Bay Area Reporter - June 8, 2006
Zak Szymanski, z.szymanski@ebar.com

"When patients arrive at a public health facility, government owes them a basic level of dignity and respect. Most medical providers do an excellent job of informing patients and providing quality care. Written informed consent is a critical component of making sure that patients fully understand the ramifications of making a medical decision," said Ma at the June 5 committee meeting, adding that California's recently implemented names reporting system calls for extra safeguards to be in place. "HIV still has serious stigma, and now the state of California has instituted a names-based system for reporting cases. It is crucial that patient privacy be protected, and written informed consent helps to do that."

Ma's proposal û co-sponsored by Supervisor Bevan Dufty and scheduled to be heard by the full Board of Supervisors on Tuesday, June 13 û was prompted by last month's controversial and somewhat flawed announcement from the Department of Public Health's STD Director Dr. Jeffrey Klausner that the city had eliminated pre-test counseling and written consent at San Francisco General Hospital and primary care clinics that perform HIV tests. Klausner's May 17 announcement generated media reports that the city was leading a cutting-edge trend to relax testing standards and normalize HIV, but the testing change was simply meant to eliminate an extra lab form as was practice at most area hospitals, according to DPH Director Dr. Mitch Katz.

ACLU involved

Ma's ordinance also coincides with the release of a June 2 letter from the American Civil Liberties Union of Northern California informing DPH that its state-funded City Clinic has been incorrectly telling patients that their names would not be reported if they tested HIV-positive. Statewide names reporting went into effect on April 17.

"The City Clinic has informed people seeking HIV testing that their names will not be reported to the Department of Public Health and fails to inform them of the availability of anonymous testing at other sites," the ACLU letter said, noting that the words "If I test positive, my result will be reported to the San Francisco Department of Public Health. However, my name will not be reported" appeared on the form used to obtain written consent for a test performed on May 26.

"We are deeply concerned that many individuals have undergone HIV testing based upon false information about the consequences of testing positive," the ACLU letter continued.

In his June 5 response letter to the ACLU, Klausner acknowledged that outdated forms had inadvertently been stocked, and that DPH had already been notified of the error. He pledged that patients who tested positive during that time period would not have their names reported to the state. Ling Hsu of DPH's HIV/AIDS Surveillance Program later told the Bay Area Reporter that the city has begun to comply with state law and report names of new HIV cases at twice-monthly intervals. But she added that officials are still awaiting regulations on how to deal with legal ambiguities such as newer blood tests on older HIV cases, and thus no names from the City Clinic site have been reported since the law took effect several weeks ago, and "very few" names have been reported to the state at all.

Lab form debacle

Two weeks ago, Katz told the B.A.R. that he would support Ma's ordinance in order to clarify the confusion generated by Klausner's original remarks to the media regarding consent and counseling changes.

The elimination of an error-prone lab form should not have generated a larger political debate related to names reporting or the normalization of HIV, said Katz. Klausner's so-called elimination of pre-test counseling, added Katz, was simply a carelessly-worded acknowledgement of an older budgeting decision to no longer use certified HIV counselors at clinics where on-site physicians could perform HIV tests. Current state law requires written consent for HIV tests except when those tests are performed by a treating physician.

Informed consent û which arguably includes counseling patients about HIV risks and the types and consequences of HIV tests û was always in effect, said Katz, whether or not that consent was documented in writing on a separate lab form.

But AIDS advocates said that last week's subsequent ACLU findings about City Clinic's misinformed consent were further proof of the need for a paper trail when it comes to patient consent in the age of names reporting.

"If I have it in writing I can at least go back to it. For example, if you look at what the ACLU found, if that consent was verbal we would have had no way of knowing what the conversation included," said Bill Barnes, an aide to Ma.

Unlike city-funded test sites, City Clinic is bound by state law to obtain written consent for HIV tests.

But "as the ACLU discovered, people aren't giving informed consent whether it's in writing or not," said Barnes, noting that information given to patients must be accurate in order for their consent to be informed.

Upon being correctly informed about names reporting, said Barnes, some people may not consent to an HIV test at all or may instead opt for a test at an anonymous site where no identifying information is collected.

Jeff Sheehy, AIDS policy adviser to Mayor Gavin Newsom, said he believed everybody would work together to craft a solution that would allow DPH to lose its burdensome lab form at city-funded testing sites without sacrificing the city's added protections of written consent. The lab form eliminated by last month's policy change was prone to signature errors and missing information that led to many people never getting their HIV tests, said Klausner.

But Sheehy said written consent could be documented in a patient's chart instead of a separate lab form. Obtaining that consent as a signature at the bottom of an HIV fact sheet, he said, would ensure that the correct information was given and the consent was indeed informed.

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Always watch for outdated information. This article first appeared in 2006. This material is designed to support, not replace, the relationship that exists between you and your doctor.

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