Guide to Australian HIV Laws and Policies for Healthcare Professionals
Safe behaviours and disclosure
The National HIV Testing Policy is clear that following an HIV-positive test result, GPs should provide information and support about engaging in safe behaviours and discuss who the HIV-positive person should tell and how. It also states that GPs should ‘ensure that the patient is aware of the legal obligations relevant to their jurisdiction’
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/death. Unfortunately, to date the law has paid little regard to these issues.
There is no longer a legal requirement in any Australian state or territory to disclose HIV positive status before sex, provided the individual ‘takes reasonable precautions’ to prevent HIV transmission. 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). Health care practitioners may wish to refer to this in discussions with patients, with the health care practitioner being very clear that they are not providing their patient with 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).
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).
- Power, J (2019) Findings from HIV Futures 8 and 9, unpublished report. Melbourne, Australian Research Centre in Sex, Health and Society, La Trobe University. Published reports can be found on the La Trobe University website www.latrobe.edu.au/arcshs
- ASHM. Undetectable = Untransmittable: A guide for clinicians to discuss