No person shall perform a test designed to identify the human immunodeficiency virus or its antigen or antibody without first obtaining the informed consent of the person upon whom the test is performed, except as provided in Section 24-2B-5, 24-2B-5.1, 24-2B-5.2 or 24-2B-5.3 NMSA 1978. Informed consent shall be preceded by an explanation of the test, including its purpose, potential uses and limitations and the meaning of its results. Consent need not be in writing if there is documentation in the medical record that the test has been explained and the consent has been obtained. The requirement for full pre-test counseling may be waived under the following circumstances:

A. the performance of a prenatal test to determine if the human immunodeficiency virus or its antigen is present in a pregnant woman; provided that the woman, or her authorized representative, after having been informed of the option to decline the human immunodeficiency virus test, may choose not to have the human immunodeficiency virus test performed as a part of the routine prenatal testing if she or her authorized representative provides a written statement as follows:

"I am aware that a test to identify the human immunodeficiency virus or its antigen or antibody is a part of routine prenatal testing. However, I voluntarily and knowingly choose not to have the human immunodeficiency virus test performed.

_______________________________________________

(Name of patient or authorized representative)

_______________________________________________

(Signature and date)."; or

B. when human immunodeficiency virus testing is part of routine medical care.

History: Laws 1989, ch. 227, § 2; 1993, ch. 107, § 2; 1996, ch. 80, § 7; 2000, ch. 36, § 1; 2007, ch. 108, § 1.

The 2007 amendment, effective June 15, 2007, provided that the requirement for immunodeficiency pre-test counseling may be waived if the human immunodeficiency virus test is part of routine medical care or if the test is performed as part of a routine prenatal test, unless the pregnant woman chooses not to have the test performed.

The 2000 amendment, effective May 17, 2000, inserted "or 24-2B-5.3" in the first sentence.

The 1996 amendment, effective July 1, 1996, inserted "or 24-2B-5.2 NMSA 1978" following "24-2B-5.1" and made a stylistic change in the first sentence.

The 1993 amendment, effective June 18, 1993, substituted "24-2B-5 or 24-2B-5.1 NMSA 1978" for "6 of the Human Immunodeficiency Virus Test Act" in the first sentence.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Damage action for HIV testing without consent of person tested, 77 A.L.R.5th 541.