Chief Health Officer, Victoria, Australia

What happens if a person appears to be putting others at risk of HIV

How Victoria protects the public

Overview

The Human Immunodeficiency Virus (HIV) can be spread in a number of ways:

• during unprotected sex (anal or vaginal) with an HIV positive person
• by entry of HIV positive blood into a person’s bloodstream (such as when injecting drug users share needles)
• from an HIV positive mother to her baby during pregnancy, at birth or via breast milk. In Australia, HIV is most commonly spread by anal or vaginal sex occurring without a condom or through sharing needles. HIV is not spread by ordinary social or family contact. The Department of Health aims to limit the spread of HIV primarily through education and support for safe sex and safe injecting.

What happens when a report is made that someone is putting others at risk of HIV? When the Department of Health receives an allegation that someone may be putting others at risk of HIV infection, the report is followed up by departmental health workers known as Partner Notification Officers (PNOs). PNOs speak to the people involved to see if the report might be true. How the person at the centre of the allegation (the client) is managed is explained in the Guidelines for the management of people living with HIV who put others at risk.

What are the Guidelines?

The Guidelines for the management of people living with HIV who put others at risk outline a five-stage process that aims to encourage people with HIV to change behaviour that is risking the spread of HIV. It starts with measures such as counselling, education and support, through to legally binding public health orders. These orders are only used if it appears that the client fails to voluntarily change their behaviour and continues to put others at risk.

What is an Order?

The Chief Health Officer can make a legally binding order that the client is required to comply with; the aim is to reduce the risk of HIV transmission in the community. Orders can be made only if the Chief Health Officer believes the client has HIV and a reasonable attempt has been made to inform the client about HIV, there is a serious risk to public health related to the person’s behaviour, and that the client must undertake certain actions or avoid certain behaviours to reduce the transmission risk.

A client who does not follow an order could be fined over $14,000 and risk escalating management to a higher and more restrictive stage.

What is the process?

Stage 1 – Counselling, Education and Support

The PNOs meet with the client and explain:

• the role of the Chief Health Officer in limiting the spread of HIV in the community
• the expectation that people living with HIV will take all reasonable steps to eliminate or reduce the risk of any other person contracting HIV from them
• safe sex and/or safe injecting
• the powers available to the Chief Health Officer under the Public Health and Wellbeing Act 2008 and the Guidelines for the management of people living with HIV who put others at risk.

Where required, the PNOs may assist in referring the client to other supports and services, such as:

• counselling to understand aspects of their sexuality, improve skills around HIV disclosure/negotiating safe sex, or help manage specific behaviours such as impulsiveness
• peer-based organisations
• access to condoms and safe injecting equipment
• medical, psychological or drug/alcohol services
• housing or supported accommodation
• job training and placement or financial help
• home care support such as shopping, cooking and cleaning.

If the client continues to put others at risk despite these actions, the Chief Health Officer will consider whether it is appropriate to move to Stage 2.

Stage 2 – Counselling, education and support under advice from the HIV Case Advisory Panel or the Chief Health Officer

If the Chief Health Officer believes the client is not complying with voluntary measures, or that the measures have not resulted in any meaningful change in behaviour, then he may direct the PNOs to undertake further action or seek advice from the HIV Case Advisory Panel (the Panel).

The Panel is made up of independent experts from outside the Department of Health. The Chief Health Officer will consider their advice and make a decision about what needs to happen next. No material that may identify the client is made available to the Panel.

Stage 3 – Letter of Warning

One action available to the Chief Health Officer is to send the client an official letter explaining their obligation to take all reasonable steps to eliminate or reduce the risk of any other person contracting HIV from them. This letter will also warn them of the legal powers (orders) available to the Chief Heath Officer if they continue to put others at risk of HIV infection.

Stages 4 and 5 – Public health orders: behavioural and detention/isolation

If required, the Chief Health Officer can order a client to meet or receive visits from the PNOs, to participate in education, counselling or other activities, to undergo psychiatric or cognitive assessment, to refrain from certain activities/behaviours, to refrain from visiting specified places, to reside at a specified place, provide notification if they change their name or address or, in extreme circumstances, to be detained and/or isolated from other members of the community. Orders are legally binding under the Public Health and Wellbeing Act.

Reviews of Public Health Orders

A client subject to an order has 28 days from the date of the order to request the Chief Health Officer to provide a written statement detailing why the order was made. They may also apply in writing to the Chief Health Officer for a review of the order at any time that the order is in force. This review must occur within seven days of receipt of this request, at which time the order may be confirmed, varied or revoked.

In addition, a client subject to an order may apply to Victorian Civil and Administrative Tribunal (VCAT) for a review of the Chief Health Officer’s decision to make the order.

Are the police involved in this process?

The Chief Health Officer is able to perform these functions as a result of the powers given to him in the Public Health and Wellbeing Act. The police carry out their actions under completely different laws, namely the Crimes Act 1958. Police may become involved in cases involving people who put others at risk in the following circumstances:

• A complaint may be made directly to the police who will then carry out their own investigation under the Crimes Act. If, as a result, police serve a warrant on the Department of Health to provide documents in relation to a person under investigation, then the department, like all other organisations, is legally required to provide the documents sought.
• If the Chief Health Officer becomes aware of serious criminal activity while investigating a person who has put others at risk, (for example, paedophilia, rape, child pornography or acts to intentionally transmit HIV), then the police will be advised.
• If it appears that all actions available under public health law have not been successful in changing a client’s behaviour and the client continues to put others at risk of HIV, then the Chief Health Officer may consider reporting that client to the police.

Privacy and confidentiality

The Department of Health will maintain any information provided in the most confidential manner possible and all information is handled in line with Victorian privacy laws, including the Health Privacy Principles under the Health Records Act 2001. In particular, the sources of any reports about a person putting another at risk are never disclosed to the client. Very infrequently the department may be legally compelled to release information to the police if required to do so by a police search warrant. This is not a breach of the Health Privacy Principles.

Documents relating to client management use non-identifying name codes rather than individual names. All files are stored in a locked area and are only accessible to a strictly limited number of departmental personnel.

Legal Representation

Throughout the five-stage process, clients are able and are encouraged to seek legal advice and, if they wish, they can have an advocate or support person present during their meetings with the PNOs.

All public health orders will advise the client of their requirement to comply, possible penalties for breaches, avenues for review, including application to Victorian Administrative Review Tribunal (VCAT) and that they should seek legal advice.

Authorised by the State Government of Victoria, 50 Lonsdale Street, Melbourne.

Download document

Guidelines for the management of people living with HIV who put others at risk (316kb, pdf)

Partner Notification Officers brochure (255kb, pdf)

Related information

Maintaining world's best practice when managing people with HIV who put others at risk