ABSTRACT
Although the legality of HIV testing must be considered within the framework of both the civil and criminal law, it is principally the torts of battery and negligence which concern us here because the prospect of a criminal prosecution being brought against a doctor is unlikely. A battery may be defined as the deliberate (ie intentional) touching of (or application of force to) another which is offensive or harmful and which is done without the consent of that other. A negligence action may arise when harm results from a doctor’s breach of duty to inform his patient of the reasons for taking blood …
It can be seen from the above definitions that valid consent in law is relevant to both battery and negligence. In principle, HIV testing should not take place without the patient’s consent. The ability to consent and the reality of a patient’s consent would seem to be essential to lawful HIV testing.
