Clinician-initiated opt-out HIV testing and the law

'Opt-out' HIV testing is a new approach to HIV health care whereby patients are routinely tested for HIV unless they explicitly decline. This new approach to testing for HIV appears in testing policy in Australia, guidelines in the US, and elsewhere.

This article examines the legal implications of opt-out testing in Australia. It uses legal doctrinal analysis to clarify the legal framework governing this practice in Australia, with a focus on 'informed consent' and requirements to inform the patient about the procedure and any associated risks.

Our analysis finds that, where it has been introduced, opt-out testing removes the 'specific additional consent' requirements of previous health policy or law, effectively bringing HIV testing into alignment with other STI testing procedures. However, the introduction of opt-out HIV testing does not remove or modify consent requirements under general law. A gap therefore exists between the concept of 'opt-out' consent and these enduring legal duties, creating potential ambiguity and legal risk for practitioners in their day-to-day practice.

To resolve this, we recommend that guidance for practitioners provide positive clarification of these requirements. Furthermore, we propose renaming the practice 'provider-initiated testing' to more accurately reflect the principles of consent that govern all medical procedures.