Introduction

The laws guiding health care workers are state-based so that frequently different provisions apply in different jurisdictions. There is sometimes a lack of clarity about what particular laws and guidelines really mean in practice for a particular patient (in their particular circumstances) attending for care. Furthermore, there is often a tension between provisions, with legal frameworks not always supporting good public health practice and vice versa. 

Sometimes statutory duties are clearly defined, for example, under section 70 of Queensland’s Public Health Act 2005, ‘doctors are required to notify AIDS diagnoses unless the examination was carried out in a hospital, in which case the person in charge of the hospital is responsible for notification’, or under the ACT’s Public Health Act 1997, ‘if a doctor or authorised nurse practitioner has reasonable grounds to believe that a patient has, or may have, a notifiable condition, the doctor or nurse practitioner must give the patient information about the transmission of the condition and how to prevent the transmission of the condition to others’. 

Frequently, obligations are less definite. For example, they may be embodied in the vagaries of aspirational statements within codes of ethics, or affected by a lack of case law defining the boundaries of legal duties under common law, for example, in relation to duties to notify third parties of risk (see Duty of Care to Third Parties and Civil Liability).

Some rights and duties contained in standards, guides and Codes cannot be legally enforced. However, an ethical duty embodied in a code of conduct or a practice standard which is not ‘enforceable’ in the same way as a statutory criminal law may have legal applications. For example, the RACGP Standards for General Practice criterian 1.2.2^[1] relating to informed patient decisions state that:

"It is important that patients have sufficient information to make appropriate decisions about their own healthcare. Information about the purpose, importance, benefits, risks and possible costs of proposed investigations, referrals or treatments needs to be tailored to the individual patient’s needs.

This information needs to be delivered in appropriate language and format – avoid the use of jargon or complicated terms – and where necessary include clear diagrams and written information. Consideration also needs to be given to the patient’s physical, visual and/or cognitive capacities, which may impact on their ability to understand the information, make decisions or provide consent."

While the requirements to avoid jargon and include diagrams and written information stated in this Standard may not be enforceable per se, the Standard may be accepted by a court as evidence of accepted practice relevant to determining the legal standard of care for the purpose of tort or contract law, or for determining whether there has been ‘unprofessional conduct’ in the context of a disciplinary offence.

It is argued that ‘doctors do not relish the trend towards the regulation of medical practice by statute’ (Magnusson 1996^[2]). It is also true that the ‘broad brush stroke’ of many legal and ethical requirements places onerous obligations on individual general practitioners (GPs) to constantly question their own ethical, moral and professional judgments – in terms of doing the right thing for their patients, for third parties, and also sometimes for themselves (in terms of liability as well as peace of mind). Clinicians are frequently required to make complex judgments which involve challenging their own as well as patients’ values and preconceptions while prioritising the development and maintenance of therapeutic relationships.

HIV has had a profound impact on Australian law, triggering the development of numerous legal and regulatory responses affecting clinical practice, including laws and guidelines on:

• HIV testing
• notification and recording of HIV test results and acquired immunodeficiency syndrome (AIDS)-related deaths
• confidentiality of HIV related information
• anti-discrimination requirements
• duties to disclose HIV status, practise safe sex or refrain from sex (particularly commercial sex) if living with HIV
• the management of those persons who put others at risk of HIV infection.

All these laws and guidelines, and numerous others besides, affect health care workers’ capacity and responsibility in relation to HIV-positive patients, those seeking HIV testing and those engaging in activities that put them at risk of HIV infection. 

There has been a number of high profile criminal prosecutions of individuals alleged to have put others at risk of HIV infection. Those cases have challenged some of the fundamental understandings of Australia’s long-term commitment to public health management principles in relation to HIV and the renowned record of effective responses to HIV infection, care of people with HIV/AIDS and scientific research. They have also generated substantial (often sensationalist) media coverage, communicating a distorted version of events and contributing to various constructions of what those prosecutions mean. This situation has the potential to result in: a loss of confidence in health care workers’ capacity to assure confidentiality; increased fear of police investigations of sexual activity; confusion concerning real risks of HIV transmission; and a return to the ethos of HIV-positive people as ‘the problem’. Unfortunately, those possibilities arise against a backdrop of continuing discrimination against people with HIV.

Despite discrimination on the basis of HIV-status being unlawful in all jurisdictions in Australia, many people living with HIV continue to experience less favourable treatment in many aspects of their lives, including the provision of health care. The HIV Futures 8 Report (2018)^[3] which surveyed 895 HIV-positive Australians from all states and territories, found that 15.8% of respondents had experienced less favourable treatment at a medical service as a result of having HIV. That discrimination, anticipation of discrimination and sense of stigma affects people’s capacity to effectively access health care, for example, to approach services for testing and support, to fully engage with health care providers, and to disclose all relevant symptoms and behaviours to ensure the highest possible level of care.

The awareness of prosecutions for HIV transmission has increased fears that doctors may report risk behaviours or sexually transmissible infections to their state health department or to police. Similar fears may lead people to seek medical advice from different practitioners as a means of preventing the collection of a consolidated medical record including behavioural factors and medical history. The possibility of prosecution may also make some hesitate to undergo HIV testing, or to disclose their HIV status to potential sexual partners: a matter of relevance to health care workers when having discussions with patients prior to and following HIV testing (see Consent and Conveying results). Such fears of persecution based on possibilities that are extremely unlikely given confidentiality provisions and state and national reporting guidelines (see Management of People with HIV who Place Others at Risk), have a real impact on clinical practice in terms of patients' confidence in confidentiality provisions and practitioners' questioning of their legal obligations.

With the criminal law and public health approaches often operating in the same space, there is a clear tension between the ethos and operation of the two: a tension that patients and health care providers endeavour to understand and manage. Public health measures recognise HIV-positive and HIV-negative people will continue to have sex, especially in the era of near normal life expectancy with modern effective antiretroviral treatments, and that the HIV response must be sex-positive and life-enhancing. Sexual relationships occur between partners, with behaviours considered in terms of individual and shared responsibility. Parenthood, pleasure and relationship factors are understood as normal human drivers in this context, and human rights, harm reduction and informed consent are the accepted principles. Public health responses consider the norms of human behaviour and the context in which sexual relationships occur. Criminal law sets up an adversarial relationship between ‘the perpetrator’ and his or her ‘victim’, regards sexual relations in terms of endangerment and intent, and largely removes context and the meaning of those sexual relationships to both parties in its consideration of harm. Public health talks of mutual responsibility: criminal law attributes blame to one party only. Entwined with these two potentially conflicting areas of law are other legal requirements in areas such as privacy, discrimination and the common law duty of care. 

Criminal prosecutions aside, public health management of individuals accused of putting others at risk of HIV infection (and associated media representations) threatens to undermine faith in the public health systems if not well managed. Management of all HIV-related issues must be evidence-based and responsive to both the needs of the individual patient and any possible sexual and other risk contacts, as well as to over-arching public health concerns. 

During the course of consultation in the development of this resource over time, public health officials and those connected with HIV advisory panels stressed their commitment to supporting individuals through formal public health management processes so that those few individuals may successfully modify their behaviours and other health-related, treatment responsive risks (e.g. intercurrent sexually transmitted infection, HIV treatment response and psychological health). Moreover, they stressed that health care providers should not hesitate to contact them for expert guidance. There is a strong commitment to assisting healthcare 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. 

This resource aims to respond to some of the concerns outlined by health care providers in relation to HIV, and also by those wishing to access health services. It provides health care providers with a basic outline of their legal and ethical responsibilities under various laws and regulations in relation to HIV. Of course, information contained in this resource is not specific and does not constitute legal advice. Those seeking advice on individual cases should contact their health department, solicitor or their medical defence organisation as appropriate.