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

The 2006 guidelines from the Centers for Disease Control and Prevention recommend that opt-out screening for human immunodeficiency virus (HIV) without written patient consent be part of routine clinical care and imply that state HIV-associated laws in conflict with this approach should be amended. However, HIV testing and treatment issues are governed by a range of federal and state laws, common law principles, constitutional provisions, and various codes of ethics. Patient testing protocols should satisfy the legal definition of informed consent, to reduce risk of liability for providers (i.e., health care professionals and facilities). Rigid application of the new guidelines may trigger legal claims, especially if there is no link to care for persons with a positive test result, no proof of informed consent, or inadequate counseling. Ensuring confidentiality, better test training for providers, and provider collaboration with HIV service organizations can reduce the risk of patient claims, but state and federal laws, codes of ethics, and concerns about provider liability should temper reflexive wholesale adoption of guidelines that recommend opt-out screening.