This is a difficult matter for GPs, who are not legal practitioners and consequently are precluded from giving ‘legal advice’. Similarly, a focus on ‘what the law says’ may not be a priority given patient’s varied clinical and therapeutic needs upon HIV diagnosis.
In talking to patients, it is important to realise that disclosure of HIV-status to a potential or current sexual partner may be very difficult as doing so not only enables the possibility of rejection (sexually or more broadly in terms of a relationship) but also the loss off confidentiality of highly sensitive, personal health information. Further, it can be intimidating and exhausting to acknowledge and then address others concerns about an HIV diagnosis which is associated with illness (and even death). Unfortunately, to date the law has paid little regard to these issues.
The following basic overview of state laws aims to provide GPs a short description of laws relating to HIV-disclosure to sexual partners. These may be referred to in discussions with patients under the caveat that GPs must avoid making any comments that may be construed as legal advice. Patients who want to know more about their legal obligations should be referred for legal advice (for example, to the HIV/AIDS Legal Centre).
In some states, disclosure of HIV status prior to sex and/ or the requirement to practice safe sex is specifically demanded by public health law or public health regulation. In others, it is not specifically addressed by public health law (see ‘Disclosure – public health laws’ and State Based Information’ box). However, it is important to note that in all states it is possible that a person’s failure to disclose their HIV-positive status prior to sex would be considered highly relevant should criminal charges ever proceed – an unlikely but real possibility (see Disclosure – criminal law section below).
Disclosure - public health laws
Public health law specifically mandates disclosure of HIV status prior to sex in Tasmania. In New South Wales disclosure is required prior to sex although a defence of taking ‘reasonable precautions’ to prevent transmission is provided. Queensland law refers to disclosure as a defence to the offences of transmitting HIV though sex and putting someone at risk of HIV infection. Disclosure may or may not be a defence (as it is untested) in South Australia where people are required to take “all reasonable steps” to prevent HIV transmission to others, and in the Australian Capital Territory where (under Public Health Regulations) a person must take reasonable and appropriate precautions against transmitting HIV. The other two jurisdictions do not have specific public health laws regarding HIV-positive people’s responsibilities around safe sex or disclosure (see box below).
Tasmania law means that a person may be convicted of a public health offence for not disclosing his or her HIV status regardless of whether condoms or other risk-reduction strategies were used.
Disclosure – criminal laws
There are no criminal laws that specifically name non-disclosure of HIV status although failure to disclose HIV status has been considered a key factor in the conviction of people for HIV exposure and transmission under a range of criminal laws (see Criminal Law).
There has been no prosecution in any Australian jurisdiction for exposure to, or transmission of, HIV where an HIV-positive person has not disclosed his or her HIV status but has used a condom to prevent HIV transmission. (This is not to be confused with public health law in Tasmania, under which condom use is irrelevant to a non-disclosure offence).
Role of the Practitioner: In a number of instances, post-HIV test discussions and discussions during subsequent consultations have been relevant to criminal proceedings against individuals charged with exposing others to HIV infection or transmitting HIV. Health care providers have been called to give evidence about the information they provided to their patients, and their understanding of their patients’ awareness of their obligations to prevent transmission. For example:
- In 2002, a Western Australian man (Houghton) was charged with unlawfully inflicting grievous bodily harm under section 297 of the Western Australian Criminal Code, for having transmitted HIV infection to a woman through sex. Though aware of his HIV-positive status, Houghton claimed that counselling (now known as ‘discussion’) led him to believe it was safe to have unprotected sex if he did not ejaculate semen into the sexual partner. Houghton did not disclose his HIV-positive status to the complainant, testifying he did not want to ‘scare her off’. On appeal, the court held that Houghton had not had an honest belief that withdrawal prior to ejaculation during sexual intercourse would prevent transmission, because he would not have received such advice from the medical professionals who counselled (i.e. undertook post-test discussion with) him. The court also noted Houghton had had unprotected sex with his ex-wife who remained HIV negative but had conceived a child by him after his diagnosis.
- In 2006, a New South Wales man (Kanengele-Yondjo) was charged with two counts of malicious wounding or infliction of grievous bodily harm under section 35 of the NSW Crimes Act 1900, for transmitting HIV infection to two women through sex. The court accepted the accused had told the women he did not have HIV, and pressured and coerced them into having sex without a condom, including removing a condom during sex on at least one occasion. Evidence relating to his post-HIV test counselling (discussion) and to discussions that ensued was central to the case (see box below), as the judge accepted that the experienced medical practitioner had clearly and diligently communicated Kanengele-Yondjo’s obligations to prevent HIV transmission.
Example of a criminal court’s consideration of general practitioner evidence relating to post-HIV test discussions and management in a trial for sexual transmission of HIV
The following is an extract of court proceedings from the appeal of Kanengele-Yondjo v. R  NSWCCA 354, convicted of two counts of causing grievous bodily harm for transmitting HIV infection to two women. The doctor’s evidence was used to establish the facts of Kanengele-Yondjo’s diagnosis, his interactions with clinical staff, and to confirm the patient understood his obligation to avoid transmitting HIV. His appeal was unsuccessful. Kanengele-Yondjo was sentenced to 12 years imprisonment.
The transcript is included here as an example of the way in which a court may treat a doctors’ evidence in an HIV-related trial.
The undisputed acts as stated by the sentencing judge in his Remarks on Sentence were as follows:
- In February 1999, [the general practitioner] advised [the accused] that he was HIV positive.
- [The general practitioner] was the attending medical officer providing ongoing HIV medical care to Kanengele-Yondjo.
- On 2 February 1999 [the general practitioner] interviewed [the accused]. On 4 February 1999, HIV antibody testing was undertaken and on 5 February 1999 [the accused] was diagnosed as HIV positive.
- On 5 February 1999, in addition to notifying the accused of his HIV-positive result, the accused was counselled by [the general practitioner] in relation to how the HIV virus was transmitted, how to undertake safer sexual practices, the fact that all persons with HIV remain infectious to their sexual partners for life, the legal responsibility to notify future sexual partners of his HIV status, and of the necessity to use a condom on all occasions of sexual intercourse.
- In the course of the counselling on 5 February 1999 [the general practitioner] also told [the accused] that if he was to transmit HIV infection to anyone in the future civil or even criminal action could potentially be undertaken against him if there was a failure to take steps to prevent the transmission of HIV by notifying sexual partners and by using a condom.
- In the course of this counselling, the accused’s responsibility to notify of his HIV status and to use condoms in the course of sexual intercourse were emphasised several times. The modes of transmission of HIV, the need to adhere to safe sexual practices and the accused’s legal responsibilities were emphasised as a priority during initial consultations.
- [The general practitioner] who has eighteen years experience in the field of HIV AIDS clinical care, sexual health care and prevention of sexually transmissible infections, was assured by [the accused] that he could understand his responsibilities at that time.
- In the case of [the accused] [the general practitioner] gave to him more information and more explicit direction than any other person for whom she has provided medical care. Over the course of several interviews [the general practitioner] emphasised to the accused that contact details of all known sexual partners were needed to identify anyone with HIV so that they could access appropriate treatment if needed and so that those persons did not transmit HIV to their sexual partners.
- The accused was initially reluctant to disclose the information relating to his sexual partners. He was seen by a second medical practitioner [who] advised the accused of his responsibilities to provide the information and of the consequences of failure to provide that information.
- On 21 February 2001 [the accused] indicated to [the general practitioner] that he would be going to Africa for a 4 to 6 month period. On 2 March 2001 the accused was noted as having stable immune monitoring. The accused told [the general practitioner] that he was going to remain off treatment while overseas.
- On 10 February-April 2000 [the accused] was referred to a clinical psychologist for support concerning issues relating to directions in his life and the need to meet family obligations in Australia and in Africa. The accused failed to attend a pre-arranged follow-up consultation.
- On 6 June 2001 the accused told [the general practitioner] that he had returned from a 12 month visit to Africa. He was tested at the [clinic] and was advised to attend for further assessment in 6 weeks’ time and to discuss possible recommencement of antiretroviral therapy. [The accused] was lost to follow-up following this visit and [the general practitioner] had no further contact with him for clinical care.
* General practitioner full name and accused’s name removed.
Notes on disclosure laws
There is little empirical evidence regarding the efficacy of disclosure laws, but that which exists indicates there is a lack of connection between the existence of such laws, and belief structures or sexual risk behaviours. Recent US research compared attitudes, beliefs and behaviours among almost 500 people at elevated risk of HIV infection, approximately half of whom lived in Illinois which mandates HIV disclosure prior to sex, and half of whom lived in New York, which has no such law. The study found no connection between the existence or lack of laws, and belief structures and sexual risk behaviours (Burris et al2, 2007).
Public health analysts argue that mandatory disclosure of HIV status prior to sex undermines the ‘mutual responsibility’ message fundamental to HIV prevention in Australia. In short, people should not expect HIV-positive people to disclose for a variety of reasons, including:
Some 15% of HIV-positive gay men don’t know that they have HIV (i.e. are undiagnosed) so they cannot disclose. It is estimated that those with undiagnosed infection could be disproportionately contributing to as many as a third of the new HIV infections among MSM in Australia each year (Wilson et al3, 2008).
- Behavioural research into serosorting has identified instances of miscommunication, where an HIV-positive person believes an HIV-negative person has communicated their HIV-positive status - and vice-versa (Zablotska et al4, 2009).
- Findings from the e-male study demonstrate that using a condom with casual sexual partners is more likely if there is no disclosure (Rawstorne et al5, 2009).
- Some people are unwilling to disclose their HIV status, as once disclosed that information can and does travel. Notably, HIV Futures 7 reports that 52.8% of HIV-positive respondents had had their HIV status disclosed without their permission. Fear of disclosure may be particularly relevant to some who have not disclosed to family and friends and who are not generally out about being HIV positive (Grierson et al, 2013).
- Some people do not disclose fearing rejection. Van de Ven found some 80% of HIV-negative men said they always or sometimes avoided sex with people they think are HIV positive (Van de Ven 2001), and unpublished data from the Positive Health study shows that as many as 27% of HIV-positive men surveyed have been sexually rejected due to their HIV serostatus (Zablotska et al4, 2009).
- The decision not to disclose (which may be considered or spontaneous) may be informed by other decisions to use safer sexual practices or the belief that having a low viral load equates to low risk of transmission (Prestage et al6, in press; Van de Ven et al7, 2002; Van de Ven et al8, 2004; Van de Ven et al9, 2005).
- That analysis points to the centrality of mutual responsibility and safe sex messages when advising patients, in addition to advice on disclosure.
Behavioural research on sexual practices of HIV-positive Australians
The HIV Futures 7 (2013) report found that of the 1058 HIV-positive Australians surveyed for that study:
more than one quarter (29%) were not currently having sex.
42% were in a regular relationship, and a slightly lower number had sex within the relationship (39%). Just under half of this group also had sex with other people (15%).
33% of respondents had casual partners only.
Of those in a regular relationship, 41% had a partner who was also HIV positive, 58% had an HIV-negative regular partner, and 2% a partner of unknown status.
Nearly all (98%) people living with HIV had disclosed their status to their regular partner, usually when they were diagnosed, at the time of, or prior to the commencement of the relationship.
48% of the sample had sex with casual partners in the past six months. 29% of male respondents reported always using condoms with casual male partners (including HIV-positive and HIV-negative partners).
Approximately 54% of people living with HIV would prefer to be in a relationship with someone who is also HIV positive. 60% of people living with HIV expressed some fear of rejection from potential partners if they disclose their HIV status. A majority of people living with HIV (62%) felt HIV had a negative effect on their sexual pleasure.
The potential to develop new relationships remains an important issue for PLHIV.
More information on the sexual practice of HIV-positive positive people is available in the HIV Futures 7 report.
J Grierson, M Pitts, R Koelmeyer (2013) HIV Futures Seven: The Health and Wellbeing of HIV Positive People in Australia, monograph series number 88, The Australian Research Centre in Sex, Health and Society, La Trobe University, Melbourne, Australia.