Presentation on Oregon Law in relation to ethics in counseling and the duty to warn in regards to

1. AIDS AND THE DUTY TO WARN
By: Shanae Berry-Weldon and Lisa Whistler

2. OREGON LAW
Pertaining To Those With HIV and AIDS

3. INFORMED CONSENT TESTING
For an individual to be tested for
HIV or AIDS, you must provide and
obtain informed consent from your
client (ORS 433.045, ORS 677.097,
OAR 836-050-0250).

4. TESTING WITHOUT CONSENT
There are many situations where
your 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).

5. 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).

6. 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

7. 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).

8. TESTING WITHOUT CONSENT
 HIV testing may be performed
on anatomical gifts such as
donated organs without consent
(ORS 97.964).

9. 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).

10. 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).

11. SPECIAL CONSENT ISSUES
Victims:
 Underage victims of sexual abuse
in state custody may have HIV
testing arranged for them (OAR
413-040-0420).

12. 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).

13. 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

14. 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

15. DISCLOSURE WITH CONSENT
HIV test information can be released
with 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

16. DISCLOSURE WITHOUT CONSENT
Test results may be disclosed to
licensed health care providers when
knowledge of the results are needed
in emergencies.
HIV status may be shared with a
person who has had substantial
exposure to the subject in question,
the subject must then be notified in
writing.
OAR 333-012-0270

17. 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 of
a deceased individual may be released
to licensed health care providers and
health care facilities minimally to
prevent transplantation of infected
organs (OAR 333-012-0270).

18. ETHICAL AND PROFESSIONAL
DUTIES
Pertaining To Infected Clients Engaging in Risky or
Reckless Behaviors

19. 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.

20. 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.

21. RISKY BEHAVIORS
Help your client understand risky
behaviors and consequences such
as…
 Unprotected Vaginal Intercourse
 Unprotected Anal Intercourse
 Unprotected Oral Sex
 Needle Sharing

22. RISKY BEHAVIORS
Assess 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 and
possible 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.

23. TARASOFF DUTY
In 1968, Tatiana Tarasoff was a
student at the University of
California at Berkley. She was dating
a fellow student by the name of
Prosenjit Poddar, who was obsessed
with her. When Tarasoff broke off
their relationship, Poddar bought a
gun 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.

24. 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. He
then 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.

25. LEGAL SYSTEMS
Partner Notification

26. 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.

27. 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.

28. 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.

29. 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.

30. DUTY TO WARN
Medical Organization Recommendations

31. CENTER FOR DISEASE CONTROL
Physicians or health department
personnel should use confidential
methods to inform sex partners of
HIV infected persons not willing to
inform.

32. 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.

33. 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.

34. VOCABULARY
ORS’s and OAR’s Used in This Presentation

35. 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/

36. 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

37. 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 Day
May 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

38. This concludes our presentation on AIDS and The Duty to Warn.