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Questions on HIV Testing and Patient Consent Issues

for Health Care Providers

HIV Testing and Patient Consent Issues

Q: Who should be tested for HIV infection?

HIV testing should be part of routine medical care for all veterans. All patients who do not have documentation of an HIV test in their health record should be tested for HIV at the first reasonable opportunity, provided they consent. All patients who are documented to be HIV negative and who have risk factors or clinical indications of HIV should be tested for HIV at least annually, provided they consent. Patients should not be tested excessively (e.g., patients with a negative HIV test who have no risk factors and no clinical indications for HIV testing should generally not be retested, unless the patient requests such testing). (August 2009)

Q: Is pre-test counseling required before HIV testing?

No. However, patients must be provided with appropriate educational materials and given the opportunity to have any questions answered before giving consent. (August 2009)

Q: Is written informed consent required for HIV testing?

No. Verbal informed consent, documented in the patient's electronic health record, is sufficient. (August 2009)

Q: What kinds of educational materials can be used?

Educational materials must include the following:

  1. A description of HIV disease;
  2. A description of HIV testing;
  3. A description of the expected benefits and known risks associated with HIV testing, including the possibility that VA may disclose test results to the public health authorities and to the patient's spouse or sexual partner;
  4. A description of the reasonable alternatives to HIV testing, the anticipated consequences of choosing no HIV testing, and the availability of anonymous testing. NOTE: Anonymous testing is not available everywhere in the United States;
  5. A description of the meaning of a positive and a negative HIV test;
  6. A description of how HIV is transmitted; and
  7. A description of measures to be taken for prevention of HIV transmission.

NOTE: Nationally standardized educational materials for HIV testing are available electronically in the iMedConsentTM library, which can be accessed through the Computerized Patient Record System (CPRS). Materials are also available from this website. (August 2009)

Q: Does the provider have to discuss HIV testing with the patient before ordering a test?

Yes. Patients should never be tested without their knowledge, and must be given the opportunity to ask questions and discuss the test with their provider. (August 2009)

Q: At our facility, we have been told that only physicians or people with specialized training can obtain consent for HIV testing. Is this true? Do VA regulations specify which health care professionals can obtain consent?

Consent for HIV testing can be obtained by any health care professional authorized to order HIV testing, or any health care professional whose scope of practice agreement or other formal delineation of job responsibility specifically permits them to obtain informed consent. (August 2009)

Q: Can providers other than physicians order an HIV test?

Yes. Depending on scope of practice, other providers, such as nurse practitioners and physician assistants may be able to order an HIV test. In addition, registered nurses may be able to order an HIV test as part of a standing order, after verbal informed consent is obtained.

Q: Are VA labs required to ensure that consent has been obtained before processing a blood specimen?

No, the lab is no t required to determine whether the patient has given consent for testing before processing a specimen. It is the responsibility of the ordering provider to ensure that consent has been obtained. (August 2009)

Q: Some of the providers at our facility have argued that if we use an HIV viral load test (HIV-RNA) to test for an initial HIV test result that informed consent by the patient isn't necessary. They have argued that the informed consent requirement is only true for the HIV antibody test. Is this true?

No. The VA regulations requiring verbal informed consent apply to any laboratory test that is ordered for the purpose of establishing an initial diagnosis of HIV. This requirement is based on the purpose of the testing (e.g., for diagnosis), not the type of HIV testing being ordered. This consent is not needed for a viral load test that is being done as part of routine care once the diagnosis of HIV has already been made in a patient. (August 2009)

Q: Is it permissible to routinely ask for consent to conduct HIV testing in all patients undergoing surgical procedures?

Routinely requesting testing in the pre-operative setting may be interpreted as being a condition for receiving the appropriate surgical care, and is thus coercive and not ethical. Veterans may not be denied necessary medical care based on HIV status, and Standard Precautions to prevent exposure to blood-borne pathogens should always be employed regardless of the patient's HIV infection status. (June 2005)

Q: How can we obtain HIV testing for a patient who lacks decision making capacity?

In an emergency situation in which a patient lacks decision- making capacity and there is no surrogate available to provide consent, HIV testing is permissible if knowledge of the patient's HIV status is necessary to provide immediate medical care to the patient to prevent loss of life or irreversible morbidity. However, HIV testing is not permitted without the consent of the patient or a legally designated surrogate decision-maker to determine HIV status in cases of occupational exposure. (August 2009)

Q: What are the requirements for documentation of verbal informed consent for HIV testing?

Verbal informed consent should be documented in the patient's electronic health record. (August 2009)