OAR 413-040-0430: Informed Consent

(1) No person shall submit the blood of an individual to an HIV test without first obtaining informed consent or ascertaining that informed consent is obtained, consistent with subsection (7) of this rule. (2) As legal custodian and guardian of the child, the Department may grant medical consent and authorize medical treatment. Children 13 years of age or older should be included in this planning and also consent. The Department must have a medical statement that the HIV test is necessary for care and treatment before ordering or arranging for a test. If the Department orders or arranges for an HIV test, informed consent procedures must be followed. A minor of any age may consent to a HIV test; and when the minor’s consent is given, the consent of the minor’s parents or guardians is not necessary for diagnosis, care or treatment. However, such consent must be informed consent. (3) In all cases involving a child old enough to give informed consent, the worker shall try to obtain the consent of the child. However, if the physician and Department staff believe an HIV test is necessary to provide information necessary for the care of the child, and that child objects to the test and will not consent, the following options are available: (a) SDA Manager or designee after consultation with the child’s physician, may consent to the test for the child over the child’s objection (413-020-0150(c)(A)(iii)); or (b) The worker may petition the court to order the child to be tested. (4) Department staff are responsible to assure that informed consent is obtained when children in Department custody are to be given an HIV test. If the medical provider does not obtain the informed consent, Department staff shall do so or arrange for it to be done prior to the test. (5) If a child is placed pursuant to a Voluntary Custody Agreement or a Voluntary Placement Agreement, the parent and the child retain the authority to consent to the test. The Department does not have the authority to consent to the test on behalf of the parent unless such authority is included in the express terms of the Agreement. (6) Providers are not authorized to consent to a child’s HIV test. (7) Informed consent shall be obtained in the following manner, giving consideration to the child’s age and ability to understand: (a) Provide the person for his/her retention a copy of the CF 990, HIV Test Informed Consent. (b) Orally summarize for the person the substance of the statements in the CF 990 and specify alternatives to the HIV test in the particular instance, and if the test information will be disclosed to others, who those others will be. (c) Explain the risks from having the HIV test. This shall include a description of Oregon law pertaining to the confidentiality of information about an individual having the test and that individual’s test results; a statement that there may be circumstances under which disclosure might be permitted or required without consent; and a statement of the potential consequences in regards to insurability, employment, and social discrimination if the HIV test results become known to others. (d) Inform the person that he or she has the right to request additional information from a knowledgeable person before giving consent. (e) Ask the person to be tested whether he/she has any further questions, and if so, provide a full and complete opportunity to ask those questions and receive answers from a person who is sufficiently knowledgeable to give accurate and complete answers about AIDS, HIV tests and the consequences of being tested or not tested. (f) Have the person sign the CF 990, HIV Test Informed Consent, after having had an opportunity to read it. (g) Maintain the signed CF 990 for at least seven years in a locked file separate from the case file.