Legal Resources | | HS 121020
Subject Not Competent to Give Consent
(a) (1) When the subject of an HIV test is not competent to give consent for the test to be performed, written consent for the test may be obtained from the subject?s parents, guardians, conservators, or other person lawfully authorized to make health care decisions for the subject. For purposes of this paragraph, a minor shall be deemed not competent to give consent if he or she is under 12 years of age.
(2) Notwithstanding paragraph (1), when the subject of the HIV test is a minor adjudged to be a dependent child of the court pursuant to Section 360 of the Welfare and Institutions Code, written consent for the test to be performed may be obtained from the court pursuant to its authority under Section 362 or 369 of the Welfare and Institutions Code.
(3) (A) Notwithstanding paragraphs (1) and (2), if the subject of the test is an infant who is less than 12 months of age who has been taken into temporary custody pursuant to Article 7 (commencing with Section 305) of Chapter 2 of Part 1 of Division 2 of the Welfare and Institutions Code or who has been, or has a petition filed with the court to be, adjudged a dependent child of the court pursuant to Section 360 of the Welfare and Institutions Code, the social worker may provide written consent for an HIV test to be performed when the infant is receiving medical care pursuant to Section 369 of the Welfare and Institutions Code, if all of the following have occurred:
(i) The attending physician and surgeon determines that HIV testing is necessary to render appropriate care to the infant and documents that determination. When deciding whether HIV testing is necessary, the physician and surgeon shall consider appropriate factors, either known to the attending physician and surgeon or provided to the attending physician and surgeon by the social worker, including, but not limited to, whether the infant has a parent with a history of behavior that places the parent at an increased risk of exposure to HIV, or whether the infant is a victim of sexual abuse, which has placed the child at risk of exposure to HIV.
(ii) The social worker provides known information concerning the infant?s possible risk factors regarding exposure to HIV to the attending physician and surgeon.
(iii) The social worker has made reasonable efforts to contact the parent or guardian but was unable to do so, and the social worker has documented his or her efforts to contact that person.
(B) The attending physician and surgeon and the social worker shall comply with all applicable state and federal confidentiality and privacy laws, including Section 121025, to protect the confidentiality and privacy interests of both the infant and the biological mother.
(b) Written consent shall only be obtained for the subject pursuant to paragraphs (1) and (2) of subdivision (a) when necessary to render appropriate care or to practice preventative measures.
(c) The person authorized to consent to the test pursuant to subdivision (a) shall be permitted to do any of the following:
(1) Notwithstanding Sections 120975 and 120980, receive the results of the test on behalf of the subject without written authorization.
(2) Disclose the test results on behalf of the subject in accordance with Sections 120975 and 120980.
(3) Provide written authorization for the disclosure of the test results on behalf of the subject in accordance with Sections 120975 and 120980.
(d) (1) If an infant tested for HIV pursuant to paragraph (3) of subdivision (a) tests positive for HIV infection and the physician and surgeon determines that immediate HIV medical care is necessary to render appropriate care to that infant, the provision of HIV medical care shall be considered emergency medical care, pursuant to subdivision (d) of Section 369 of the Welfare and Institutions Code.
(2) If an infant tests positive for HIV in a test performed pursuant to this section, the social worker shall provide to the physician and surgeon any available contact information for the biological mother for purposes of reporting the HIV infection to the local health officer pursuant to Section 121022. Cases reported to the local health officer under this subdivision are subject to the requirements of Section 120175.
(Amended by Stats. 2013, Ch. 153, Sec. 1.)