Or. Admin. R. 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.
Notes
Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
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