for Health Care Providers
HIV Testing and Occupational Exposures
Q: Are written informed consent and pre- and post-test counseling required for HIV testing of the source patient following a needle-stick injury or other occupational exposures in VA?
No. Written consent is not required in the VA for HIV testing. HIV testing in VA requires that a patient give specific verbal informed consent to HIV testing. The patient's verbal consent should be documented in the patient's electronic health record.
Q: If a source patient refuses testing, can I just test them any way?
No. Federal law requires that VA patients give "full and informed consent" for any tests, and allows them the right to refuse any test or procedure.
Q: Other hospitals in my area do not require source patient consent for HIV testing during an occupational exposure. Why does VA?
As a part of the Federal Government, VA is subject to Federal laws, which may differ from State laws that govern the actions of other health care providers. In VA, all HIV testing of patients done for the purpose of establishing a diagnosis requires verbal informed consent of the veteran patient.
Q: After an employee experiences a needle-stick injury or occupational exposure, can she/he ask the source patient about his/her HIV status?
Asking a patient about his/her HIV status might be the provider's first impulse, especially if there is already an established relationship. However, any discussions about testing of a source patient subsequent to a potential occupational exposure must be conducted by a health care professional who does not have a personal relationship with the exposed employee, and, whenever possible, does not have a professional relationship with the exposed employee. The exposed employee may never seek consent from the source patient. The exposed employee should always seek immediate assistance from occupational (employee) health staff familiar with the guidelines for occupational exposures and post-exposure evaluation and treatment, even if the patient is perceived to be at low risk or has previously tested negative for HIV.
Q: Can patients give consent for HIV testing before surgery or a procedure in case a needlestick or other exposure occurs?
No. This is referred to as "contingent" consent; Under Federal law and VA regulations, contingent consent is not allowed because patients may not feel free to refuse HIV testing if they need the surgery or procedure. (August 2009)
Q: What if an employee has an occupational exposure and the patient lacks decision-making capacity and cannot give consent. For example, if the patient was having surgery and was under general anesthesia, could that patient be tested without his or her consent?
Since post-exposure prophylaxis (PEP) should be initiated as soon as possible after a potential occupational exposure, decisions frequently must be made without knowledge of the source patient's actual HIV status. PEP may be initiated based on the nature of the exposure and can be discontinued if the source if subsequently found to be HIV-negative. Provisions for testing of source patients who lack decision-making capacity are the same as those that would apply if the test were being performed for any other reason. If the patient is expected to regain decision-making capacity in a reasonable period of time, a request for testing after an occupational exposure should be deferred and the exposed employee should be counseled about post-exposure prophylaxis based on the nature of the exposure. If the patient is not expected to regain decision-making capacity in a reasonable period of time, a surrogate may provide consent in accordance with the procedures described in the Informed Consent Handbook (VHA Handbook 1004.01). There is no provision in Federal law or VA Regulations for involuntary testing.
Q: If a patient refuses HIV testing after an occupational exposure, can testing be performed using an existing blood sample?
No. There are no exceptions to the requirement that HIV testing be voluntary and with the verbal informed consent of the person being tested or his/her surrogate.
Q: The Informed Consent Handbook (VHA Handbook 1004.01) states that consent does not need to obtained in emergency situations if immediate medical care is necessary to preserve life or avert serious impairment of the health of the patient or others. Does this mean that the patient's consent isn't needed for HIV testing if a provider is exposed?
No. This refers to medical care given to the patient, not the provider.
There are no Federal regulatory mandates or VACO policies that require signature consent for testing of source patients or employees after an occupational exposure. VACO policy is that verbal informed consent with documentation in the medical record is sufficient for either source patients or employees.