2005 Arizona Revised Statutes - Revised Statutes §36-663  HIV‑related testing; restrictions; exceptions

A. Except as otherwise specifically authorized or required by this state or by federal law, no person may order the performance of an HIV-related test within a hospital licensed pursuant to chapter 4, article 2 of this title without first receiving the specific written informed consent of the subject of the test who has capacity to consent or, if the subject lacks capacity to consent, of the subject's health care decision maker. Before ordering the performance of an HIV-related test as a part of a patient examination or consultation conducted outside a hospital licensed pursuant to chapter 4, article 2 of this title, a health care provider licensed pursuant to title 32, chapter 13, 17 or 29, a nurse practitioner certified pursuant to title 32, chapter 15 or a physician assistant certified pursuant to title 32, chapter 25 shall obtain specific oral or written informed consent of the subject of the test who has capacity to consent or, if the subject lacks capacity to consent, of a person authorized pursuant to law to consent to health care for that person. Other health care providers who are licensed pursuant to title 32 and who are allowed to provide HIV-related tests within their scope of practice shall obtain specific written informed consent. Written consent shall be in a form as prescribed by the department except for entities complying with the form prescribed by section 20-448.01. Oral consent shall be documented in the medical record of the subject of the test. If the test is performed on an anonymous basis the consent shall be oral and no record shall be made containing the subject's name.

B. In order to obtain specific oral or written informed consent the health care provider licensed pursuant to title 32 shall provide the patient with an explanation of the following:

1. The test including its purpose, the meaning of its results and the benefits of early diagnosis and medical intervention.

2. The nature of acquired immune deficiency syndrome and HIV-related illness and information about behaviors known to pose risks for transmitting the human immunodeficiency virus.

3. The confidentiality protections afforded HIV-related information.

4. That an HIV-related test is voluntary and can be performed anonymously at a public health agency.

5. That a positive test result must be reported to a public health agency as required by law.

6. That the consent for the test may be withdrawn at any time before drawing the sample for the test and that the withdrawal of consent may be given orally if the consent was given orally or shall be in writing if the consent was given in writing.

C. The director shall provide in writing to all health care providers a form that contains the list of informed consent explanations in subsection B of this section. If the health care provider chooses to use oral consent, the provider shall sign and return the form to the director.

D. This section does not apply to the performance of an HIV-related test:

1. By a health care provider or health facility in relation to the procuring, processing, distributing or use of a human body or a human body part, including organs, tissues, eyes, bones, arteries, blood, semen, milk or other body fluids, for use in medical research or therapy or for transplantation to other persons.

2. For the purpose of research if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher.

3. On a deceased person, if the test is conducted in order to determine the cause of death or for epidemiologic or public health purposes.

4. In the course of providing necessary emergency medical treatment to a patient who lacks capacity to consent to HIV-related testing and for whom no person authorized pursuant to law to consent to health care for that person can be identified on a timely basis if the testing is necessary for the diagnosis and treatment of the emergency condition. The attending physician shall document the existence of an emergency medical condition, the necessity of the HIV-related testing to diagnose and treat the emergency condition and the patient's lack of capacity.

5. On a patient who lacks capacity to consent and for whom no person authorized pursuant to law to consent to health care for that person can be identified on a timely basis if the HIV-related testing is directly related to and necessary for the diagnosis and treatment of the person's medical condition. HIV-related testing shall be performed under these circumstances only on written certification by the attending physician and a consulting physician that the HIV-related testing is directly related to and necessary for the diagnosis and treatment of the patient's medical condition.