Maine Revised Statutes Title 5 Sec. 19203-A – Voluntary informed consent required
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1. Individual tested. Except as provided in this section and section 19203, subsections 4 and 5, an HIV test must be voluntary and undertaken only with a patient’s knowledge and understanding that an HIV test is planned. A patient must be informed orally or in writing that an HIV test will be performed unless the patient declines. Oral or written information required to be given to a patient under this subsection must include an explanation of what an HIV infection involves and the meaning of positive and negative test results. A patient must be provided the opportunity to ask questions, either orally or in writing. Informed consent is not required for repeated HIV testing by health care providers to monitor the course of established infection.
[PL 2007, c. 93, §1 (AMD).]
Terms Used In Maine Revised Statutes Title 5 Sec. 19203-A
- Adult: means a person who has attained the age of 18 years. See Maine Revised Statutes Title 1 Sec. 72
- Bona fide occupational exposure: means skin, eye, mucous membrane or parenteral contact of a person with the potentially infectious blood or other body fluids of another person that results from the performance of duties by the exposed person in the course of employment. See Maine Revised Statutes Title 5 Sec. 19201
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Health care provider: means any appropriately licensed, certified or registered provider of mental or physical health care, either in the public or private sector or any business establishment providing health care services. See Maine Revised Statutes Title 5 Sec. 19201
- Health care setting: means any location where there is provision of preventive, diagnostic, therapeutic, rehabilitative, maintenance or palliative care, services, procedures or counseling, including emergency services performed in the field, and appropriate assistance with disease or symptom management and maintenance that affects an individual's physical, mental or behavioral condition, including the process of banking blood, sperm, organs or any other tissue. See Maine Revised Statutes Title 5 Sec. 19201
- HIV: means the human immunodeficiency virus, identified as the causative agent of Acquired Immune Deficiency Syndrome or AIDS. See Maine Revised Statutes Title 5 Sec. 19201
- HIV infection: means the state wherein HIV has invaded the body and is being actively harbored by the body. See Maine Revised Statutes Title 5 Sec. 19201
- HIV test: means a test for the presence of an antibody to HIV or a test for an HIV antigen or other diagnostic determinants specific for HIV infection. See Maine Revised Statutes Title 5 Sec. 19201
- in writing: include printing and other modes of making legible words. See Maine Revised Statutes Title 1 Sec. 72
- Infant: means a person who has not attained the age of 18 years. See Maine Revised Statutes Title 1 Sec. 72
- Informed consent: means consent that is:
A. See Maine Revised Statutes Title 5 Sec. 19201Person: means any natural person, firm, corporation, partnership or other organization, association or group, however organized. See Maine Revised Statutes Title 5 Sec. 19201 Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
2. Insurers. Persons required to take an HIV test by an insurer, nonprofit hospital or medical service organization or nonprofit health care plan must provide their written informed consent on forms approved by the Superintendent of Insurance. If the test is positive, post-test counseling must be provided by the person or organization requesting the test. The Superintendent of Insurance may adopt rules to define language requirements of the form.
[PL 2007, c. 93, §1 (AMD).]
3. Access to medical care. A health care provider may not deny any person medical treatment or care solely for refusal to give consent for an HIV test. A health care provider may not request a person’s written consent to an HIV test as a precondition to the provision of health care. All written consent to testing must be in accordance with section 19201, subsection 5?A. This section does not prohibit a health care provider from recommending an HIV test for diagnostic or treatment purposes. A physician or other health care provider is not civilly liable for failing to have an HIV test performed for diagnostic or treatment purposes if the test was recommended and refused in writing by the patient.
[PL 2007, c. 93, §1 (AMD).]
4. Occupational exposure. Consent need not be obtained when a bona fide occupational exposure creates a significant risk of infection if a court order has been obtained under section 19203?C. The fact that an HIV test was given as a result of an occupational exposure and the results of that test may not appear in any records of the person whose blood or body fluid is the source of the exposure. If the test is positive, post-test counseling must be offered. The subject of the test may choose not to be informed about the result of the test.
[PL 2007, c. 93, §1 (AMD).]
4-A. Occupational exposure in health care setting. When a bona fide occupational exposure occurs in a health care setting, authorization to test the source patient for HIV must be obtained from that patient if the patient is present or can be contacted at the time of exposure and is capable of providing consent. At the time of exposure, if the source patient is not present and can not be contacted or is incapacitated, then any reasonably available member of the following classes of individuals, in descending order of priority, may authorize an HIV test on a blood or tissue sample from the source patient:
A. The patient’s legal guardian; [PL 1999, c. 429, §3 (NEW).]
B. An individual known to have power of attorney for health care for the patient; [PL 1999, c. 429, §3 (NEW).]
C. An adult relative, by blood, marriage or adoption; [PL 1999, c. 429, §3 (NEW).]
D. An adult with whom the patient has a meaningful social and emotional relationship; and [PL 1999, c. 429, §3 (NEW).]
E. A physician who is familiar with occupational exposures to HIV. [PL 1999, c. 429, §3 (NEW).]
The individual authorizing the HIV test must be informed of the nature, reliability and significance of the HIV test and the confidential nature of the test.
If the person contacted for authorization refuses to authorize the test, the test may not be conducted unless consent is obtained from the source patient or from the court pursuant to section 19203?C.
This subsection does not authorize a person described in paragraphs A to D to receive the test result. Test results must be given to the exposed person, to a personal physician if designated by the exposed person and to either the physician who authorizes the test or the health care provider who manages the occupational exposure.
The patient may choose not to be informed about the result of the HIV test. Without express patient authorization, the results of the HIV test and the fact that an HIV test was done as a result of an occupational exposure in a health care setting may not appear in the patient’s health care records. The exposed individual’s occupational health care record may include documentation of the occupational exposure and, if the record does not reveal the source patient’s identity, the results of the source patient’s HIV test.
[PL 1999, c. 429, §3 (NEW).]
5. Exposure from sexual crime. Consent need not be obtained when a court order has been issued under section 19203?F. The fact that an HIV test was given as a result of the exposure and the results of that test may not appear in a convicted offender’s medical record. Counseling on risk reduction must be offered, but the convicted offender may choose not to be informed about the result of the test unless the court has ordered that the convicted offender be informed of the result.
[PL 1995, c. 319, §2 (AMD).]
6. Protection of newborn infants. Subject to the consent and procedure requirements of subsection 1, a health care provider who is providing care for a pregnant woman shall include an HIV test in a standard set of medical tests performed on the woman. A health care provider who is providing care for a newborn infant shall test the infant for HIV and ensure that the results are available within 12 hours of birth of the infant if the health care provider does not know the HIV status of the mother or the health care provider believes that HIV testing is medically necessary unless a parent objects to the test on the grounds that it conflicts with the sincere religious or conscientious beliefs and practices of the parent. If a woman declines to be tested for HIV pursuant to this subsection and subsection 1, the health care provider shall document the woman’s decision in the woman’s medical record.
[PL 2011, c. 229, §1 (NEW).]
SECTION HISTORY
PL 1987, c. 443, §2 (NEW). PL 1987, c. 539 (RPR). PL 1987, c. 811, §§4,5 (AMD). PL 1991, c. 803, §2 (AMD). PL 1995, c. 319, §2 (AMD). PL 1995, c. 404, §§5,6 (AMD). PL 1999, c. 429, §3 (AMD). PL 2007, c. 93, §1 (AMD). PL 2011, c. 229, §1 (AMD).