New York State AIDS Advisory Council Passes Resolution That Recommends Eliminating Written Consent Requirement for HIV Tests

The New York State AIDS Advisory Council earlier this month voted 6-3 to pass a resolution that recommends eliminating the state's mandatory written consent law for HIV tests, saying that requiring only verbal permission would increase testing rates, the New York Sun reports (Solomont, New York Sun, 10/22).

A New York state law passed in the 1980s requires a physician or anyone ordering an HIV test to have the individual receiving the test read and sign an informed consent form. The form -- which is separate from the general consent form usually used to authorize a wide range of medical tests -- explains the test and patients' rights. The law also requires that before the form is signed, the care provider ordering the test must provide an "explanation of the nature of AIDS- and HIV-related illness, information about discrimination problems that disclosure of the test result could cause and legal protections against such discrimination, and information about behavior known to pose risks for transmission and contraction of HIV infection." Under the law, if an individual tests positive, the person giving the test results is required to provide "counseling or referrals for counseling" on the emotional effects associated with an HIV diagnosis, possible discrimination, sexual behaviors and other areas.

New York City Health Commissioner Thomas Frieden in December 2005 proposed that New York state change its written consent law to align with CDC's revised recommendations on HIV testing in the U.S. CDC's revised recommendations advise that HIV tests become a routine part of medical care for residents ages 13 to 64 and that requirements for written consent and pretest counseling be dropped (Kaiser Daily HIV/AIDS Report, 1/2).

According to the Sun, a "battle" between lawmakers and health advocates over whether to change the law is "heating up." Some HIV/AIDS advocates and elected officials say that the written consent requirement protects patients' rights and is the only way to guarantee that HIV testing is informed and consensual. "Having a note in a file of an oral consent does not provide the assurance needed that the person has given voluntary informed consent," Cynthia Knox, deputy executive director of the HIV Law Project, said. Others opposed to the resolution have said that it does not address certain issues, such as reducing stigma associated with receiving an HIV test or providing routine HIV counseling and testing.

State Sen. Thomas Duane (D), who is HIV-positive and a member of the advisory council, said he does not support the resolution. Duane added that he supports "increasing the number of people being tested" but believes the "best way to do it is by mandatory offering." Duane added that the written consent requirement should document consent and counseling and encourage health care providers to discuss HIV prevention with patients.

Sandra Ruiz Butter, chair of the advisory council, said that the need to encourage increased HIV testing overrides privacy concerns, adding that some medical providers say that they are "discouraged from making [HIV tests] a part of the regular medical care" because of "extensive requirements for the written consent." Butter added that "taking away the requirement for written consent in no way relieves people of the requirements for confidentiality." According to Claire Popisil, spokesperson for the New York State Department of Health, the department has not taken a position on the resolution and emphasized that the resolution is only a recommendation (New York Sun, 10/22).