An Examination of Taiwan’s HIV Screening Law and Policy: Searching for the Balance between Disease Control and Individual Autonomy

Millions of individuals worldwide are infected with human immunodeficiency virus (HIV), of which approximately 25% to 90% are unaware of their HIV status. Surveillance data shows that HIV infected individuals in the U.S. are diagnosed late in their course of HIV infection, as almost 40% of newly-diagnosed patients progress to clinical acquired immune deficiency syndrome (AIDS) within one year. To increase access to screening and treatment, U.S. CDC and UNAIDS/WHO issued revisions of the guidelines for HIV screening in health care settings in 2006 and 2007 respectively. New guidelines call for routine, non-targeted “opt-out” screening, which notifies all patients that testing will be performed unless an individual explicitly declines. New HIV screening recommendations eliminate pretest counseling and the need for a separate affirmative consent. For decades, “AIDS exceptionalism” pushes the public health authorities to adopt a civil liberties approach, distinguishing AIDS policy from approaches to other communicable and sexually transmitted diseases. New policies signal the end of the exceptionalism and move toward a public health model. Opt-out screening policies theoretically may achieve higher testing rates, make individuals aware of their status, reduce risk behavior and receive HAART therapy. However, individual autonomy and right to privacy may be eliminated since counseling and separate informed consent would no longer be required. Should Taiwan, where 30% of infected individuals are unknown of their HIV status and 30% of newly diagnosed patients progress to AIDS within one year, adopt new screening recommendations? The legislative/ regulatory framework of HIV screening under Taiwan’s HIV Infection Control and Patient Rights Protection Act authorizes compulsory screening on certain groups of persons, including prostitutes, drug users, persons engaged in drug abuse and sexual parties, prison inmates, patients with sexually transmitted diseases, migrant laborers, draftees, military officers, and newborns of whom the mother's HIV status is unavailable or the treating physicians decide it is necessary. Despite this broad power of compulsory screening, HIV testing in health care settings requires pretest counseling and informed consent. To what extent Taiwan’s HIV screening laws balance the tradeoff between individual rights and the common good? To assess the appropriateness of Taiwan’s HIV screening laws, this research will conduct a literature review and qualitative interviews with two groups of interviewees to analyze the following questions: 1) How did the AIDS Exceptionalism take hold in global AIDS policy and why does the paradigm of screening change in recent years? 2) Why do Taiwan’s HIV laws and policies adopt mandatory screening and voluntary testing requirements? 3) Are mandatory screening laws legally justifiable? How are they implemented in practice? What are the implications to public health and individual rights? 4) What are the implications of voluntary testing requirements to public health and individual rights? 5) What recommendations can be made to Taiwan’s HIV screening laws to better address the public health, legal and ethical concerns raised? This research will obtain a more systematic, balanced and in-depth legal analysis of Taiwan’s HIV screening laws and offer proposals to amend legislation in an effort to balance harms and benefits.

Project ID:PF10308-0619
External Project ID:MOST103-2410-H182-025-MY2