Post by Bruce Bell, GLAD Legal InfoLine Manager
Strong legal protections for people living with HIV are
essential prerequisites to effective risk-reduction and prevention strategies.
By fighting discrimination based on HIV status, protecting people’s privacy,
and improving access to information about HIV-related legal issues, we can
strengthen the health of our communities.
GLAD’s AIDS Law Project continues to fight for strong
privacy protections for HIV status and medical information, and to educate the
public about the consent requirements for HIV testing across New England.
Because the laws vary from state to state, it’s important to
understand what is and is not allowed or required where you live. Read on for an overview, and visit www.glad.org or contact our Legal InfoLine for more information.
What HIV testing
privacy protections exist in New England?
Connecticut, Maine, Massachusetts, New Hampshire and Rhode
Island all have HIV-specific laws that require a patient’s written consent for HIV
results to be released by a doctor or medical facility.
While there is no HIV-specific law in Vermont, under general
common law principles, health providers cannot disclose private medical
information to others without the patient’s consent.
Are there any
circumstances under which a person’s HIV status can be disclosed by a health provider without the patient’s
consent?
In Maine and Massachusetts, the answer to this question is
no.
As mentioned above, Vermont has no specific laws related to
HIV and general medical disclosure laws apply.
Connecticut, New Hampshire and Rhode Island each allow for
disclosure without consent under specific circumstances:
·
CONNECTICUT
o
to another health care provider to provide
appropriate care;
o
to a health care worker or other employee where
there has been a significant occupational exposure;
o
to employees of mental health facilities if a
patient’s behavior poses a significant risk of transmission;
o
to life and health insurers in connection with
life, health or disability benefits;
o
to any person allowed access by a court order
·
NEW HAMPSHIRE
o
to another health care provider directly
involved in the patient’s care;
o
to a blood donation agency.
·
RHODE ISLAND
o
when the test results are relevant to law
enforcement investigations, lawsuits or fraud cases;
o
when the information is needed to provide
emergency treatment;
o
to notify the Department of Children, Youth and
Families the results of an involuntary test;
o
to inform third parties when an HIV-infected
patient poses a clear danger and the patient will not inform the third parties;
o
when someone dies of AIDS, notify the person
picking up the body, the embalmer and funeral director;
o
when a first responder is has sufficient
exposure to create a risk of transmission.
What kind of consent
is required to be tested for HIV?
·
CONNECTICUT—A general consent for medical care
is sufficient as long as the general consent contains an instruction to the
patient that the patient may be tested for HIV unless the patient indicates
when giving the general consent that he/she doesn’t want to be tested for HIV. The
burden is on the patient to communicate a refusal to the healthcare provider.
·
MAINE—A patient must be informed orally or in
writing that an HIV test will be performed unless the patient declines. The law also requires that the patient must
be told before the test the meaning of positive and negative test results and
be given the opportunity to ask questions.
·
MASSACHUSETTS—Only verbal informed consent is
required each time an HIV test is performed.
·
NEW HAMPSHIRE—Only verbal consent is required
each time an HIV test is performed.
·
RHODE ISLAND—To perform an HIV test the person
must:
o
be provided with oral or written information and
an opportunity for discussion with a health care professional,
o
be informed of the right to decline testing, and
o
orally consent to the test.
·
VERMONT—No specific consent is required, so an
HIV test may be done based on a general medical consent.
Can an HIV test be
performed against a person’s wishes?
·
CONNECTICUT—Yes, under the following conditions:
o
a significant exposure to HIV occurs during a
person’s occupational duties;
o
the person is unable or lacks the capacity to
consent;
o
on an inmate if the person’s behavior poses a
significant risk of transmission.
o
if a woman gives birth to a child and she has
not had an HIV test, the health care provider must administer an HIV test to
the newborn.
·
MAINE—Yes, under the following conditions:
o
occupational exposure that creates a significant
risk of HIV infection;
o
after conviction of a sexual assault;
o
testing of pregnant women and newborns.
·
MASSACHUSETTS—No.
·
NEW HAMPSHIRE—Yes, under the following
conditions:
o
after conviction of a sexual assault;
o
prisoners;
o
patient emergencies where the person is
incapable of giving informed consent;
·
RHODE ISLAND—Yes, the following testing is
permitted but not required:
o
any person under one year of age;
o
any person between one and thirteen years of age
who appear to be HIV+;
o
any person under the age of eighteen who is in
state care and a test is necessary to secure health or human services for that
person;
o
a patient who exposes a health care worker to a
significant risk for contracting HIV;
o
emergency medical situations where it is not
possible to get the consent of the patient.
·
VERMONT—Yes, when a court orders that a person
convicted of a sexual assault be tested.
Can minors give their
own consent to be tested for HIV without obtaining their parents’ or guardians’
consent?
Yes, in all six New England states minors can be tested for
HIV without obtaining their parents’ or guardians’ consent. However, these additional factors apply:
·
CONNECTICUT—the health care provider must
counsel the minor to work towards involving the parents or guardians and about
the need to notify partners.
·
MAINE & NEW HAMPSHIRE—the physician is not
required to but may inform the minor’s parents or guardians, so it is important
for the minor to have a conversation with the doctor about his/her policies on
this issue.
·
MASSACHUSETTS—if the physician feels that the
minor’s life is in danger, then the doctor is required to notify the parents or
guardians.
If you have any questions about LGBTQ/HIV legal issues,
please contact GLAD’s Legal InfoLine—by email or live chat at www.glad.org/rights/infoline-contact
or by phone at 800-455-GLAD (4523). This
is a free, confidential service, and you will be assisted by a compassionate,
highly trained volunteer.
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