The doctrine of informed consent and mandatory testing for HIV : legal and ethical implications.

Abstract

This paper investigates the doctrine of informed consent and mandatory testing with reference to the legal and ethical implications for HIV. The doctrine of informed consent is entrenched in South African law through the constitution, legislation and the common law. The doctrine provides that medical treatment can only be administered to a person if he has given informed consent according to certain requirements. These requirements have also been endorsed in the rules of medical professional bodies. The doctrine of informed consent is applied to testing for HIV and the rules to be followed when a person is tested for HIV. Recognition is given to the fact that there are exceptions to informed consent. These exceptions are examined, one of them being mandatory testing. Mandatory testing is an exception to informed consent where the rights of a third party stand to be infringed. Due to the high HIV infection rate in South Africa, this paper examines whether there is a need to implement legislation for mandatory testing for HIV without the option to opt-out. Focus is placed on the need for testing with an opt-out option for all persons requiring medical treatment. This has to be done in the context of the constitution, legislation and the common law. The impact that a mandatory testing policy may have on the freedoms and rights of the patient, is also investigated such as the right to privacy, confidentiality, and bodily integrity. This paper concludes that South Africa has the highest rate of HIV infection in the world and exceptionalism, poor uptake of voluntary counselling and testing and extensive informed consent rules have hindered progress in the fight against HIV/AIDS. This paper recommends opt-out testing for all persons requiring medical treatment, a multi-layered approach to HIV testing and a simplified informed consent process without compromising patient autonomy. The introduction of new laws for mandatory testing for HIV is not recommended as it is a violation of a person‟s constitutional rights and freedoms.