TITLE 23
Health and Safety

CHAPTER 23-6.3
Prevention and Suppression of Contagious Diseases – HIV/AIDS

SECTION 23-6.3-4


§ 23-6.3-4 Exceptions to consent requirements.

(a) A health care provider may test for the presence of HIV without obtaining consent from the individual to be tested under the following conditions:

(1) When the individual to be tested is under one year of age;

(2) When a child between one and thirteen (13) years of age appears to be symptomatic for HIV;

(3) When the individual to be tested is a minor under the care and authority of the department of children, youth and families, and the director of that department certifies that an HIV test is necessary to secure health or human services for that individual;

(4) In a licensed health care facility or health care setting, in the event that an occupational health representative or physician, registered nurse practitioner, physician assistant, or nurse-midwife, not directly involved in the exposure, determines that an employee or emergency service worker, other than one in a supervisory position to the person making the determination, had a significant exposure to the blood and/or body fluids of a patient and the patient or the patient's guardian refuses to grant consent for an HIV test to determine whether the patient has HIV, then, if a sample of the patient's blood is available, that blood shall be tested for HIV.

(i) If a sample of the patient's blood is not otherwise available and the patient refuses to grant consent to draw blood, the employee or emergency service worker may petition the superior court for a court order mandating that the test be performed.

(ii) Before a patient or a sample of the patient's blood is required to undergo an HIV test, the employee or emergency service worker must submit to a baseline HIV test within seventy-two (72) hours of the exposure.

(iii) No person who determines that an employee or emergency service worker has sustained a significant exposure and authorizes the HIV testing of a patient, nor any person or health care facility who acts in good faith and recommends the test be performed, shall have any liability as a result of their actions carried out under this chapter, unless those persons are proven to have acted in bad faith.

(iv) For the purposes of this section, "emergency service worker" means a worker responding on behalf of a licensed ambulance/rescue service, or a fire department or a law enforcement agency, who, in the course of his/her professional duties, has been exposed to bodily fluids in circumstances that present a significant risk of transmission of HIV, and has completed a pre-hospital exposure form in accordance with § 23-4.1-19.

(5) In an emergency, where due to a grave medical or psychiatric condition, and it is impossible to obtain consent from the patient or, if applicable under state law, the patient's parent, guardian, or agent.

(6) As permitted under § 23-1-38 entitled "HIV Antibody Testing-Sperm Collection or Donation".

(7) Any individual convicted of a violation of any provisions of Chapter 11-34.1 entitled "Commercial Sexual Activity", shall be required to be tested for HIV unless already documented HIV positive. All individuals tested under this section shall be informed of their test results. All individuals tested under this section who are determined to be injecting and/or intra-nasal drug users shall be referred to appropriate substance abuse treatment as outlined in subsection 23-6.3-3(e).

(8) Any individual convicted of possession of any controlled substance as defined in Chapter 21-28 entitled "Uniform Controlled Substances Act", that has been administered with a hypodermic instrument, retractable hypodermic syringe, needle, intra-nasally, or any similar instrument adapted for the administration of drugs shall be required to be tested for HIV unless already documented HIV positive.

(9) All individuals tested under this section shall be informed of their test results.

(10) In accordance with the provisions of Chapter 11-37, entitled, "Sexual Assault", any individual who has admitted to or been convicted of or adjudicated wayward or delinquent by reason of having committed any sexual offense involving penetration whether or not a sentence or fine is imposed or probation granted, shall be ordered by the court upon petition of the victim, immediate family members of the victim or legal guardian of the victim, to submit to a blood test for the presence of a sexually transmitted disease including, but not limited to, HIV. All individuals tested under this section shall be informed of their test results.

(11) In accordance with the provisions or § 42-56-37, entitled "HIV Testing", every individual who is committed to the adult correctional institutions to any criminal offense, after conviction, is required to be tested for HIV.

(b) It is unlawful for any person to disclose to a third party the results of an individual's HIV test without the prior written consent of that individual, except in accordance with § 23-6.3-7.

History of Section.
(P.L. 2009, ch. 196, § 1; P.L. 2009, ch. 289, § 1; P.L. 2010, ch. 239, § 18.)