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2 July 2026
‘Opt-out’ HIV testing risks confusion about consent, legal experts warn
As opt-out HIV testing expands into new healthcare settings, doctors and patients need clarity on its potential legal consequences. Here’s why.
Under a public health policy aimed at eliminating HIV transmission, in Australia, you might now be tested for HIV while checking common conditions such as cholesterol levels and kidney function.
Experts at UNSW say this is a shift away from conventional testing that could reduce stigma and increase diagnosis rates, but one that risks overlooking a crucial factor: the patient's informed consent.
Scientia Associate Professor David Carter, a medico-legal expert from UNSW Law & Justice, says the move towards opt-out HIV testing could have severe legal implications for patients and doctors.
“Opt-out testing means there’s no need for you to ask for the test,” he explains. “It will go ahead unless you opt out, and this often happens without a separate, dedicated conversation.
“However, without a conversation about HIV, tailored to you and your circumstances, you can’t opt in or opt out in a truly informed way.”
Everyone in Australia has the right to refuse any medical procedure, including diagnostic tests, which may partly explain lower-than-desired HIV testing rates.
“Not everyone knows HIV treatments are now quite simple. People living with HIV can have long, healthy lives,” says A/Prof. Carter.
“But not all social, service and legal systems have caught up to this medical reality. People living with HIV continue to experience significant discrimination and stigma.”
A/Prof. Carter leads Health+Law, a research partnership focused on removing legal barriers to seeking diagnosis and treatment for blood-borne diseases, including hepatitis B and HIV.
They assessed how the opt-out HIV testing model aligns with Australian laws, medical policies and different clinical settings. Although it's been part of prenatal health care in Australia since 2012, the model is expanding into emergency departments and general clinics.
“The way opt-out HIV testing is implemented can risk misleading doctors about how clearly their patients understand and consent to the test,” says A/Prof. Carter.
“This could result in civil or criminal legal action, professional disciplinary action against health practitioners, and harm to patients. Clinicians and patients should be protected from these risks and harms.”
The Health+Law researchers say the findings aren't legal advice or intended to scare clinicians. Their recommendations for policy reviews and improved protocols are published in the peer-reviewed journal, Sexual Health.
Why use opt-out testing for HIV diagnosis?
“The idea is that more people will be tested, as not everyone living with HIV realises they have acquired the virus,” says A/Prof. Carter.
About 8% of men who have sex with men are estimated to be living with undiagnosed HIV in Australia, while around 10% of gay and bisexual men have never been tested.
Early diagnosis and treatment are crucial to surviving and thriving with HIV.
A diagnosis means immediate access to treatment and other HIV-related healthcare, which A/Prof. Carter says have advanced further than people might realise.
“When an HIV treatment works well, the virus is reduced to ‘undetectable’ levels. When HIV is undetectable, it cannot be transmitted to others.”
He says more people can be tested with opt-out testing because it removes a key obstacle: the specific, dedicated conversation about the test that ends with patients giving or withholding their consent.
“In the older, conventional model of HIV testing, there was a rule that a separate conversation always had to happen, and that rule was backed by law in some states and territories,” he says.
“By making the test a normal part of everyday health care, it can reach people who might assume they don’t need it, and others who might let shyness or anxiety stop them from requesting it.”
But legally, and in terms of clinical guidelines, clinicians should still provide information tailored to the patient’s circumstances with opt-out HIV testing.
How might opt-out HIV testing fail?
“Opt-out testing relies on the patient not declining the test. But silence or inaction isn’t enough to meet the legal standards of consent,” says A/Prof. Carter.
“Legally, consent must be freely given, specific and based on an understanding of the procedure and its implications.”
This law partly stems from a history of unethical HIV testing in Australia. In the 1990s, emergency department patients and more than 10,000 newborns were tested without their knowledge. At the time, 74% of doctors believed it was not always necessary to obtain consent before ordering an HIV test.
A/Prof. Carter says studies from different countries show that clinicians’ ambivalence towards consent for HIV testing persists.
“It’s a widely documented phenomenon in health care globally,” he says.
“While some findings are quite old, a 2024 study found that 31.4% of patients reported inadequate consent in Turkey. 25.6% received their results in a way they felt was unprofessional and breached their confidentiality.”
Adding to this, many people living with HIV continue to experience discrimination and stigma in workplaces, healthcare, education, and in social and family settings.
“An unexpected HIV diagnosis can have profound personal and legal impacts, particularly for migrants, Aboriginal and Torres Strait Islander peoples, and people who face structural barriers to care,” says A/Prof. Carter.
For example, for a migrant who is already living and working in Australia, an HIV diagnosis will likely impact their visa status, which can then impact their career, studies, and relationships.
A/Prof. Carter says significant adverse outcomes make practitioners vulnerable to legal risk.
“Failure to inform a patient about how a positive diagnosis would personally impact them could expose clinicians to negligence claims,” he says.
“Without valid consent, an HIV test might legally constitute battery (unwanted physical contact) or even a criminal assault charge.”
How can patients and doctors be legally protected?
Clinic waiting rooms can display signs informing patients they may be tested for HIV, but the Health+Law researchers say this solution isn’t sufficient.
“This can imply the patient knows they’ll be tested for HIV, they understand their situation and have chosen to go ahead with it,” says A/Prof. Carter.
“The reality is many procedures happen in a hurry, or become routine, or happen to patients who simply can’t give informed consent.”
He explains that patients may not have noticed or understood information on display, or information about the test isn’t offered in a language or format that allows for a real discussion and consent.
The Health+Law experts are calling for a more cautious approach, with clear procedures and active communication, to ensure patients are informed and provide active consent.
“In practice, this could mean embedding a conversation about HIV testing into routine care, rather than relying on passive forms of notification such as signage or fine print,” says A/Prof. Carter.
They recommend aligning its terminology with the World Health Organization.
“Renaming ‘opt-out testing’ as ‘provider-initiated testing’ reflects the reality that clinicians are initiating the test, and retain responsibility for meeting legal and ethical standards,” says A/Prof. Carter.
“It also avoids inferring that consent can be passive.”
Monitoring and support should be essential while opt-out HIV testing is introduced across more health services.
“That includes research into how testing works in different settings, as well as practical guidance for clinicians, patients and policymakers navigating this transition,” says A/Prof. Carter.
Balancing public health and patient rights
“Clinicians want to do the right thing. Our goal is to ensure they have the guidance they need to provide care that is both effective and lawful,” says A/Prof. Carter.
“Opt-out HIV testing increases the likelihood that consent isn’t given, along with the incorrect assumption that it has been given. But it also streamlines the procedure, reaching more people and benefiting the community.”
A/Prof. Carter says even a brief discussion between a patient and their doctor can lessen the risk.
“It’s a vulnerable moment that offers the clinician an opportunity to demonstrate that the health service is trustworthy. Testing must respect patient autonomy and recognise their diverse circumstances.”
As Australia works towards eliminating HIV transmission by 2030, the researchers say getting this balance right will be essential to protecting patients, supporting clinicians and maintaining trust in the healthcare system.
Kelly Caulk (she/her)
Senior External Engagement Manager | Law & Justice
UNSW Division of Societal Impact, Equity and Engagement
UNSW SYDNEY 2052
E: k.caulk@unsw.edu.au
W: unsw.edu.au/law-justice
Source: UNSW
https://www.unsw.edu.au/newsroom/news/2026/07/opt-out-hiv-testing-consent-confusion-warning
“Reproduced with permission - UNSW Sydney”
UNSW Sydney
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