DELAWARE

http://www.delcode.state.de.us/title16/c012/sc01/index.htm#TopOfPage

TITLE 16
Health and Safety
PART II
Regulatory Provisions Concerning Public Health
CHAPTER 12. INFORMED CONSENT AND CONFIDENTIALITY
Subchapter I. HIV-Related Tests

Re: HIV

§ 1202. Informed consent.

(a) No health facility, health care provider or other person shall test or shall cause by any
means to have tested, any specimen of any patient for HIV-related tests, without the
informed consent of the subject of the test or the subject's legal guardian. A health care
provider shall ensure that informed consent has been received prior to ordering testing by a
laboratory or other facility.

(b) Informed consent to an HIV-related test shall consist of a voluntary agreement executed
by the subject of the test or the subject's legal guardian. If the agreement is oral, the facts
pertaining thereto must be documented by customary practice. Informed consent shall consist
of at least the following:

(1) An explanation of the test, including its purpose, potential uses, limitations and the
meaning of its results;

(2) An explanation of the procedure to be followed, including that the test is voluntary, that
consent may be withdrawn and the extent and limitations of the manner in which the results
will be confidential;

(3) An explanation of the nature of AIDS and other manifestations of HIV infection and the
relationship between the test result and those diseases; and

(4) Information about behaviors known to pose risks for transmission of HIV infection.

(c) Notwithstanding subsection (a) of this section the provisions of subsections (a) and (b) of
this section do not apply when:

(1) Knowledge of such test results are necessary for medical diagnostic purposes to provide
appropriate emergency care or treatment and the subject of the test is unable to grant or
withhold consent.

(2) The testing is done for the purposes of research; provided that the test is performed in a
manner by which the identity of the test subject is not known and may not be retrieved by the
researcher.

(3) A health care provider or health care facility procures, processes, distributes or uses (i)
blood, (ii) a human body part donated for a purpose specified under the Uniform Anatomical
Gift Act [Chapter 27 of this title] or (iii) semen provided prior to July 11, 1988, for the purpose
of artificial insemination, and such test is necessary to assure the medical acceptability of such
gift or semen for the purposes intended.

(4) The health of a health care worker has been threatened during the course of a health care
worker's duties, as a result of exposure to blood or body fluids of the patient in a manner
known to transmit HIV.

(5) Necessary to control the transmission of HIV infection as may be allowed pursuant to
Chapter 7 of this title as it relates to sexually transmitted diseases, or § 6523(b) of Title 11 as
it relates to the Department of Correction.

(6) Testing is ordered by a court of competent jurisdiction within the confines of civil or criminal
litigation where the results of an HIV-related test of a party, or a person in the custody or
under the legal control of another party, is relevant to the ultimate issue of culpability and/or
liability. Said order must be issued in compliance with the following provisions:

a. No court of this State shall issue such order unless the court finds that there is a compelling
need for such test results which cannot be accommodated by other means. In assessing
compelling need, the court shall weigh the need for testing and disclosure of the test results
against the privacy interest of the test subject and the public interest which may be disserved
by disclosure which deters future testing or which may lead to discrimination.

b. Pleadings pertaining to ordering of an HIV-related test shall substitute a pseudonym for the
true name of the subject of the test. The true name shall be communicated confidentially, in
documents not filed with the court.

c. Before granting any such order, the court shall provide the individual whose test result is in
question with notice and a reasonable opportunity to participate in the proceedings if the
individual is not already a party.

d. Court proceedings as to disclosure of test results so ordered shall be conducted in camera
unless the subject of the test agrees to a hearing in open court or unless the court
determines that a public hearing is necessary to the public interest and the proper
administration of justice.

(d) Any person on whom an HIV-related test was performed without first having obtained
informed consent pursuant to subsections (c)(1), (4) and (5) of this section shall be given
notice promptly, personally and confidentially that a test sample was taken and the results of
such test may be obtained upon request.

(e) At the time of learning the test result, the subject of the test or the subject's legal
guardian shall be provided with counseling for coping with the emotional consequences of
learning the result, for understanding the interpretation of the test result, for understanding
measures for preventing infection to others and to urge the voluntary notification of sexual
and needle-sharing partners of the risk of infection.

(f) Notwithstanding any other provision of law, a minor 12 years of age or older may consent
or refuse consent to be a subject of HIV-related testing and to counseling relevant to the
test. The consent or refusal of the minor shall be valid and binding as if the minor had
achieved majority, and shall not be voidable, nor subject to later disaffirmance, because of
minority. (66 Del. Laws, c. 336, § 1; 70 Del. Laws, c. 186, § 1.)