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Opinion: Failure to test for HIV infection: A medicolegal question?

Post date: 30/08/2017 | Time to read article: 5 mins

The information within this article was correct at the time of publishing. Last updated 18/05/2020

Dr Michael Rayment and Dr Ann Sullivan, Department of Sexual Health and HIV Medicine, Chelsea and Westminster NHS Foundation Trust (on behalf of the British Association for Sexual Health and HIV, and the British HIV Association).

We read with great interest the comprehensive and timely article on the topic of widening HIV testing by Gillespie and McCullough (Casebook 20(2)).1

Despite biomedical advances in treatment, HIV remains a highly significant clinical and public health issue in the UK. Efforts to maximise clinical and public health outcomes for HIV are undermined by undiagnosed HIV and late presentation: 24% of people living with HIV are unaware of their infection, and more than half of newly diagnosed people have a CD4 count below 350cells/mm3 at first presentation.2 The benefits of diagnosing HIV earlier are manifold – for the individual and for the wider public health.

As outlined in the article, great strides are being made in changing the HIV testing paradigm, supported by the publication of guidelines from specialist societies (such as the British HIV Association, the British Association of Sexual Health and HIV, and the National Institute for Health and Clinical Excellence).3, 4, 5 The guidelines follow three central themes:

  1. To facilitate HIV testing in all healthcare settings for individuals belonging to recognised demographic risk groups (such as men who have sex with men) and their partners
  2. To promote the concept of routine testing for HIV in patients presenting for the care of “HIV indicator diseases” – a heterogeneous group of conditions thought to have an association with HIV infection through shared transmission route, or arising from the HIV-associated immune deficiency, and
  3. To develop routine HIV testing programmes for whole populations in areas of high HIV prevalence (defined as a known HIV prevalence of >2/1000).
We believe that, in some specific instances, there are clear grounds where failure to offer an HIV test could be construed as negligence

The utility of these approaches is now supported by a growing body of evidence, demonstrating routine HIV testing to be acceptable to the vast majority, feasible to deliver, and efficacious at diagnosing patients and transferring them to clinical care.6, 7, 8, 9 As evidence amasses to support them, guidelines will evolve into benchmarks for expected practice. Thus, we would urge readers in all specialties to familiarise themselves with the guidance, and reflect upon how they might improve their own HIV testing practice. Late diagnosis of HIV is a preventable phenomenon – with negative implications for the individual, and for their partners. There is clear evidence that HIV-infected individuals access healthcare settings in the years preceding their diagnosis, often with HIV-associated morbidity.10, 11 We believe that, in some specific instances, there are clear grounds where failure to offer an HIV test could be construed as negligence.

For the tort of negligence to apply, there must be: (1) a duty of care, (2) a breach in that duty of care, and (3) causation. Negligence turns on a breach of the duty of care, if harm (causation) thus results. The definition of duty of care, and thereafter a breach, may be difficult to prove. We are familiar with the “Bolam” principle – the respectable body of opinion that might define whether failure to test for HIV constituted a breach of duty – but how this applies to an area of flux and changing evidence, such as the HIV testing paradigm, remains a challenge.

HIV testing is rightly high on the public health agenda. [...] With prominence comes scrutiny

In a multitude of look-back exercises undertaken by HIV services, examining opportunities for earlier diagnoses in individuals diagnosed with advanced HIV infection, there is often evidence that HIV testing ought to have been offered earlier on clinical grounds.10, 12, 13, 14 In selected individual cases, a failure to offer an HIV test based on best available evidence, published guidelines, and first principles, could reasonably constitute a breach of duty. The natural history of HIV infection being well understood, and effective treatments being available, it is also very easy to conceive how delays in HIV diagnosis may result in harm to the individual. Thus, a case for negligence could fathomably be made.

No such case has, as far as we are aware, been proven in the UK, but legal proceedings have at least been initiated in a handful of cases. Successful cases have been brought against medical practitioners in the US and Australia. In the UK, missed opportunities to test for HIV infection are being treated as clinical incidents, serious untoward incidents, and initiators of the incident review process in several Trusts. The Health Protection Agency’s Office for Sexual Health is currently working towards reporting all cases of late diagnosis of HIV infection in its South West division as serious untoward incidents, with a view to a national roll-out. 

HIV testing is rightly high on the public health agenda. The accessibility of HIV testing, and late diagnoses of HIV infection, are prominent indicators in the DH Public Health Outcomes Framework 2013-2016. With prominence comes scrutiny.

Again, please review current guidance for HIV testing and see how it relates to your own practice. The HIV specialist societies in the UK are keen to facilitate the development of safe and efficacious testing strategies in all arms of healthcare, and have produced guidance documents to help you. Testing for HIV is safe, effective and acceptable. We hope that there need be no medico-legal precedent in the UK, but a late diagnosis of HIV is avoidable in many cases, and may have implications not just for the patient, but for you.

  1. Gillespie G, McCullough S. MPS Opinion: Spreading the use of HIV testing. MPS Casebook 20(2):6 (2012)
  2. Health Protection Agency, HIV in the United Kingdom: 2010 Report, London: HPA (2011)
  3. British Association for Sexual Health and HIV (BASHH), the British HIV Association (BHIVA) and the British Infection Society (BIS) Guidelines for HIV Testing. British HIV Association; 2008 [Accessed 24th October 2012]
  4. National Institute for Health and Clinical Excellence. Increasing the uptake of HIV testing among men who have sex with men (Guidance: PH34). London: National Institute for Health and Clinical Excellence; 2011
  5. National Institute for Health and Clinical Excellence. Increasing the uptake of HIV testing among Black Africans in England (Guidance: PH33). London: National Institute for Health and Clinical Excellence; 2011
  6. Rayment M, Thornton A, Mandalia S, Elam G, Atkins M, et al. HIV testing in non-traditional settings – the HINTS Study: a Multi-Centre Observational Study of Feasibility and Acceptability. PLoS ONE 2012 7(6): e39530. Doi:10.1371/ journal.pone.0039530
  7. Health Protection Agency. Time to test for HIV: Expanded healthcare and community HIV testing in England. Health Protection Agency; 2010 [24th October 2012]
  8. Ellis S, Graham L, Price DA, Ong, ELC. Offering HIV testing in an acute medical admissions unit in Newcastle upon Tyne. Clinical Medicine 2011. 11(6):541-543
  9. Sullivan AK et al. HIV indicator diseases across Europe study (HIDES I): results from the pilot phase. Thirteenth European AIDS Conference, Belgrade. Abstract S8/5. 2011.
  10. Ellis S, Curtis H, Ong EL; British HIV Association (BHIVA); BHIVA Clinical Audit and Standards sub-committee. HIV diagnoses and missed opportunities. Results of the British HIV Association (BHIVA) National Audit 2010.Clin Med. 2012 Oct;12(5):430-4
  11. Burns FM, Johnson AM, Nazroo J, et al. Missed opportunities for earlier HIV diagnosis within primary and secondary healthcare settings in the UK. AIDS 2008; 22:107–13
  12. Premchand N, Radford A, Falkous P et al. A five year (2007–2011) audit of patients newly diagnosed with HIV in Newcastle – why our work is not yet done. British HIV Association Conference 2012. HIV Medicine, 2012 13(Suppl. 1), 13–85
  13. Brawley D, Bell D, Fargie F et al. Missed opportunities for HIV diagnosis - 3 year audit in a large urban cohort British HIV Association Conference 2012. HIV Medicine, 2012 13(Suppl. 1), 13–85
  14. Lightburn J, Ramasami S, Hijazi L and Lascar M. Late HIV diagnosis or missed HIV diagnosis - an analysis of previous hospital attendance of newly diagnosed HIV patients. British HIV Association Conference 2012. HIV Medicine, 2012 13(Suppl. 1), 13–85
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