Testing for Hiv and Consent: Law and Public Policy

Abstract

HIV challenges much of our thinking about civil liberties and consent to medical treatment. Some commentators have argued that since the consequences of a diagnosis of HIV are so grave no testing for the virus may be undertaken in the absence of fully informed consent and the counselling of the patient. This article argues that this misrepresents the current stance of the law. No legal rights are infringed when blood is tested for HIV without specific consent. This is not to deny that there are public policy and human rights issues which ought to be addressed when considering the legality of testing without consent. However these do not arise exclusively in the context of HIV: they are relevant to arguments about consent whenever it arises in the medical arena. HIV may be an impetus for legal change but it would be regrettable if change were to be confined to the sphere of AIDS and HIV testing alone.