§325-16  Informed consent for testing ordisclosure.  (a)  A health care provider may subject a person's body fluids or tissue toa test for the presence of human immunodeficiency virus infection after:

(1)  Orally explaining to the person that certain personalizedtest results are maintained by the department of health, according to strictconfidentiality protocols established by law; 

(2)  Orally advising the person that free andanonymous human immunodeficiency virus testing is available through the departmentof health and certain community agencies;

(3)  Providing the person reasonable opportunity todecline the test; and

(4)  Receiving the person's express oral consent tothe test.

A health care provider may, for the purpose ofobtaining consent to the test and in lieu of the oral-consent procedurespecified in this subsection, use a written form that, at a minimum, providesequivalent information to that prescribed by paragraphs [(1) and (2)]; providedthat the health care provider shall allow the person reasonable opportunity todecline consent by declining to sign the form.

(b)  No blood bank, plasma center, or any otherpublic or private agency, institution or individual (except a health careprovider acting pursuant to subsections (a) or (c)), may subject a person'sbody fluids or tissue to a test for the presence of human immunodeficiencyvirus infection unless the subject of the test:

(1)  Provides informed written consent pursuant to thestandards in section 671-3 to the testing; and

(2)  Is afforded the opportunity to receive humanimmunodeficiency virus pre-test counseling by the party ordering or requestingthat the test be performed;

provided that the person tested shall be providedwith the test results by the blood bank, plasma center, agency, institution, orindividual subjecting the person to the test.  The opportunity to receivecounseling shall be afforded both prior to obtaining a sample for humanimmunodeficiency virus testing, and upon disclosure of the test results,regardless of the serostatus of the individual tested, except that testingconducted pursuant to subsection (c)(1) and (2) shall be exempted from thecounseling requirements of this subsection.

(c)  Consent to testing is not required for anyof the following:

(1)  A health care provider or organ donor center thatprocures, processes, distributes, or uses human body parts donated forscientific purposes, without obtaining consent, may test for the presence of humanimmunodeficiency virus to assure medical acceptability of the gift for thepurpose intended;

(2)  The department of health, laboratories andresearch facilities, health care providers, blood banks, plasma centers, andeducational institutions may subject any body fluids or tissue to be used inresearch to a test for human immunodeficiency virus infection if the test isperformed in a manner by which the identity of the test subject is not knownand may not be retrieved by the researcher;

(3)  Anonymous testing carried out at humanimmunodeficiency virus test sites established by the department of health;provided that informed oral consent is obtained;

(4)  Testing of body fluids or tissue ordered by athird party, so long as that third party, including an insurance company,employer, or school, obtains the informed written consent of the person to betested authorizing the release of the test results to the third party, andtransmits a signed copy of the written informed consent to the health care providerprior to any release of the requested test results to the third party.  The health care provider shall provide all positive andindeterminate human immunodeficiency virus test results and offer post-testcounseling to those individuals with positive and indeterminate humanimmunodeficiency virus test results;

(5)  Informed consent is not required where thepatient is unable to give consent and it is determined by the patient'streating physician that the patient's human immunodeficiency virus status isnecessary to make a diagnosis or determine an appropriate course of treatmentfor the patient.  The patient shall be informed in a timely manner that a testfor the presence of human immunodeficiency virus has been performed pursuant tothis paragraph, and the health care provider shallprovide all positive and indeterminate human immunodeficiency virus test results and offer appropriate post-test counseling tothose individuals with positive and indeterminate human immunodeficiencyvirus test results;

(6)  A treating physician may order a humanimmunodeficiency virus test without the patient's informed consent if thephysician has determined that the patient is incapable of giving consent priorto the rendering of treatment and when there is reason to believe that thesafety of a health care worker may be affected due to exposure to the blood orbodily fluids of a patient suspected of possible human immunodeficiency virusinfection.  The availability and quality of health care services shall not becompromised based on the findings and testing performed pursuant to thisparagraph.  The costs of any testing performed shall be borne by the healthcare provider and may not be claimed against the patient or the patient'shealth care insurer.  The patient and the health care worker shall be informedin a timely manner that a test for the presence of human immunodeficiency virushas been performed pursuant to the provisions of this paragraph.  The health care provider shall provide all positive andindeterminate human immunodeficiency virus test results and offer appropriatepost-test counseling to the individual being tested and afford the health careworker the opportunity to obtain the test results and appropriate post-testcounseling;

(7)  A person who has been charged, or a juvenile whohas been charged, pursuant to section 707‑730, 707‑731, 707‑732(1)(a),707‑733.6, or 707‑741 shall be tested to determine the person's humanimmunodeficiency virus status upon court order issued pursuant to section 325‑16.5. The test shall be performed according to the protocols set forth in section 325‑17;and

(8)  A person who has been convicted, or a juvenilewho has been adjudicated, pursuant to section 707‑730, 707‑731,707-732(1)(a), 707‑733.6, or 707‑741 shall be tested to determinethe person's human immunodeficiency virus status upon court order issuedpursuant to section 325‑16.5.  The test shall be performed according tothe protocols set forth in section 325‑17.

(d)  The confidentiality of all records heldpursuant to this section is governed by section 325-101.

(e)  Any person or institution who wilfullyviolates any provision of this section shall be fined not less than $1,000 normore than $10,000 for each violation plus reasonable court costs and attorney'sfees as determined by the court, which penalty and costs shall be paid to theperson whose records were released.  This subsection shall not be construed aslimiting the right of any person or persons to recover actual damages.

(f) The department of health shall makeavailable to health care providers current information on accessing anonymoushuman immunodeficiency virus testing for the purpose of providing thatinformation to patients.

(g)  The department may adopt rules, pursuantto chapter 91, to establish procedures and standards to implement this section.

(h)  As used in this section, "health care provider" means a physician orsurgeon licensed under chapter 453, a podiatrist licensed under chapter 463E, ahealth care facility as defined in section 323D-2, and their employees.  "Healthcare provider" shall not mean any nursing institution or nursing serviceconducted by and for those who rely upon treatment by spiritual means throughprayer alone, or employees of such an institution or service. [L 1987, c 308,§1; am L 1988, c 192, §1; am L 1989, c 376, §1 and c 377, §3; am L 1998, c 238,§3; am L 2002, c 238, §2; am L 2006, c 60, §2; am L 2009, c 116, §2]

 

Law Journals and Reviews

 

  Reconsidering Hawai‘i's HIV Statute:  The Need to Protect anIndividual's Basic Liberties.  28 UH L. Rev. 169.

 

Case Notes

 

  Sentencing court had no authority to order defendant toundergo a human immunodeficiency virus test without defendant's informedconsent, and defendant could not reasonably have expected that State wouldrequest such testing as a condition of probation.  79 H. 317 (App.), 901 P.2d1296.