Legal Issues Surrounding HIV Testing

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Everyone gets a little nervous when we start talking about the legal implications of HIV testing in the emergency department. Happily, a quick review of the law in the state of Kentucky is reassuring. The first two paragraphs really set the tone for the law, which is essentially quite pro-healthcare provider:

“(1) The General Assembly finds that the use of tests designed to reveal a condition indicative of human immunodeficiency virus (HIV) infection can be a valuable tool in protecting the public health. The General Assembly finds that knowledge of HIV status is increasingly important for all persons since treatment using antiretroviral medications can slow disease progression, prolong and improve the lives of HIV positive individuals, and reduce the likelihood of perinatal mother-to-child transmission. Many members of the public are deterred from seeking testing because they misunderstand the nature of the test or fear that test results will be disclosed without their consent. The General Assembly finds that the public health will be served by facilitating informed, voluntary, and confidential use of tests designed to detect human immunodeficiency virus infection.

(2) A person who has signed a general consent form for the performance of medical procedures and tests is not required to also sign or be presented with a specific consent form relating to medical procedures or tests to determine human immunodeficiency virus infection, antibodies to human immunodeficiency virus, or infection with any other causative agent of acquired immunodeficiency syndrome that will be performed on the person during the time in which the general consent form is in effect. However, a general consent form shall instruct the patient that, as part of the medical procedures or tests, the patient may be tested for human immunodeficiency virus infection, hepatitis, or any other blood-borne infectious disease if a doctor or advanced practice registered nurse orders the test for diagnostic purposes. Except as otherwise provided in subsection (5)(d) of this section, the results of a test or procedure to determine human immunodeficiency virus infection, antibodies to human immunodeficiency virus, or infection with any probable causative agent of acquired immunodeficiency syndrome performed under the authorization of a general consent form shall be used only for diagnostic or other purposes directly related to medical treatment.

(3) In any emergency situation where informed consent of the patient cannot reasonably be obtained before providing health-care services, there, is no requirement that a health-care provider obtain a previous informed consent.”

The law seems to poise HIV testing as no different from any other medical testing – if the provider has reasonable suspicion for HIV infection in a patient he or she should order appropriate testing. The law goes on to enumerate appropriate outpatient followup post testing, listing county health departments and primary care providers – seemingly to reiterate that yes, follow up should be arranged but in no manner terribly different from any other infection.

244 thoughts on “Legal Issues Surrounding HIV Testing”

  1. It is important to note that the internal rules regarding consent can differ based on location of practice. Check with your hospital before you run an HIV test with every CBC. At UofL we are working on bringing our consent up to date with these laws.

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