HIV and the Law

HIV and the Law

Understanding Current Actions

Australian laws depending on the jurisdiction, have varying ways of protecting persons with HIV. In the same vein are laws that might limit the liberties of People with HIV for the sake of curbing transmission. PLWHIV need to take note of how these laws affect them, some of the ways Australian legislation affect PLVHIV are listed below.

Discrimination

It is a fundamental right that nobody should be denied access to opportunities and amenities; thus, the Disability discrimination act of 1992 protects persons with HIV from discrimination. It is illegal on the grounds of this federal law to deny a person employment, education, provision of goods and services, accommodation, sale of properties and access to facilities among other things because of their HIV status. However, it would be more effective to have laws explicitly protecting HIV persons as the uniqueness of the situation warrants.

Discrimination has a counter effect on encouraging people to get tested so that they can get treatment as soon as possible. People losing their livelihood, social and financial stability due to discriminating actions against them because of their positive status discourages others from getting tested to avoid similar treatment. The result of this is that people who are positive but do not know their status have increased risk of health deterioration and also infecting other unknowingly.

Privacy and Confidentiality

In the same vein, most states in Australia helps protect the privacy of people with HIV. Due to the stigma surrounding the disease, persons with the virus have to protect their status from public knowledge. Caregivers and health care providers, doctors and nurses etc., are by rule to keep the patient’s status in confidence and can only disclose to a third party with their (patient’s) consent.

While caregivers are under strict ethical rules, the laws do not extend to other members of the public and as such persons living with HIV have a duty of care to only disclose to trusted persons.

Disclosure

While confidentiality is necessary for the protection of PWHIV, the laws in states require that in certain circumstances, people living with the virus have to disclose their HIV status:

Sexual partners: failure to disclose could lead to charges of a criminal offence by codified laws depending on the jurisdiction.

In the event of donation of blood, semen, ovaries, organs or tissues of the body; disclosure will be mandatory.

While applying for permanent residency or other types of visas, it is mandatory to provide to the Department of immigration, a result of an HIV test.

Insurance policies require disclosure, as some insurance companies could refuse services based on HIV status, or offer services based on certain conditions.

Working as a healthcare provider also requires disclosure, especially for persons performing exposure-prone procedures, and open contact. Application into any Australian defence agency would also require disclosure.

Mandatory testing for blood-borne viruses (BVB’s) is required in South, West and North Territory government of Australia by law. Where a person is charged with certain of offences, it is mandatory they are tested and by extension required to disclose their HIV status. These laws, unfortunately, reinforce misconceptions about the transmission of the virus.

While this may be an infringement on the right to privacy of patients, it is usually to prevent further transmission of the virus. Also, disclosure to particular parties in this category is very restricted to protect privacy.

Criminalisation

In a case where individual living with virus recklessly, negligently or deliberately exposes or transmits the virus to other persons, some states and territories have legislation criminalising this action.

Legislations can expressly point to the transmission while in other jurisdictions it is tagged as grievous bodily harm.

While it is understandable that these laws are to prevent continued transmission and spread of the virus, there’s the adverse effect of stigma on persons living with the virus. It also frustrates efforts to get people, especially those in high prone groups and communities from getting tested by reducing trust in the health system.

Sex Work

Sex workers are one of the most prone to the virus, and therefore without the proper practice of safe sex, could portend a high risk of large-scale transmissions. Thus, HIV positive sex workers are at risk of criminal prosecution as being HIV positive. The Scarlett Alliance is the body for sex workers in Australia that helps to document trends and impact of legislation on sex work; they also advocate that decriminalisation of sex work would be the most beneficial for the industry.

Advice and Referrals

Several organisations in Australia provide services to help against the infringement of rights of PWHIV. They include:

Australian Human Rights Commission

This is an organisation established by a federal act but carries out investigations into human rights complaints independently. With free and confidential services offered both nationally and internationally, it, among other things investigates complaints, provides expert advice on issues of discrimination and lobbies for parliamentary focus on human right issues.

Australian Health Practitioners Regulation Agency

They are concerned with the regulation of health care providers. In the case of infringement of rights by healthcare practitioners, PLWHIV can refer to the (AHPRA).

For legal support in the case where a PWHIV has been discriminated against due to their status, they could refer to the HALC (HIV\AIDS Legal Centre) as well as the Local Community Legal Centre for legal support services.

For a more in-depth, knowledge on HIV and the law, local AIDS councils are in best positions to offer help while putting confidentiality into perspective.