Informed consent for HIV testing

Obtaining informed consent before testing for HIV is a legal requirement. Failure to obtain consent may result in criminal or civil legal action, as well as professional disciplinary processes.

Informed consent for testing requires that the person being offered a test has the capacity (the ability) – prior to agreeing to the test – to understand and agree to:

what the HIV test procedure is
the reasons for HIV testing
the material risks associated with being tested or not being tested for HIV.

The consent must be voluntary and freely given and the patient must be able to understand the information the clinician communicates.

Informed consent is required for HIV testing, except in emergency settings and in rare circumstances when a legal order is made for compulsory testing, for example, under some state-based mandatory testing laws . See also ‘Opt-out’ testing.

Adults are presumed to have capacity to consent. It should not be assumed that a person living with a mental health or other cognitive condition does not have the ability to give informed consent. Rather, such circumstances may indicate that further enquiry is needed to assess capacity and that additional supports should be considered to enable decision-making.

Generally, a minor (persons under age 18) is able to consent to or refuse medical procedures and treatment independently where they have achieved a ‘sufficient understanding and intelligence to enable him or her to understand fully what is proposed’ (emphasis added). This is referred to as ‘Gillick competence’ test, or a ‘mature minor’ that defines when a minor is able to consent to medical procedures and treatment. Health practitioners are advised to seek support for decisions regarding consent and minors, while ensuring that the privacy of minors is maintained.

If a person lacks legal capacity, responsibility for consent rests with the guardian, or other person or agency legally authorised to make such decisions on their behalf.

If the person has low English proficiency, the clinician must take the steps outlined in the 2020 National HIV Testing Policy to obtain valid consent. Clinicians who do not speak the preferred language of the patient should use an accredited interpreter to obtain informed consent. There are publicly funded interpreting services available in most states and territories. The Translating and Interpreting Service (TIS National) is available to registered health services 24 hours a day by telephoning 1300 131 450.

While ordering tests and communicating results may be standard for the healthcare practitioner, the test results may be anything but routine for the person receiving them. The results of an HIV test are significant and may involve significant consequences for the person and other people affected by any diagnosis. The healthcare practitioner should discuss the test results and options for future management or treatment (including risks and benefits) with the patient in light of the patient’s particular situation, to facilitate a shared decision-making process. Pre-test discussion should also prepare patients for a potential positive HIV test result.

The Medicare Benefits Schedule (MBS) stipulates that a practitioner requesting an HIV test must ensure that the patient has given informed consent, has provided the patient with ‘appropriate discussion’, including the possible results of the test.

The person performing the test should use their professional judgement when seeking informed consent. In deciding whether informed consent is given, the practitioner should consider the context in which the test is being performed, including:

the features that initiated testing, such as clinical presentation, indications for testing, epidemiology and patient initiation
an assessment of the patient’s understanding of the HIV testing process and consequences of the result.

Patients must be advised how the test result will be conveyed, and their contact details must be confirmed.

When a person requests, or is offered an HIV test, the practitioner should assess a person’s willingness to be tested, give appropriate information about risk and points of referral (if necessary) and provide assurances about confidentiality and privacy (see Privacy and Confidentiality). The information and assurances should be given in a way that is appropriate to the person’s gender, culture and language.

National resources #

2020 National HIV Testing Policy (last accessed March 2023)

Fact Sheet for clinicians Informed consent in health care (last accessed February 2024)

Australian Law Reform Commission Informed consent to medical treatment (last accessed February 2024)

State-based informed consent policies #

NT #

The NT does not have a publicly available consent policy. The national informed consent resource has general guidance on informed consent requirements ‘Fact Sheet for clinicians Informed consent in health care’ (last accessed February 2024)

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