關於愛滋病毒/愛滋病檢測和隱私的問題和答案。另請參閱我們的頁面 愛滋病毒/愛滋病歧視 和 其他愛滋病相關問題.

馬薩諸塞州有哪些法律管轄 HIV 檢測的知情同意？

In 2012, Massachusetts changed the HIV testing part of the law (M.G.L. c. 111, § 70F) to require only “verbal informed consent.”  However, a physician, health care provider, or health care facility may not do any of the following without first obtaining a person’s 書面 知情同意：

  • 向第三方透露某人已接受愛滋病毒檢測；或者
  • 向第三方披露某人的愛滋病毒檢測結果。

It is important to keep in mind that this law only prohibits the disclosure of HIV status by health care providers.

A competent adult has the right to decide whether he or she wishes to undergo any medical treatment or testing.  Without informed consent, the provision of medical treatment is considered to be a “battery,” a legal claim based upon nonconsensual physical contact with or intrusion upon a person’s body.

什麼類型的同意才算充分？

Consent to an HIV test only needs to be done orally, but disclosure that a person took an HIV test or the results of an HIV test requires written  informed consent and must be HIV-specific, not general.

書面知情同意意味著一個人必須簽署一份特定的授權書，授權醫療保健提供者進行愛滋病毒檢測和/或揭露愛滋病毒檢測結果。

A general release to a health care provider authorizing the disclosure of medical records and information is insufficient. The release must specifically authorize the disclosure of HIV test results and must state the purpose for which the information is being requested.

對於未獲得書面知情同意的醫療保健提供者可能受到哪些處罰？

A health care provider or facility that tests for HIV or discloses an HIV test result without written informed consent violates a Massachusetts law (M.G.L. c.  93A) that protects consumers from unfair and deceptive trade practices.  Under this law, a person may receive compensatory damages for harm such as emotional distress, attorneys’ fees and, under certain circumstances, multiple damages — damages up to three times the amount of a person’s actual damages.  A physician may also be liable for medical malpractice or battery.

未成年人可以給予知情同意嗎？

根據麻州法律，未成年人（未滿18歲）通常被認為缺乏同意接受醫療治療的法律行為能力。然而，鑑於向青少年提供HIV檢測的重要性，目前有兩部法律授權未成年人無需父母或法定監護人同意即可同意接受醫療治療或檢測，例如HIV檢測。

立法者和法院都承認未成年人在某些情況下能夠獨立決定自己的醫療保健的重要性。

哪些法律管轄未成年人和知情同意？

Massachusetts law (M.G.L. c. 112, § 12F) provides that a minor may give consent to medical or dental care if he or she is:

  • Married, widowed or divorced;
  • 孩子的父母；
  • 武裝部隊成員；
  • Pregnant or believes herself to be pregnant;
  • Living separate and apart from his parents or legal guardian and is managing his own financial affairs; or
  • “Reasonably believes himself to be suffering from or to have come in contact with any disease defined as dangerous to the public health [by the Department of Public Health] pursuant to Chapter 111.” The list of such diseases includes HIV.  The minor may only consent to care relating to the diagnosis or treatment of that disease.

A physician or dentist is not liable for performing a procedure without informed consent if the physician relied in good faith on the patient’s statement that he or she is over 18 years of age.

Medical or dental records and other information about a minor who consents to treatment are confidential and may not be released except with the consent of the minor or upon a judicial order.  The statute, however, creates an exception to the confidentiality of a minor’s medical information when the physician or dentist “reasonably believes” that the minor’s condition is “so serious that his life or limb is endangered.”  In this case, the physician or dentist 必須 notify the parents or legal guardian of the minor’s condition.

法院對未成年人和知情同意有何看法？

除第112章第12F條的規定外，法院還裁定，如果未成年人具備足夠的智力和成熟度，能夠理解治療的風險和益處，無論其經濟獨立性或生活狀況如何，他們都可以就醫療治療提供知情同意。這被稱為“成熟未成年人”規則。

Courts will typically assess the minor’s age, experience, education, training, judgment, conduct and demeanor to assess whether under a particular circumstance the minor has the ability to appreciate the nature and consequences of treatment.

法院將特別考慮該人距離成年年齡（18 歲）的接近程度、治療或測試的益處（對於 HIV 抗體測試而言，益處至關重要）以及治療或測試的複雜性。

馬薩諸塞州是否有報告法律要求向公共衛生部報告 HIV 或愛滋病診斷結果？

Yes. All states require that certain health conditions be reported to public health authorities in order to track epidemiological trends and develop effective prevention strategies.  Massachusetts requires that licensed health care providers and health care facilities licensed by the Department of Public Health report HIV and AIDS cases by name to the Massachusetts HIV/AIDS Surveillance Program.  AIDS cases have been reportable by name since 1983.  In 1999 HIV cases became reportable using a unique identifier code.  Due to funding conditions by the federal      government, however, Massachusetts was forced to require HIV reporting by name beginning January 1, 2007.

The Department of Public Health has strong security measures in place to prevent dissemination of HIV/AIDS reporting data.  In addition, state regulations prohibit names from being shared with anyone else, including state or federal government entities (for more information, see HIV Reporting in Massachusetts for Consumers available at http://www.mass.gov, in the Diseases & Conditions section under Physical Health and Treatment).

馬薩諸塞州的哪些法律保護醫療資訊（例如 HIV）的隱私？

As noted above, the HIV testing statute prohibits a health care provider from disclosing to a third party the results of an HIV test without written informed consent. A more general Massachusetts privacy law applies in other contexts.

麻薩諸塞州法律（MGL c.214，§1B）規定：

A person shall have a right against unreasonable, substantial or serious interference with his privacy.

法院如何確定是否有違反這項一般隱私權法的行為？

As an initial matter, in order to be protected by this law, a person must have a “privacy right” in particular information.  Courts have ruled that a person has a privacy right in HIV infection status because:

  • HIV 是個人醫療資訊；並且
  • HIV 與嚴重的社會恥辱有關，

然而，僅僅對某些個人資訊擁有「隱私權」並不意味著每次揭露都是違法的。

In analyzing whether there has been a violation of the statute, courts will determine whether there is any legitimate countervailing reason for the disclosure. In other words, a court will balance privacy rights versus other reasons that a defendant articulates as to why a disclosure was necessary in spite of the infringement upon privacy.

For example, if an employee reveals his or her HIV status to a supervisor, the supervisor may only reveal that information to others for a necessary business reason.  It may be considered a legitimate business reason to discuss the employee’s HIV status with other management personnel in connection with making adjustments to a person’s job duties as a reasonable accommodation.  It would not, however, be a legitimate business reason to tell the employee’s co-workers or non-essential management personnel.

If a day care center or school revealed the identity of a child or student with AIDS to parents or other students, there is a good argument that such conduct violates Massachusetts law.  There is no legitimate interest in disclosing the child’s HIV status, especially since the risk of transmission to others is minuscule.

愛滋病毒感染者是否享有憲法賦予的隱私權？

Many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status.  Courts have based this right on the Due Process Clause of the U.S. Constitution which creates a “privacy interest” in avoiding disclosure of certain types of personal, intimate information.

The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor – e.g., police, prison officials, doctors at a state hospital.

與馬薩諸塞州隱私法（MGL c.214，§1B）類似，法院在侵犯個人隱私的性質與政府制定導致披露的政策或做法的合法理由之間進行權衡。

Do health care professionals ever have an obligation to warn a third party about a client’s HIV status?

It is the AIDS Law Project’s view that there is no clear justification for such a breach of confidentiality under Massachusetts law, even if a counselor or physician learns that a client is engaging in unsafe sex or other risky behavior without having disclosed his or her HIV-positive status to a partner.  Providers and consumers alike, however, should be aware that the case law in this area is still developing and remains unresolved.  For a legal opinion on how to handle a specific situation, consult with a supervisor or lawyer.

馬薩諸塞州法律允許醫療保健提供者在某些有限的情況下警告第三方可能造成的傷害，這是否適用於 HIV 狀況？

愛滋病法律計畫的立場是，這些規定不應被理解為適用於愛滋病毒。

Take, for example, the Massachusetts statute that permits licensed social workers and licensed mental health professionals to warn third-parties under certain limited circumstances (M.G.L. c. 112, § 135A). Under certain circumstances, Massachusetts law provides that a social worker 可能, but is not legally mandated to, disclose confidential communications, including situations when:

  • The client has communicated an explicit threat to kill or inflict serious bodily injury upon a reasonably identified victim or victims with the apparent intent and ability to carry out the threat;
  • 社工知道客戶有身體暴力史，且社工有合理理由相信客戶會殺死可合理識別的受害者或對其造成嚴重的身體傷害。

對於執業心理學家（MGL c. 112，§ 129A）和執業心理健康專業人士（MGL c. 123，§ 36B）而言，其法規實際上相同。

And, with respect to physicians, the Massachusetts Supreme Judicial Court stated in Alberts v. Devine in 1985, that physicians owe patients a legal duty not to disclose confidential patient medical information without the patient’s consent, “except to meet a serious danger to the patient or others.” The Court did not, and has not since then, articulated the meaning and scope of the words “serious danger.”

Neither of these provisions provides clear legal justification to breach the confidentiality of a client’s HIV status, in light of the specific Massachusetts statute prohibiting the involuntary disclosure of HIV status by a health care provider.

No court has ever interpreted the relationship between the HIV confidentiality statute and other general provisions permitting disclosure of patient information under limited circumstances by doctors or mental health providers.  Therefore, providers who involuntarily disclose a client’s HIV status risk liability for invasion of privacy.

然而，由於這是一個不斷發展的法律領域，因此就具體情況諮詢律師至關重要。