Routine Testing for Hiv–Ethical and Legal Implications (Medicine and the Law)
Judge Edwin Cameron has suggested that because of the high level of ignorance about people’s HIV status and the stigma attached to it, and as HIV infection can now be controlled through the use of antiretroviral drugs, the time has come to review the present ‘opt in’ approach to HIV testing and counselling. (1) He suggests that an ‘opt out’ approach should be adopted whereby people receiving medical treatment should have their blood automatically tested for HIV unless they specifically opt out from doing so. He argues that this can be done provided three conditions are satisfied: (i) antiretroviral treatment must be made available for offer to the patient; (ii) there must be assurance that the consequences of diagnosis will not be discrimination and ostracism; and (iii) the patient must be secure in the confidentiality of the testing procedure and its outcome. (1) The present ‘opt in’ approach requires extensive counselling before HIV testing of patients and places a heavy burden on health care resources. It also inhibits people from undergoing tests because of the stigma attached to being diagnosed as HIV positive. An ‘opt out’ approach requires less extensive counselling and treats the test for HIV infection like that for any other sexually transmissible infection such as the routine testing of pregnant women for syphilis–unless the patient specifically refuses to be tested. Under the ‘opt out’ approach counselling may be done in groups or by giving patients a pamphlet or requiring them to sign a form. The high court has held that at present such conduct does not satisfy the counselling requirement for HIV testing, and that proper extensive individual counselling must be done in order to obtain an informed consent. (2) The National Department of Health, (3) the Health Professions Council of South Africa (4) and the South African Medical Association (5) have taken the same approach.