Patient obligations #
Section 79(1) of the Public Health Act 2010 (NSW) provides that a person who knows that they have a notifiable disease, or a scheduled medical condition, that is sexually transmissible (including HIV) is required to take reasonable precautions against spreading the disease or condition. Section 79(1A) adds that reasonable precautions include (but are not limited to), acting in accordance with information provided in specific circumstances by a registered medical practitioner to minimise the risk of infection to others.
While the Act does not define the term ‘reasonable precautions’, it states that a medical practitioner who suspects their patient has a sexually transmitted infection (STI), must provide the patient information under s 78(1) of the Public Health Act 2010 (NSW).
Medical practitioners are required to provide this information to their patients, who they suspect are living with an STI, including HIV. Failure to provide this information is a criminal offence, and may result in a penalty.
The law indicates that the information must be provided to a patient by a medical practitioner at least while the medical practitioner is exercising their duty under s 78(1). This duty to provide information arises where a medical practitioner suspects that a patient has an STI, including HIV. However, should the patient be subsequently diagnosed, the diagnosing practitioner and potentially any subsequent medical practitioners the patient attends, will no longer ‘suspect’ but will ‘know’ that the patient has acquired HIV. As such, the advice provided while exercising a duty under s 78(1) may occur only once (at the point of suspicion only), and so have legal effect regarding the definition of a reasonable precaution only at this time, despite further opportunity or discussion of different precautions that a patient may take to reduce transmission. Medical practitioners should ensure that they clearly record that they provided the necessary information to the patient as evidence that they have executed their duty described in s 78(1). While it is unclear whether further or subsequent provision of information regarding transmission reduction techniques will be regarded by a court as a ‘reasonable precaution’, medical practitioners should record the provision of information, particularly where it has implications for a patient’s transmission reduction strategies.
Some reasonable precautions defined in the associated public health regulations, and include (but are not limited to):
- providing information about:
- receiving treatment for the STI
- for a patient who has HIV, determining if the patient has an HIV viral load of less than 200 copies/mL.
- for a patient who has HIV, seeking and receiving confirmation from a sexual partner that the sexual partner is on HIV pre-exposure prophylaxis medication
- using a condom during sexual intercourse
NSW Health’s policy directive, Management of people with HIV who risk infecting others provides guidance. NSW Health considers ‘reasonable precautions’ to include:
- having an HIV viral load less than 200 copies/mL
- being on anti-retroviral therapy (ART)
- using a condom during sexual intercourse
- seeking and receiving confirmation from a sexual partner that they are taking HIV pre-exposure prophylaxis (PrEP).
Where a person fails to take reasonable precautions against spreading HIV, they are subject to a maximum penalty of 100 penalty units and/or up to 6 months’ imprisonment.
Healthcare provider obligations (pre-contact tracing) #
Under s 78 of the Public Health Act 2010 (NSW), a medical practitioner who suspects that their patient has HIV must, as soon as practicable, provide the patient with information prescribed by the regulations. The prescribed information is outlined in reg 63 of the Public Health Regulations 2022, and includes information about:
- the means of minimising the risk of transmitting HIV to other people
- the precautions that should be taken to minimise the risk, which may include
- using a condom during sexual intercourse
- receiving treatment
- seeking and receiving confirmation from a sexual partner that they are on PrEP
- determining whether the patient has an HIV viral load of less than 200 copies/mL
- the public health implications of HIV
- diagnosis and prognosis
- treatment options.
Where a medical practitioner has failed to provide the prescribed information to a patient, they are subject to a maximum penalty of 50 penalty units. However, a defence is available if the medical practitioner can prove that they believed that the relevant information had previously been supplied to the patient by another registered medical practitioner.
