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Consent to HIV Testing

There is no medical risk to HIV testing. The law of informed consent deals with informing patients of the medical risks of medical tests and treatments. (See Chapter 11.) There is no legal duty to inform a patient of the political risk of a medical test or procedure. Despite this clear legal precedent, physicians and hospitals have been convinced that consent for HIV testing requires a recitation of political risks, such as job and housing discrimination. Unfortunately, during the recitation of political risks, the medical risks of not being tested are usually overlooked.

Many consent forms for HIV testing do not discuss the medical benefits of diagnosing HIV early in the course of the disease. Even before it was recognized that certain drugs can slow the progress of the disease, it was useful to know that the patient's immune system was potentially depressed. Infections can be managed more aggressively, and the patient can be counseled to avoid certain immunizations and sources of dangerous infections. If patients are given a consent form that does not recite the medical benefits of testing, they may make an uninformed refusal of care. If such a patient is then injured by refusal to be tested, he or she may sue for failure of informed consent in the same way that a patient who refused a Pap smear may sue if she was not properly informed of the risks of cervical cancer. The detailed consent form listing political risks but not medical risks will be the patient's best evidence of the failure of informed consent.

The controversy over HIV testing has obscured the physician's basic duty to provide proper medical care for patients. Early diagnosis of HIV infection benefits the patient's medical care and improves society's knowledge of the spread of the disease. A patient who refuses an HIV test is no different from a patient with chest pain who refuses an EKG or one with potential diabetic neuropathy who refuses a blood sugar test. Most patients consent to testing if properly informed of the medical benefits; the patients who refuse create a legal problem for physicians. A physician's ethical duty to treat a patient does not include the duty to practice substandard medicine at the patient's request. The physician must carefully document the patient's refusal of testing and establish that the patient was fully informed of the medical indications for the test. If the physician believes that the patient's HIV status is necessary medical information, the physician may ethically demand that the patient either agree to the test or find another physician. (See Chapter 9.)

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