Guide to Australian HIV Laws and Policies for Healthcare Professionals
Informed consent for hiv testing
Gaining informed consent before testing for HIV is required by the National HIV Testing Policy.
Informed consent for testing means that the person being tested understands HIV testing procedures, the reasons for testing and is able to assess the personal implications of testing before deciding whether to be tested.
Informed consent is required for HIV testing, except for rare occasions when a legal order is made for compulsory testing, as for example, under some state-based mandatory testing laws 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 tested for HIV 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 a potential 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, and that they have provided the patient with appropriate discussion meaning of possible results of the test’.
The person performing the test should use their professional judgment in seeking informed consent. This should be based on their understanding of the context in which the test is being performed:
- the features which precipitate testing such as clinical presentation, risk exposure, epidemiology and prevalence and patient initiation;
- an assessment of the person being tested with respect to their understanding of the HIV testing process and consequences of the result, and
- patients should also be advised how the test result will be conveyed.
When a person requests or is offered an HIV test, the practitioner should assess a person’s preparedness to be tested and give appropriate information about risk, points of referral if necessary, assurances about confidentiality and privacy (see Privacy and Confidentiality). The information should be given in a way that is appropriate to the person’s gender, culture, behaviour and language.
- Australian Government. Department of Health and Ageing: 2017 National HIV Testing Policy. Available at http://testingportal.ashm.org.au/hiv (last accessed October 2018).
- 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