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Other aspects of consent

HIV/AIDS tests

The Department of Health’s National Policy on Testing for HIV (“the Policy”) sets out the conditions that must be met for informed consent to HIV tests to be considered valid. Both pre- and post-test counselling is advisable. The aforementioned policy provides that the Medicare Benefits Schedule (MBS) advises that the requesting practitioner should ensure that the patient has given informed consent, appropriate pre-test discussion should be provided to the patient and that further discussion may be necessary upon receipt of the test results. (See Box 6, below.)

While the issue of consent to disclosure of confidential information lies outside the scope of this booklet, it should be touched upon here because the health and wellbeing of the sexual partners of HIV-positive patients raises ethical concerns that are not easy to address if the patient refuses to disclose his or her HIV status. In this situation, the HPCSA offers the following guidance:

“If the patient refuses consent, the health care practitioner should use his or her discretion when deciding whether or not to divulge the information to the patient’s sexual partner, taking into account the possible risk of HIV infection to the sexual partner and the risks to the patient (eg, through violence) that may follow such disclosure. The decision must be made with great care, and consideration must be given to the rights of all the parties concerned. If the health care practitioner decides to make the disclosure against the patient’s wishes, the practitioner must do so after explaining the situation to the patient and accepting full responsibility at all times.”18

The Policy provides the following in relation to the confidentiality of information obtained during Hiv testing:

“Confidentiality and privacy issues are a major concern for people undergoing HIV testing. Therefore, confidentiality and privacy issues should be explained in detail, and it may be necessary to give examples to make sure the meaning of confidentiality and privacy is understood.”

If you are faced with this scenario, we recommend reading the whole of the HPCSA’s guidance in its booklet, Ethical Guidelines for Good Practice with Regard to HIV.

HIV tests without informed consent

Aside from anonymised testing of existing blood and tissue samples, the only circumstances in which HIV testing may be conducted without informed consent are:

  • Where existing blood or tissue samples are used for epidemiological research. The samples must be anyonymised and unlinked and the research must comply with national, legal and ethical guidelines.
  • In an emergency situation (eg, a healthcare worker has been accidentally exposed to a patient’s blood) where an existing blood sample is available and the patient has declined to consent to testing, or is unable to consent. The patient should, however, be informed – if possible – that the test is being carried out and that the health care worker concerned will be told the results, but that the results will otherwise remain confidential.
  • Where testing without consent is authorised by law. The relevant legislation here is the Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007. This makes provisions for victims of sexual offences or an officer investigating such a crime to apply for a magistrate’s order for the compulsory testing of the alleged offender.19

Box 6: HIV tests: pre- and post-test counselling

Pre-test counselling should include discussions on:

  • Information on how HIV is transmitted (where appropriate)
  • Risk assessment and discussion of the reason for testing
  • Timing of the risk event and options for PEP
  • Possible desirability of other STI testing
  • Information about confidentiality and privacy
  • Information about the testing process including how results are to be provided, the window period, and the difference between HIV and AIDS
  • Information about what happens to test results
  • Seeking informed consent for the test to be conducted
  • Assessment of the person’s preparedness to be tested and assurance that the person wishes to proceed with the test
  • Information about what a negative or positive results means
  • Assessment of support mechanisms while waiting for the test result and/or if the result is positive.

Post-test counselling involves one or more sessions (ideally at least two) and should include discussions on:

  • Feedback and understanding of results: if the result is negative:
    • Strategies for risk reduction
    • Possibility of infection in the “window period”
  • If the result is positive:
    • Immediate needs and support
    • Safe behaviours – education, information and support
    • Whom the person should tell and how, including information around the person’s rights regarding disclosure
    • Managing or understanding strong emotions, feelings, reactions and changes, including ways to deal with loss and grief, depression, anger and anxiety
    • Options in drug treatments and medical management
    • Ongoing counselling or therapy if required
    • Complementary/alternative management options
    • Strategies for managing Hiv that are flexible and appropriate to the person’s needs
    • Legislative requirements (notification, contract tracing, storage and coding).

Department of Health, National Policy for Health Act 116 of 1990: National Policy on Testing for HIV (2006).