Monday, March 11, 2013

Know Your Rights: HIV Testing—Consent and Privacy Issues

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 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:

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
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.
·         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 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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