Section 5 in The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act 2017
Title: Informed consent for undertaking HIV test or treatment
(1) Subject to the provisions of this Act,—
(a) no HIV test shall be undertaken or performed upon any person; or
(b) no protected person shall be subject to medical treatment, medical interventions or research,
except with the informed consent of such person or his representative and in such manner, as may be specified in the guidelines.
(2) The informed consent for HIV test shall include pre-test and post-test counselling to the person being tested or such persons representative in the manner as may be specified in the guidelines.
Title: Informed consent not required for conducting HIV tests in certain cases
The informed consent for conducting an HIV test shall not be required—
(a) where a court determines, by an order that the carrying out of the HIV test of any person either as part of a medical examination or otherwise, is necessary for the determination of issues in the matter before it;
(b) for procuring, processing, distribution or use of a human body or any part thereof including tissues, blood, semen or other body fluids for use in medical research or therapy:
Provided that where the test results are requested by a donor prior to donation, the donor shall be referred to counselling and testing centre and such donor shall not be entitled to the results of the test unless he has received post-test counselling from such centre;
(c) for epidemiological or surveillance purposes where the HIV test is anonymous and is not for the purpose of determining the HIV status of a person:
Provided that persons who are subjects of such epidemiological or surveillance studies shall be informed of the purposes of such studies; and
(d) for screening purposes in any licensed blood bank.
Title: Guidelines for testing centres etc
No HIV test shall be conducted or performed by any testing or diagnostic centre or pathology laboratory or blood bank, unless such centre or laboratory or blood bank follows the guidelines laid down for such test.
Title: Disclosure of HIV status
(1) Notwithstanding anything contained in any other law for the time being in force,—
(i) no person shall be compelled to disclose his HIV status except by an order of the court that the disclosure of such information is necessary in the interest of justice for the determination of issues in the matter before it;
(ii) no person shall disclose or be compelled to disclose the HIV status or any other private information of other person imparted in confidence or in a relationship of a fiduciary nature, except with the informed consent of that other person or a representative of such another person obtained in the manner as specified in section 5, as the case may be, and the fact of such consent has been recorded in writing by the person making such disclosure:
Provided that, in case of a relationship of a fiduciary nature, informed consent shall be recorded in writing.
(2) The informed consent for disclosure of HIV-related information under clause (ii) of sub-section (1) is not required where the disclosure is made—
(a) by a healthcare provider to another healthcare provider who is involved in the care, treatment or counselling of such person, when such disclosure is necessary to provide care or treatment to that person;
(b) by an order of a court that the disclosure of such information is necessary in the interest of justice for the determination of issues and in the matter before it;
(c) in suits or legal proceedings between persons, where the disclosure of such information is necessary in filing suits or legal proceedings or for instructing their counsel;
(d) as required under the provisions of section 9;
(e) if it relates to statistical or other information of a person that could not reasonably be expected to lead to the identification of that person; and
(f) to the officers of the Central Government or the State Government or State AIDS Control Society of the concerned State Government, as the case may be, for the purposes of monitoring, evaluation or supervision.
Title: Disclosure of HIV positive status to partner of HIV positive person
(1) No healthcare provider, except a physician or a counsellor, shall disclose the HIV-positive status of a person to his or her partner.
(2) A healthcare provider, who is a physician or counsellor, may disclose the HIV-positive status of a person under his direct care to his or her partner, if such healthcare provider—
(a) reasonably believes that the partner is at the significant risk of transmission of HIV from such person; and
(b) such HIV-positive person has been counselled to inform such partner; and
(c) is satisfied that the HIV-positive person will not inform such partner; and
(d) has informed the HIV-positive person of the intention to disclose the HIV positive status to such partner:
Provided that disclosure under this sub-section to the partner shall be made in person after counselling:
Provided further that such healthcare provider shall have no obligation to identify or locate the partner of an HIV-positive person:
Provided also that such healthcare provider shall not inform the partner of a woman where there is a reasonable apprehension that such information may result in violence, abandonment or actions which may have a severe negative effect on the physical or mental health or safety of such woman, her children, her relatives or someone who is close to her.
(3) The healthcare provider under sub-section (1) shall not be liable for any criminal or civil action for any disclosure or non-disclosure of confidential HIV-related information made to a partner under this section.