Download Public Health Branch Business Planning 07/08 – Workshop 2

Sex, HIV and the law
Dr Rosemary Lester
Communicable Disease Control Unit
Department of Human Services
Department of Human Services
Sex, HIV & the law
• Health Act 1958
– s120- a person must not knowingly or recklessly infect another
person with an infectious disease
– Defence that the person knew of and voluntarily accepted the risk
– S121 – Secretary (CHO) reasonably believes a serious risk to public
health, may make orders:
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Requiring a person to be examined and tested
A person receive counselling
Restrictions placed on behaviour or movements
A person be isolated and detained
• Crimes Act 1958
– S22 & 23 – offence to engage in reckless conduct causing serious
injury or endangering life
– s19A – offence to cause another person to be infected with a very
serious disease (HIV) without a lawful excuse
Sex, HIV & the law
• Two processes in parallel – important to keep community
confidence in public health system to avoid
– Decreases in HIV testing
– Decreased reporting of persons placing others at risk
– Disruption of the good community relations that public health & HIV
community enjoys
• Complaints can be made direct to police
– Investigate whether to lay charges
– May refer client to DHS to be managed under public health system
– If, in course of investigation, police need to access files, this
requires the issuing of a search warrant by a magistrate
• Public health system aims to prevent transmission in future –
criminal system will prosecute for crimes in the past
Sex, HIV & the law
• DHS procedures
– Two reviews currently almost concluded
• HIV case file review – senior public health clinician and former assistant
police commissioner
• Review of Guidelines – in parallel with national review of guidelines
Sex, HIV & the law
• DHS procedures – Guidelines for the management in Victoria of
people living with HIV who put others at risk 2006 – 2009
• Five guiding principles
– Transmission of HIV is preventable through behaviour change
– Each person accepts responsibility for preventing herself becoming
infected, and for preventing further transmission of the virus
– The community as a whole has a right to appropriate protection
against infection
– The law should complement and assist education and other public
health issues
– Co-operation with those HIV infected and those at risk
Sex, HIV & the law
• DHS procedures (cont)
– CHO would discuss case with Victoria Police Sexual Crimes Squad if
procedures under the Health Act are inadequate to deal with the
circumstances, eg
• Serious crime eg child abuse, child pornography
• Major drug dealing
• Significant violent crime
– Contact initiated if CHO feels that public health measures not
successful
– Informal discussion if uncertain
– Police officers may interview PNOs after permission from CHO
Sex, HIV & the law
• Role of the PNOs
– Receive complaints/notifications of “at risk” behaviour
– Gather specific information including name of complainant –
anonymous allegations not acted upon
– Details of behaviour
– Any evidence of HIV transmission
• Assess notification
– Interview & decide if further action
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Confirmation of HIV status
Person’s response
Screen for psychiatric issues, drug/alcohol issues
Assess social supports
• If appropriate, manage under 5 stage guidelines
Sex, HIV & the law
• 5 stage approach
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Stage
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Stage
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5
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counselling and monitoring
CHO +/- HIV Case Advisory Panel involved
letter of warning
restriction order
isolation order
• HIV case advisory panel
– PLWHA, medical practitioner with ID experience, health worker with
mental health experience, person with legal expertise, psychiatrist
and social scientist/epidemiologist
– Advisory to CHO who has statutory responsibility for decisions
Sex, HIV & the law
• Protecting the public health approach
– Need to remain engaged with the community to emphasise that the
vast majority of individuals managed successfully with the public
health approach
– Retain community confidence in the system – encourage regular
testing, and frank discussion with clinicians about risk behaviour
– Support for anti-discrimination, an enabling environment and
confidentiality
• Health professionals duty to disclose
– Currently no mandatory reporting of risky behaviour
– Clinician may disclose information to DHS if he/she thinks there is a
serious risk to a person’s life, health or safety, or a serious threat to
public health and safety
Sex, HIV & the law
• Health professionals duty to disclose (cont)
– Assessment based on:
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Nature/extent of the risk behaviour
Reliability of information
Doctor’s relationship with the patient
Options for mitigating future risk
Impact of co-morbidities
Patient’s support network
• Recent policy change by health ministers
– Review of national policy on the management of people with HIV
who risk infecting others
– Outcome of discussion by health ministers:
Sex, HIV & the law
– That states and territories do not introduce mandatory reporting by
clinicians to public health authorities of suspected risk behaviour by
patients EXCEPT (emphasis added) in circumstances where
clinicians have a reasonable suspicion that a person has or may
intentionally infect others. Instead, public health authorities should
work with clinicians to educate and support them to undertake the
full range of their preventative work, including, where appropriate,
reporting risk behaviour they cannot manage.