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Family Members

Dec 14, 2013

Myself and my family have just found out that my sister-in-law is HIV positive and has known about it since 2009, before she married my brother. My brother had an accident in 2011 and they were married after he received a large settlement. However, recently my brother has been admitted to a hospital because he continously has seizures as a result of the accident. When trying to contact the hospital to have my brother tested for HIV we have been told that she is the power of attorney. Also, they have two children that we are worried about. What can we do? We are worried about the safety of my brother and the children. My brother is mentally unable to care for himself at this time. Isn't it against the law to knowingly have unprotected sex with someone once you know that you have tested positive for HIV?

Response from Ms. Douaihy

Dear writer,

Thank you for writing to

First, you inquire whether you -- as a sibling -- have any right to order an HIV test for your hospitalized brother. You indicate that your brother lacks competence to properly make decisions or care for himself and you are concerned he may have contracted HIV from his wife. The short answer is that since your brother is legally married, his spouse likely takes precedence in making health care decisions. Generally, other family members like siblings lack direct authority to make medical decisions unless a legal spouse is decisionally incapacitated, unavailable, does not want to serve as a health care designee or designates someone else as proxy.

It is well understood that a competent person has a constitutionally protected liberty interest in accepting or refusing medical treatment. This principle of "bodily integrity" is manifest in the mandate that "informed consent" is generally required for medical treatment (e.g., an HIV test). Where a person lacks competence or capacity to make reasoned choices, medical decisions are often made on behalf of the incapacitated patient by the family, even in states where the family has no legal authority to do so. See, Cruzan v Director, Missouri Department of Health 110 SCt 284 (1990). Most states have laws that recognize family members right to act as a surrogate for an adult patient who lacks decision-making capacity. For example in New York, where I practice, a law called the "Family Health Care Decisions Act" allows family members or close friends to make healthcare decisions for patients who are unable to do so themselves, if there is not a health care proxy. The spouse takes priority. Thus, where an incapacitated person is legally married, hospitals generally defer to the spouse to carry out health care decisions in the patient's best interests.

The next question you ask is "Isn't it against the law to knowingly have unprotected sex with someone once you know that you have tested positive for HIV?" The answer is complicated and depends on a variety of factors, including your state. In a jurisdiction where "exposing" someone to HIV is "criminalized" by way of a specific legislative act or through targeted prosecutions under established common law, someone may be held criminally liable for failing to disclose his or her HIV-positive status to a sexual partner.

Notwithstanding the above, and importantly, this does not mean every failure to disclose HIV status by a sexual partner should or will result in a criminal prosecution. It depends on whether the person exposed to the virus makes a complaint and if so, the state uses its discretion to investigate that complaint.

Since each of your family members have rights, needs and concerns, I would strongly advise you to consider mediation services specializing in family disputes. Mediation is a type of alternate dispute resolution where an impartial facilitator sits down with parties to address and hopefully resolve conflict. You can contact your local Bar Association to ask about available mediation services. Below is a link to the American Bar Association's state-specific resource guide.

Thank you for submitting your questions.

American Bar Association

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