Management of People with HIV who Place Others at Risk

Australia’s public health system has produced impressive results in limiting HIV transmission. The public health response has been driven by a commitment to create an enabling environment, which has meant strong engagement with at-risk and affected communities. HIV prevalence in Australia is as low or lower than in most comparable countries. In 2011, Australia had an estimated national HIV prevalence of 115 per 100 000; lower the United Kingdom in 2010 (150 per 100 000 population) and approximately four-fold lower than the United States in 2009 (456 per 100 000). Estimated HIV prevalence in several neighbouring countries is substantially higher than that in Australia.

If not appropriately conducted, the public health management of individuals accused of putting others at risk of HIV infection (and the subsequent media coverage associated with the event) threaten to undermine faith in the public health system. Patient management must be expert and responsive to the needs of both the person with HIV and any possible sexual contacts. Moreover, it must be supportive of individuals so that they may successfully change their behaviours.

In general, health care providers should not hesitate to contact their health department for support and guidance from their state expert panel on those who place others at risk of HIV infection. There is a strong commitment to assist health care providers to manage challenging and difficult cases, with faith in health care providers’ competence to understand the dynamics of each therapeutic relationship, and their capacity to exercise expert clinical judgment. There is unlikely to be pressure to disclose confidential information about a patient in the first instance, with health care workers frequently remaining responsible for the patients about whom they contact others.

The following section is adapted from Scamell and Ward1 (2009):

Each Australian state and territory, either through statute alone or a combination of statute and complementary departmental policy, have public health mechanisms in place to manage people with HIV infection who are at risk of transmitting the infection to others. These mechanisms have been designed to facilitate behavioural change of individuals identified as posing a risk of passing on HIV to others. As such, these public health management tools represent a more individualised and coercive aspect of the public health response to HIV transmission than the health promotion and education activities that are generally directed towards at-risk population groups.

It is important to note that the number of individuals for whom these mechanisms apply at any one time is small. The overwhelming majority of people with HIV in Australia actively take steps to ensure that transmission of HIV to others does not occur. However, owing to a range of psychological, social and other factors, there are some people who engage in behaviour that could or does place their sexual partners at risk of HIV infection. Public health mechanisms are enacted at the point where the public health system recognises an individual needs more than the provision of information. Sometimes responses may be considered supportive, and sometimes they are clearly coercive.

While public health mechanisms operate at the state and territory level, there has been a recent commitment to introduce nationally consistent frameworks for managing people with HIV infection who risk transmitting the infection to others. In 2007, Associate Professor Robert Griew was commissioned by a sub-committee of the Australian Health Ministers’ Advisory Council (AHMAC) to undertake a review of policies for the management of people with HIV who risk transmitting the infection to others. The Griew report2(2007) contained a number of recommendations, including:

  • that states and territories continue to rely on public health law to manage those at risk of passing the infection to others, with criminal law applied only where it is clear that an individual’s behaviour warrants charges of serious criminal offence
  • that public health mechanisms should distinguish between those individuals who are unwilling and those who are unable to modify their behaviour, with different approaches needed for the two categories
  • where it is clear that an individual is engaging in behaviour that supports a criminal charge of intent to cause serious harm, the relevant health department should immediately refer the matter to the police
  • where someone’s behaviour may warrant a charge of recklessness or negligence, the public health authorities should assess the case further before engaging with the police.
Another of the key recommendations from the review was the development of National Guidelines for the Management of People with HIV Who Place Others at Risk3 (‘the National Guidelines’) to ‘inform, support, and harmonise approaches by Australia’s States and Territories to the management of people with HIV who place others at risk of HIV infection’. Having been approved by the Australian Health Ministers’ Conference in April 2008, there is now an expectation that all states and territories will review their current policies and where necessary introduce a new policy, to ensure a level of consistency with the National Guidelines.

The National Guidelines

The National Guidelines provide a public health framework based upon five levels of intervention. They are underpinned by the principle that:

for people with HIV who place others at risk, a variety of increasingly interventionist strategies may be needed, with preference being given to strategies that are least restrictive, as these will generally be the most sustainable and effective in the long term (Griew3 2007).

The five recommended levels of intervention are:
  • Level 1: an identified individual should be provided with comprehensive counselling, education and support.
  • Level 2: if it is clear that the initial intervention will not lead to the necessary change in behaviour, then the National Guidelines provide for the introduction of an HIV Advisory Panel to provide formal support to the individual’s primary health care provider.
  • Level 3: the Chief Health Officer, on advice from the Advisory Panel, may make a behavioural order which requires the individual to undergo counselling, treatment, refrain from specific behaviour or be subject to supervision.
  • Level 4: the Chief Health Officer, again on advice from the Advisory Panel, may make an order for the person to be subject to isolation or detention.
  • Level 5: referral of the individual to police.
While existing state mechanisms for managing those who put others at risk of HIV infection are comparable to the National Guidelines, state guidelines and procedures remain unique:

State Based Information

+ ACT

In the Australian Capital Territory, the mechanism for managing people at risk of passing HIV infection to others can be found in the ACT Health guidelines - Management of People With HIV Infection Who Knowingly Risk Infecting Others, and the Australian Capital Territory Public Health Act 1997. The guidelines, published in February 2007, are designed for doctors, nurse practitioners, and those responsible for the care, support or education of a person with HIV. They set out a two stage management process. At the first stage, an identified individual should be provided with counselling, education and support. If this results in no significant behavioural change and the individual still presents a risk of passing the infection to others, stage two is enacted, with the primary care giver required to notify the Australian Capital Territory’s Chief Health Officer. It is at this point that the guidelines defer to the powers of the Chief Health Officer assigned under the Public Health Act 1997 (Australian Capital Territory). Under the Act, the Chief Health Officer is empowered to issue public health directions to any person to prevent or alleviate a public health hazard (Public Health Act 1997, section 113). This power may be exercised where there are reasonable grounds for believing that a person is infecting, or placing others at risk of, HIV infection. Any or all of the following directions may be issued to a person:

  • To refrain from behaviour or an activity that significantly contributes to, or could contribute to, the public health hazard.
  • To cease performing work of a particular kind, or cease working in a particular place, while such work contributes to, or could significantly contribute to, the public health hazard.
  • To undergo a medical examination.
  • To undergo specified counselling (either a person with HIV or a contact of a person with HIV).
  • To be confined to a particular place for a specified period, being the least restrictive confinement appropriate to the person’s medical condition
  • Not to enter, or not to remain in a particular place for a specified time.
  • To cease using a particular piece of equipment.
  • To clean and decontaminate a particular place.
  • To undertake, or refrain from undertaking, any other action, where the Chief Health Officer has reasonable grounds for believing the requirement to be necessary for the purposes of preventing or alleviating the hazard.

The Chief Health Officer must take the minimum action necessary to prevent or alleviate the public health hazard. The current Australian Capital Territory guidelines were written prior to the establishment of the national guidelines, and are due for review in 2009.

A full copy of the ACT Health 'Management of People With HIV Infection Who Knowingly Risk Infecting Others' is available at http://health.act.gov.au 1

1 ACT Health. Management of People With HIV Infection Who Knowingly Risk Infecting Others. Guidelines for Doctors, Nurse Practitioners, Counsellors and those responsible for the care, support or education of a person with HIV . 2007. Available at: http://health.act.gov.au (last accessed November 2012).

+ NSW

The making of a public health order is required to take into account the principle that any requirement restricting the liberty of a person should be imposed only if it is the only effective way to ensure that the health of the public is not endangered or likely to be endangered. A police warrant may be issued in cases where a medical practitioner certifies in writing that a person is in contravention of a public health order.

1 NSW Health. HIV - Management of people with HIV infection who risk infecting others. [PD2009_023] 28 April 2009. Available at: http://www.health.nsw.gov.au/policies/pd/2009/pdf/PD2009_023.pdf (last accessed November 2012). NSW Health. HIV - Management of people with HIV infection who risk infecting others. [PD2009_023] 28 April 2009. Available at: http://www.health.nsw.gov.au/policies/pd/2009/pdf/PD2009_023.pdf (last accessed November 2012).

+ NT

Guidelines for the Management of People with Infectious Diseases who put others at Risk of Infection June 2008 outlines the policy of the Northern Territory Department of Health and Families regarding the management of persons with HIV (and other infectious diseases) who put others at risk of infection. Anyone concerned that a person with an infectious disease is likely to be putting others at risk of infection may request assistance from the Department of Health and Families.

The mechanism for managing people at risk of passing an infection to others includes the following:

  • Stage 1 Counselling, education and support provided by a case management team
  • Stage 2 Formation of a Case Advisory Panel
  • Stage 3 Formal warning
  • Stage 4 Use of Section 11 of the Notifiable Diseases Act
  • Stage 5 Use of Section 13 of the Notifiable Diseases Act

As outlined above, if following assessment by Department of Health and Families officers, strategies to effect behavioural change have failed:, the Chief Health Officer may issue a Section 11 Notice under the Notifiable Diseases Act, which may direct measures deemed necessary to prevent the person from spreading the disease. Should the person continue to put others at risk of infection or fail to comply with any of the directions of the Section 11, the Chief Health Officer may invoke Section 13 of the Notifiable Diseases Act, which may result in detention or prosecution.

A full copy of the Northern Territory Government, Department of Health and Families 'Guidelines for the management of people with infectious diseases who put other people at risk of infection' is available at: http://www.health.nt.gov.au (last accessed November 2012). 1

1 Northern Territory Government. Department of Health and Families. Guidelines for the management of people with infectious diseases who put other people at risk of infection. June 2008. Available at: http://www.health.nt.gov.au (last accessed November 2012).

+ QLD

Queensland Health released its Protocol for the Management of People with HIV who Place Others at Risk in August 2008. The protocol sets out a five-stage policy framework for ‘the management of HIV positive persons whose reckless behaviour may place others at risk of HIV infection’. Stage 1 commences when a clinician or client service provider notifies the Executive Director of Population Health in Queensland Health in writing that they have reason to believe a client is recklessly placing others, or could place others, at risk of HIV infection. The clinician or service provider has the responsibility under the protocol to carry out counselling, education and support. At the same time, an HIV Advisory Panel will convene to consider the circumstances of the case and advise on appropriate action. At the second level, Queensland Health takes a more direct role in counselling, education and support, with the Panel (with expanded membership) determining and overseeing management of the client.

At the third and fourth level, provisions in the Public Health Act 2005 are used. A Chief Executive's order may be used to detain a person the chief executive reasonably suspects has or may have HIV, and the person's condition and/or behaviour constitutes an immediate risk to public health, and attempts have been made to counsel the person (section 113(1). Note: if it is not practicable to counsel the person, the order may still be issued (section 113(2). A Chief Executive’s order may be enforced by the head of the public sector health service at which a person is to be detained, employing such assistance and force as is reasonable (section 114). A Chief Executive’s order ends within 24 hours of a copy of the order being given to the person (the subject of the order) or the time it takes for a magistrate to decide an application for a controlled notifiable conditions order, whichever is the earlier (section 115).

Applications for controlled notifiable condition orders are made by the Chief Executive and may request an initial examination order, a behaviour order, or a detention order (section 116). An order may be made in the absence of the person to whom it applies if the magistrate is satisfied that is necessary. Divisions 3 and 4 of the Act detail the conditions which may form part of a behaviour order or a detention order. A person who is the subject of an order or the Chief Executive can appeal against a magistrate’s decision in making or extending a controlled notifiable condition order.

The Queensland protocol also includes a fifth level which provides for the case to be referred to the police for criminal prosecution under the Criminal Code Act 1899. This will occur when ‘the panel considers there is clear evidence that a person is unwilling to modify behaviour that recklessly endangers another person by exposing them to HIV infection, or if there is other clear evidence of criminal intent’.

A full copy of the Queensland Health ‘Protocol for the Management of People with HIV who Place Others at Risk’ can be found at http://www.health.qld.gov.au/sexhealth/documents/hiv_protocol.pdf 1

1 Queensland Health. Protocol for the Management of People with HIV who Place Others at Risk. August 2008. Available at: http://www.health.qld.gov.au/sexhealth/documents/hiv_protocol.pdf (last accessed November 2012).

+ SA

In May 2013, a new Code for the Case Management of Behaviours that Present a Risk for HIV Transmission was introduced. The Code applies where a person who has been diagnosed with HIV is known or reasonably believed to be engaged in behaviours that may be placing others at risk of HIV transmission.

The Code acknowledges the role of primary care in informing, educating and supporting people at the time of diagnosis in order to avert transmission risk. It is not intended to be used as a prevention education tool and therefore does not replace primary interventions by health and allied workers.

Ideally, at diagnosis a person with HIV receives information about the medical and social consequences of living with the virus including guidance on ways to prevent transmission to others. This information may need to be repeated at intervals. If concerns persist about a person’s behaviour, the person should receive further counselling - focussing on ways transmission may be avoided. Counselling could also emphasise the legal responsibilities of the individual to avoid behaviours that might place others at risk.

People living with HIV should continue to receive the range of treatments, supports and counselling suitable for their individual needs. These interventions are best provided in the community, primary and allied health care settings and are the responsibility of the diagnosing clinician and the primary care agencies involved in the ongoing treatment, care and support of the individual. Skilled practitioners should continue to incorporate this information and these interventions into their daily interactions with clients well before consideration is given to referral under the Code.

The Code aims to be ‘non-judgemental’, acknowledging that a person with HIV may be placing others at risk for a range of reasons including an incomplete knowledge or understanding of their condition and the risks that it presents, or complex personal issues or circumstances which might influence their behaviours or limit their options. Consequently, the Code states that its application may be considered an opportunity to work more intensively with an individual so that they are provided greater support than might be required to achieve safe and appropriate behaviours.

The Code should be applied when a person is known to be infected with HIV and it is reasonable to believe that the person’s ongoing behaviour is or may be presenting a risk of the spread of HIV to others.

The 2013 Code states that:

Should a medical practitioner or any person involved in treating, caring for or counselling a person with HIV, form a reasonable belief that despite being given information and counselling, the person’s behaviours are presenting a risk to public health the person may refer the matter to the Chief Public Health Officer. The decision to refer a person is a matter of professional judgment for the medical practitioner, allied health worker or other clinician.

This is a significant change from the previous code which stated ‘Where a medical practitioner involved in treating, caring for or counselling a person has formed a reasonable suspicion that the person has intentionally infected, or is seeking to infect, others with HIV, the medical practitioner should notify as soon as reasonably practicable’. The new Code marks a return to faith in the professional judgement of health care providers.

The 2013 Code establishes four levels for managing the behaviours of a person who may be placing others at risk of HIV:

  • Level 1 – The Chief Public Health Officer or staff of the Communicable Disease Control Branch receive information that a person with HIV is not taking reasonable steps or precautions to avoid placing others at risk. After a preliminary consideration and assessment by staff of the Communicable Disease Control Branch, there may be a decision to manage the person at the appropriate level of the process outlined in the Code.
  • Level 2 – Ongoing oversight by the Director of the Communicable Disease Control Branch (as delegate of the Chief Public Health Officer) for the development and implementation of behaviour modification and case management strategies.
  • Level 3 – The Chief Public Health Officer makes an order under section 74 or section 75 of the South Australian Public Health Act 2011 imposing counselling requirements and/or restrictions on the person’s activities on the advice of an Advisory Panel established under section 82 .
  • Level 4 – Decision of the Chief Public Health Officer to isolate or detain the person under section 77 of the South Australian Public Health Act 2011 on the advice of an Advisory Panel established under section 82.

As a general principle these levels would be applied in ascending order, commencing with Level 1. However, if the Chief Public Health Officer believes that more restrictive responses should be imposed earlier in the management process, the Chief Public Health Officer may make such orders as appropriate. Alternatively, a person who has been managed at a higher level of management may continue to receive intervention at a lower level.

The Code for the Case Management of Behaviours that Present a Risk for HIV Transmission is not without weight. Failure to comply with an order, requirement or direction carries a penalty of up to $25,000 under the relevant section of the South Australian Public Health Act 2011 (section 81).

A full copy of the Chief Public Health Officer Protocol: 'Code for the Case Management of Behaviours that Present a Risk for HIV Transmission' is available at http://www.health.sa.gov.au/pehs/publications/Code%20for%20case%20management%20-%20HIV%20FINAL.pdf 1.

1 SA Health. Code for the Case Management of Behaviours that Present a Risk for HIV Infection. Ref. No.: D0151 Effective from: May 2013. Available at: http://www.health.sa.gov.au/pehs/publications/Code%20for%20case%20management%20-%20HIV%20FINAL.pdf (last accessed October 2013).

+ TAS

Tasmania has overlapping provisions concerning HIV in the HIV/AIDS Preventive Measures Act 1993 and the Public Health Act 1997. Under the Public Health Act the Director of Public Health may make orders requiring a person to:

  • Undergo a medical examination if the Director is aware of or suspects on reasonable grounds that the person has a notifiable disease.
  • Be placed in isolation.
  • Be placed under the supervision of a specified person.
  • Submit to further medical examination, testing, treatment, or counselling.
  • Disclose the name and address of any person with whom they have had contact that may have resulted in the transmission of HIV.
  • Refrain from doing specified work.
  • Do or refrain from doing anything the Director determines.

The Director may order detention or quarantine of a person for up to 48 hours for the purposes of a medical examination. A magistrate may order detention for up to 6 months, and the Supreme Court may order detention for periods exceeding 6 months. At the time of writing, Tasmania did not have any publicly available guidelines on how a person who may be at risk of transmitting HIV infection to others should be managed through the public health system.

+ VIC

In October 2008, the Victorian Department of Human Services published Guidelines for the management of people living with HIV who put others at risk. Those guidelines in conjunction with the Public Health and Wellbeing Act 2008, represent the public health mechanisms for managing those at risk of transmitting infection to others. The guidelines are based upon a five stage approach. The five stages are: initial counselling, education and support; counselling, education and support under advice from the HIV Advisory Panel; letter of warning from the Chief Health Officer; restriction on the person’s behaviour and movement (through orders made under section 117 of the Public Health and Wellbeing Act 2008). Section 117 allows the Chief Health Officer to make a public health order if the Chief Health Officer believes a person has an infectious disease or has been exposed to an infectious disease and is likely to contract the disease, and if the person has the infection, a serious risk to public health is constituted. A public health order can only be issued after reasonable attempt has been made to provide the person with information about the effect of the disease on his or her health and the risk posed to public health (or if it is not practicable to provide this information before making the order), and if the public health order is necessary to eliminate or reduce the risk of the person causing a serious risk to public health. (More information on factors to be considered is available in section 117.)

A public health order must be proportionate to the risk a person poses, and initially must not exceed 6 months, although it can be extended at 6-monthly intervals if the Chief Health Officer believes the matters continue to apply. A person may apply under section 121 for a public health order to be reviewed by the Chief Health Officer (review must be completed within seven days) or under section 122, by the Victorian Civil and Administrative Tribunal.

A public health order may include a range of restrictions including: requiring a person to participate in counselling; undergoing an assessment by a psychiatrist or neurologist; refraining from certain activities and behaviours; refraining from visiting a specified place or class of place; submitting to supervision; undergoing specified pharmacological treatment for the infectious disease from a registered medical practitioner; and submitting to being detained or isolated.

A registered medical practitioner who receives a request in writing from the Chief Health Officer must provide the requested information in writing as soon as is reasonably practicable.

The Public Health and Wellbeing Act 2008 also allows the Chief Health Officer to make an examination and testing order (section 113). If a person fails to undergo examination or test they may be detained for a period not exceeding 72 hours for the purpose of undergoing the specified examination or test. The Chief Health Officer must provide a copy of an examination and testing order to any registered medical practitioner specified in the examination and testing order as soon as is reasonably practicable (section 114). A registered medical practitioner who conducts an examination or test on a person in accordance with an examination and testing order must provide written results of the examination or test to the Chief Health Officer and to the person tested, as soon as is reasonably practicable (section 115).

Victoria differs from other states as a result of the role that specialist staff (Partner Notification Officers) in the Chief Health Officer’s office, play in the process. When the department is notified by a member of the public of a concern that a person with HIV appears to be putting others at risk of HIV, a Partner Notification Officer interviews that member of the public to gain further information about the person in question. Once complete, the guidelines stipulate that the Partner Notification Officer will contact the person against whom the allegations have been made and undertake an interview. Based on that interview, the Partner Notification Officer will make recommendations as to whether, and at what stage, management should commence under the five stage approach. If management commences, the Partner Notification Officer is expected to be involved in case management through stages 1 and 2.

A full copy of the Victorian Department of Human Services ‘Guidelines for the management of people living with HIV who put others at risk’ is available at http://docs.health.vic.gov.au/docs/doc/Guidelines-for-the-management-of-people-living-with-HIV-who-put-others-at-risk-cho 1

1 Victorian Department of Human Services. Guidelines for the management of people living with HIV who put others at risk. 2008. Available at: http://www.health.vic.gov.au/chiefhealthofficer/downloads/guidelines_hiv_risk.pdf (last accessed November 2012).

+ WA

In June 2006, the WA Department of Health revised its HIV Case Management: A program for individuals with HIV infection who knowingly expose others to the risk of infection. The document sets out a four-stage program for managing individuals who are at risk of knowingly exposing others to HIV. At the first stage, an individual is provided with counselling, education and support from a HIV Case Management Program Team, or Department of Health staff. If it is clear that no modification of behaviour has taken place, the client is referred to an HIV Case Management Panel, which, following review of the case, can make a number of recommendations regarding management of the client. One of those recommendations is for the Executive Director of Public Health to issue a formal letter to the client warning them to discontinue any activity which places another person at risk of infection (stage three) or face the possibility of being isolated (stage four). The Executive Director derives the power to isolate an individual from section 251 of the Health Act 1911 (Western Australia).

At the time of publication, the Western Australian Government is developing a draft Public Health Bill. The consultation draft bill released by the previous WA Government in 2008, included provisions which gave the Chief Executive Officer of WA Health the power to issue orders to individuals to undertake testing, along with the power to issue a public health order. A public health order would require an individual to do one or more of the following:

  • Refrain from specified conduct.
  • Undergo counselling by a specified person or one or more persons within a specified class of persons.
  • Refrain from visiting specified places or places within a specified class of places.
  • Submit to specified supervision.
  • Undergo a specified medical examination, or specified medical treatment, at a specified time and place.
  • Submit to being detained at a specified place for the purpose of undergoing a medical examination or medical treatment.
  • Submit to being detained or isolated, or detained and isolated, at a specified place while the order is in force.

As at March 2010, it is not clear when the bill is likely to be passed or whether the bill will be passed in its current form.

A full copy of the WA Health ‘HIV Case Management: A program for individuals with HIV infections who knowingly expose others to the risk of infection’ is available at: http://www.public.health.wa.gov.au/cproot/195/2/case_management_program_guidelines_2012_v1.pdf 1

1 Western Australia Department of Health. HIV Case Management: A program for individuals with HIV infections who knowingly expose others to the risk of infection. Revised June 2006. Available at: http://www.public.health.wa.gov.au/cproot/195/2/CMP_Guidelines_2006_June.pdf (last accessed November 2012).



The making of a public health order is required to take into account the principle that any requirement restricting the liberty of a person should be imposed only if it is the only effective way to ensure that the health of the public is not endangered or likely to be endangered. A police warrant may be issued in cases where a medical practitioner certifies in writing that a person is in contravention of a public health order.


1NSW Health. HIV - Management of people with HIV infection who risk infecting others. [PD2009_023] 28 April 2009. Available at: http://www.health.nsw.gov.au/policies/pd/2009/pdf/PD2009_023.pdf (last accessed November 2012).

NSW Health. HIV - Management of people with HIV infection who risk infecting others. [PD2009_023] 28 April 2009. Available at: http://www.health.nsw.gov.au/policies/pd/2009/pdf/PD2009_023.pdf (last accessed November 2012).

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