Sec. 19a-582. Informed consent for testing. Exceptions.
Sec. 19a-582. Informed consent for testing. Exceptions. (a) Except as required
pursuant to section 19a-586 or by federal or state law, no person shall order the performance of an HIV-related test without first receiving written informed consent or oral
informed consent which has been documented in the medical record, of the subject of
the test or of a person authorized to consent to health care for such individual. The
consent of a parent or guardian shall not be a prerequisite to testing of a minor. The
laboratory shall report the test result to the person who orders the performance of the
test. Whenever practicable written consent shall be obtained. A person ordering the
performance of an HIV-related test shall certify that informed consent has been received
prior to ordering testing by a licensed laboratory. No laboratory shall perform an HIV-related test without a written certification that such consent has been obtained, or without
written certification that testing without consent is being ordered pursuant to one of the
exceptions in subsection (e) of this section. The Department of Public Health shall
develop recommended forms for health care providers for purposes of this section. Such
forms shall satisfy the requirement for a written consent form but shall not fully satisfy
the requirement for the explanation pursuant to subsections (b) and (c) of this section.
Any form used pursuant to this section and all information conveyed pursuant to subsections (c) and (d) of this section shall be written or conveyed in a clear and coherent
manner using plain language as described in section 42-152. A person ordering the
performance of an HIV-related test shall not be held liable if a good faith effort is made
to convey the explanation required pursuant to subsections (b), (c) and (d) of this section.
The department shall develop guidelines for meeting the requirements of subsections
(b), (c) and (d) of this section.
(b) Informed consent to an HIV-related test shall include a statement provided to
the subject of the test or provided to a person authorized to consent to health care for
the subject which includes at least the following: (1) An explanation of the test, including
its purpose, the meaning of its results, and the benefits of early diagnosis and medical
intervention; (2) acknowledgment that consent to an HIV test is not a precondition to
receiving health care but that refusal to consent may, in some circumstances, affect the
provider's ability to diagnose and treat the illness; (3) an explanation of the procedures
to be followed, including that the test is voluntary, and a statement advising the subject
on the availability of anonymous testing; and (4) an explanation of the confidentiality
protections afforded confidential HIV-related information including the circumstances
under which and classes of persons to whom disclosure of such information may be
required, authorized or permitted by law. Such explanation shall specifically acknowledge that known partners of the protected individual may be warned of their potential
risk of infection without identifying the protected individual and that the law permits the
recording of HIV and AIDS-related information in medical charts and records. Informed
consent shall be obtained without undue inducement or any element of compulsion,
fraud, deceit, duress or other form of constraint or coercion.
(c) Prior to obtaining informed consent, a person ordering the performance of an
HIV-related test shall provide the subject of an HIV-related test, or to a person authorized
to consent to health care for the subject, an explanation of the nature of AIDS and HIV-related illness and information about behaviors known to pose risks for transmission of
HIV infection.
(d) At the time of communicating the test result to the subject of the test, a person
ordering the performance of an HIV-related test shall provide the subject of the test or
the person authorized to consent to health care for the subject with counseling or referrals
for counseling: (1) For coping with the emotional consequences of learning the result;
(2) regarding the discrimination problems that disclosure of the result could cause; (3)
for behavior change to prevent transmission or contraction of HIV infection; (4) to
inform such person of available medical treatments; (5) to work towards the goal of
involving a minor's parents or legal guardian in the decision to seek and in the ongoing
provision of medical treatment; (6) regarding the need of the test subject to notify his
partners and, as appropriate, provide assistance or referrals for assistance in notifying
partners; except that if the subject of the test is a minor who was tested without the
consent of his parents or guardian, such counseling shall be provided to such minor at
the time of communicating such test result to such minor. A health care provider or
health facility shall not withhold test results from the protected individual. The protected
individual may refuse to receive his test result but the person ordering the performance
of the test shall encourage him to receive the result and to adopt behavior changes that
will allow him to protect himself and others from infection.
(e) The provisions of this section shall not apply to the performance of an HIV-related test:
(1) By licensed medical personnel when the subject is unable to grant or withhold
consent and no other person is available who is authorized to consent to health care
for the individual and the test results are needed for diagnostic purposes to provide
appropriate urgent care, except that in such cases the counseling, referrals and notification of test results described in subsection (d) of this section shall be provided as soon
as practical;
(2) By a health care provider or health facility in relation to the procuring, processing, distributing or use of a human body or a human body part, including organs,
tissues, eyes, bones, arteries, blood, semen, or other body fluids, for use in medical
research or therapy, or for transplantation to individuals, provided if the test results are
communicated to the subject, the counseling, referrals and notification of test results
described in subsection (d) of this section shall be provided;
(3) For the purpose of research if the testing is performed in a manner by which the
identity of the test subject is not known and is unable to be retrieved by the researcher;
(4) On a deceased person when such test is conducted to determine the cause or
circumstances of death or for epidemiological purposes;
(5) In cases where a health care provider or other person, including volunteer emergency medical services, fire and public safety personnel, in the course of his occupational
duties has had a significant exposure, provided the following criteria are met: (A) The
worker is able to document significant exposure during performance of his occupation,
(B) the worker completes an incident report within forty-eight hours of exposure identifying the parties to the exposure, witnesses, time, place and nature of the event, (C) the
worker submits to a baseline HIV test within seventy-two hours of the exposure and is
negative on that test, (D) the patient's or person's physician or, if the patient or person
does not have a personal physician or if the patient's or person's physician is unavailable,
another physician or health care provider has approached the patient or person and
sought voluntary consent and the patient or person has refused to consent to testing,
except in an exposure where the patient or person is deceased, (E) an exposure evaluation
group determines that the criteria specified in subparagraphs (A), (B), (C), (D) and (F)
of this subdivision are met and that the worker has a significant exposure to the blood
of a patient or person and the patient or person, or the patient's or person's legal guardian,
refuses to grant informed consent for an HIV test. If the patient or person is under the
care or custody of the health facility, correctional facility or other institution and a sample
of the patient's blood is available, said blood shall be tested. If no sample of blood is
available, and the patient is under the care or custody of a health facility, correctional
facility or other institution, the patient shall have a blood sample drawn at the health
facility, correctional facility or other institution and tested. No member of the exposure
evaluation group who determines that a worker has sustained a significant exposure and
authorized the HIV testing of a patient or other person, nor the health facility, correctional
facility or other institution, nor any person in a health facility or other institution who
relies in good faith on the group's determination and performs that test shall have any
liability as a result of his action carried out pursuant to this section, unless such person
acted in bad faith. If the patient or person is not under the care or custody of a health
facility, correctional facility or other institution and a physician not directly involved
in the exposure certifies in writing that the criteria specified in subparagraphs (A), (B),
(C), (D) and (F) of this subdivision are met and that a significant exposure has occurred,
the worker may seek a court order for testing pursuant to subdivision (8) of this subsection, (F) the worker would be able to take meaningful immediate action, if results are
known, which could not otherwise be taken, as defined in regulations adopted pursuant
to section 19a-589, (G) the fact that an HIV test was given as a result of an accidental
exposure and the results of that test shall not appear in a patient's or person's medical
record unless such test result is relevant to the medical care the person is receiving at
that time in a health facility or correctional facility or other institution, (H) the counseling
described in subsection (d) of this section shall be provided but the patient or person
may choose not to be informed about the result of the test, and (I) the cost of the HIV
test shall be borne by the employer of the potentially exposed worker;
(6) In facilities operated by the Department of Correction if the facility physician
determines that testing is needed for diagnostic purposes, to determine the need for
treatment or medical care specific to an HIV-related illness, including prophylactic
treatment of HIV infection to prevent further progression of disease, provided no reasonable alternative exists that will achieve the same goal;
(7) In facilities operated by the Department of Correction if the facility physician
and chief administrator of the facility determine that the behavior of the inmate poses
a significant risk of transmission to another inmate or has resulted in a significant exposure of another inmate of the facility and no reasonable alternative exists that will achieve
the same goal. No involuntary testing shall take place pursuant to subdivisions (6) and
(7) of this subsection until reasonable effort has been made to secure informed consent.
When testing without consent takes place pursuant to subdivisions (6) and (7) of this
subsection, the counseling referrals and notification of test results described in subsection (d) of this section shall, nonetheless be provided;
(8) Under a court order which is issued in compliance with the following provisions:
(A) No court of this state shall issue such order unless the court finds a clear and imminent
danger to the public health or the health of a person and that the person has demonstrated
a compelling need for the HIV-related test result which cannot be accommodated by
other means. In assessing compelling need, the court shall weigh the need for a test
result against the privacy interests of the test subject and the public interest which may
be disserved by involuntary testing, (B) pleadings pertaining to the request for an involuntary test shall substitute a pseudonym for the true name of the subject to be tested.
The disclosure to the parties of the subject's true name shall be communicated confidentially, in documents not filed with the court, (C) before granting any such order, the
court shall provide the individual on whom a test result is being sought with notice and
a reasonable opportunity to participate in the proceeding if he is not already a party, (D)
court proceedings as to involuntary testing shall be conducted in camera unless the
subject of the test agrees to a hearing in open court or unless the court determines that
a public hearing is necessary to the public interest and the proper administration of
justice;
(9) When the test is conducted by any life or health insurer or health care center for
purposes of assessing a person's fitness for insurance coverage offered by such insurer
or health care center; or
(10) When the test is subsequent to a prior confirmed test and the subsequent test is
part of a series of repeated testing for the purposes of medical monitoring and treatment,
provided (A) the patient has previously given informed consent and has been counseled
concerning medical treatments and behavioral changes necessary to reduce HIV transmission, as required by this section, (B) the patient, after consultation with the health
care provider, has declined reiteration of the specific informed consent, counseling and
education requirements of this section, and (C) a notation to that effect has been entered
into the patient's medical record.
(f) Except as provided in subsection (e) of this section, informed consent as described in this section shall be obtained for each HIV test, or in the case where a sequence
of tests is required to confirm an initial positive result, for each sequence of tests.
(P.A. 89-246, S. 2; P.A. 92-119, S. 2, 3; P.A. 93-291, S. 3; 93-381, S. 9, 39; P.A. 95-257, S. 12, 21, 58; P.A. 97-111.)
History: P.A. 92-119 amended Subsec. (a) to clarify that consent of a parent is not a prerequisite to testing of a minor,
and added Subsec. (d)(5) concerning involving a minor's parent or guardian in decisions and provision of medical treatment
and to require counseling for a minor at the time of communicating test results; P.A. 93-291 amended Subsec. (e)(5) to
include volunteer emergency medical services, fire and public safety personnel in occupational exposure provisions, to
allow for action by another physician or health care provider in the event a person has no personal physician or if the
personal physician is not available and in Subpara. (D) to make technical changes; P.A. 93-381 replaced department of
health services with department of public health and addiction services, effective July 1, 1993; P.A. 95-257 replaced
Commissioner and Department of Public Health and Addiction Services with Commissioner and Department of Public
Health, effective July 1, 1995; P.A. 97-111 aded Subsec. (e)(10) re exemption for repeat tests.
Cited. 232 C. 242.
Subsec. (b):
Subdiv. (4) cited. 236 C. 845.
Subsec. (e):
Subdiv. (6) cited. 238 C. 692. Subdiv. (7) cited. Id.