Sex, HIV and the law

1. Sex, HIV and the law Dr Rosemary Lester Communicable Disease Control Unit Department of Human Services

2. 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: • 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

3. 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

4. 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

5. 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

6. 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

7. 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 • Confirmation of HIV status • Person’s response • Screen for psychiatric issues, drug/alcohol issues • Assess social supports • If appropriate, manage under 5 stage guidelines

8. Sex, HIV & the law • 5 stage approach • Stage 1 – counselling and monitoring • Stage 2 – CHO +/- HIV Case Advisory Panel involved • Stage 3 – letter of warning • Stage 4 – restriction order • Stage 5 – 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

9. 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

10. Sex, HIV & the law • Health professionals duty to disclose (cont) • Assessment based on: • 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:

11. 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.