MANILA, Philippines – After they asked government to declare HIV a national emergency, infectious disease experts asserted that minors who want to be tested for HIV should be provided with the service promptly even without parental consent, as this was critical in preventing further transmission and halting the epidemic.
The experts invoked "medical jurisprudence" in their call for an urgent policy to ease the restrictive environment that prevents them from providing the HIV test to a minor.
Providing a minor HIV test was part of the discussions of an expert panel who took up crucial HIV and AIDS interventions and who earlier asked government to implement the "treat all" policy to put all persons who test HIV-positive on immediate medication. They also asked government to declare HIV a national emergency due to the record high increase in new infections in the middle of a lack of harmonized health services.
Medical jurisprudence refers to the ethical duty of a physician to act on the patient's best interest: in this case, what is best for the minor who may not be competent or lacks the power to decide on matters concerning health. Doctors can be charged in court if they fail to do so, especially if the person in need of medical help succumbed to further illness or death.
"Any child, minor, or person below our country's legal age definition of 18 who wants to be tested for HIV must be treated as a medical emergency," said Dr. Rossana Ditangco, head of the AIDS Research Group of the Research Institute for Tropical Medicine (RITM), the medical research arm of the Department of Health (DOH).
"HIV and AIDS are life-threatening conditions that need immediate diagnosis. It is unethical to deprive a person the right to know his or her medical status just because the individual has no legal capacity to decide or sign a consent form," she said. "We do not deprive a person of his right to access life-saving medical services even if that person is a child. That child has rights."
Ditangco said doctors are also invoking the "patient-doctor relationship" and "medical confidentiality" in looking at this issue.
"When a minor who's 16 or 17 comes to me and wants to know about the test and wants it, and tells me, 'Huwag nyo po sanang sabihin sa nanay ko,' (Please don’t tell my mother)," then I won't tell his mother," she explained.
She said the physician can even stand as adult or legal guardian to a minor who does not have parents or next of kin to take care of him to sign a document on his behalf that allows for the HIV test to be done. This includes minors from dysfunctional and abusive environments.
Consent for HIV testing
At the center of this issue is the Philippine AIDS Prevention and Control Act of 1998 or Republic Act 8504, specifically Article III, Section 15: Consent as a Requisite of HIV Testing that requires a person 18 and below to obtain a written informed consent before undergoing an HIV test, provided the expressed need for the test was voluntary. It is ironic that efforts to provide the needs of the youth are hampered by this law that was drafted and designed to prevent the spread of HIV.
But Ditangco clarified that doctors appreciate the AIDS Law as they feel it is intended for them. However, it turned into a thorny concern ever since people raised the issue of the violation of a child's right if the child is not supported by a parent, guardian or social worker during the HIV test.
She asked people invoking the issue of human rights to look at the child and his or her need for comfort and confidentiality about health concerns, especially on matters that the child wants to discuss only with the physician, not a parent or guardian.
"There are ways of providing the test to without violating the law," she said. "There is always an exception and that is the one thing we must all understand."
Dr. Rosario Jessica Tactacan-Abrenica, head of the HIV/AIDS medical core team of San Lazaro Hospital, one of the biggest HIV treatment facilities in the country that handles the most number of pediatric and child HIV cases, said there are many things to be considered when conducting the HIV test for minors.
"It doesn't just stop in the testing per se but the consequences of whatever the result may be," she said.
"This is not just about the numbers that need to be reported for the prevention aspect but this should also cover the treatment, care and support component." She said a minor should receive the needed health services, "but there should still be somebody who will take charge when the result turns out to be negative or positive for HIV or another STI (sexually transmitted infection)."
Similarly, the Responsible Parenthood and Reproductive Health (RPRH) Act of 2012 or RA 10354 also hinders minors to access reproductive health services without parental consent that is seen as a barrier for the provision of health services to minors, particularly for modern contraceptives and HIV testing.
Ditangco and Abrenica said they are speaking from the point of view of clinicians who are in direct contact with patients. They said a treatment guideline for HIV-infected minors, which is different from that of adults, is being discussed.
The issue of proxy consent, or the process of delegating to another person the legal right to consent to a medical test or treatment for a minor, is also under consultations with child rights experts.
Dr. Ferchito Avelino, head of the secretariat of the Philippine National AIDS Council (PNAC), an advisory body to the president of the Philippines on HIV and AIDS, said discussions with President Rodrigo Duterte about a draft executive order (EO) on HIV testing for minors has been scheduled in the presidential office.
"A directive on the issue of testing for minors is a concern that is above the level of the secretary of health. We believe it should be the president who will sign the EO," said Avelino. The PNAC is made up of government agencies, civil society organizations and organizations of persons living with HIV.
The 2016 RPRH Report said last year, 381 adolescents aged 10 to 19 years were reported to have HIV, and were mostly infected through sexual contact (99\%). The report added this was consistent with the findings of the DOH epidemiology bureau that the youth start engaging in high-risk behaviors during their adolescent years.
Among adolescents, there is a two to 3-year gap between the start of high-risk behavior and the time they begin to think of using protective factors such as condoms. The findings showed that a longer gap between first sex and first condom use not only increases the risk of exposure to HIV, but also the decreases the likelihood of eventual condom use.
The report recommended legal or operational measures be put in place to ensure that while parental involvement is encouraged, minors are still entitled to specific reproductive health services even without parental consent. There is a need for legislation or policy that will empower minors and permit them to get tested and treated for HIV and AIDS without having to obtain parental consent. – Rappler.com