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AIDS AND THE DUTY TO WARN
By: Shanae Berry-Weldon and Lisa Whistler
OREGON LAW
Pertaining To Those With HIV and AIDS
INFORMED CONSENT TESTING




 For an individual to be tested for
HIV or AIDS, you must provide and
obtain informed consent from your
client (ORS 433.045, ORS 677.097,
        OAR 836-050-0250).
TESTING WITHOUT CONSENT




  There are many situations where
your client may be tested without his
 or her consent. Your client may be
              tested if…
 The patient or health care worker
   was exposed to bodily fluids. In
   that case a court may order that
   the suspected “source” be tested
   (ORS 433.065, ORS 433.080,
   OAR 333-012-0264, OAR 333-
   012-0269).
TESTING WITHOUT CONSENT




 Police Officers, Parole Officers,
  EMT’s, and Firefighters who were
  exposed to bodily fluids may
  request a court order to test the
  suspected “source” for HIV,
  AIDS, and Hepatitis (ORS
  433.085, OAR 333-018-0035).
TESTING WITHOUT CONSENT




 The DA may request a court
  order if a crime in which bodily
  fluids were exchanged was
  committed.
 If a test has not been performed
  upon conviction, the victim may
  request one.
            ORS 135.139
TESTING WITHOUT CONSENT




 Prisoner’s in Department of
  Corrections’ custody do not need
  consent to test if he or she was
  convicted of a sex or drug related
  crime where they were possibly
  exposed to HIV (OAR 333-012-
  0265).
TESTING WITHOUT CONSENT




 HIV testing may be performed
  on anatomical gifts such as
  donated organs without consent
  (ORS 97.964).
SPECIAL CONSENT ISSUES




             Minors:
 A minor under 15 may consent to
  an HIV test even if they are in
  state custody or the Oregon
  Young Authority (OAR 333-12-
  0265, OAR 413-040-0430, OAR
  416-600-0030).
SPECIAL CONSENT ISSUES




               Infants:
 Upon Doctor’s request, an infant
  in state custody may be tested if
  the mother engaged in high risk
  behavior (OAR 413-040-0420).
SPECIAL CONSENT ISSUES




              Victims:
 Underage victims of sexual abuse
  in state custody may have HIV
  testing arranged for them (OAR
  413-040-0420).
SPECIAL CONSENT ISSUES




   Developmentally Disabled:
 Health care representatives with
  authority to consent may consent
  to an HIV test on behalf of the
  disabled person (OAR 309-041-
  1580).
CONFIDENTIALITY


 Oregon law prohibits the
  disclosure of HIV test results
  without consent of the person
  tested.
 HIV test results cannot be
  released in any way that identifies
  the person tested.
 Any individual who learns of the
  HIV test results is prohibited
  from disclosing that information
  without consent.
           ORS 433.045
DUTY TO COMPLY


      You must comply with
 confidentiality laws if you are a…
 Health Care Provider or Facility
 Laboratory
 Blood or Sperm Bank
 Insurance Company Employee
 Government Agency
 Researcher
 Employer
 Individuals are not subject to the
      duty of confidentiality.
           ORS 433.045
DISCLOSURE WITH CONSENT


 HIV test information can be released
with the consent of the tested subject.
    Specific consent forms for HIV
  information is needed including…
 Signed consent
 Specific purpose for releasing
   results
 Who is receiving the information
 Time period for when the release
   may occur
 Signature and date of person giving
   authorization
           OAR 333-012-0270
              ORS 433.045
DISCLOSURE WITHOUT CONSENT


   Test results may be disclosed to
licensed health care providers when
knowledge of the results are needed
           in emergencies.

  HIV status may be shared with a
  person who has had substantial
exposure to the subject in question,
the subject must then be notified in
              writing.

        OAR 333-012-0270
DISCLOSURE WITHOUT CONSENT


  The results of a positive HIV test
  must be reported to public health
 authorities or on a death certificate
(OAR 333-012-0270, OAR 333-018-
     0000, OAR 333-019-0031).

The results of a positive HIV test of
a deceased individual may be released
to licensed health care providers and
  health care facilities minimally to
 prevent transplantation of infected
     organs (OAR 333-012-0270).
ETHICAL AND PROFESSIONAL
         DUTIES
Pertaining To Infected Clients Engaging in Risky or
                Reckless Behaviors
HIV DISCLOSURE GUIDELINES


 There are many reasons why a client
 might not want to disclose their HIV
     status and conflict can arise.
 The client may be embarrassed or
   ashamed to tell his or her spouse or
   partner about his or her infection.
 The client may be an adolescent
   who does not want his or her
   parents to know.
 The client may be an I.V. drug user
   who shares needles with others.
 The client may be a sex-industry
   worker.
HIV DISCLOSURE GUIDELINES


 The duty to warn does not require
  that providers search out possible
  threats posed by a client.
 Try to have the client disclose his
  or her HIV status to the contact if
  the client is engaging in reckless
  behaviors like unprotected sex or
  IV drug use. If the client refuses,
  you will have to notify the contact.
 If you learn that a client is
  engaging in activities which could
  infect others, but you do not know
  of any specific contacts, explain to
  the client the harm he is doing and
  the steps he can take to prevent
  this.
RISKY BEHAVIORS




 Help your client understand risky
 behaviors and consequences such
               as…
 Unprotected Vaginal Intercourse
 Unprotected Anal Intercourse
 Unprotected Oral Sex
 Needle Sharing
RISKY BEHAVIORS


Assess variables that may impair your
 client’s judgment to be safe such as
         drug and alcohol use.
Educate your client about the benefits
 of early treatment interventions and
possible re-infection with a different
             strain of HIV.
Inform your client of needle exchange
             programs.
   Assess clients level of distress.
Don’t assume clients sexual practices.
  Check your clients understanding.
TARASOFF DUTY


   In 1968, Tatiana Tarasoff was a
      student at the University of
California at Berkley. She was dating
   a fellow student by the name of
Prosenjit Poddar, who was obsessed
with her. When Tarasoff broke off
 their relationship, Poddar bought a
gun to orchestrate a life-threatening
   situation to prove his love. His
  psychiatrist, Dr. Lawrence Moore,
believes he had a psychotic disorder.
He informed the campus police, but
 they determined Poddar stable and
             released him.
TARASOFF DUTY


  Poddar continued to stalk Tarasoff
 until he reached his breaking point.
   He broke into Tarasoff ’s house
  armed with a knife and pellet gun.
 He proceeded to shoot her with the
 pellet gun as she ran from him. He
then stabbed her 14 times, killing her.
  No one had informed Tarasoff of
         Poddar’s intentions.
   The duty to warn with anything
  requires that you go to the person
 being threatened and the authorities.
LEGAL SYSTEMS
Partner Notification
LEGAL SYSTEM




 Courts continue to struggle with
  the Right to Privacy vs. Duty to
  Warn in regards to HIV.
 Many states consider it criminal
  for a person who is HIV positive
  and knowingly engages in sexual
  intercourse without first
  informing their partner and/or
  using a condom.
LEGAL SYSTEM




 HIV positive individuals prosecuted
   under this statute can assert the
  following legal rights as defense:
 Right to privacy.
 Right to equal protection under
   the law.
 Right not to have speech
   compelled.
 Right to be free of
   discrimination.
LEGAL SYSTEMS




 U.S. Courts haven’t been consistent
   in cases regarding public safety
        versus confidentiality.
 Florida – Protected the name of
   an infected client.
 Texas – Revealed the name of the
   infected client in a wrongful
   death suit.
LEGAL SYSTEMS




 Illinois – Laws passed to
  quarantine infected persons and
  laws exempt test results from the
  Freedom of Information Act.
 California – Law passed that
  prevents doctors from civil or
  criminal charges due to revealing
  positive results to a patients
  spouse.
DUTY TO WARN
Medical Organization Recommendations
CENTER FOR DISEASE CONTROL




  Physicians or health department
 personnel should use confidential
methods to inform sex partners of
HIV infected persons not willing to
              inform.
AMERICAN MEDICAL
                              ASSOCIATION


 Determine state laws regarding
  reporting of HIV infected person
  who is endangering a third party.
 Counsel infected person and try to
  persuade them to inform the third
  party.
 If infected individual refuses to
  inform, notify the authorities.
 If authorities refuse action, notify
  the endangered third party.
 Prior to taking these steps make
  sure there are not any laws in place
  that prohibit you from taking such
  action.
AMERICAN PSYCHIATRIC
                           ASSOCIATION


 When physician suspects client to
  be infected with HIV; notify the
  patient of the specific limits of
  confidentiality.
 Do this before asking any
  questions pertaining to HIV
  status.
 When infected person refuses to
  inform partner(s) it is ethically
  allowed for physician to inform
  person in danger of contracting
  the virus.
VOCABULARY
ORS’s and OAR’s Used in This Presentation
VOCABULARY


                             Oregon Revised Statutes
   ORS 97.964 – HIV testing on anatomical gifts
   ORS 135.139 – Notice of availability of testing for HIV and other
    communicable diseases to person charged with crime; when court may
    order test; victim’s rights
   ORS 433.045 – Consent to HIV test required; exceptions
   ORS 433.065 – Procedures for HIV testing; rules
   ORS 433.080 – When test may be required; procedure to require test; rules
   ORS 433.085 – HIV and hepatitis testing at request of licensed health care
    provider or certain public officials; procedure
      A list of complete ORS’s can be found at www.leg.state.or.us/ors/
VOCABULARY

                                   Oregon Administrative Rules
    OAR 333-012-0264 – Procedures for Determining HIV and Hepatitis B Status of Source Person
     Following Occupational Exposure to Body Fluids
    OAR 333-012-0265 – Informed Consent for HIV and AIDS Carriers
    OAR 333-012-0269 – Procedures for Mandatory HIV Testing Following Occupational Exposure to
     Body Fluids for HIV and AIDS Carriers
    OAR 333-012-0270 – Confidentiality of HIV and AIDS Carriers
    OAR 333-018-0000 – Who Is Responsible for Reporting Diseases
    OAR 333-018-0035 – Procedures Involving Emergency Response Employees Disease Reporting
    OAR 333-019-0031 – Acquired Immunodeficiency Syndrome/Human Immunodeficiency Virus
     Provisions
    OAR 413-040-0420 – HIV Antibody Testing of Children in State Custody and Confidentiality
    OAR 413-040-0430 – Informed Consent of Children in State Custody and Confidentiality
    OAR 416-600-0030 – Informed Consent for HIV Testing of Youth
    OAR 836-050-0250 – Testing for HIV Infection Application Questions Relating to HIV Infections
    A list of complete OAR’s can be found at http://arcweb.sos.state.or.us/rules/number_index.html
AIDS AWARENESS


 March 10th – National Women and Girls HIV/AIDS Awareness Day
      March 20th – National Native HIV/AIDS Awareness Day
           May 18th – National HIV Vaccine Awareness Day
May 19th – National Asian & Pacific Islander HIV/AIDS Awareness Day
      June 8th – Caribbean American HIV/AIDS Awareness Day
                 June 27th – National HIV Testing Day
   September 18th – National HIV/AIDS and Aging Awareness Day
  September 27th – National Gay Men’s HIV/AIDS Awareness Day
         October 15th – National Latino AIDS Awareness Day
                   December 1st – World AIDS Day
       February 7th – National Black HIV/AIDS Awareness Day
This concludes our presentation on AIDS and The Duty to Warn.

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Aids and the_duty_to_warn-1

  • 1. AIDS AND THE DUTY TO WARN By: Shanae Berry-Weldon and Lisa Whistler
  • 2. OREGON LAW Pertaining To Those With HIV and AIDS
  • 3. INFORMED CONSENT TESTING For an individual to be tested for HIV or AIDS, you must provide and obtain informed consent from your client (ORS 433.045, ORS 677.097, OAR 836-050-0250).
  • 4. TESTING WITHOUT CONSENT There are many situations where your client may be tested without his or her consent. Your client may be tested if…  The patient or health care worker was exposed to bodily fluids. In that case a court may order that the suspected “source” be tested (ORS 433.065, ORS 433.080, OAR 333-012-0264, OAR 333- 012-0269).
  • 5. TESTING WITHOUT CONSENT  Police Officers, Parole Officers, EMT’s, and Firefighters who were exposed to bodily fluids may request a court order to test the suspected “source” for HIV, AIDS, and Hepatitis (ORS 433.085, OAR 333-018-0035).
  • 6. TESTING WITHOUT CONSENT  The DA may request a court order if a crime in which bodily fluids were exchanged was committed.  If a test has not been performed upon conviction, the victim may request one. ORS 135.139
  • 7. TESTING WITHOUT CONSENT  Prisoner’s in Department of Corrections’ custody do not need consent to test if he or she was convicted of a sex or drug related crime where they were possibly exposed to HIV (OAR 333-012- 0265).
  • 8. TESTING WITHOUT CONSENT  HIV testing may be performed on anatomical gifts such as donated organs without consent (ORS 97.964).
  • 9. SPECIAL CONSENT ISSUES Minors:  A minor under 15 may consent to an HIV test even if they are in state custody or the Oregon Young Authority (OAR 333-12- 0265, OAR 413-040-0430, OAR 416-600-0030).
  • 10. SPECIAL CONSENT ISSUES Infants:  Upon Doctor’s request, an infant in state custody may be tested if the mother engaged in high risk behavior (OAR 413-040-0420).
  • 11. SPECIAL CONSENT ISSUES Victims:  Underage victims of sexual abuse in state custody may have HIV testing arranged for them (OAR 413-040-0420).
  • 12. SPECIAL CONSENT ISSUES Developmentally Disabled:  Health care representatives with authority to consent may consent to an HIV test on behalf of the disabled person (OAR 309-041- 1580).
  • 13. CONFIDENTIALITY  Oregon law prohibits the disclosure of HIV test results without consent of the person tested.  HIV test results cannot be released in any way that identifies the person tested.  Any individual who learns of the HIV test results is prohibited from disclosing that information without consent. ORS 433.045
  • 14. DUTY TO COMPLY You must comply with confidentiality laws if you are a…  Health Care Provider or Facility  Laboratory  Blood or Sperm Bank  Insurance Company Employee  Government Agency  Researcher  Employer Individuals are not subject to the duty of confidentiality. ORS 433.045
  • 15. DISCLOSURE WITH CONSENT HIV test information can be released with the consent of the tested subject. Specific consent forms for HIV information is needed including…  Signed consent  Specific purpose for releasing results  Who is receiving the information  Time period for when the release may occur  Signature and date of person giving authorization OAR 333-012-0270 ORS 433.045
  • 16. DISCLOSURE WITHOUT CONSENT Test results may be disclosed to licensed health care providers when knowledge of the results are needed in emergencies. HIV status may be shared with a person who has had substantial exposure to the subject in question, the subject must then be notified in writing. OAR 333-012-0270
  • 17. DISCLOSURE WITHOUT CONSENT The results of a positive HIV test must be reported to public health authorities or on a death certificate (OAR 333-012-0270, OAR 333-018- 0000, OAR 333-019-0031). The results of a positive HIV test of a deceased individual may be released to licensed health care providers and health care facilities minimally to prevent transplantation of infected organs (OAR 333-012-0270).
  • 18. ETHICAL AND PROFESSIONAL DUTIES Pertaining To Infected Clients Engaging in Risky or Reckless Behaviors
  • 19. HIV DISCLOSURE GUIDELINES There are many reasons why a client might not want to disclose their HIV status and conflict can arise.  The client may be embarrassed or ashamed to tell his or her spouse or partner about his or her infection.  The client may be an adolescent who does not want his or her parents to know.  The client may be an I.V. drug user who shares needles with others.  The client may be a sex-industry worker.
  • 20. HIV DISCLOSURE GUIDELINES  The duty to warn does not require that providers search out possible threats posed by a client.  Try to have the client disclose his or her HIV status to the contact if the client is engaging in reckless behaviors like unprotected sex or IV drug use. If the client refuses, you will have to notify the contact.  If you learn that a client is engaging in activities which could infect others, but you do not know of any specific contacts, explain to the client the harm he is doing and the steps he can take to prevent this.
  • 21. RISKY BEHAVIORS Help your client understand risky behaviors and consequences such as…  Unprotected Vaginal Intercourse  Unprotected Anal Intercourse  Unprotected Oral Sex  Needle Sharing
  • 22. RISKY BEHAVIORS Assess variables that may impair your client’s judgment to be safe such as drug and alcohol use. Educate your client about the benefits of early treatment interventions and possible re-infection with a different strain of HIV. Inform your client of needle exchange programs. Assess clients level of distress. Don’t assume clients sexual practices. Check your clients understanding.
  • 23. TARASOFF DUTY In 1968, Tatiana Tarasoff was a student at the University of California at Berkley. She was dating a fellow student by the name of Prosenjit Poddar, who was obsessed with her. When Tarasoff broke off their relationship, Poddar bought a gun to orchestrate a life-threatening situation to prove his love. His psychiatrist, Dr. Lawrence Moore, believes he had a psychotic disorder. He informed the campus police, but they determined Poddar stable and released him.
  • 24. TARASOFF DUTY Poddar continued to stalk Tarasoff until he reached his breaking point. He broke into Tarasoff ’s house armed with a knife and pellet gun. He proceeded to shoot her with the pellet gun as she ran from him. He then stabbed her 14 times, killing her. No one had informed Tarasoff of Poddar’s intentions. The duty to warn with anything requires that you go to the person being threatened and the authorities.
  • 26. LEGAL SYSTEM  Courts continue to struggle with the Right to Privacy vs. Duty to Warn in regards to HIV.  Many states consider it criminal for a person who is HIV positive and knowingly engages in sexual intercourse without first informing their partner and/or using a condom.
  • 27. LEGAL SYSTEM HIV positive individuals prosecuted under this statute can assert the following legal rights as defense:  Right to privacy.  Right to equal protection under the law.  Right not to have speech compelled.  Right to be free of discrimination.
  • 28. LEGAL SYSTEMS U.S. Courts haven’t been consistent in cases regarding public safety versus confidentiality.  Florida – Protected the name of an infected client.  Texas – Revealed the name of the infected client in a wrongful death suit.
  • 29. LEGAL SYSTEMS  Illinois – Laws passed to quarantine infected persons and laws exempt test results from the Freedom of Information Act.  California – Law passed that prevents doctors from civil or criminal charges due to revealing positive results to a patients spouse.
  • 30. DUTY TO WARN Medical Organization Recommendations
  • 31. CENTER FOR DISEASE CONTROL Physicians or health department personnel should use confidential methods to inform sex partners of HIV infected persons not willing to inform.
  • 32. AMERICAN MEDICAL ASSOCIATION  Determine state laws regarding reporting of HIV infected person who is endangering a third party.  Counsel infected person and try to persuade them to inform the third party.  If infected individual refuses to inform, notify the authorities.  If authorities refuse action, notify the endangered third party.  Prior to taking these steps make sure there are not any laws in place that prohibit you from taking such action.
  • 33. AMERICAN PSYCHIATRIC ASSOCIATION  When physician suspects client to be infected with HIV; notify the patient of the specific limits of confidentiality.  Do this before asking any questions pertaining to HIV status.  When infected person refuses to inform partner(s) it is ethically allowed for physician to inform person in danger of contracting the virus.
  • 34. VOCABULARY ORS’s and OAR’s Used in This Presentation
  • 35. VOCABULARY Oregon Revised Statutes  ORS 97.964 – HIV testing on anatomical gifts  ORS 135.139 – Notice of availability of testing for HIV and other communicable diseases to person charged with crime; when court may order test; victim’s rights  ORS 433.045 – Consent to HIV test required; exceptions  ORS 433.065 – Procedures for HIV testing; rules  ORS 433.080 – When test may be required; procedure to require test; rules  ORS 433.085 – HIV and hepatitis testing at request of licensed health care provider or certain public officials; procedure A list of complete ORS’s can be found at www.leg.state.or.us/ors/
  • 36. VOCABULARY Oregon Administrative Rules  OAR 333-012-0264 – Procedures for Determining HIV and Hepatitis B Status of Source Person Following Occupational Exposure to Body Fluids  OAR 333-012-0265 – Informed Consent for HIV and AIDS Carriers  OAR 333-012-0269 – Procedures for Mandatory HIV Testing Following Occupational Exposure to Body Fluids for HIV and AIDS Carriers  OAR 333-012-0270 – Confidentiality of HIV and AIDS Carriers  OAR 333-018-0000 – Who Is Responsible for Reporting Diseases  OAR 333-018-0035 – Procedures Involving Emergency Response Employees Disease Reporting  OAR 333-019-0031 – Acquired Immunodeficiency Syndrome/Human Immunodeficiency Virus Provisions  OAR 413-040-0420 – HIV Antibody Testing of Children in State Custody and Confidentiality  OAR 413-040-0430 – Informed Consent of Children in State Custody and Confidentiality  OAR 416-600-0030 – Informed Consent for HIV Testing of Youth  OAR 836-050-0250 – Testing for HIV Infection Application Questions Relating to HIV Infections A list of complete OAR’s can be found at http://arcweb.sos.state.or.us/rules/number_index.html
  • 37. AIDS AWARENESS March 10th – National Women and Girls HIV/AIDS Awareness Day March 20th – National Native HIV/AIDS Awareness Day May 18th – National HIV Vaccine Awareness Day May 19th – National Asian & Pacific Islander HIV/AIDS Awareness Day June 8th – Caribbean American HIV/AIDS Awareness Day June 27th – National HIV Testing Day September 18th – National HIV/AIDS and Aging Awareness Day September 27th – National Gay Men’s HIV/AIDS Awareness Day October 15th – National Latino AIDS Awareness Day December 1st – World AIDS Day February 7th – National Black HIV/AIDS Awareness Day
  • 38. This concludes our presentation on AIDS and The Duty to Warn.

Editor's Notes

  1. Questions about testing without consent?