At present, except for tests for heritable genetic disorders, HIV is the only medical condition for which explicit consent is required before testing may be conducted. For all other conditions, a consensus exists that either implicit consent, or a general consent to medical care, allows testing -- even if a patient is physically or mentally incapacitated.
Patients who may be unable to consent to HIV testing include those with respiratory failure who are on a ventilator, those with central nervous system infections, and others who are rendered incompetent by virtue of their illness. In some of these situations, knowing the HIV status of the patient could lead to earlier application of potentially life-saving therapies and might reduce the costs and complications associated with unnecessary procedures. Moreover, emergency HIV testing can be completed in 10 to 30 minutes.
Because of present prohibitions on testing without explicit approval, many physicians are forced to manage some incapacitated patients without knowledge of HIV status. As an alternative, they may order tests for presumed surrogate markers of HIV-induced immuno-compromise, such as CD4 counts. However, previous research at Penn has shown that these tests are unreliable in critically ill patients.
"Sometimes, when doctors are frustrated by their inability to obtain information that is vital to treat their patients, they order other tests to assess a patient's immune function," said Halpern. "But, in critically ill patients, these tests provide less reliable information than do true HIV tests. Furthermore, testing for immune function without consent runs counter to the spirit of legal restrictions on HIV testing; and it is wrong to put doctors in the awkward position of having to circumvent restrictions in order to properly care for their patients."
The article in JAMA notes that there are at least four arguments in favor of rescinding the requirement for specific consent for HIV-testing among critically ill patients.
First, such testing may improve the quality and efficiency of the care of critically ill patients. Second, because most patients would likely choose to be tested if they were competent and aware of their clinical circumstances, allowing such testing shows respect for patients' autonomy even when they cannot voice it. Third, although HIV retains unique features, the need to consider it an exceptional illness requiring exceptional policies has diminished. Requiring consent for HIV-testing risks perpetuating stigmatization while simultaneously limiting the quality of care that at-risk persons may receive.
Finally, social epidemiology does not justify the maintenance of exceptional HIV policies because other illnesses, like heart disease and chronic obstructive pulmonary disease, share the propensity of HIV to affect underserved populations.
The article considers a number of alternatives to non-consented HIV testing among incompetent patients -- including surrogate consent from a health-care proxy, court-appointed guardian, or relative or friend. However, says Halpern, assuming that most incompetent patients would wish to be tested for HIV if they were competent, surrogate consent would be unnecessary. In any case, requiring surrogate consent is not necessarily beneficial. For example, it might be difficult, and potentially antagonizing, to raise the specter of HIV among friends or relatives who might suppose the patient was not at risk for infection.
In addition, difficult conflicts may arise when the appropriate surrogate is a sexual partner of the patient. "Can a husband properly consent to his wife's HIV testing when he clearly has a personal stake in the test result?" asks Halpern.
Another alternative is to obtain a court order to proceed. However, because the benefits of HIV testing for critically ill patients are often related to how quickly the test result is obtained, any requirement for legal intervention could substantially limit its utility.
The article concludes that, "State laws and laboratory policies should be modified or reinterpreted so that non-consented HIV testing is allowed whenever: 1) the physician determines that tests for HIV infection and immune dysfunction are likely to alter the patient's diagnostic or therapeutic management in a clinically meaningful way; 2) the patient is unable, according to widely accepted criteria, to consent to or refuse HIV testing; and 3) effective therapies are available to treat patients found to be immunocompromised.
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