Introduction #
Five jurisdictions across Australia have laws that authorise mandatory blood-borne virus (BBV) testing for individuals whose bodily fluids may have come in contact with police (or other emergency service personnel in some jurisdictions): the Northern Territory, South Australia, Western Australia, New South Wales and Victoria.
In the Northern Territory, a senior member of police may grant disease testing approval where there are grounds to suspect that there has been a transfer of a substance as a result of an assault. The phrase ‘transfer of a substance’ is not defined in the legislation.
In South Australia, a senior police officer may require a blood sample where a person engaged in prescribed employment was exposed to a person’s blood or bodily fluids or any other biological material that is capable of transmitting the disease.
In Western Australia, a senior police officer may give a disease test approval if satisfied that there are reasonable grounds for disease testing. Under the Guideline for the Mandatory Testing of a Suspected Transferor for an Infectious Disease (Blood-borne Viruses) associated with the Mandatory Testing (Infectious Diseases) Act 2014 (WA), a risk assessment should be conducted before giving approval. The assessment should define the nature and extent of the exposure, and volume of blood or bodily fluid that the officer was exposed to and, if known, the BBV status of the suspected transferor.
In New South Wales, specified types of workers who have come into contact with bodily fluids of a third party over the age of 14 while in the execution of the worker’s duty, and as a result of a deliberate action of the third party and without the consent of the worker, may make an application for a mandatory testing order to a specified senior officer (e.g. secretary of NSW Health). A relevant ‘worker’ for the purpose of this law is defined by the Mandatory Disease Testing Act 2021 (NSW) and includes a member of the NSW Police Force, a correctional officer and a person employed in the NSW Health Service.
The Victorian law differs from other jurisdictions in that it is incorporated in public health legislation. Consequently, mandatory testing orders may only be made by the chief health officer. The chief health officer may make an order where an incident has occurred in which a specific infectious disease could have been transmitted to a ‘caregiver or custodian’ (which includes registered medical practitioners, nurses, paramedics and police officers).
Queensland has laws that allow for mandatory testing of individuals accused of sexual offences and serious assaults. In Queensland, a police officer may apply to a magistrate or the Childrens Court for an order authorising the taking of a blood sample if the officer reasonably suspects a person has committed a ‘chapter 18’ offence.
All these laws rest on the false premise that appropriate care of and support to police or others can be meaningfully informed by the HIV or BBV status of another person or accused. These laws are not based in the science of BBV transmission risk, for example, instances of spitting may be the basis for a mandatory test in some contexts; however, no risk of HIV transmission arises in the case of spitting. Indeed, spitting was central to the discourse about risk when these laws were first proposed. A central rationale for mandatory testing is to alleviate distress that police or other emergency service personnel may experience following an incident. However, tests results may be misleading in this context and cause additional anxiety for the officer or worker concerned even though there was no risk of BBV transmission, such as where the person tested returns a positive result. Alternatively, a test may provide a false sense of security for parties to these processes, for example, where an accused returns a false negative result (e.g. in circumstances where the person has recently acquired HIV) in a context in which there was an actual transmission risk, such as when blood-to-blood contact occurred.
Mandatory testing and consent #
While the legislation clearly confers powers to mandate testing (without consent), there are other provisions and practices that exist in some jurisdictions that seek – at the same time – to conduct this testing with consent. For example, in Western Australia, the Department of Health has produced an operational directive titled, Guideline for the Mandatory Testing of a Suspected Transferor for an Infectious Disease (Blood-borne virus) (Operational Directive that provides guidance to healthcare workers involved in any mandatory testing process. This document explicitly requires that informed consent of the suspected transferor be sought (see 4.6). Appendix 11.4 of the Operational Directive is a proforma consent form titled ‘Consent to undergo blood test under the Mandatory Testing Act and consent for follow-up of test results’.
Some health professionals who have been involved in mandatory testing discontinue the test procedure, rather than using force, in circumstances where the health professional has attempted to obtain consent prior to testing, and the person refuses and physically resists testing. Under the 2020 National HIV Testing Policy, testing should only be conducted with informed consent, except in emergency contexts or where a legal order for mandatory testing is made.
Healthcare workers involved in testing #
The legislative provisions across jurisdictions that have enacted mandatory testing state that healthcare workers may be asked to conduct mandatory testing by the police, a health secretary or chief health officer once authorised.
For example, in the Northern Territory under s 147FR (3) of the Police Administration Act 1978 (NT), ‘the medical practitioner, nurse or qualified person must take a blood sample from the transferor in accordance with the disease test authorisation’, subject to circumstances outlined in sub-ss (4). Sub-section (4) circumstances are where ‘(a) there is no serious risk that serious harm would be caused to the transferor, or another person, by the taking of the sample; and (b) the health of the transferor would not be adversely affected by the taking of the sample’.
It appears that in some jurisdictions, healthcare workers are protected from liability if they are involved in performing tests as part of a mandatory testing regime. There are specific legislative provisions to this effect in some jurisdictions, such as the protection from liability provision in s 32 of the Mandatory Testing (Infectious Diseases) Act 2014 (WA). Even in those jurisdictions with protections from liability, healthcare workers involved in mandatory testing may still be liable for participation in testing without consent where their actions are found to fall outside of the bounds of the protections, or for matters related to the procedure that are not covered by the limitation of liability.
If you have concerns about potential involvement in a mandatory testing process, we strongly recommend you seek legal advice and/or speak with your medical indemnity organisation.