Following a HIV-positive test result, the treating clinician must provide information, education and support regarding engaging in behaviours that lower the risk of HIV transmission. This is a legal requirement in many jurisdictions (see above).
The 2020 National HIV Testing Policy states that the person who conveys the test result has a duty to ‘ensure that the patient is aware of the legal obligations relevant to their jurisdiction’. Further reading on the duty of care to third parties and civil liability appears earlier in this guide.
This is a difficult matter for medical practitioners. Medical practitioners are not legal practitioners and consequently are precluded from giving ‘legal advice’. Similarly, a focus on ‘what the law says’ may not be a priority given patient’s varied clinical and therapeutic needs upon HIV diagnosis. Finally, it is often difficult to ascertain and to express exactly ‘what the law says’ in a particular jurisdiction, especially without the benefit of significant specialist legal knowledge. For these reasons, in addition to complying with the requirements under law and good clinical practice, clinicians should consider making a referral to the HIV/AIDS Legal Centre (HALC). The HALC also has a series of jurisdiction-specific ‘disclosure guides’ and other guides to the law, which clinicians may consider providing to their patient.
There is no longer a straightforward legal requirement in any Australian state or territory to disclose HIV-positive status before sex, provided the individual ‘takes reasonable precautions’ to prevent HIV transmission.
However, it is important to note that in all states and territories it is possible that a person’s failure to disclose their HIV-positive status prior to sex could be considered relevant in criminal charges proceedings. Healthcare practitioners have a duty to provide information to their patients about reasonable precautions to prevent transmission of HIV and may refer their patients to the HIV/AIDS Legal Centre’s guide: Disclosing your HIV status. At all times a healthcare practitioner must be clear that they are not providing their patient with legal advice. Patients who want to know more about their legal obligations should be advised to seek legal advice by contacting the HIV/AIDS Legal Centre.
Disclosure – criminal laws #
Failure to disclose HIV status has been considered a key factor in the conviction of people for HIV exposure and transmission under a range of criminal laws (see Criminal Law).
Role of the Practitioner #
In a number of instances, post-HIV test discussions and discussions during subsequent consultations have been relevant to criminal proceedings against individuals charged with exposing others to HIV or transmitting HIV.
In criminal cases, healthcare providers have been called to give evidence about the information they provided to their patients, and their understanding of their patients’ awareness of their obligations to prevent transmission. For example, in 2002, a Western Australian man was charged with unlawfully inflicting grievous bodily harm under s 297 of the Western Australian Criminal Code Act Compilation Act 1913 (WA) sch (Criminal Code), for having sexually transmitted HIV to a woman. Though aware of his HIV-positive status, the defendant claimed that HIV-related counselling (now known as ‘discussion’) led him to believe it was safe to have unprotected sex if he did not ejaculate semen into a sexual partner. The defendant did not disclose his HIV-positive status to the complainant. The defendant was tried and an appeal resulted in orders for a retrial. Following the retrial, the defendant was eventually convicted of grievous bodily harm. The case raises complex questions of criminal and evidence law. Relevant to clinical practice, much of the first appeal focused on whether the defendant had an honest and reasonable, but mistaken, belief that withdrawal prior to ejaculation during sexual intercourse would prevent HIV transmission. The defendant claimed he believed this to be the case. He argued that he had formed this belief because of advice that he had allegedly received by health practitioners that supported this practice. The trial judge in the retrial was required to rule on part of this claim. In hearing a second appeal on different grounds, Steytler P noted that at the retrial, the trial judge concluded that the defendant ‘never held the belief that he claimed to have held’ (at [5]) and ‘accepted evidence to the effect that the practice of withdrawal would not have been recommended to the appellant as a safe sex practice and found that the [defendant] as not a credible witness’ (at[5]). (See Houghton v Western Australia [2006] WASCA 143.)
In 2006, a New South Wales man was charged with 2 counts of malicious infliction of grievous bodily harm under s 35 of the New South Wales Crimes Act 1900 (NSW) (as it then was) for sexually transmitting HIV to 2 women. The court accepted the accused had told the women he did not have HIV, pressured and coerced them into having sex without a condom and removed a condom during sex on at least one occasion. Evidence relating to his post-HIV test counselling (discussion) and to discussions that ensued was central to the case (see case discussion of Kanengele-Yondjo v. The Queen [2006] NSWCCA 354 below). The judge accepted that the experienced medical practitioner had clearly and diligently communicated the defendant’s obligations to prevent HIV transmission.
These cases emphasise how important it is for healthcare practitioners to provide clear and unambiguous information to patients who test positive for HIV about the risks of transmitting HIV to others and their responsibility to take reasonable precautions to avoid transmission.
For legal obligations imposed on healthcare providers surrounding HIV disclosure, see Public health offences – reasonable precautions and duty to warn and HIV public health notification requirements state specific information: ACT, NSW, NT, QLD, SA, TAS, VIC and WA. For responsibilities under the law, see Public health offences -reasonable precautions and duty to warn.
When speaking with patients, healthcare practitioners should explain the strong evidence that demonstrates that someone with a sustained undetectable viral load has a next-to-zero/negligible chance of sexually transmitting HIV. ASHM has issued the U=U: ASHM Guidance for Healthcare Professionals to assist in this regard.
The courts are yet to directly examine the scenario in which an individual accused of exposing others to HIV or transmission of HIV, uses undetectable viral load as a defence on the grounds that they were not capable of transmitting HIV.
With the development of the U=U ASHM guide, there is now evidence-based, peer advice supporting clinicians’ choice to promote the benefits of the U=U message. Clincians should always record the content of any discussion about risk in their clinical notes.
Example of a criminal court’s consideration of general practitioner evidence relating to post-HIV test discussions and management in a trial for sexual transmission of HIV #
The extract below is from the appeal judgment in Kanengele-Yondjo v. The Queen [2006] NSWCCA 354. In that case, the defendant was convicted of 2 counts of causing grievous bodily harm for transmitting HIV to 2 women. The medical practitioner’s evidence was used to establish the facts of the defendant’s diagnosis and his interactions with clinical staff, and that he understood his obligation to avoid transmitting HIV by taking reasonable precautions. His appeal was unsuccessful. The defendant was sentenced to 12-years imprisonment.
The full judgment is included at the link above as an example of the way in which a court may treat a medical practitioner’s evidence in an HIV-related trial.
The undisputed facts as stated by the sentencing judge in his Remarks on Sentence were as follows:
‘In February 1999, [the medical practitioner] advised [the defendant] that he was HIV-positive …
[The medical practitioner] was the attending medical officer providing ongoing HIV medical care to [the defendant].
On 2 February 1999 [the medical practitioner] interviewed [the defendant]. On 4 February 1999, HIV antibody testing was undertaken and on 5 February 1999 [the defendant] was diagnosed as HIV-positive.
On 5 February 1999, in addition to notifying the accused of his HIV-positive result, the accused was counselled by [the medical practitioner] in relation to how the HIV virus was transmitted, how to undertake safer sexual practices, the fact that all persons with HIV remain infectious to their sexual partners for life, the legal responsibility to notify future sexual partners of his HIV status, and of the necessity to use a condom on all occasions of sexual intercourse.
In the course of the counselling on 5 February 1999 [the medical practitioner] also told [the defendant] that if he was to [transmit HIV infection to]anyone in the future … civil or even criminal action could potentially be undertaken against him if there was a failure to take steps to prevent the transmission of … HIV … by notifying sexual partners and by using a condom.
In the course of this counselling, the accused’s responsibility to notify of his HIV status and to use condoms in the course of sexual intercourse were emphasised several times. The modes of transmission of HIV, the need to adhere to safe sexual practices and the accused’s legal responsibilities were emphasised as a priority during initial consultations.
[The medical practitioner] who has eighteen years’ experience in the field of HIV/AIDS clinical care, sexual health care and prevention of sexually transmissible infections, was assured by [the defendant] that he could understand his responsibilities at that time.
In the case of [the defendant] [the medical practitioner] gave to him more information and more explicit direction than any other person for whom she has provided medical care. Over the course of several interviews [the medical practitioner] emphasised to the accused that contact details of all known sexual partners were needed to identify anyone with …HIV … so that they could access appropriate treatment if needed and so that those persons did not transmit … HIV … to their sexual partners.
The accused was initially reluctant to disclose the information relating to his sexual partners. He was seen by a second medical practitioner [who] advised the accused of his responsibilities to provide the information and of the consequences of failure to provide that information.
On 21 February 2001 [the defendant] indicated to [the medical practitioner] that he would be going to Africa for a four through to six month period. On 2 March 2001 the accused was noted as having stable immune monitoring. The accused told [the medical practitioner] that he was going to remain off treatment while overseas.
On 10 February–April 2000 [the defendant] was referred to a clinical psychologist for support concerning issues relating to directions in his life and the need to meet family obligations in Australia and in Africa. The accused failed to attend a pre-arranged follow-up consultation.
On 6 June 2001 the accused told [the medical practitioner] that he had returned from a twelve month visit to Africa. He was tested at the [clinic] and was advised to attend for further assessment in six weeks’ time and to discuss possible recommencement of antiretroviral therapy. [The defendant] was lost to follow-up following this visit and [the medical practitioner] had no further contact with him for clinical care …’ (From the reasons for judgment in the appeal decision in Kanengele-Yondjo v. The Queen [2006] NSWCCA 354.)
Resources #
U=U: ASHM Guidance for Healthcare Professionals