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Michigan: HIV/AIDS information and minors.

• Question 1: Can a health professional advise a minor on HIV/AIDS?

• Question 2: Can professionals keep information about a kid's sexual activity from the parents?

• Question 3: Who in the judicial system gets to know a kid's HIV status?

• Question 4: Who in the school district gets to know a kid’s HIV status?

Question 1: Can a health professional advise a minor on HIV/AIDS without notifying the parent/guardian and getting permission to do so?

Answer: Yes, thanks to Michigan Compiled Law (MCL) 333.5127. That section of the public health code is pretty clear, and answers a number of questions:

"333.5127 MINOR INFECTED WITH VENEREAL DISEASE OR HIV; CONSENT TO TREATMENT; INFORMING SPOUSE, PARENT, GUARDIAN OR PERSON IN LOCO PARENTIS; FINANCIAL RESPONSIBILITY.

    "(1) Subject to section 5133 [which defines the HIV testing and counseling requirements], the consent to the provision of medical or surgical care, treatment, or services by a hospital, clinic, or physician that is executed by a minor who is or professes to be infected with a venereal disease or HIV is valid and binding as if the minor had achieved the age of majority. The consent is not subject to later disaffirmance by reason of minority. The consent of any other person, including a spouse, parent, or guardian, or person in loco parentis, is not necessary to authorize the services described in this subsection to be provided to a minor.

    "(2) For medical reasons a treating physician, and on the advice and direction of the treating physician, a physician, a member of the medical staff of a hospital or clinic, or other health professional, may, but is not obligated to, inform the spouse, parent, guardian, or person in loco parentis as to the treatment given or needed. The information may be given to or withheld from these persons without consent of the minor and notwithstanding the express refusal of the minor to the providing of the information."

This means just what it says, but it means ONLY what it says. For example, it allows disclosure by a "health professional." Duty to protect the public health or not, by no stretch of the imagination is a probation officer or a court employee automatically a "health professional." So disclosure MAY be made, but only if it is medically necessary and only by a health professional. Juvenile court officers do not fall within this exception.

Note also that this refers to HIV specifically and to "a venereal disease." So these diseases can be discussed with a minor, and information given and services provided, without getting permission from a parent or guardian.

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Question 2: Can professionals keep information about a kid's sexual activity from the parents?

Answer: This is a morality question, not a legal one. Nowhere in the law does it require anybody to disclose someone else's sexual activity to another person (except in the case where one's status as HIV-positive has to be disclosed to a sex partner before intimacy or it is a felony, and that is only remotely relevant to this particular question). This question does, however, go to the "trusting nature of the relationship" theory (see the Adolescents & HIV article): how will it harm the relationship (if there is one) to blab what the kid confides? This also goes to the idea of not interfering with someone else's life any more than necessary. So depending on the actual circumstances, I would most likely conclude that this is a professional judgment call, but there had better be really good reasons for disclosing because there sure is no legal requirement.

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Question 3: Who in the judicial system gets to know a kid's HIV status?

Answer: Whether or not the kid self-discloses doesn't matter to the analysis. Given the basic rule of confidentiality, the person who learns HIV-related information suddenly has to carry the burden of not disclosing it even accidentally. The presumption, again, is that they should shush unless there is an applicable exception.

One exception that might apply to minors is related to residential placement. HIV status can be disclosed by the probate court IF it is "in order to care for the minor AND to place the minor with a child care organization" BUT the disclosure can ONLY be to the director of the child care organization or to the person who holds the license if the child care organization is in a private home. MCL 333.5131(5)(g).

Another exception that may apply says that when a person is arrested and charged with particular crimes they can be tested without their permission. MCL 333.5129(7). These crimes are basically criminal sexual contact violations, prostitution, etc., and this DOES apply to minors. The testing can be for venereal disease, hepatitis B and/or HIV. If the charged person tests positive for any of those diseases, they "shall" ("shall" means "must") be referred for appropriate medical care. The test results are sent back to the court and made part of the court record, but they are confidential. Positive test results are also given to the victim of the crime, and if the victim is a minor then also to the victim's parent/guardian. MCL 333.5129(5)_(9).

When an HIV-positive person is incarcerated, their test results are to be transmitted to the Michigan Department of Corrections (MDOC). If a probate court puts an HIV-positive kid in the custody of either a relative or of a "public or private agency, institution or facility" the probate court "shall" (so, "must") send a copy of the test results to that relative or to the director of the agency/institution/facility. That person receiving the information, though, IS subject to the basic confidentiality law (MCL 333.5131, above). MCL 333.5129(7).

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Question 4: Who in the school district gets to know a kid’s HIV status?

Answer: Again, the basic rule still holds: if the kid or their parent self-discloses, then the information has to be protected by whoever hears it. Beyond that, there is no requirement that anyone in a school be told that one of their students is HIV-positive. Thanks to universal precautions, HIV status should not be relevant in school. That said, there is one relevant exception to the confidentiality rule: MCL 333.5131(5)(c) says that IF "disclosure is necessary to prevent a reasonably foreseeable risk of transmission of HIV to pupils in the school district" then ONE employee of the school DISTRICT can be told. The determination of whether there is a real risk of HIV transmission is to be made by the local health department, not by employees of the school or the district or anyone else. And the risk must be real - the simple fact that a child is HIV-positive does not automatically mean that it is lawful or appropriate to tell the school district. (Customarily, there is one person in the district superintendent’s office who gets information about HIV-positive students. It would be unlawful to tell a school principal, and ask that person to transmit the information to the district office.)

In conclusion, information about a minor child’s health is, generally, confidential and protected from the known world other than their parents. For certain medical conditions or diagnoses, there are special legal protections that make some details of the child’s health information confidential and protected even from their parents. When dealing with minors who are seeking care, testing or treatment for HIV or AIDS, professional care givers must protect information that identifies the child and the nature of the services. And if the child is seeking other services unrelated to HIV, then generally their HIV status is still legally protected from disclosure.

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 Answered by Kendra S. Kleber JD

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