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How Informed Consent for HIV Testing, HIV Partner Notification by PNAP/CNAP and Access to HIV Primary Care are Handled when Minors are Involved

Informed Consent for HIV Testing

HIV Partner Notification by PNAP1/CNAP2

Access to HIV Primary Care

1PNAP = PartNer Assistance Program (NYS exclusive of New York City (NYC)

2CNAP = Contact Notification Assistance Program (5 Boroughts of NYC)

Informed Consent for HIV Testing

Can a minor (age less than 18 years) consent to his or her own HIV test?

In New York State the capacity to consent to an HIV test (either confidential or anonymous) is determined without regard to age. Informed consent for minors varies, depending upon the minor's situation. Situations are described below:

  • Infants and Very Young Children Infants and very young children do not have the capacity to consent because they do not yet have the ability to understand or make informed decisions about the test. The person authorized pursuant to law to consent to health care for the child has the right to decide whether the child may be tested and to consent on behalf of the child. In intact families, the biological parents generally have the legal authority to consent. Pre-test counseling must be provided and the consent form must be signed by one or both parents.
  • Foster Care When the infant or child is in foster care, special rules apply. Consent for an HIV test must be obtained from the child's biological parents, if possible, and/or from the local Social Services Commissioner responsible for overseeing foster care placements only if the foster care child does not have the capacity to consent to an HIV test. Please note that the local commissioner does not have authority to consent to medical care for all categories of foster children. The local commissioner has a legal right to consent for children who are freed for adoption and the local commissioner is the legal guardian, abused or neglected children in accordance with §383-b of the Social Services Law and other foster children where the parent has delegated the right to consent to the local commissioner. In New York City, the Administration for Children's Services has this responsibility. Neither the foster parents nor the foster care agency can legally give consent for an HIV test for a foster child.
  • Adopted Children When a child has been adopted, the adoptive parents assume all parental rights; therefore they, not the biological parents, have legal authority to consent to health care for and HIV testing for the adopted infant or young child.
  • Capacity to Consent is Required and is Not Based on Age AloneThe capacity to consent is defined in the Public Health Law as the: "ability, determined without regard to the individual's age, to understand and appreciate the nature and consequences of a proposed health care service, treatment, or procedure, or of a proposed disclosure of confidential HIV related information, as the case may be, and to make an informed decision concerning the service, treatment or disclosure." (Public Health Law Section 2780.5).
    Once a minor has the capacity to consent, he or she alone has the right to decide whether or not to be tested. An individual under age 18 may not have the capacity to consent and, thus, the right to decide whether to be tested. A medical provider ordering the test must conduct an individualized assessment of every older child's or adolescent's actual ability to understand the nature and consequences of being tested for HIV and to make informed decisions about whether to be tested.
  • Married Minors and Minor Parents Have the Right to Give Consent NYS Public Health Law Section 2504(1) provides that any person, even if under the age of 18, who has married or is the parent of a child may give consent for health care for himself or herself, and the consent of no other person shall be necessary. Therefore, a minor who is married or is a parent is generally the only person who has the right to decide whether to consent to an HIV test. If a married minor or minor parent decides not to be tested, his/her parent or legal guardian generally cannot override that decision.
  • Pregnant Minors NYS Public Health Law Section 2504(3) provides that any person who is pregnant may give effective consent for "medical, dental, health and hospital services relating to prenatal care." Therefore, a pregnant minor generally has the ability to provide consent for her own HIV test.
  • Testing a Child of Minor Parents NYS Public Health Law Section 2504(2) provides that any person, even if under age 18, who has been married or who has borne a child may give consent for >"medical, dental, health and hospital services for his or her child." The minor has the right to decide whether his or her child should undergo an HIV test.

HIV Partner Notification by PNAP/CNAP

How do PNAP/CNAP approach dealing with minors?

PNAP/CNAP's approach is to deal directly with minors, rather than their parents, unless the minors specifically indicate that they want their parents contacted.

How often do PNAP/CNAP notifications involve minors?

This rarely occurs. The most common interactions with minors involve youth who are somewhat independent from their parents and are voluntarily sexually active.

Do PNAP/CNAP automatically inform a minor's parents if their child has an STD or HIV or has been named as a contact?

No, HIV and STD partner notification do not include telling the parents. Partner notification services are confidential; therefore no parental notification occurs when a minor receives services unless the minor specifically requests that his/her parents be involved or contacted.

What training do PNAP/CNAP staff receive for dealing with situations involving minors?

PNAP/CNAP staff receive intensive training in how to conduct client interviews. This training includes instruction on how to communicate with and provide services to minors. During staff orientation, the potential for child abuse or maltreatment situations is discussed and staff are instructed on how to recognize situations which involve child abuse or maltreatment. PNAP/CNAP staff are trained to create an atmosphere of trust where minors are treated with respect, courtesy and professionalism.

What steps will be included in the testing and partner notification process to ensure that the notification of a minor or a minor's partner would not have a severe negative affect on the physical health and safety of the minor?

When a minor is the index patient or reported contact, PNAP/CNAP will work very closely with the care provider, to ensure that domestic violence screening is done and to determine the best option for notification, to ensure the safety of all parties. PNAP/CNAP staff have been trained to be particularly sensitive to cases which present the possibility of parental or partner violence.

The issue of domestic violence will be included during the informed consent process for HIV testing. It will be discussed again during post-test counseling of HIV-positive clients as part of the discussion of partner notification options and before names are elicited.

Young people will be fully informed of all options available for partner notification assistance as well as all relevant provisions of the law, including rights of HIV-infected persons. The voluntary nature of partner notification must be made clear and fears regarding reporting of the minor's name to the Health Department must be addressed. Decisions and timing regarding partner disclosure must be individualized for each young person.

Screening for risk of domestic violence will take place on a partner-by-partner basis as partner names and other locating information are elicited. This will provide the young person with an opportunity to express concerns about the potential for violence related to the notification of a specific partner, including another minor, an adult, a parent or another relative. Domestic violence screening of minors related to HIV partner notification needs to incorporate assessment of potential domestic violence from family members related to partner notification, as well as sexual and/or needle sharing partners. Potential for homelessness needs to be a component of the screening process.

Even if a minor's parent or guardian consented to the HIV test, partner elicitation and domestic violence screening should still be conducted in a private, safe and confidential fashion without any others, including the parent or guardian, present.

What happens when a case involves suspected child abuse or maltreatment?

Medical providers are required, by the NYS Social Services Law, to report situations involving suspected child abuse or maltreatment, including adult sexual activity with children age 12 and younger. Most often, by the time PNAP/CNAP receives a report, the medical provider has already recognized and reported the abuse or maltreatment (see Social Services Law §413, §415).

Is there a specific age below which sex with a minor is statutory rape?

Yes, rape, including statutory rape, is defined in the NYS Penal Law as follows:
  • Rape in the first degree: A man is guilty of rape in the first degree when he engages in sexual intercourse with a female by forcible compulsion; or who is incapable of consent by reason of being physically helpless; or, who is less than eleven years old.
  • Rape in the second degree: A person is guilty of rape in the second degree when, being eighteen years old or more, he or she engages in sexual intercourse with another person less than fourteen years old to whom he/she is not married.
  • Rape in the third degree: A person is guilty of rape in the third degree when he/she engages in sexual intercourse with another person to whom he/she is not married who is incapable of consent by reason of some factor other than being less than seventeen years old; or, being twenty-one years old or more, he/she engages in sexual intercourse with another person to whom he/she is not married who is less than seventeen years old.

Are PNAP/CNAP required to report cases of suspected statutory rape to the police?

No. PNAP/CNAP are not required to report such cases to the police. They do make such reports.

Access to HIV Primary Care

Can an HIV-infected minor consent to his or her own treatment?

In general, parental or guardian consent is required for a physician to treat a minor for HIV/AIDS, including in-school-based clinics. Family planning clinics can provide only family planning related care to minors with the minors' consent. Minors who are married can consent for their care, as can minors who are pregnant/parenting (see earlier discussion of NYS Public Health Law, Section 2504).