Conclusion
As is so often the case in a common law system, the legal protection conferred by one strand of law is undermined by other legal provisions. There is no blanket legal duty which compels health care professionals to undergo HIV/AIDS tests; on the other hand, appropriately drafted contracts of employment, duties imposed by courts on employees and the risk of litigation by patients with pressurise individual workers to submit to testing. Whereas in Italy the law clearly condemned any compulsory testing of health care workeers, but must now be interpreted to support it, in England and Wales each individual worker's case must be examined in order to determine whether testing must be submitted to.
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References
Cattorini, P. (1991). Aids e screening obbligatorio,KOS 67, 24–27.
Legislation Project prepared by the students of the IV Course of the Scuola di Scienza e Tecnica della Legisclazione, Rome, October 1991–April 1992.
Judgement No. 218, 23 may 1994, President F.P. Casavola, Writer C. Mirabelli.
Article 15, Law Decree No. 276 of 4 October 1990, enacted with amendments with Law No. 359 of 30 November 1990.
I refer in particular to Rec. R(89)14 of the Council of Europe.
The test consitutes medical treatment and all compulsory treatment must be defined by law, in compliance with article 32 of the Italian constitution. In the contex of tests done without the patient's consent because of ‘clinical need in the interests of the subject’ some hospitals have been known to infringe the law by screening all their patients without prior warning.
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Delany, L., Cattorini, P. Health care law. Health Care Anal 3, 135–142 (1995). https://doi.org/10.1007/BF02198221
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DOI: https://doi.org/10.1007/BF02198221