California

Unlike testing for most other infectious diseases, testing for HIV involves possible benefits as well as social, economic, and legal consequences that typically are not apparent or known to an individual considering testing. HIV-related testing is the gateway to health-preserving treatment; it also can be the basis of criminal prosecution for those who are sexually active, or relied on to exclude individuals who test positive for HIV from programs, employment, or insurance. Although state and federal laws prohibit much of this discrimination against people with HIV, the ability to enforce those rights usually depends on access to free legal services, which are increasingly limited and not available at all in roughly half of the states in the United States. Thus, the potential negative consequences of HIV testing at a particular time or location might inform an individual's decision of whether or when to get tested for HIV; or whether to test anonymously or through a "confidential" testing process that reports their test results and identifying information to the state but maintains the confidentiality of those results.  

The American Medical Association has long defined informed consent as a process of communication between a patient and physician that results in the patient's authorization or agreement to undergo a specific medical intervention. Although informed consent is a legal concept rather than a medical one, many states use definitions of "informed consent" for purposes of HIV testing and medical procedures that in fact are inconsistent with the accepted legal definition, e.g., they do not require that an individual receive information or sometimes even notification that they are about to be tested for HIV. The Center for HIV Law and Policy (CHLP) accepts the legal and court-affirmed definition of informed consent; therefore, state protocols that call for "opt-out" testing (a patient is tested for HIV unless she/he objects) or that mirror general consent approaches are not counted as "informed consent" laws even in those instances where the state legislature has characterized their state law as requiring "informed consent." In short, CHLP does not consider or count laws that allow a patient's silence or general consent as granting authority to do confidential HIV testing as informed consent laws.