Guide to Australian HIV Laws and Policies for Healthcare Professionals
Public health offences
Health care providers have an obligation to provide advice that is: based on best current scientific evidence; tailored to the person’s individual health, treatment and social situation; practical and specific in nature, including access to condoms and other harm reduction methodologies (e.g. needle-syringe access or PrEP); and further information sources for support and education (e.g. peer organisations and other quality information sources). It is also important that health care providers are aware of HIV-related public health offences so that they may clearly advise their patients of their responsibilities. Doctors are not lawyers, and so while health care providers must advise patients of their public health responsibilities, they should make it clear to the patient that they can provide general information only which is not a substitute for the patient obtaining his or her own legal advice.
State-based public health offences are listed below.
This 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 six jurisdictions where specific laws exist: ACT, NSW, Northern Territory, Tasmania, Victoria and Western Australia.
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
- if the patient agrees, make reasonable arrangements for the patient to receive counselling.
- About their patient rights (under s99(c)):
- to privacy;
- to receive all reasonably available information about the medical and social consequences of the condition and any proposed treatment.
Patient Obligations: Public health law regarding pre-sex HIV disclosure was amended in October 2017. Section 79(1) of the Public Health Act 2010 now provides that a person who knows that he or she has a sexually transmitted infection (including HIV) is required to take reasonable precautions against spreading the STI.
The Act does not define the term ‘reasonable precautions’, however, the NSW Ministry of Health has issued guidelines as to what constitutes this term. NSW Health considers that reasonable precautions against the spread of STIs include:
- taking a prescribed antibiotic course for bacterial STIs or use of a condom or
- for HIV, having an HIV viral load of less than 200 copies/mL, usually resulting from being on effective treatment or
- for HIV, seeking and receiving confirmation from a sexual partner that they are taking HIV pre-exposure prophylaxis (PrEP) or
- for hepatitis B, seeking and receiving confirmation from a sexual partner than they are immune to hepatitis B (e.g. vaccinated or previously infected).
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. The prescribed information is outlined in Public Health Regulations 2012, regulation 40:
- the means of minimising the risk of infecting other people and the precautions that should be taken to minimise the risk
- the public health implications of the infection
- 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 1981, 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 14 of the South Australian Public Health Act 2011. Whilst the Act does not mention specific diseases, the “principles” apply to all notifiable infectious conditions and this includes HIV.
Specific principles 14(3) requires that “a person who has a controlled notifiable condition (which would include HIV) -has a responsibility to take reasonable steps to avoid placing others at risk."
Notably, those principles 14(4) also state that as far as ‘reasonably practicable’, a person ‘must not act in a manner that places themselves at risk of contracting a controlled notifiable condition’. Disclosure is not specifically addressed.
Under section 75, Power to give directions, the Chief Public Health Officer may give directions if they believe that a person has, or has been exposed to, a controlled notifiable condition; and they consider that an order is reasonably necessary in the interests of public health. Under section 81, anyone subject to such an order has a duty to comply with a maximum penalty of $25,000 for non-compliance. (Code for the Case Management of Behaviour that Present a Risk of HIV Transmission)
Health Care Provider Obligations (pre-contact tracing): Not defined.
Patient Obligations: Section 51 of the Public Health Act 1997 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 contracting 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 the disease, including HIV. A person found guilty of an offence under section 51 is liable to a fine or imprisonment for up to 12 months, or both.
Health Care Provider Obligations (pre-contact tracing): Under the Public Health Act 1997 (section 50), if a doctor believes a patient has any notifiable disease, including HIV, the doctor must provide that person with information about transmission and prevention of that disease. Guidelines for Notifying Diseases and Food Contaminants can be found here which are legal requirements for the medical practitioner to notify the Director of Public health about certain diseases.
Patient Obligations: section 111 of the Public Health and Wellbeing Act ‘principles’ state that a person at risk of contracting an infectious disease should take all reasonable precautions to avoid contracting the infectious disease. Although not tied to specific penalties, the statement of principles 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:
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 (section 132).
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.
Section 88(2) of the Public Health Act 2016 states that a person who is at risk of contracting a notifiable infectious disease must take all reasonable precautions to avoid contracting the disease. Ss 88(3) & (4) of the Act outlines that those who suspect they have a notifiable infectious disease must ascertain whether they have the disease as well as the precautions they need to take to prevent others from contracting the disease. The Act states:
‘A person who has a notifiable infectious disease must take all reasonable precautions to ensure that others are not unknowingly placed at risk of contracting the disease.
Health Care Provider Obligations (pre-contact tracing):
Section 94 requires a medical or nurse practitioner who forms the opinion that a patient has, or may have HIV, to notify the Chief Health Officer, as soon practicable.
Section 97 requires a medical practitioner or nurse practitioner who forms the opinion that a patient has HIV to give the patient information about the disease or condition, including about:
(i) the patient’s requirement to take all reasonable precautions to ensure that others are not unknowingly placed at risk of contracting the disease.
(a) to be protected from unlawful discrimination;
(b) to have his or her privacy respected;
(c) to be given information about the medical and social consequences of the disease or condition and about any proposed medical treatment;
(d) in the case of a notifiable infectious disease:
(i) to have access to available and appropriate examination and treatment; and
(ii) to have that examination and treatment provided free of charge, but only if the requirements set out in subsection (6) are met.
(iii) preventing the transmission of the disease to any other person;