In some instances, post-exposure prophylaxis (PEP) applied within 72 hours of exposure to HIV will be appropriate to prevent HIV transmission. Ideally PEP is commenced within 24 hours. The ASHM Australian Post-exposure Prophylaxis (PEP) for HIV Guidelines 2023 state:
‘This guideline outlines the updated Australian recommendations for human immunodeficiency virus (HIV) post-exposure prophylaxis (PEP) following potential or known exposure to HIV in sexual, occupational, and non-occupational settings. Risk of transmission, the timing of PEP, baseline assessment, preferred regimen and follow-up are outlined, including the use of PEP in the era of the Pharmaceutical Benefits Scheme (PBS)-subsidised HIV pre-exposure prophylaxis (PrEP). This guideline is not intended to be prescriptive or replace specialist advice in the provision of PEP. Every presentation for PEP should be assessed on a case-by-case basis, balancing the potential harms and benefits of treatment’.
The guidelines go on to outline risk and treatment options. In short, PEP should be considered if the potential benefits of treatment are greater than the risks of treatment.
There are no Australian cases establishing a legal duty to offer PEP treatment. However, a patient who is not offered PEP and acquires HIV can initiate legal action on the basis that the clinician has been negligent. The clinician’s failure to follow the national guidelines could be taken into account by a court as evidence that the clinician has breached their duty of care in a particular case.
See the following examples of other areas of law where guidelines have been adduced as evidence in court: TU v AMI Australia Holdings Pty Ltd [2010] NSWADT 290; South Western Sydney Local Health District v Gould [2018] NSWCA 69. The current PEP Guidelines are available here.