Can a hospital test for HIV without consent?

[Guest guest]

Copied as fair use from healthcare management.

Vijay

---------------------------------------------

Can a hospital test for HIV without consent?

QUESTION—Can a hospital include HIV test along with hepatitis B and C as routine

pre-operative serology without the consent of the patient?

ANSWER—

1—No test, HIV or non-HIV can be conducted on a patient without his consent. Law

recognises oral or verbal consent as valid consent. Situations happen when cases

are brought in the court against doctors on the ground that a particular

procedure or test was done without consent. In such a situation, even though the

allegation may be false, it becomes very difficult for a doctor to prove that

oral consent was taken. Hence it is advisable that specific informed and

documented consent should be taken in case of special tests like biopsy, FNAC,

MRI, pregnancy test and HIV test.

2—The commonest type of documentation is in writing. However, consent can also

be in the form of audio-visual record. An example would be the pre-test and

post-test counselling for HIV. However, it should be ensured that such

audio-visual recording is made with the knowledge and consent of the person

concerned and not at his or her back.

3--As per NABL and NABH guidelines, consent is mandatory. It is a must to take

the patient's consent for HIV testing. A doctor has no right to conduct a test

forcibly. He also does not have a right to collect blood for some other test,

say hemogram / hepatitis B and C and send a part of it for HIV testing. He even

does not have the right to collect blood from the patient, telling him that the

blood will be sent for hemogram and also some other test, and then get the

hemogram and HIV testing done. The reason is that when the patient agrees to

give blood for " hemogram and also some other test " , this cannot be construed as

meaning that the " some other test " means HIV test. This would not be treated in

law as informed consent. If the consent is not informed consent, it is not

legally valid. Please note that if HIV testing is done without the clear consent

of the patient, he can legally sue and most likely win.

4--Please note that the patient has a right to refuse consent for HIV testing.

He also has a right to refuse to undergo forcible testing without consent. He

also has a right to sue the doctor / hospital for violation of his right.

5--Please also note that if the patient refuses consent for HIV testing, there

are several possible courses of action:

i—If the proposed treatment / procedure / surgery is not a life- saving one, the

doctors would be within their right not to go ahead with the proposed treatment

/ procedure / surgery and to inform the patient accordingly, along with the

reasons and consequences of withholding the same.

ii- If the treatment / procedure / surgery is a life- saving one, or if it is

an emergency and there is no time to wait for the HIV test report, the doctors

should not withhold it but carry out the same using all proper precautions and

equipment needed for safe barrier surgery. The patient should be billed later

for the cost towards such equipment etc. as per hospital rules.

iii—In the above situation, if safety equipments (gowns, gloves etc.) are not

available, the doctors may refuse to treat the patient or may, depending upon

the circumstances, may agree to treat the patient and, immediately afterwards,

if there is confirmed or unconfirmed suspicion / possibility of the patient

being an HIV positive person, take necessary prophylactic treatment /

immunisation etc. to prevent the future development of HIV infection within

their body.

6--Please note that doctors cannot be expected in law to endanger their own life

in order to save that of others. However, this being a sensitive area, the

doctors MUST maintain proper written records of all necessary decisions, along

with the reasons thereof, duly authenticated, as far as possible, by a committee

of two or more doctors. The medical superintendent of the hospital must be kept,

in writing, in the picture.

M C Gupta

MD(Medicine), LL.M.

Advocate & Medico-legal Consultant

Fellow,National Foundation of Clinical Forensic Medicine

Ex-Professor and Dean

mcgupta44@...

www.writing.com/authors/mcgupta44

[Guest guest]

Gupta Sir,Thank u very much sir for the information.

On Thu, 20 Jan 2011 16:13:00 +0530 "Vijay" wrote

> Copied as fair use from healthcare management.

>Vijay

>---------------------------------------------

>Can a hospital test for HIV without consent?

>

>QUESTION—Can a hospital include HIV test along with hepatitis B and C as routine pre-operative serology without the consent of the patient?

>

>ANSWER—

>

>1—No test, HIV or non-HIV can be conducted on a patient without his consent. Law recognises oral or verbal consent as valid consent. Situations happen when cases are brought in the court against doctors on the ground that a particular procedure or test was done without consent. In such a situation, even though the allegation may be false, it becomes very difficult for a doctor to prove that oral consent was taken. Hence it is advisable that specific informed and documented consent should be taken in case of special tests like biopsy, FNAC, MRI, pregnancy test and HIV test.

>

>2—The commonest type of documentation is in writing. However, consent can also be in the form of audio-visual record. An example would be the pre-test and post-test counselling for HIV. However, it should be ensured that such audio-visual recording is made with the knowledge and consent of the person concerned and not at his or her back.

>

>3--As per NABL and NABH guidelines, consent is mandatory. It is a must to take the patient's consent for HIV testing. A doctor has no right to conduct a test forcibly. He also does not have a right to collect blood for some other test, say hemogram / hepatitis B and C and send a part of it for HIV testing. He even does not have the right to collect blood from the patient, telling him that the blood will be sent for hemogram and also some other test, and then get the hemogram and HIV testing done. The reason is that when the patient agrees to give blood for "hemogram and also some other test", this cannot be construed as meaning that the "some other test" means HIV test. This would not be treated in law as informed consent. If the consent is not informed consent, it is not legally valid. Please note that if HIV testing is done without the clear consent of the patient, he can legally sue and most likely win.

>

>4--Please note that the patient has a right to refuse consent for HIV testing. He also has a right to refuse to undergo forcible testing without consent. He also has a right to sue the doctor / hospital for violation of his right.

>

>5--Please also note that if the patient refuses consent for HIV testing, there are several possible courses of action:

>

>i—If the proposed treatment / procedure / surgery is not a life- saving one, the doctors would be within their right not to go ahead with the proposed treatment / procedure / surgery and to inform the patient accordingly, along with the reasons and consequences of withholding the same.

>

>ii- If the treatment / procedure / surgery is a life- saving one, or if it is an emergency and there is no time to wait for the HIV test report, the doctors should not withhold it but carry out the same using all proper precautions and equipment needed for safe barrier surgery. The patient should be billed later for the cost towards such equipment etc. as per hospital rules.

>

>iii—In the above situation, if safety equipments (gowns, gloves etc.) are not available, the doctors may refuse to treat the patient or may, depending upon the circumstances, may agree to treat the patient and, immediately afterwards, if there is confirmed or unconfirmed suspicion / possibility of the patient being an HIV positive person, take necessary prophylactic treatment / immunisation etc. to prevent the future development of HIV infection within their body.

>

>6--Please note that doctors cannot be expected in law to endanger their own life in order to save that of others. However, this being a sensitive area, the doctors MUST maintain proper written records of all necessary decisions, along with the reasons thereof, duly authenticated, as far as possible, by a committee of two or more doctors. The medical superintendent of the hospital must be kept, in writing, in the picture.

>

>M C Gupta

>MD(Medicine), LL.M.

>Advocate & Medico-legal Consultant

>Fellow,National Foundation of Clinical Forensic Medicine

>Ex-Professor and Dean

>mcgupta44@...

>www.writing.com/authors/mcgupta44

>

>