AIDS AND THE DUTY TO WARNBy: Shanae Berry-Weldon and Lisa Whistler
OREGON LAWPertaining To Those With HIV and AIDS
INFORMED CONSENT TESTING For an individual to be tested forHIV or AIDS, you must provide andobtain informed consent from yourclient (ORS 433.045, ORS 677.097, OAR 836-050-0250).
TESTING WITHOUT CONSENT There are many situations whereyour client may be tested without his or her consent. Your client may be tested if… The patient or health care worker was exposed to bodily fluids. In that case a court may order that the suspected “source” be tested (ORS 433.065, ORS 433.080, OAR 333-012-0264, OAR 333- 012-0269).
TESTING WITHOUT CONSENT Police Officers, Parole Officers, EMT’s, and Firefighters who were exposed to bodily fluids may request a court order to test the suspected “source” for HIV, AIDS, and Hepatitis (ORS 433.085, OAR 333-018-0035).
TESTING WITHOUT CONSENT The DA may request a court order if a crime in which bodily fluids were exchanged was committed. If a test has not been performed upon conviction, the victim may request one. ORS 135.139
TESTING WITHOUT CONSENT Prisoner’s in Department of Corrections’ custody do not need consent to test if he or she was convicted of a sex or drug related crime where they were possibly exposed to HIV (OAR 333-012- 0265).
TESTING WITHOUT CONSENT HIV testing may be performed on anatomical gifts such as donated organs without consent (ORS 97.964).
SPECIAL CONSENT ISSUES Minors: A minor under 15 may consent to an HIV test even if they are in state custody or the Oregon Young Authority (OAR 333-12- 0265, OAR 413-040-0430, OAR 416-600-0030).
SPECIAL CONSENT ISSUES Infants: Upon Doctor’s request, an infant in state custody may be tested if the mother engaged in high risk behavior (OAR 413-040-0420).
SPECIAL CONSENT ISSUES Victims: Underage victims of sexual abuse in state custody may have HIV testing arranged for them (OAR 413-040-0420).
SPECIAL CONSENT ISSUES Developmentally Disabled: Health care representatives with authority to consent may consent to an HIV test on behalf of the disabled person (OAR 309-041- 1580).
CONFIDENTIALITY Oregon law prohibits the disclosure of HIV test results without consent of the person tested. HIV test results cannot be released in any way that identifies the person tested. Any individual who learns of the HIV test results is prohibited from disclosing that information without consent. ORS 433.045
DUTY TO COMPLY You must comply with confidentiality laws if you are a… Health Care Provider or Facility Laboratory Blood or Sperm Bank Insurance Company Employee Government Agency Researcher Employer Individuals are not subject to the duty of confidentiality. ORS 433.045
DISCLOSURE WITH CONSENT HIV test information can be releasedwith the consent of the tested subject. Specific consent forms for HIV information is needed including… Signed consent Specific purpose for releasing results Who is receiving the information Time period for when the release may occur Signature and date of person giving authorization OAR 333-012-0270 ORS 433.045
DISCLOSURE WITHOUT CONSENT Test results may be disclosed tolicensed health care providers whenknowledge of the results are needed in emergencies. HIV status may be shared with a person who has had substantialexposure to the subject in question,the subject must then be notified in writing. OAR 333-012-0270
DISCLOSURE WITHOUT CONSENT The results of a positive HIV test must be reported to public health authorities or on a death certificate(OAR 333-012-0270, OAR 333-018- 0000, OAR 333-019-0031).The results of a positive HIV test ofa deceased individual may be releasedto licensed health care providers and health care facilities minimally to prevent transplantation of infected organs (OAR 333-012-0270).
ETHICAL AND PROFESSIONAL DUTIESPertaining To Infected Clients Engaging in Risky or Reckless Behaviors
HIV DISCLOSURE GUIDELINES There are many reasons why a client might not want to disclose their HIV status and conflict can arise. The client may be embarrassed or ashamed to tell his or her spouse or partner about his or her infection. The client may be an adolescent who does not want his or her parents to know. The client may be an I.V. drug user who shares needles with others. The client may be a sex-industry worker.
HIV DISCLOSURE GUIDELINES The duty to warn does not require that providers search out possible threats posed by a client. Try to have the client disclose his or her HIV status to the contact if the client is engaging in reckless behaviors like unprotected sex or IV drug use. If the client refuses, you will have to notify the contact. If you learn that a client is engaging in activities which could infect others, but you do not know of any specific contacts, explain to the client the harm he is doing and the steps he can take to prevent this.
RISKY BEHAVIORS Help your client understand risky behaviors and consequences such as… Unprotected Vaginal Intercourse Unprotected Anal Intercourse Unprotected Oral Sex Needle Sharing
RISKY BEHAVIORSAssess variables that may impair your client’s judgment to be safe such as drug and alcohol use.Educate your client about the benefits of early treatment interventions andpossible re-infection with a different strain of HIV.Inform your client of needle exchange programs. Assess clients level of distress.Don’t assume clients sexual practices. Check your clients understanding.
TARASOFF DUTY In 1968, Tatiana Tarasoff was a student at the University ofCalifornia at Berkley. She was dating a fellow student by the name ofProsenjit Poddar, who was obsessedwith her. When Tarasoff broke off their relationship, Poddar bought agun to orchestrate a life-threatening situation to prove his love. His psychiatrist, Dr. Lawrence Moore,believes he had a psychotic disorder.He informed the campus police, but they determined Poddar stable and released him.
TARASOFF DUTY Poddar continued to stalk Tarasoff until he reached his breaking point. He broke into Tarasoff ’s house armed with a knife and pellet gun. He proceeded to shoot her with the pellet gun as she ran from him. Hethen stabbed her 14 times, killing her. No one had informed Tarasoff of Poddar’s intentions. The duty to warn with anything requires that you go to the person being threatened and the authorities.
LEGAL SYSTEM Courts continue to struggle with the Right to Privacy vs. Duty to Warn in regards to HIV. Many states consider it criminal for a person who is HIV positive and knowingly engages in sexual intercourse without first informing their partner and/or using a condom.
LEGAL SYSTEM HIV positive individuals prosecuted under this statute can assert the following legal rights as defense: Right to privacy. Right to equal protection under the law. Right not to have speech compelled. Right to be free of discrimination.
LEGAL SYSTEMS U.S. Courts haven’t been consistent in cases regarding public safety versus confidentiality. Florida – Protected the name of an infected client. Texas – Revealed the name of the infected client in a wrongful death suit.
LEGAL SYSTEMS Illinois – Laws passed to quarantine infected persons and laws exempt test results from the Freedom of Information Act. California – Law passed that prevents doctors from civil or criminal charges due to revealing positive results to a patients spouse.
DUTY TO WARNMedical Organization Recommendations
CENTER FOR DISEASE CONTROL Physicians or health department personnel should use confidentialmethods to inform sex partners ofHIV infected persons not willing to inform.
AMERICAN MEDICAL ASSOCIATION Determine state laws regarding reporting of HIV infected person who is endangering a third party. Counsel infected person and try to persuade them to inform the third party. If infected individual refuses to inform, notify the authorities. If authorities refuse action, notify the endangered third party. Prior to taking these steps make sure there are not any laws in place that prohibit you from taking such action.
AMERICAN PSYCHIATRIC ASSOCIATION When physician suspects client to be infected with HIV; notify the patient of the specific limits of confidentiality. Do this before asking any questions pertaining to HIV status. When infected person refuses to inform partner(s) it is ethically allowed for physician to inform person in danger of contracting the virus.
VOCABULARYORS’s and OAR’s Used in This Presentation
VOCABULARY Oregon Revised Statutes ORS 97.964 – HIV testing on anatomical gifts ORS 135.139 – Notice of availability of testing for HIV and other communicable diseases to person charged with crime; when court may order test; victim’s rights ORS 433.045 – Consent to HIV test required; exceptions ORS 433.065 – Procedures for HIV testing; rules ORS 433.080 – When test may be required; procedure to require test; rules ORS 433.085 – HIV and hepatitis testing at request of licensed health care provider or certain public officials; procedure A list of complete ORS’s can be found at www.leg.state.or.us/ors/
VOCABULARY Oregon Administrative Rules OAR 333-012-0264 – Procedures for Determining HIV and Hepatitis B Status of Source Person Following Occupational Exposure to Body Fluids OAR 333-012-0265 – Informed Consent for HIV and AIDS Carriers OAR 333-012-0269 – Procedures for Mandatory HIV Testing Following Occupational Exposure to Body Fluids for HIV and AIDS Carriers OAR 333-012-0270 – Confidentiality of HIV and AIDS Carriers OAR 333-018-0000 – Who Is Responsible for Reporting Diseases OAR 333-018-0035 – Procedures Involving Emergency Response Employees Disease Reporting OAR 333-019-0031 – Acquired Immunodeficiency Syndrome/Human Immunodeficiency Virus Provisions OAR 413-040-0420 – HIV Antibody Testing of Children in State Custody and Confidentiality OAR 413-040-0430 – Informed Consent of Children in State Custody and Confidentiality OAR 416-600-0030 – Informed Consent for HIV Testing of Youth OAR 836-050-0250 – Testing for HIV Infection Application Questions Relating to HIV Infections A list of complete OAR’s can be found at http://arcweb.sos.state.or.us/rules/number_index.html
AIDS AWARENESS March 10th – National Women and Girls HIV/AIDS Awareness Day March 20th – National Native HIV/AIDS Awareness Day May 18th – National HIV Vaccine Awareness DayMay 19th – National Asian & Pacific Islander HIV/AIDS Awareness Day June 8th – Caribbean American HIV/AIDS Awareness Day June 27th – National HIV Testing Day September 18th – National HIV/AIDS and Aging Awareness Day September 27th – National Gay Men’s HIV/AIDS Awareness Day October 15th – National Latino AIDS Awareness Day December 1st – World AIDS Day February 7th – National Black HIV/AIDS Awareness Day
This concludes our presentation on AIDS and The Duty to Warn.