A requestor from Arizona recently contacted the Network looking for information on the legality of testing an individual suspected of being HIV positive without his or her consent.
Health care providers in Arizona must obtain informed consent prior to testing individuals for HIV, unless an exception applies. Concerning HIV tests, Arizona Revised Statute § 36-663 requires: (1) advance informed consent; (2) provision of information explaining HIV infection and the implications of a positive result; and (3) opportunities for individuals to decline the test. Exceptions to these requirements include:
Additional Arizona laws permit issuance of court orders requiring HIV testing where: (1) a defendant is alleged to have committed a sexual or other offense involving significant exposure; (2) a health professional was significantly exposed to blood or other bodily fluids; and (3) a public safety employee, volunteer, or employee of the Arizona state hospital was reasonably believed to be exposed to blood or bodily fluids.
Unlike several states (e.g., Michigan), Arizona does not specifically criminalize an HIV positive individual for knowingly engaging in sexual contact (and in some cases needle sharing) without disclosing his or her status. In some states, similar individuals are charged under general criminal laws such as assault or reckless endangerment. These types of charges are also possible under the general Arizona criminal code, but not specified. If an individual was charged under any of these laws or others involving sexual conduct or significant exposure, a court could order the individual to be tested (as required by certain statutes).
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