Commentary & Opinion
N.Y. Law Prohibiting HIV Testing Without Informed Consent, Prior Counseling "Must Be Changed," Opinion Piece Says
January 4, 2005
A New York state law requiring health care workers to counsel patients and obtain their informed consent before conducting an HIV test "must be changed -- for the sake of both patients and health care workers," Ellen Morrison, director of HIV counseling and testing services at NewYork-Presbyterian Hospital, and Kenneth Prager, chair of the hospital's medical ethics committee, write in a New York Times opinion piece. When the law was written in 1989, it "made sense" because "[b]ack then, AIDS was a much feared and stigmatized disease with few treatment options," the authors write, adding that "[p]rotection of patient confidentiality was a critical component of dealing with the growing epidemic." However, now that HIV is a "treatable, chronic disease," the law "often hinders our ability to diagnose or treat those who cannot make the decision to be tested," including the "critically ill, neurologically impaired or mentally ill," Morrison and Prager write. HIV/AIDS also increasingly is "being seen in older patients," some of whom may lack the "ability to make decisions because of strokes or dementia," according to the authors. Therefore, the law should be changed to permit exceptions to the informed consent requirement when physicians believe a patient "without the ability to make medical decisions" could be HIV-positive, the authors write. They add that the law also should be amended to "require testing of all patients, regardless of ability to give consent, when a medical worker has had significant exposure to a patient's blood." Public health "has always had to find a balance between individual rights and the common good. More often than not, health officials act wisely," the authors write, concluding, "If we are to make the latest treatments available to all and protect the public, we must rewrite New York state's law on consent for HIV testing. Such a change is ethical, practical -- and long overdue" (Morrison/Prager, New York Times, 1/2).
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This article was provided by Henry J. Kaiser Family Foundation. It is a part of the publication Kaiser Daily HIV/AIDS Report. Visit the Kaiser Family Foundation's website to find out more about their activities, publications and services.