“HIV Screening in Health Care Settings: Public Health and Civil Liberties Conflict?” Journal of the American Medical Association: Lawrence Gostin, associate dean at the Georgetown University Law Center, in the Oct. 25 issue of JAMA examines the history of HIV testing and the new CDC recommendations regarding testing.

According to Gostin, policies for HIV screening began in the 1980s, “when the scientific and social context was markedly different than it is today” because “rudimentary” treatments meant that people were “unlikely to benefit from HIV testing.”

In “vulnerable communities,” a “public health model” for fighting the spread of HIV would address their “health and collective well-being” and not focus solely on their rights, Gostin writes, adding that as the personal and social benefits of HIV testing increase and the social risks of being HIV-positive decrease, a public health strategy “appears warranted.”

According to Gostin, CDC - which supported a “‘rights approach” for decades - is “moving demonstrably toward public health” state laws that “could stand as a barrier” to the implementation of CDC’s guidelines.

For instance, the training and certification required to perform HIV testing could limit hospitals and physician and dental offices from providing the services, and laws that require pretest counseling with prescribed content areas might hinder HIV testing.

In addition, state laws that require informed consent and post-test activities - such as counseling and confirmatory tests in licensed laboratories - might limit testing.

“If states do not reform their laws, they may pose insuperable obstacles to routine screening,” Gostin writes, adding, “State law reform, therefore, is critical if the CDC is to fully achieve its objectives.”

Gostin also writes that protecting health care workers from legal liability surrounding testing recommendations “poses yet another legal dilemma.”

If health care professionals fail to offer HIV tests according to CDC recommendations, they could be found negligent, according to Gostin.

If a health care professional conducts an HIV test and knows that the patient’s partners are at risk, not protecting those partners “could result in liability,” Gostin writes (Gostin, JAMA, 10/25).