This is an interesting HIV testing case. Plaintiff suffers from a seizure disorder and must take a medication that can damage the liver. His physician tests him for liver function abnormalities every 3 months as part of this care. At one point plaintiff required hospitalization and as part of this workup he was asked to give permission for HIV testing. He refused, but was tested anyway pursuant to the Illinois AIDS Confidentiality Act. This act provides that: "[n]o person may order an HIV test without first receiving the written informed consent of the subject of the test or the subject's legally authorized representative." However, the act contains exceptions, including section 8, which providers:
"Notwithstanding the provisions of Sections 4 and 5 of this Act, written informed consent, information and counseling are not required for the performance of an HIV test . . . (b) when in the judgment of the physician, such testing is medically indicated to provide appropriate diagnosis and treatment to the subject of the test, provided that the subject of the test has otherwise provided his or her consent to such physician for medical treatment. 410 ILCS 305/8."
This provision addresses a critical problem posed the special confidentiality laws many states have passed in regard to HIV - how do you deal with patients who refuse testing when HIV status is essential medical information? It is analogous to a patient with symptoms of diabetes that refuses a blood sugar test. In the case of the diabetic, most courts would consider the refusal of such a critical test as constructive discharge of the physician. With HIV, however, it is considered much more acceptable to refuse testing, or, if one's HIV status is known, to withhold it from health care providers. Health care providers who refused to continue treating such a patient would rightly fear an ADA action or other legal threats. Illinois has addressed this by providing a statutory right to test when HIV status is medically necessary information, and to require the laboratory performing the test to report positive HIV results to the Department of Health.
Plaintiff sued the Director of the Department of Health and State Attorney General, seeking an injunction under 42 USC 1983 and the declaration that this law is an unconstitutional violation of his 4th and 14th Amendment rights. The district court dismissed, finding that plaintiff had no standing because he was unlikely to be tested again under the law. The appeals court agreed that the plaintiff had not stated a sufficiently high probability of future injury to have standing to enjoin his future testing. This stopped plaintiff's action and did not require the court to reach the next two important issues: 1) if plaintiff had standing, would the claim be barred under the 11th amendment; and 2) assuming that plaintiff had standing and that the claim was not otherwise barred, did the law in fact violate his constitutional rights? Given existing public health law precedent, it is likely that the court would find this provision of the Illinois AIDS Confidentiality Law an appropriate exercise of the police power to protect others from communicable diseases and an appropriate exercise of the parens patria power to protect individuals from their own bad judgment.
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