Informed consent is required for HIV testing, except for rare occasions when a legal order is made for compulsory testing or in emergency settings. In the case of a child or person who is incapable of giving consent (e.g. due to mental illness or cognitive disability) responsibility for consent rests with the guardian or other person/agency legally authorised to make such decisions on their behalf.
Given that the consequences of being HIV tested may be enormous, it is important to realise that, while ordering tests may be standard for the health care practitioner, receiving the results may be anything but routine for the patient. The provision of information should allow the health care practitioner to discuss the risks and benefits to the patient in his or her particular situation, thereby facilitating the decision-making process. Pre-test discussion should also assist in preparing patients for the consequences of a positive HIV test result.
The Medicare Benefits Schedule (MBS) stipulates that a practitioner requesting an HIV test must ensure that the patient has given informed consent, received adequate pre-test discussion, and understands that further discussion may be necessary after the test results are received. Some States and Territories have specific legal regulations relating to pre-test and post-test discussions for HIV testing (ACT, NSW, Northern Territory, Tasmania and Victoria - see Public Health Offences - State Based Information. For example, in Victoria, medical practitioners’ obligations regarding pre-test discussion are set out in section 131 (1) of the Public Health and Wellbeing Act 2008: A registered medical practitioner must not carry out or authorise the carrying out of a test for HIV or any other prescribed disease on a person who has requested the test unless the registered medical practitioner is satisfied that the person has been given the prescribed information in accordance with the regulations (i.e. the Public Health and Wellbeing Regulations 2009, regulation 77):'‘For the purposes of section 131(1) of the Act, before authorising a test for HIV, the registered medical practitioner requesting the test must be satisfied that the person has been given information about the medical and psychosocial consequences of the test and the meaning of possible results of the test'.
The approach of the health care worker involved in pre-test discussion will depend on whether:
- the individual is actively seeking the HIV test because of their perception of their risk
- HIV is part of a differential diagnosis and if so whether the individual is aware that the symptoms may be due to HIV
- an HIV test is being done for purposes of screening, e.g. for antenatal care, blood donation or another reason.
1Australian Government. Department of Health and Ageing: 2011 National HIV Testing Policy. Available at http://testingportal.ashm.org.au/hiv (last accessed November 2012).
 In law, the term ‘consent’ includes the requirement that a person had full knowledge of key issues before making a decision, so in practice, consent cannot be given unless it is ‘informed’. The term ‘informed consent’ is used in the National HIV Testing Policy to stress practitioners’ role in providing the information that may or may not facilitate a patient giving consent.