AIDS II: The Sequel

A prohibition of AIDS testing as a prerequisite to treatment, new safeguards to guarantee the voluntary nature of AIDS testing and a bolstered emphasis on confidentiality are three of the highlights of this year's 38-page legislative fine tuning of the massive AIDS bill of 1988.

Under the new law, health care providers, including doctors and hospitals, cannot force a person to submit to an AIDS test as a condition of admission or treatment. Although the statute dictates that the Department of Health and Rehabilitative Services (HRS) and the Department of Professional Regulation (DPR) will adopt rules to implement this section, health care providers are not prohibited from declining to treat a patient if the appropriateness of that treatment can only be determined through an HIV test and they refuse the test. That, however, appears to be the only exception to the prohibition.

Informed consent remains one of the cornerstones of the legislature's 1989 AIDS bill. Under the current law, consent is not "informed" unless the purpose of the test, the potential uses of the test and the meaning of the test results are explained. Additionally, the new law requires that for consent to be "informed," the subject must be given an explanation of the procedures to be followed.

In this regard, it must be explained that the test is voluntary and the subject has the right to withdraw his consent to the test at any time prior to the administration of the test. The person conducting the test has the added burden of informing the test taker that the results, which would identify him as someone who had taken the test, are confidential.

The consent obtained by the physician need not be in writing if it is documented in the record that the test has been explained to the patient and consent has, in fact, been obtained from the patient.

The person undergoing the test can give informed consent if he is competent or otherwise able to make an "informed judgement." Last year's version of the AIDS legislation opposed allowing a physician or other test giver to obtain informed consent from someone under the age of majority. That provision has been modified in the new law. Now a physician may accept a minor's consent for testing if it is done to diagnose or treat a sexually transmitted disease. HIV is so defined. Additionally, the consultation, examination or treatment is confidential and may not be divulged directly or indirectly to the minor's parent or guardian. This would include billing the minor's parents for the test.

On the issue of who can receive the informed consent, it is highly recommended that the physician performing the test obtain his own informed consent, and not rely on the nursing staff or laboratory personnel.

There are some circumstances under which informed consent is not required, such as when state or federal law requires the testing for sexually transmissible diseases, as in the case of a person convicted of prostitution, testing by a medical examiner investigating a cause of death, or as part of an authorized autopsy. Additionally ,if the health care provider believes that obtaining the consent of the acutely ill patient would be detrimental to the patient's health,he may forego obtaining consent.

Informed consent also is not required in bona fide medical emergencies if the test result is necessary for diagnosis and care, and the patient is unable to consent. But even under these circumstances, post-test counseling is required.

Even after informed consent has been obtained, there are still several intermediate stops preparatory to administration of the test. Before the test is ordered, the patient must be provided with the information regarding prevention of, exposure to and transmission of the HIV. In an effort to ensure adequate and prompt follow­up, the 1989 law also dictates that a return visit be scheduled at the time the test is ordered so the test results can be disclosed person-to-person and post­test counseling can be arranged.

This counseling is to explain the meaning of the test results, the possible need for additional testing, measures for the prevention of the transmission of the HIV infection, the availability of social services and the benefits of locating anyone who may have been infected by the test subject, as well as a need for those persons to seek counseling.

It is important to keep in mind that a second confirmatory test is required before a health care provider can notify the patient that he has reacted positively to the test. In other words, the test subject cannot be told that the test was positive unless the Eliza and Western blot assays have been performed.

The next question is: to whom can the test results be released? The test subject or his legally authorized representative is entitled to the results. But a blanket, general release executed by the test subject or his legally authorized representative is no longer sufficient to allow a physician or laboratory to release the results. Under the new law, an insurance company or other person who requests the test results must have a specific written authorization for the disclosure of the test results. A general release is not sufficient to release the HIV test results.

The new statute also is a bit more specific as to who within a hospital or doctor's office is entitled to the information. The 1988 law stated that the agent or employee of the health care provider who actually provides patient care or handles body fluids or tissues could have the results disclosed to him if he had a need to know the information and the health care provider was otherwise authorized to have the information. The 1989 law states that HRS will draft rules defining which persons, in fact, have a need to know this information.

Anyone disclosing this information must also warn the recipient that the information is being disclosed from records that are confidential and protected by state law, and that the recipient is prohibited by law from making any further disclosures without the specific written consent of the test subject.