NYCLU Urges Legislators to Consider Civil Rights Concerns as they Weigh HIV Testing

NYCLU Urges Legislators to Consider Civil Rights Concerns as they Weigh HIV Testing

New York City/NYCLU/Jnue 10, 2009-- The New York Civil Liberties Union on Wednesday, June 10, 2009 urged state legislators to reject proposed legislation that would impair efforts to prevent and treat HIV/AIDS in New York State.

Three bills currently under consideration purport to increase access to HIV testing. In testimony before the New York State Black, Puerto Rican, Hispanic and Asian Legislative Caucus, the NYCLU argued that these bills would do more harm than good. It advised lawmakers to support a fourth bill that streamlines testing procedures while providing stronger protections for patients’ rights.

“We all want to increase the number of New Yorkers who know their HIV status, but stripping patients of their rights and eliminating critical counseling requirements is a mistake,” NYCLU Executive Director Donna Lieberman said. “A positive test for HIV remains a life-changing event, with consequences unlike those of any other medical test. If this legislation passes there will be no guarantee that people will understand the risks of HIV or even what they’re being tested for.”

The NYCLU opposes the following three bills: A7757/S4484, sponsored by Senator Shirley Huntley and Assemblywoman Annette Robinson; S5660/A7892A, sponsored by Senator Hiram Monserrate and Assemblyman Daryl Towns; and A4016, sponsored by Assemblywoman Nettie Mayersohn.

Each of these bills would eliminate requirements in state public health law that health care providers obtain written consent from people before conducting HIV tests. Under all three of the bills, counseling would no longer be required before performing the test so that people understand what a positive HIV diagnosis means in terms of treatment availability, transmission prevention, and confidentiality and anti-discrimination protections. In addition, under the proposed legislation, those who test negative would never be warned about the dangers of risky behavior so that they know how to avoid becoming infected in the future.

Proponents of eliminating written consent point to the high rates of HIV and lack of knowledge of HIV status in communities of color. They suggest that those who seek to protect patients’ rights are not concerned about those communities hardest hit by the epidemic.

“It is outrageous to suggest that poor people and people of color do not deserve the same kinds of patient's rights as middle class people expect,” said NYCLU Public Policy Counsel Corinne Carey, who testified before the committee. “Patient’s rights—civil rights in medical settings—are just as important, perhaps even more so, to people with few economic resources and communities of color.”

The NYCLU gave its qualified support to a bill sponsored by Senator Thomas Duane and Assemblyman Richard Gottfried (A7610/S3293) that would require written consent for HIV testing, pre-test counseling on the risks and benefits of an HIV test, and post-test counseling regardless of the test result.

While the NYCLU strongly believes in maintaining affirmative consent for HIV testing, the Duane/Gottfried bill simply provides for an “opt-out” option on a general medical consent form. Despite this flaw, the NYCLU believes that the Duane/Gottfried bill is far superior to the other three bills being considered.