HIV Disclosure and Transmission: Legal and Clinical Issues

therapist deep in thoughtIn my initial posting for GoodTherapy.org, I wrote about the fact self-testing for HIV is a reality in the United States. What this effectively does is change the access point for people to find out their HIV status. Prior to this, the only way to legally get tested was through a testing clinic (including health centers, testing vans, and Planned Parenthood) or through a medical provider. I say “legally” because people could buy self-tests online and have them shipped to their homes, but these were neither FDA-approved nor legal.

Since the approval, people can choose when and where they want to get tested. This has both clinical and legal implications for clinicians and clients. Future postings will explore many of the clinical issues, but as a starting point, it is important for clinicians to know some of the basics, especially the laws regarding transmission and disclosure.

Taking an HIV test does not change one’s status. It changes one’s knowledge about one’s status. The way current laws are written in most states, the concern is not as much with the former as it is with the latter. In more than 30 states, there are laws on the books regarding the transmission of HIV. These laws vary greatly, but broadly fall under two categories.

  • Knowing that one has HIV, and not telling his or her sexual partner(s). In some states, it does not matter whether he or she used protection, has a repressed viral load, or did not participate in insertive anal sex (greatly minimizing risk of transmission).
  • Transmitting HIV, regardless of whether he or she knew his/her status.

We often hear it said that “knowledge is power.” With regard to taking an HIV test, this has truth. As mentioned, the test does not change one’s status, just his or her relationship with the truth of status. However, as can be seen from the first category above, knowledge also has greater consequences. If someone has HIV and engages in sexual activity, but he or she does not know HIV status, the law may not hold the person accountable.

This sets up possible scenarios such as these: The person with HIV who does not know his or her status can have unprotected sex, spread HIV, and not be held liable, whereas the person who knows he or she has HIV, does not disclose this, uses protection, and does not spread HIV can be prosecuted. It is a flawed system that ultimately discourages doing the responsible thing (getting tested), and it is just one of many issues regarding HIV that are caught in a web of politics, prejudice, and fear. It is also a system that creates strong narratives of “victim” and “perpetrator,” holding the person who knows he or she has HIV wholly responsible while absolving the one who does not know his or her status. This victim/blame narrative is another common theme when dealing with HIV in clinical settings.

When working with clients, it is imperative that we continue to strive for higher levels of functioning than laws that blame the “perpetrator,” who, in many cases, also has been the “victim” (of cultural violence, for example). It is a deadly cycle, and one that we can help break with good foresight. From my training with the American Psychological Association’s HIV Office of Psychology Education (HOPE), we learned that the law, as intimidating as it is, is the lowest level from which we operate, often puts us in ethical binds, and we have to use our ethical dilemma models to act in the best ways we know to reduce harm and maximize benefit while documenting every step.

Back to the issue of HIV self-testing and implications for clinicians: Given that it is now possible that people can self-test (and more people will as advertising increases on places such as Facebook, MTV, and Comedy Central), it is important that clinicians become familiar with their state laws regarding transmission. This is especially the case for clinicians working with sexually active youth and young adults, and/or sexually active clients with addictions. A list of states and transmission laws, including what constitutes a felony, misdemeanor, or finable offense, can be found here.

Clinicians will also need to consider potential liability issues if he or she is the only person to whom the client has disclosed HIV status (say, in a situation where the person has self-tested and is not seeking treatment) and the person spreads HIV. Do we collude with the client and deny his or her HIV status in the absence of any other documentation? How do we document agreements with clients regarding disclosure?

As with all ethical dilemmas, there really is not clarity as to what is the right thing to do. What we can do is to make sure we have a reliable framework with which to address ethical dilemmas, colleagues with whom we can consult, and knowledge of the law in our state. Where laws exist, we should make sure the client is aware as well.

If people have questions or would like to explore any of this further, please feel free to reach out to me. We serve our profession and clients better when we are not caught off-guard, and this is one of those issues we should be considering.

© Copyright 2013 GoodTherapy.org. All rights reserved. Permission to publish granted by Bradley D. Ogilvie, MS, LPC, LMFT, therapist in Washington, District of Columbia

The preceding article was solely written by the author named above. Any views and opinions expressed are not necessarily shared by GoodTherapy.org. Questions or concerns about the preceding article can be directed to the author or posted as a comment below.

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  • mackenzie

    mackenzie

    November 19th, 2013 at 11:25 AM

    How could you continue to work with someone who is knowingly and actively doing nothing to prevent the spread of this disease? I would have a very hard time with that because on one hand your responsibility is to improve the mental health of your patient but isn’t it also to protect others as well?

  • Lisa Nosal, MFT

    Lisa Nosal, MFT

    November 19th, 2013 at 2:35 PM

    I don’t quite understand the liability issues presented here. In my state (California), it’s my understanding that a client’s HIV status is always covered by confidentiality and so it’s illegal for a therapist to disclose it to others without a release in all cases.

    Does liability exist only in states where this is not the case? Or am I missing something?

  • Brad

    Brad

    November 19th, 2013 at 5:02 PM

    Lisa – I think it’s important to remember that the law may not always be the best guide for how we act. It always needs to be considered in our decision-making process but, as McKenzie points out, if we have a client who is knowingly and perhaps intentionally trying to spread HIV, just relying on the law to guide us is not enough. This is why it’s important to document and consult. It not only helps us grapple with ethical dilemmas (the law is not so good at guiding us with these), but it will also help us in the case that we have action taken against us. I am also suggesting here that we need to understand the laws about transmission (and that they are changing) so we adequately inform our clients of potential consequences.

  • Lisa Nosal, MFT

    Lisa Nosal, MFT

    November 19th, 2013 at 7:06 PM

    Thanks for your response. I absolutely agree we should understand laws about transmission so that we adequately inform our clients of potential consequences, but I guess, for me personally, I’m in such agreement with California’s confidentiality laws that I can’t imagine making an ethical choice to go against them. I would, of course, certainly work with a client to alter their behavior if they were having unprotected intercourse and/or not disclosing their HIV+ stance to partners, but I can’t imagine taking the leap to inform their partners or law enforcement. Doing so would, in my mind, be a huge breach of ethics.

  • Lisa Nosal, MFT

    Lisa Nosal, MFT

    November 19th, 2013 at 7:08 PM

    (And I would say my stance is based on the presumption that the HIV+ client’s partners are adults who are not being coerced or forced into sex, and therefore maintain their own autonomy in enforcing safe-sex practices.)

  • Anna

    Anna

    July 14th, 2014 at 3:54 PM

    You make assumptions that all adults have a sound reason to be tested for HIV. Further, increasing number of false negatives on HIV tests – And if no known reason to insist on additional testing – such as partner IS HIV positive – then this deadly disease wins very easily and very early. Untreated HIV is silent, often quick-developing, and deadly.
    You are rationalizing to avoid your responsibility – to stay in your comfort zone.

    I am preparing for a miserable death long before I expected. Thousands and thousands of partners of sex addicts are in a similar place –

    And many others —

    Your attitude about “adults”
    Is heartbreaking – Please evaluate your ethical responsibilities.
    My husband is a murderer – injecting deadly diseases without disclosing infidelity? All such perpetrators should be charged with manslaughter –
    If one was injecting a toxic poison with a needle, we would be clear about attempted murder. Why are people so ambivalent about using sex to inject a deadly disease? What / or who – is being served here?

  • Brad

    Brad

    November 20th, 2013 at 3:44 AM

    A bit more clarification, Lisa. When I say “disclosure”, I don’t mean the therapist/counselor disclosing anything, but informing the client that there might be laws regarding their own disclosure. In some of the more punitive states, regardless of protection, failure to disclose status is punishable. Having said that, I do think we have to be prepared for the fact that we may be in an ethical bind , and as with all ethical dilemmas, the goal is to minimize the harm and maximize the benefit, recognizing that “eliminating harm” is not always possible.

  • Samuel

    Samuel

    November 20th, 2013 at 4:36 AM

    Would, at the time of disclosure, if you knew that a patient who had HIV was acting irresponsibly, would this be a reason to dismiss him or her as a patient?

    I know that there must be quite a bit of hesitation to do this, but if you are bound by the laws of confidentiality and yet you disagree with the behavior, it would seem more appropriate to cut ties with the patient at that point in time.

  • Brad

    Brad

    November 20th, 2013 at 3:21 PM

    Samuel – I think it would be important that the clinician also do due diligence about why he/she might terminate therapy, being clear that it is about the harm the client might do to others, and not because of the clinicians own misconceptions and/or anxieties about HIV. There is a high co-morbidity of anxiety disorders related to cultural trauma when it comes to HIV and stigma (more on this in a future posting), so you don’t want to add to that nor give the perception that it is because the client has HIV or judgment about how he/she got HIV. You might want to consider some short-term contracts as a way to address your own concerns. At times, yes, we do have to be able to say to a client we cannot work with him/her, but making some connections and referrals is important to that process as well.

  • Samuel

    Samuel

    November 21st, 2013 at 5:53 AM

    Oh yeah, I would absolutely not expect anyone to leave a patient high and dry. If you had to terminate your own patient/therapist relationship that’s one thing, but I would fully anticipate that you would lead the client to another therapist who perhaps has a better understanding of working with a patient such as this.

  • Molly

    Molly

    November 23rd, 2013 at 11:03 AM

    I have a question, and I am not in any way in either the medical or legal field so I really do have some ignorance on the issue. But if you know that someone is a danger to themselves or someone else then why isn’t it a moral obligation to report that?
    I understand that maintaining someone’s confidentiality is critical in most cases, but something like this that seems dangerous not to disclose, surely there are some loopholes there so that you would not get into trouble for sharing?

  • Brad

    Brad

    November 23rd, 2013 at 9:25 PM

    Molly – If we had a client who we knew texted while driving, or talked about drinking and driving, would we report him/her? I know the analogy is not perfect, but there are many variables at play here. For example:
    1. Doesn’t the sex partner(s) share some responsibility in protecting him/herself (assuming this is consensual sex)? As mentioned above, holding the person who knows he has HIV to a higher standard than the one who doesn’t know but may be positive is a challenge to me.
    2. We have to consider what the client reports to us as far as using protection. What does he tell his sex partner if HIV comes up? At the same time, can we be certain that his sex partners are negative? How do we know?

    Certainly, if the client says he/she is going to try and infect as many people as possible, that raises the concerns to a high level. With ethical dilemmas such as this, our goal is to minimize the harm and maximize the benefit, while recognizing that we cannot eliminate the harm completely. We have to weigh the risk of losing the client from care as we try to protect others. Furthermore, there is the question of to whom do we report?

    Negotiating some short-term agreements (say, from session to session) about not exposing others can help give time to explore ways the client can also negotiate this landmine. The reality is that if someone tells a prospective partner he/she has HIV, rejection if high, just adding to the trauma of getting and HIV diagnosis, and only increasing the incidents of unsafe practices. Our job has to be to try to break the cycle. I will write more about trauma and HIV next month.

  • Anna

    Anna

    July 14th, 2014 at 3:42 PM

    I am stunned that any professional would question reporting HiV status of a client. I had consensual sex with my husband for 18 years. I was monogamous. My husband claimed he was, but had sexy with nearly 100 women. Why would I get tests for STDs?
    His physician knew he was carrying HIV, and did not report.

    After I learned that he had been sexually promiscuous, I got tested for STDs. My test for HIV was negative – twice. My husband and his physician AND his psychologists still did not disclose his HiV positive status. His sex addiction therapists (4) AND his attorney advised him to not disclose if I was seeking divorce!

    But now I am very sick and opportunistic infection has started, and I have transitioned to AIDS –

    I am devasted. My first grandchild about to be born – my youngest son just entering college. What now?

    I am so sickened by the cavalier attitude about reporting a disease that will kill me, that I am struggling to not lose faith in humanity.

    Reporting a client for texting vs. HIV? Are you serious? If my husband was texting while driving with me in the car, I would SEE his disease and protect myself!

    But psychologists advising a sex addict to not disclose HIV – AND not disclosing! Likely many, many women now infected by my husband, and he is back online picking up dates!

    The ethical and moral standards of any professional group who does not understand that a man texting while driving is not the same as a man injecting HIV into his wife, shortening her life by 30 years.

  • Molly

    Molly

    November 27th, 2013 at 4:55 AM

    Thanks Brad! I am not sure what side oft his I fall on, I just know that there would always be tough questions to consider and like you hint at, never an easy answer.

  • Maeve

    Maeve

    November 30th, 2013 at 7:30 AM

    Ideally yes everyone would get tested and know their status, but then who keeps up with that and tracks that? And then if you think about it there are just as many other communicable diseases that it is not mandated that we are tested for so why single out HIV? Furthermore, I would hope that the human race in general would be responsible enough to think about getting tested without there having to be some more govenrnment mandates requiring then to do it. We have enough of those laws already.

  • Anna

    Anna

    July 14th, 2014 at 3:59 PM

    You make erroneous – and smug – assumptions that all adults have a sound reason to be tested for HIV. Further, increasing number of false negatives on HIV tests – And if no known reason to insist on additional testing – such as partner IS HIV positive – then this deadly disease wins very easily and very early. Untreated HIV is silent, often quick-developing, and deadly.
    You are rationalizing to avoid your responsibility – to stay in your comfort zone.

    I am preparing for a miserable death long before I expected. Thousands and thousands of partners of sex addicts are in a similar place –

    And many others —

    Your smug attitude about “adults”
    Is heartbreaking – Please evaluate your ethical responsibilities or change careers. You are colluding with abusers.
    My husband is a murderer – injecting deadly diseases without disclosing infidelity? All such perpetrators should be charged with manslaughter –
    If one was injecting a toxic poison with a needle, we would be clear about attempted murder.

    Why are people so ambivalent about using sex to inject a deadly disease? What / or who – is being served here?

  • Sheridan

    Sheridan

    October 14th, 2014 at 5:30 PM

    Question: male client with HIV has sex with prostitutes, then goes home to wife. Tell the wife?

  • Brad

    Brad

    October 15th, 2014 at 10:20 AM

    Sheridan – this question has to be looked at from the 3 perspectives of legal, ethical and moral. Legally, in some states, if the client has unprotected sex with anyone and withholds HIV status, he can be prosecuted. The question about informing the wife, of course, is more complicated as it is not just health, but fidelity, so it depends on what the relational agreement is and the nature of the sexual relation with the wife that will guide what gets related to her and what must be communicated to her. So the informing of the wife, and in what context, really needs more information before a clearer answer can be given.

  • Jack J

    Jack J

    February 3rd, 2017 at 7:45 AM

    Finally an HIV cure

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