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

How Victoria protects the public

Page contents: Overview | What happens when a report is made that someone is putting others at risk of HIV? | What are the Guidelines? | What is an Order? | What is the process? | Can orders be appealed? | Are the police involved in this process? | Confidentiality | Legal Representation | Download document | Related information

Overview

The human immunodeficiency virus (HIV) can be spread through:

• Unprotected sex (anal or vaginal) with an HIV positive person.
• Entry of HIV positive blood into a person’s bloodstream (such as when injecting drug users share needles).
• An HIV positive mother to her baby during pregnancy, at birth, or via breast milk.

In Australia, HIV is most commonly spread by anal and vaginal sex without a condom, and through sharing needles. HIV cannot be spread by ordinary social or family contact. The Department of Human Services aims to limit the spread of infectious diseases such as HIV, through education about 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 Human Services receives a report that someone may be putting others at risk of HIV infection, the report must be followed up. Health workers from the Department of Human Services, known as Partner Notification Officers, will talk to the people involved to see if the report might be true. If it appears that someone may be putting others at risk of HIV infection, there are guidelines about what may happen next.

What are the Guidelines?

The Guidelines outline a 5-stage process, starting with measures such as counselling and support, through to legally binding Orders. The aim of the 5-stage process is to encourage people with HIV to change whatever they are doing that is risking the spread of HIV. Legal Orders are used only if it appears that the person is still putting others at risk of HIV infection.

What is an Order?

The Chief Health Officer can order a person to be counselled about HIV, or restrict their activities or movements, and in very serious cases, can order them to be detained and isolated from other members of the community. Orders are legally binding under the Health Act 1958 (section 121) and these powers have been given to the Chief Health Officer. A person who does not follow an Order could be fined up to $5,000 and risk escalating management to a higher and more restrictive Stage.

What is the process?

Stage 1 – Counselling, Education and Support

After the Partner Notification Officers have met and talked with the person, they can offer support such as helping them to see a counsellor or other services, that might help to change any behaviour that puts others at risk of HIV infection. This may include:

• Medical and psychological services.
• Drug and alcohol services.
• Counselling services to understand aspects of sexuality, strengthen relationships and help manage specific behaviours such as impulsiveness.
• Assistance with housing or supported accommodation.
• Assistance with training, job placement or financial help.
• Access to condoms and advice about injecting equipment.
• Home care support such as shopping, cooking and cleaning.
• Peer group support organizations.

If it is the view that the person continues to put others at risk despite these supports, the Chief Health Officer will consider whether it is appropriate to move to stage 2.

Stage 2 – the HIV Case Advisory Panel and the Chief Health Officer

6 April, 2009s, he may seek the advice of the HIV Case Advisory Panel in terms of further management. The Panel is made up of relevant independent experts from outside the Department of Human Services. The Chief Health Officer will consider the advice and make a final decision about what needs to happen next. No identifying material will be made available to the members of the Panel.

Stage 3 – Letter of Warning

One action available to the Chief Health Officer is to send the person an official letter explaining their legal requirements and to warn them about 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 – Restriction and Isolation

If after receiving the Letter of Warning, the person is still putting others at risk, the Chief Health Officer may make a written Order which is legally binding under the Health Act. If the situation is very serious or urgent, an Order can be made without a Letter of Warning.

The Chief Health Officer may order the person to have compulsory counselling about HIV, or order restrictions on their behaviour or movements. As a last resort, the Chief Health Officer may order that the person be detained and isolated from other members of the community.

Can orders be appealed?

Restriction and isolation Orders of the Chief Health Officer must be reviewed if requested by the person placed under the Order. An appeal can also be made to the Supreme Court, which must hear and determine an appeal against an Order urgently. During the appeal process the Order remains in force. From January 2010 under new legislation it will be possible to appeal against Public Health Orders to the Victorian Civil and Administrative Tribunal (VCAT) rather than the Supreme Court.

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 Health Act (public health laws). The police carry out their actions under completely different laws (such as the Crimes Act). However police may become involved in cases involving people who put others at risk in the following circumstances.

Firstly 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 DHS to provide documents in relation to a person under investigation, then DHS like all other people or organisations, is legally required to provide the documents.

Secondly if the Chief Health Officer becomes aware of serous criminal activity, whilst investigating a person who has put others at risk, (paedophilia, rape, child pornography or acts to intentionally transmit HIV), then the police will be advised.

Lastly if it appears that actions taken under public health laws have not been successful in changing someone’s behaviour and they continue to put others at risk of HIV, such cases may be reported to the Police.

Confidentiality

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

In addition, details relating to any investigation use non-identifying name codes rather than individual names. All files are stored in a locked area and only accessible to a strictly limited small number of departmental personnel.

Legal Representation

Throughout the process of any investigation, clients are able to seek legal advice. Clients, if they wish, will be permitted to have an advocate or support person present during their meetings with the Partner Notification Officers. Persons on restriction or isolation Orders will be advised in writing of their requirement to comply, possible penalties for breaches and avenues for appeal.

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 (117kb, pdf)

Partner Notification Officers brochure (208kb, pdf)

Related information

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

top of page