Citing data about the importance of early detection of HIV and the burden of the required informed consent process before testing, a couple of resident physicians from Portland brought forth this bill with the intent to remove barriers to testing.

The informed consent requirement in existing law mandated that, before a physician performed an HIV test, he or she must first explain to the patient in general terms the procedure for testing, any alternatives, any risks, and also allow the opportunity to the patient to ask more detailed questions. The proponents of the bill argued that this process is too time intensive for many providers and, therefore, HIV testing is more often not performed. The bill replaced the informed consent requirement with a more limited requirement that the patient must be notified – either verbally or in writing – of the test and be provided an opportunity to decline testing. The bill explicitly allows for such notification to be embedded in a general medical consent form along with notice of other procedures.

The ACLU agrees that increasing access to HIV testing and care is a critically important goal. Far too many people do not know their HIV status and we support efforts to help people living with undiagnosed HIV learn their status and gain access to necessary care and support services. We opposed SB 1507 because we strongly believe that HIV testing should be truly voluntary and informed, and the combination of decreased notification requirements and allowance for notification in a general medical consent form posed too great a risk that patients might never know when they are being tested.

Meaningful informed consent is important because HIV testing has specific legal and social consequences. Test results may be reported to the government. And, despite state and federal laws prohibiting it and significant improvements in public awareness, discrimination against people living with HIV is a real and ongoing problem. In other states, women in correctional facilities who are HIV positive are placed in special segregation units. In July of 2010, even the White House Office of National AIDS Policy voiced concern that “the stigma associated with HIV remains extremely high and fear of discrimination causes some Americans to avoid learning their HIV status, disclosing their status, or accessing medical care.” We testified about our serious reservations about a policy that does not recognize the real challenges of social stigma and the risk of discrimination that persons with HIV still face today.

We offered a small amendment to the bill to clarify that, if a provider opted to give notice of testing in a general medical consent form, the provider must make that notice separate and conspicuous on the form. Rather than adopt the amendment to be sure that patients were truly receiving the required notice, the Senate Committee on Health Care, Human Services and Rural Health Policy chose to rush the bill through in order to stay on schedule in the fast-paced short session.

    Vote: 30-0 (Senate); 60-0 (House)