A: The subject of testing for HIV has been a prickly one ever since a reliable mechanism for detecting the infection was developed. The fact that HIV-infected individuals were once ostracized, discriminated against, and treated unfairly in employment, education, and housing gave rise to a tendency in law to ensure HIV testing was done with respect for the patient’s privacy.
Not only is HIV testing subject to informed consent but also the method of obtaining and documenting consent can be different from that required of other laboratory tests. Laws vary from state to state, but the conditions of informed consent apply: The patient must be informed of the reason for the test, as well as the the risks and the benefits, and, most importantly, be given the right to refuse. Some states require pre-test HIV counseling. Some states require test results be delivered face to face with post-test counseling offered. Some states require that the patient be advised of the alternative (usually through a public-health department) of anonymous testing. Some states require written consent, though in many sectors, this is requirement is being removed as it appears to be an obstacle to testing.
Testing for HIV in at-risk populations is an important part of public-health strategy. Testing pregnant women is also advised in an effort to prevent neonatal transmission of the infection.
The highest risks for HIV infection remain unprotected sex with multiple partners and intravenous drug use. It is true that the risk of HIV infection is increased in patients who are treated for mental-health conditions, but the underlying risk factors within this population are the same as with the general population: unprotected sex and IV drug use. In addition, patients with HIV infection are at risk for developing cognitive and other central-nervous-system effects from the infection itself, and they may present to mental-health clinics for that reason. In such circumstances, HIV infection becomes a part of the differential diagnosis of the condition being evaluated.
Programs for testing even high-risk populations for HIV have been voluntary and based on informed consent. The Centers for Disease Control and Prevention (CDC) recognized a potential barrier that formal informed consent presents to testing of at-risk populations so, in 2006, revised its testing recommendations to suggest HIV testing for all patients between the ages of 13 and 64 in all healthcare settings based on an “opt-out” policy: Patients would be tested unless, once informed of testing, they objected. In addition, the CDC recommends that consent be incorporated into the written consent obtained at the outset of care and discourages the use of separate informed consent. The CDC recommendations are just that — recommendations. How HIV testing can be done in any particular setting will be determined by state laws regulating testing.
Even the opt-out programs proposed by the CDC have not met with universal approval. Francine Cournos and Nicholas Bakalar, authors of the book AIDS and People with Severe Mental Illness: A Handbook for Mental Health Professionals, note that “injection-drug users, whose infection rates are much higher than those of people with severe mental illness, are not subject to mandatory testing. Our position in favor of voluntary HIV testing, but in opposition to mandatory testing, is based on a long legal history … the law maintains a presumption that adults have capacity, and neither mental illness, hospitalization, nor involuntary commitment automatically rebuts the presumption.”
Also noteworthy is the American Psychiatric Association’s 2004 Guideline for HIV testing, which advocates that testing be offered on a voluntary basis to patients with appropriate sexual and drug-use risk histories, and to pregnant women. Thus, a strong argument can be made that HIV testing should be based on the appropriate and established risk factors for infection, and should be individual to the patient himself rather than broadly applied to larger groups. In the article “HIV Testing Policy and Serious Mental Illness” (Am J Public Health. 2002; 92(12):1931-1940), James Walkup and colleagues reinforce the idea that mandatory testing is unlikely to be adopted if voluntary testing can achieve the same ends. Mandatory HIV testing, however, has been instituted in some states only for prison populations.
The topic of mandatory HIV testing is controversial, which is worth keeping in mind when developing a policy for testing a particular population, even if the proposed testing is not “mandatory” in the strictest sense. Whatever testing policy is adopted should be supported by medical literature, aligned with the recommendations of appropriate scientific and professional organizations (e.g., the CDC and American Psychiatric Association), and must comply with all state laws and regulations regulating testing in your particular environment. A legal advisor can help work through these various factors and to help you decide whether, even if permissible, instituting such a testing program is a good use of time and resources.
Barbara Harty-Golder is a
pathologist-attorney consultant
in Chattanooga, TN. She
maintains a law practice with
a special interest in medical
law. She writes and lectures
extensively on healthcare law,
risk management, and human
resource management.
