(a) Exceptions. The Act maintains ten exceptions to the informed consent requirement. A few of the key exceptions include tests by medical personnel when the test subject is unable to grant or withhold consent and no authorized individual is available on an urgent basis, anonymous research testing, determination of cause of death, or testing performed in connection with significant exposure to the blood of an individual who refuses an HIV test in the course of occupational duties.
(b) Subsequent Tests. Prior to the Act, specific informed consent and counseling were required for subsequent tests. Now, a provider ordering an HIV test does not need to obtain general consent for a subsequent test when (1) the patient has previously given general consent that included HIV tests, (2) the patient, after consultation with the health care provider, declined a reiteration of general consent, and (3) a notation to this effect is included in the patient’s medical record.
III. Post-Test Counseling.
At the time of communicating an HIV test result to a patient, the provider ordering the test must provide counseling to the patient or referrals for counseling, only if needed by the patient, regarding (1) information for coping with emotional consequences of learning the result, (2) discrimination that may occur as a result of disclosing the test results, (3) behavior change to prevent the infection of others, (4) the availability of medical treatments and services, (5) involvement of a minor’s parents or legal guardian in the provision of medical treatment, (6) the need to notify sexual partners, and (7) pursuant to the Act, local or community-based HIV/AIDS support services. Previously, the provider ordering an HIV test was required to give this information regardless of need.
Questions or Assistance?
If you have any further questions regarding the Connecticut HIV testing consent law, please feel free to contact one of the members of our Health Law Practice Group listed below.
Joan Feldman
(860) 251-5104
jfeldman@goodwin.com
David Mack
(860) 251-5058
dmack@goodwin.com
Vincenzo Carannante
(860) 251-5096
vcarannante@goodwin.com
William Roberts
(860) 251-5051
wroberts@goodwin.com