Amended in Assembly May 1, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 506

Introduced by Assembly Member Mitchell

February 20, 2013

An act to amend Section 121020 of the Health and Safety Code, relating to public health.

LEGISLATIVE COUNSEL’S DIGEST

AB 506, as amended, Mitchell. HIV testing: infants.

Existing law provides that a child may come within the jurisdiction of the juvenile court and become a dependent child of the court in, among others, cases of abuse and neglect. Under existing law, when a minor has been, or has a petition filed with the court to be, adjudged a dependent child of the court, the court may authorize, or order that a social worker may authorize, medical care for the minor, as prescribed. Under existing law, a social worker may, without court order, authorize medical care for a minor in emergency situations, as specified.

Existing law authorizes a peace officer or social worker to take into temporary custody a minor when there is reasonable cause for believing that the minor is in immediate need of medical care or is in immediate danger, as specified. Under existing law, when a minor is taken into temporary custody and is in need of medical care, the social worker may, upon recommendation of the attending physician and surgeon, authorize the performance of medical care, as specified. begin delete Under existing law, when allegations of child abuse come to the attention of the local law enforcement agency or local child welfare department and the child is taken into protective custody, the agency or department may cause the minor to undergo a physical examination under certain circumstances. end delete

Existing law provides that a minor under 12 years of age is deemed not competent to give consent for an HIV test to be performed, and authorizes the minor’s parent, guardian, conservator, or other person lawfully authorized to make health care decisions on behalf of the minor to provide consent for the test. Under existing law, a court may also provide consent for the test to be performed on a minor who is adjudged to be a dependent child of the court.

This bill would authorize a social worker begin delete or the treating health care provider, as specified, end delete to provide consent for an HIV test to be performed on an infant begin delete under one year of age end delete begin insert who is less than 12 months of age end insert when the infant has been taken into temporary custody or has been, or has a petition filed with the court to be, adjudged a dependent child of the court and the infant is begin delete undergoing a physical examination or end delete receiving medical care begin insert if, among other things, the attending physician and surgeon determines that HIV testing is necessary to render appropriate care to the infant end insert .

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 121020 of the Health and Safety Code
is amended to read:

121020.  

(a) (1) When the subject of an HIV test is not
competent to give consent for the test to be performed, written
consent for the test may be obtained from the subject’s parents,
guardians, conservators, or other person lawfully authorized to
make health care decisions for the subject. For purposes of this
paragraph, a minor shall be deemed not competent to give consent
if he or she is under 12 years of age.

(2) Notwithstanding paragraph (1), when the subject of the begin insert HIV end insert
test is a minor adjudged to be a dependent child of the court
pursuant to Section 360 of the Welfare and Institutions Code,
written consent for the test to be performed may be obtained from
the court pursuant to its authority under Section 362 or 369 of the
Welfare and Institutions Code.

(3)  begin insert (A) end insert begin insert   end insert Notwithstanding paragraphs (1) and (2), begin delete when end delete begin insert if end insert the
subject of the test is an infant begin delete under one year of age end delete begin insert who is less
than 12 months of age end insert who has been taken into temporary custody
pursuant to Article 7 (commencing with Section 305) of Chapter
2 of Part 1 of Division 2 of the Welfare and Institutions Code or
who has been, or has a petition filed with the court to be, adjudged
a dependent child of the court pursuant to Section 360 of the
Welfare and Institutions Code, the social worker may provide
begin insert written end insert consent for an HIV test to be performed when the infant
is begin delete undergoing a physical examination pursuant to Section 324.5
of the Welfare and Institutions Code or is end delete receiving medical care
pursuant to Section 369 of the Welfare and Institutions Code, begin delete or
the treating health care provider may provide consent if he or she
determines there are factors indicating that an HIV test should be
performed. end delete begin insert if all of the following have occurred: end insert

begin insert

(i) The attending physician and surgeon determines that HIV
testing is necessary to render appropriate care to the infant and
documents that determination. When deciding whether HIV testing
is necessary, the physician and surgeon shall consider appropriate
factors, either known to the attending physician and surgeon or
provided to the attending physician and surgeon by the social
worker, including, but not limited to, whether the infant has a
parent with a history of behavior that places the parent at an
increased risk of exposure to HIV, or whether the infant is a victim
of sexual abuse, which has placed the child at risk of exposure to
HIV.

end insert begin insert

(ii) (I) The social worker provides known information
concerning the infant’s possible risk factors regarding exposure
to HIV to the attending physician and surgeon.

end insert begin insert

(II) If the parent’s or guardian’s authority to make medical
decisions for the child has not been terminated or limited by the
court, the social worker makes reasonable efforts to contact the
parent or guardian of the child to seek consent for the HIV testing
and is unable to contact the parent or guardian. The social worker
shall document his or her efforts to contact the parent or guardian.

end insert begin insert

(III) If the parent’s or guardian’s authority to make medical
decisions for the child has been terminated or limited by the court,
the social worker makes reasonable efforts to contact the person
authorized by the court to make medical decisions for the child in
order to seek consent for the HIV testing and is unable to contact
that person. The social worker shall document his or her efforts
to contact that person.

end insert begin insert

(B) The attending physician and surgeon and the social worker
shall comply with all applicable state and federal confidentiality
laws.

end insert

(b) Written consent shall only be obtained for the subject
pursuant to begin insert paragraphs (1) and (2) of end insert subdivision (a) when
necessary to render appropriate care or to practice preventative
measures.

(c) The person authorized to consent to the test pursuant to
subdivision (a) shall be permitted to do any of the following:

(1) Notwithstanding Sections 120975 and 120980, receive the
results of the test on behalf of the subject without written
authorization.

(2) Disclose the test results on behalf of the subject in
accordance with Sections 120975 and 120980.

(3) Provide written authorization for the disclosure of the test
results on behalf of the subject in accordance with Sections 120975
and 120980.