Area of Law: Health Law
Answer # 702
HIV and AIDS testing and confidentialityRegion: Ontario Answer # 702
There is no law prohibiting HIV or AIDS testing without consent. Some hospitals and even insurance companies “routinely” test for HIV and AIDS without advance notice. If you consent to a “normal” or “routine” blood test, you must ask what is specifically tested. That said, many health-related institutions believe in informed testing and do not support the idea that HIV/AIDS tests are implied or presumed.
Types of AIDS/HIV testing
There are four ways to get tested for HIV infection in Ontario:
1. Nominal testing (also know as name-based) is the most common. Nominal means that the health care practitioner ordering the test knows the identity of the person being tested, and the test is ordered using the name of the person being tested. If a person tests positive for HIV, the testing laboratory will report the HIV infection, the person’s name, date of birth, gender, and contact information to Public Health. The test result is also recorded in the person’s health care record.
2. Non-nominal testing (also known as non-identifying, confidential or coded) is similar to nominal testing, in that the health care practitioner ordering the test knows the identity of the person being tested. However, the HIV test is ordered using only a code or the initials of the person being tested.
3. Anonymous testing means the test is ordered, and the results are provided, using a code only known to the person being tested. The health care practitioner ordering the test and the lab carrying out the testing do not know the identity of the person being tested, and only the test result and non-identifying information will be reported to Public Health, not the person’s name.
If an anonymous HIV test is positive, the person tested will be referred to a doctor for treatment. Also, the lab will then be required to report the person’s name and personal information to Public Health. However, test results are not recorded in the health care record of the person being tested.
4. Point of Care testing (also known as rapid) means the person’s blood is tested while they wait. If the test results are negative, the person will be informed immediately. If the test is reactive, the blood sample will be sent for nominal testing.
Records of HIV or AIDS tests and results are generally treated with the same degree of confidentiality as other personal health information.
If someone chooses to disclose their test results, information about their HIV-positive status will be included in records created by health professionals and facilities such as doctors, and dentists.
Health care professionals owe a duty of confidentiality to their patients under the law, subject to the patient’s consent or requirements of the law. However, the issue of confidentiality becomes most difficult when the protection of third parties is involved.
Partner notification, also known as HIV contact tracing is the practice of identifying, locating and informing someone that a partner they have had sex with or used drugs with has been diagnosed with HIV. The HIV positive person and /or the Public Health official may notify the current or former partners of their potential exposure to HIV.
Positive HIV test results are notifiable in all provinces and territories in Canada, meaning it is a legal requirement that Public Health officials be notified and an attempt be made to trace and notify any sexual or drug-sharing partners that may have been put at risk for HIV infection.
According to the Public Health Agency of Canada, a notifiable disease is defined as one that “is considered to be of such importance to public health that its occurrence is required to be reported to Public Health authorities.”
In addition, the Canadian Medical Association advises physicians that disclosure of test results to a spouse or sexual partner may not be unethical and may be required when physicians are confronted with a patient who is unwilling to inform a person at risk. Further, many people are protecting themselves by requiring a prospective sexual partner to provide them with a doctor’s report confirming whether they have any sexually transmitted diseases (or infections), including HIV or AIDS.
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