Yes, Connecticut law permits involuntary HIV testing, without the need for informed consent, in several situations. The following four circumstances are the most important circumstances permitting involuntary testing:
1. Occupational Exposure – Significant Exposure Required
Connecticut law permits a nonconsensual “HIV-related test” of the source of a “significant exposure” (the threshold requirement that there be a “significant exposure” means “a parenteral exposure such as a needlestick or cut, or mucous membrane exposure such as a splash to the eye or mouth, to blood or a cutaneous exposure involving large amounts of blood or prolonged contact with blood, especially when the exposed skin is chapped, abraded, or afflicted with dermatitis.” Conn. Gen. Stat. sec. 19a-581 (14). Department of Health Services Regulations additionally list a variety of internal organ fluids whose contact can constitute a “significant exposure” and lists sexual assault in the course of occupational duties as a mode of “significant exposure” as well. See Department of Public Health, Public Health Code sec. 19a-589-1(o) .Exposure to urine, feces, saliva, sweat, tears, and vomit is excluded, unless the fluid in question contains visible amounts of blood. Likewise, human bites or scratches are excluded unless there is direct blood to blood or blood to mucous membrane contact. Id) to HIV which occurs during a person’s occupational duties (Conn. Gen. Stat. sec. 19a-582 (d)(5)).
In order to obtain a nonconsensual HIV test of a source, the subject employee must:
- Document the occurrence of a significant occupational exposure and complete an incident report within 48 hours;
- Have a negative baseline HIV test within 72 hours;
- Through a physician, have attempted to obtain and been refused, voluntary consent from the source;
- “Be able to take meaningful immediate action…which could not otherwise be taken” (such as beginning a prophylactic drug regimen or making decisions regarding pregnancy or breastfeeding); and
- Have an “exposure evaluation group” determine that the above criteria are met (an “exposure evaluation group” means at least three impartial health care providers, one of whom must be a physician, who determine the existence of a “significant exposure.” Conn. Gen. Stat. sec. 19a-581 (15)).
How the Test Occurs
If the source is a patient in a health, correctional, or other facility, an available sample of blood may be tested or a blood sample may be drawn from the source and tested.
If the source is not in such a facility and a physician certifies that there has been a significant exposure, the worker may seek a court order for testing.
The employer must pay the cost of the HIV test.
2. Inability to Consent
A licensed health care provider may order a nonconsensual HIV test when the subject is unable to consent or lacks capacity to give or refuse consent and the test is necessary for “diagnostic purposes to provide appropriate urgent care” (Conn. Gen. Stat. sec. 19a-582 (d)(1)).
The Department of Correction may perform involuntary HIV testing on an inmate either because it is necessary for the diagnosis or treatment of an illness, or if the inmate’s behavior poses a significant risk of transmission to another inmate or has resulted in a significant exposure to another inmate (“Significant risk of transmission” means “sexual activity that involves transfer of one person’s semen, vaginal or cervical secretions to another person or sharing of needles during intravenous drug use.” Conn. Gen. Stat. sec. 19a-581 (13)), (Conn. Gen. Stat. sec. 19a-582 (d)(6), (d)(7)). In both situations, there must be no reasonable alternative to testing available to achieve the same goal.
4. By Court Order
Connecticut law contains a broad provision permitting a court to order an HIV test when the court determines that there is a “clear and imminent danger to the public health or the health of a person and that the person has demonstrated a compelling need for the HIV-related test result which cannot be accommodated by other means” (Conn. Gen. Stat. sec. 19a-582 (d)(8)). In its assessment, the court must weigh the need for the test result against both the “privacy interests of the test subject and the public interest which may be disserved by involuntary testing” (Conn. Gen. Stat. sec. 19a-582 (d)(8)), (additional provisions for HIV testing without consent under Connecticut law include: (1) testing human organs, tissues, blood, or semen which are being used in medical research or therapy or for transplantation; (2) for research purposes if the identity of the subject cannot be determined; or (3) to determine the cause of death. See Conn. Gen. Stat. sec. 19a-582 (d) generally).