State based public health offences are listed below.
State Based InformationThis section includes public health laws relating to patients. It also includes public health laws outlining health care providers' responsibilities when diagnosing HIV infection in the five states where specific laws exist: ACT, NSW, Northern Territory, Tasmania, and Victoria.
Patient Obligations: Regulation 21 of the Public Health Regulations 2000 provides that people who know or suspect that they have HIV, or know or suspect that they are a contact of such a person, must take reasonable and appropriate precautions against transmitting the condition. Failure to comply with this requirement can result in prosecution and a fine. ‘Reasonable precautions’ include precautions taken on the advice of a doctor or an authorised officer.
A 'contact' in relation to a disease or condition means a person who:
- has been or may have been a source of infection to a person suffering from the disease or condition; or
- has been or may have been exposed to infection by a person with the disease or condition (See Public Health Regulation 2000 – Notes).
Health Care Provider Obligations (pre-contact tracing): Under the Public Health Act 1997, section 102, if a doctor or nurse has reasonable grounds to believe a patient has HIV, he or she must give the patient information about how to prevent transmission and if the patient agrees, make reasonable arrangements for the patient to receive counselling.
Patient Obligations: Public health law regarding pre-sex HIV disclosure has recently been amended. Section 79 of the Public Health Act 2010 provides that a person who knows that he or she has a sexually transmitted infection (including HIV) is guilty of an offence if he or she has sexual intercourse with another person unless, before the intercourse takes place, the other person:
- has been informed of the risk of contracting the sexually transmitted infection, and
- has voluntarily agreed to accept the risk.
Importantly, this law includes a defence if a person takes reasonable precautions to prevent transmission of the sexually transmissible infection. Although it seems likely that reasonable precaution would include effective condom use, ‘reasonable precautions’ is not defined and will be a matter for magistrates’ consideration. Sexual intercourse is defined as sexual connection by the introduction into the vagina, anus or mouth any part of another person’s penis, or cunnilingus (section 77). Health Care Provider Obligations (pre-contact tracing): Under the Public Health Act 2010 section 78, a medical practitioner who suspects a patient has a sexually transmitted infection must provide the patient with prescribed information as soon as practicable. Note: This law has recently reduced the onus of proof from a medical practitioner ‘believing’ a patient has an STI to ‘suspecting’ a patient has an STI. The prescribed information is outlined in Public Health Regulations 2012, regulation 40:
- the means of minimising the risk of infecting other people
- the public health implications of the infection
- the responsibilities the patient has to prevent spreading the disease (section 52 of the Act)
- the responsibilities the patient has to disclose their infection prior to risk events (section 79 of the Act)
- diagnosis and prognosis
- treatment options
A defence for failing to provide the prescribed information is available if the medical practitioner satisfies the court that he or she believed the relevant information had previously been supplied to the patient by another registered medical practitioner.
Patient Obligations: Not defined.
Health Care Provider Obligations (pre-contact tracing): Under the Notifiable Diseases Act 1999, section 10, when a doctor diagnoses a notifiable disease, he or she must explain to the person the nature of the disease and the measures necessary to prevent the spread of the disease. That advice must be provided to the parents/guardian of a person under 16 years of age, and as the doctor thinks fit, may also be given to the parents/guardians of a child over 16 who is not yet 18. Under section 9, a person who has an infection which is a notifiable disease is required to provide a medical practitioner with the names and addresses of all persons from whom the disease may have been contracted.
Patient Obligations: Section 143 of the Public Health Act 2005 makes it an offence (1) to recklessly put someone else at risk of contracting HIV, or (2) to recklessly transmit HIV. A person convicted of an offence under section 143(1) and (2) may be subject to a fine or to imprisonment of up to 18 months or 2 years respectively. An offence is not committed under section 143 if, when the other person was put at risk of contracting HIV, the other person knew the first person had HIV infection and voluntarily accepted the risk of infection.
Health Care Provider Obligations (pre-contact tracing): Not defined.
Patient Obligations: Section 56 of the South Australian Public Health Act 2011 enshrines individuals’ responsibility for safe behaviour under a set of ‘specific principles’ which state that an HIV-positive person must take reasonable steps or precautions to avoid placing another person at risk of HIV infection. Notably, those principles also state that as far as ‘reasonably practicable’, a person must not act in a manner that places themselves at risk of HIV infection (South Australian Public Health Act 2011, Section 14). Disclosure is not specifically addressed. A person who fails to take reasonable steps to avoid HIV infection may be issued with a notice and fine under Section 92, although this would be most likely to occur if a person is already subject to a public health order (see Management of People with HIV who place Others at Risk). Health Care Provider Obligations (pre-contact tracing): Not defined.
Patient Obligations: Section 20 of the HIV/AIDS Preventive Measures Act 1993 requires a person who has, and is aware of having, HIV infection or is carrying and is aware of carrying the HIV antibodies, to:
- take all reasonable measures and precautions to prevent the transmission of HIV to others
- inform in advance any sexual contact or person with whom needles are shared of that fact
- ensure he or she does not knowingly or recklessly place another person at risk of acquiring HIV infection, unless that other person knew that fact and voluntarily accepted the risk of infection.
A person who is found guilty of having knowingly or recklessly placed another person at risk of acquiring HIV infection can be punished by a fine or imprisonment for up to two years. A similar provision is found in the Public Health Act 1997. Section 51 of the Act states that a person who is aware of having a notifiable disease must take all reasonable measures and precautions to prevent transmission of the disease, and must not knowingly or recklessly place another person at risk of transmitting the disease. It is a defence to a charge under section 51 for a person to prove that the other person knew of, and voluntarily accepted the risk of, contracting HIV. A person found guilty of an offence under section 51 is liable to a fine or imprisonment for up to 12 months. The HIV/AIDS Preventive Measures Act (section 22) creates a further offence of publicly promoting participation in sexual activity of a kind which is likely to cause damage to health through the sexual transmission of HIV. The penalty for breaching this section is a fine or imprisonment of up to three months. Health Care Provider Obligations (pre-contact tracing): Under the Public Health Act(section 50), if a doctor believes a patient has HIV, the doctor must provide that person with information about prevention of HIV transmission. Guidelines for Notification of Notifiable Diseases, Human Pathogenic Organisms and Contaminants1 state that in order to prevent the spread of any infectious notifiable disease, a medical practitioner who diagnoses a person as having, or who suspects a person of having, HIV must provide or arrange for that person to receive counselling and information appropriate to HIV (15.2).
Patient Obligations: The Public Health and Wellbeing Act came into effect on 1 January 2010. That Act superceded the Victorian Health Act 1958, which included an offence at section 120, of knowingly transmiting an infectious disease (including HIV). There is no comparable offence in the Public Health and Wellbeing Act (although such action remains largely covered by section 19A of the Crimes Act, which makes it an offence for a person to ‘intentionally’ cause another person to acquire HIV infection’ - see Criminal Laws Although not tied to specific penalties, the statement of principles applying to the management and control of infectious diseases in section 111 of the Public Health and Wellbeing Act 2008 includes the principles that:
- a person who has, or suspects that they may have, an infectious disease should
- ascertain whether he or she has an infectious disease and what precautions he or she should take to prevent any other person from contracting the infectious disease; and
- take all reasonable steps to eliminate or reduce the risk of any other person contracting the infectious disease.
The principles also state that:
- a person at risk of contracting an infectious disease should take all reasonable precautions to avoid contracting the infectious disease.
Health Care Provider Obligations (pre-contact tracing): The Public Health and Wellbeing Act 2008, section 131 states a doctor must not test for HIV, or authorise an HIV test unless the registered medical practitioner is satisfied the person has been given the prescribed information in accordance with the regulations. Also, a registered medical practitioner or person of a prescribed class must not advise a person of an HIV-positive test result unless satisfied the prescribed information has been given in accordance with the regulations. The Public Health and Wellbeing Regulations 2009 state at regulation 77, before authorising a test for HIV, the registered medical practitioner requesting the test must be satisfied that the person has been given information about the medical and psychosocial consequences of the test and the meaning of possible results of the test. Note: the Health Records Act 2001 applies to and in respect of the privacy of information acquired about a person requesting a test.
Patient Obligations: There is no Western Australian law or regulation specifically addressing intentional or reckless exposure to or transmission of HIV (not to be confused with general criminal laws which may be applied. For example, in 2004 and 2009, persons were convicted of causing grievous bodily harm for HIV transmission). Provisions in the Health Act 1911 dealing with infectious diseases are clearly directed at control of diseases that may be transmitted through casual contact or inadequate public sanitation. For example, under section 264 a person with an infectious disease who ‘wilfully exposes himself in any public house, or public place, or public vehicle without proper precautions for spreading the infection’, commits an offence. Health Care Provider Obligations (pre-contact tracing): Not defined.