How Informed Consent for HIV Testing, HIV Partner Notification by Health Department Staff and Access to HIV Primary Care are Handled when a Minor is Involved

Informed Consent for HIV Testing

Can a minor (age less than 18 years) consent to their 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 Alone The 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 Health Department Staff ("Partner Services")

How do Partner Services Specialists approach working with minors?

In New York State, minors are able to get certain sexual and reproductive health services, including STD/HIV testing and STD treatment, without their parent/guardian's consent.  In order to protect the minors' confidentiality, Partner Services staff work directly with minors, rather than their parent/guardian.  If a minor specifically indicates that they want their parent contacted, Partner Services staff will do so.

How often do Partner Services notifications involve minors?

Partner Services notify minors on a regular/frequent basis, primarily for gonorrhea and chlamydia.

Do Partner Services Specialists 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 notifications 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 Partner Services Specialists receive for dealing with situations involving minors?

Staff receive intensive training to conduct client interviews. This training includes information on how to communicate with and provide services to minors. Staff are trained to create an atmosphere of respect, courtesy and trust, while maintaining professionalism.

Staff also receive training on encouraging minors to discuss situations with their parents if the minor is comfortable doing so.

In addition to this training, staff receive specialized training to recognize situations in which child abuse, neglect or maltreatment may be involved.

What steps will be included in the testing and partner services process to ensure that notifying 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 patient or reported contact, Partner Services Specialists work very closely with the health care provider to ensure that domestic violence screening is done and to determine the best option for communicating with their patients and partners to ensure the safety of all parties. Staff have been trained to be particularly sensitive to cases which present the possibility of parental or partner violence.
Your provider should discuss intimate partner(s) and domestic violence risks and concerns when discussing HIV testing.  If HIV-positive, when providing your test result, your provider should discuss partner notification options before names are elicited.

Partner Services specialists are required to discuss intimate partner(s) and domestic violence risks and concerns during the informed consent process for HIV testing.  If HIV-positive, the Partner Services Specialist will review partner notification options when providing the test result for each partner elicited.

Young people will be fully informed of all options available for partner services assistance as well as all relevant provisions of the law, including rights of HIV-infected persons. The voluntary nature of partner services 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 notifying a specific partner, including another minor, an adult, a parent or another relative. Domestic violence screening of minors related to HIV partner services needs to incorporate assessments 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 Health Department staff receive 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.  Statutory rape is prosecuted under New York's rape and sexual abuse laws. Penalties depend on the ages of the defendant and victim, and the conduct that occurred, as described below.

• First degree rape includes sexual intercourse (penetration, however slight) between a minor who is younger than 11 years old and a defendant of any age. This offense is a Class B felony, which incurs at least five (and up to 25) years in prison.
• Second degree rape includes sexual intercourse between a minor who is younger than 15 years old and a defendant who is at least 18 andfour or more years older than the minor. This offense is a Class D felony, which incurs up to seven years in prison.
• Third degree rape includes sexual intercourse between a minor who is younger than 17 years old and a defendant who is at least 21 years old. This offense is a Class E felony, which incurs up to four years in prison.¹

"Romeo and Juliet" exception

Named after Shakespeare's young lovers, "Romeo and Juliet" exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age.
In New York, there is a partial Romeo and Juliet exemption for consensual sex between a minor who is 15 or 16 and someone who is younger than 21. There is also a partial exception, a minor who is 11, 12, 13, or 14 years old, and a defendant who is younger than 17. This is a partial exception because, while these parties are protected from felony prosecution, they may nonetheless be charged for sexual misconduct (a misdemeanor) which can incur up to one year in jail.²

Are Partner Services Specialists required to report cases of suspected statutory rape to the police?

No. Partner Services staff are allowed, but not required, to report such cases to the police.

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).