HIV testing (in California)

Background

• Consent requirements for HIV testing from state to state.
• In California, California Health and Safety Code Section 120990 speaks to this issue.

Requirements Before Ordering The Test

• Prior to ordering a test that identifies infection of a patient with HIV, a medical care provider shall:

• • inform the patient he/she will be tested for HIV.
  • provide information about the test

inform that if positive, there are numerous treatment options available

• • inform that if negative, the a patient should continue to be routinely tested,

advise the patient that he/she has the right to decline the test.

• • document whether the informed consent was written or verbal
  • provide the results to the patient in timely manner with and counseling and contact for medical/psychological follow up

Difficult Situations

• Occupational Exposure
  • The exposed has to seek evaluation by a physician (not him/herself) for evaluation to determine if "significant exposure." **Significant exposure "means direct contact with blood or other potentially infectious materials of a patient in a manner that, according to the then applicable guidelines of the Division of Occupational Safety and Health, is capable of transmitting a

communicable disease. (subdivision (h) of Section 120261.)

• • The treating physician has to certify by documenting that a significant exposure occurred.
  • A test for HIV on the exposed has to be done and confirmed before a test on the source patient can be done without consent. The attending physician for the exposed can then test the patient without his consent.
  • This test can be performed on any available blood or other tissue sample.
  • If the source patient died, the source patient's blood can be obtained and tested regardless of any consenting.
  • If the patient is living and there is no blood sample and the patient refuses to allow for a blood sample to be obtained, it appears that this is not permitted except as otherwise authorized by law.
  • The source patient has the option not to be informed of the results. If he/she does not want to be informed of the results, the results cannot be documented in his/her chart.
  • The exposed patient cannot directly attempt to obtain informed consent from the source patient.
  • Costs of the testing will be assumed by the employer of the exposed patient.
• A medical provider can order a HIV test on a cadaver, or when autospy will be performed, or when body parts may be donated (Section 7150)

External Links

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=hsc&group=120001-121000&file=120260-120263

References

1. California Health and Safety Code Section 120990 (Consent Requirements for HIV Testing)

2. Interpretation of the legalese provided by Marina Pantchenko, Attorney of Health Law.