Testing and Informed Consent

In the United States, HIV testing is governed by a range of federal and state laws, common law principles, constitutional provisions, and various codes of ethics. State laws vary widely in the degree of protection provided. The concept of informed consent, achieved through the process of physician-patient communication, is a legal and ethical obligation spelled out by statute and case law in every state. Informed consent is a legal concept, not a medical concept, and it is central to values of individual autonomy and dignity. Informed consent is characterized by a process of communication between a patient and physician that results in the patient's authorization or agreement to undergo a specific medical intervention. Unlike testing for most other infectious diseases, testing for HIV involves possible risks, benefits, and consequences that may not be apparent to the patient.

This HIV Policy Resource Bank category includes materials focusing primarily on federal and state proposals related to the streamlining of the HIV testing process, from more patient-tailored pre-test and post-test counseling to the elimination of informed, documented consent. Also included are resources on the effectiveness of voluntary HIV counseling and testing approaches; the importance of voluntariness and autonomy in health care decision-making for marginalized populations, particularly people of color, immigrants, and non-native English speakers; and the role of HIV testing as a gateway to comprehensive HIV health care and support services.

Highlighted Resources

Testing and Informed Consent

Expanding the Availability and Acceptance of Voluntary HIV Testing: Fundamental Principles to Guide Implementation, The Center for HIV Law & Policy et al. (2007)

Racial Disparities in HIV Care and Outcome: A Call for An Evidence-Based Response, The Center for HIV Law and Policy (2006)

Legal and Ethical Implications of Opt-Out HIV Testing, Catherine Hanssens, The Center for HIV Law & Policy (2007)

HIV INTERVIEW FORM No. 917, Mississippi State Department of Health (2009)

Client Acknowledgment Form, Kalamazoo County Health and Community Services (2007)

National HIV/AIDS Strategy Implementation Plan, The White House Office of National AIDS Policy (ONAP), 2010

National HIV/AIDS Strategy: President’s Memorandum for the Heads of Executive Agencies and Departments, The White House Office of National AIDS Policy (ONAP) (2010)

National HIV/AIDS Strategy, The White House Office of National AIDS Policy (ONAP) (2010)

Additional Recommendations to the White House Office of National AIDS Policy for the National HIV/AIDS Strategy, the Center for HIV Law and Policy, Lambda Legal, and ACLU AIDS Project (2010)

People v. Odom, 276 Mich. App. 407, 740 N.W. 2d 557 (2007)

Reproductive Choice for Women and Men Living with HIV: Contraception, Abortion and Fertility, Therese Delvaux and Christiana Nostlinger (2007)

Integrating Gender Into HIV/AIDS Programmes in the Health Sector, World Health Organization (2009)

Know Your Rights: HIV and Pregnancy, The Center for HIV Law and Policy (2010)

Protecting HIV-Positive Women’s Human Rights: Recommendations for the United States National HIV/AIDS Strategy, Aziza Ahmed et al., 17 Reproductive Health Matters 127 (2009)

Gender Dimensions of HIV Status Disclosure to Sexual Partners: Rates, Barriers, and Outcomes, World Health Organization (2004)

HIV and Pregnancy: Medical and Legal Considerations for Women and Their Advocates, Center for HIV Law and Policy (2009)

Southern States Manifesto: Update 2008 HIV/AIDS and Sexually Transmitted Diseases in the South, Southern AIDS Coalition

HIV Infection Among Young Black Men Who Have Sex with Men—Jackson, Mississippi, 2006-2008, Centers for Disease Control and Prevention, 58 MMWR 77 (2009)