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Ethics... Exoploring Privacy and Confidentiality: Gray Areas
Therefore, existing laws may be under-inclusive. More recent statutes safeguard all "HIV-related" information. Depending on the specific language of the statute, certain types of information related to a person's HIV infection may receive less protection than do the results of their HIV antibody testing. Even though both laboratory evidence of a low CD4 count and prescriptions for AZT are highly personal medical information, which when inappropriately disclosed may harm the patient, such information is often not specifically protected.
This problem may be mitigated where other statutes, policies or regulations protect other types of HIV-related information. California statutes dealing with the confidentiality of HIV related information specifically prevent any individual or institution from disclosing an individual's HIV antibody test result without the patient's or client's written authorization. Other types of health care information, including individual medical records and data held by public agencies, also receive extensive protection from disclosure in California (see Protection of Public Health Data and Health Care Information, above). States vary considerably in how stringently they protect the confidentiality of HIV test results or other information. Some states designate HIV-related information as "super confidential," which imposes special burdens on health care providers and grants patients a high degree of control over any disclosures. These states strictly limit the sharing of HIV test results to persons with a statutorily-defined "need to know," including those within a single health care facility. Massachusetts, for instance, prohibits disclosing HIV test results without the patient's written consent, and recognizes virtually no exceptions. Other states protect HIV-related information under public health statutes that protect identifiable data on any reportable disease.
Both New York and New Jersey classify HIV/AIDS as a separate disease category. New Jersey prohibits any institution, public agency or person holding a record which contains identifying information about a person who has or is suspected of having AIDS or HIV infection from disclosing it without prior written consent of the person tested or as otherwise permitted by law. New Jersey provides a relatively limited number of exceptions for disclosure without patient authorization. New York prohibits release of HIV-related information except with consent of the patient or as provided by law. The New York statute specifies more than one dozen exceptions for disclosure without the patient's consent. Its provisions apply to any holder of HIV-related information, the county or local health officer, the physician, as well as persons to whom confidential information is disclosed (see Permissible or Mandatory Disclosures, below, for more details on each state). In states which have no specific statutory protections for HIV-related information, such information may be protected in a variety of other ways. Alaska has no specific statute or regulation protecting HIV test results or HIV-related information. In practice, however, HIV related information, as well as other sensitive medical information, is protected in Alaska through the state constitution's guarantee of individual privacy, strong statutory protection of confidential health care and public health data, and the governor's policy statement emphasizing that "ensuring the confidentiality of HIV-related information is critical to maintaining and promoting public confidence in the public health system."
Other states which classify HIV/AIDS as either a sexually transmitted disease or a communicable disease, such as Wyoming, Tennessee, and Vermont (STD), or South Dakota (CD), do not provide any specific statutory protection for HIV-related information, but protect it under the other applicable statutes. Vermont law also specifically prohibits courts from ordering release of HIV-related testing or counseling information unless the court finds that the person seeking the information has demonstrated a compelling need for it that cannot be accommodated by other means.
Permissible and mandatory disclosures
However, some states mandate that HIV test results be disclosed to: school officials, blood donors, correctional officials, medical directors of mental health or other facilities when a patient is committed by court order, and law enforcement authorities who are investigating criminal offenses for HIV transmission. While a number of early HIV/AIDS-specific laws contained relatively few exceptions to confidentiality, a second wave of legislation shifts direction, by exhaustively enumerating exceptions. New York, for example, specifies sixteen general situations in which information holders may disclose HIV test results, four circumstances in which county or local health officers may do so, and a set of criteria under which physicians may disclose this information. California lists more than a dozen instances that will trigger the release of test results. This includes disclosure to victims of sexual assault; assaulted peace officers, correctional officers, or inmates; parole or probation officers; local law enforcement officers; auditors of scientific research; public health agencies; and blood and plasma banks, blood donors, and blood or organ recipients.
In many states, health care providers or first responders who have been occupationally exposed may obtain a patient's HIV test results or request that the patient be tested. Several of these states specify narrow criteria for disclosure or testing (e.g., prompt reporting of the occupational exposure, a determination that the exposure was capable of transmitting HIV, a completed incident report, and the consent of the exposed worker to baseline testing).
Some states also require the exposed worker's employer to bear the costs of testing, or limit the circumstances under which the test results may be documented in the patient record. In contrast, other jurisdictions grant broad discretion to health officials for disclosure of HIV/AIDS-related information. In these states, health officials may subjectively assess the need for "protection of third parties," "protection of public health," or "epidemiologic surveillance and investigation."
Lawrence O. Gostin, J.D., LL.D. (Hon.), Georgetown University Law Center and
Online Continuing Education QUESTIONS
25 & 26: Some states designate HIV-related information as:
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