HIV and hepatitis disclosure
There are only a few situations where you are legally required to disclose your HIV or hepatitis status.
There may be times when it’s in your best interests to disclose your status even if you are not legally required to do so.
Deciding to disclose your status is a personal choice. Think the situation through and discuss with people or organisations you trust, so that you know ahead of time what you want to do and you don’t make spur of the moment decisions.
This web page covers some of the issues in regard to sex and health situations very briefly but other situations about disclosure may arise (for example employment and insurance). The information is based on a SA specific guide, Disclosing your HIV status, produced by the HIV AIDS Legal Centre.
- In South Australia do I have to disclose I have HIV or hepatitis?
- When do I have to notify someone I have HIV or hepatitis?
- Do I have to notify someone I have HIV or hepatitis if I am having medical treatment?
- What if I travel interstate or overseas, do the laws differ?
- Do I have to disclose my own or my child’s HIV or hepatitis status at their school or child care centre?
- What should I do if I had unsafe sex and didn't mention I was HIV positive?
- What to do if you have been unfairly treated because of your HIV or hepatitis?
- What do I do if I feel I have been discriminated at work?
In most situations, no.
There are no specific laws in South Australia that require people with HIV or hepatitis to disclose their status to sexual partners. There are laws that require people with any communicable disease, including HIV and hepatitis to take "reasonable steps or precautions" to avoid placing others at risk of contracting that disease.
Properly using condoms, sterile injecting practices and practicing safe sex would most likely be considered "reasonable steps or precautions" for the prevention of HIV or hepatitis transmission.
There are cases in South Australia and other states and territories where courts have found that a person did not take these reasonable precautions and they have been prosecuted and jailed.
There are a few other situations, mostly about employment where you are required to disclose your status
Health care workers with HIV or hepatitis must not perform "exposure prone procedures" and they have a "professional obligation…to seek formal advice about personal care…monitoring and work practices from a medical practitioner with appropriate expertise". The Australian National Guidelines for the Management of Health Care Workers Known to be Infected with Blood Borne Viruses are under review and may result in significant changes for health care workers with HIV. The new guidelines are due for completion in 2015.
Sometimes people in other professions choose to tell their employer so that they can access various supportive workplace policies or practices. You should seek advice before deciding to do this as individual workplaces may or may not be supportive of someone who discloses their HIV or hepatitis status.
The defence forces and the aviation industry have restrictions regarding people with HIV and/or other blood borne viruses.
Some insurance policies require disclosure of HIV or hepatitis status – if it is relevant to the type of insurance you are seeking.
There is no legal requirement that you disclose your HIV or hepatitis status before undergoing any type of medical examination or treatment. However, it is probably in your best interests to let your doctor know about your status because it may impact on decisions about your health care. For example HIV or hepatitis medications may interact with other medications; and HIV or hepatitis may have an impact on other medical conditions you might have. Discuss with your regular HIV or hepatitis doctor whether disclosure to other practitioners is medically necessary.
Laws regarding HIV disclosure do vary between Australian states and territories, for example, in New South Wales and Tasmania you must disclose your HIV positive status to your partner before you have sex. This applies even if you have protected sex. Check before you travel. See links below.
Some overseas countries have very strict requirements for granting visas, and some may prohibit HIV positive people from entering their country at all. Others may allow HIV positive people to enter for shorter stays, such as on tourist visas, but impose different requirements on applicants for longer or permanent visas.
See the HIV/AIDS Legal Centre website for more information.
Do I have to disclose my own or my child’s HIV or hepatitis status at their school or child care centre?
No. Your own health conditions are irrelevant to your child’s school or child care centre. As outlined in Staying Healthy: Preventing infectious diseases in early childhood education and care services, children do not need to be excluded from school and child care services due to their HIV or hepatitis status.
If you had unsafe sex and didn’t tell the other person of your HIV status, then you may wish to tell them as soon as possible and advise them to ring the 24 hour PEP hotline on 1800 022 226 to get information on minimising the risk to their health
PEP (post-exposure prophylaxis) is a four week course of anti-HIV medication that may prevent a person from becoming HIV positive after they have been exposed to HIV. To be most effective, it should be started within a few hours of exposure to HIV, and no later than 72 hours (three days) afterwards. It is not a substitute for safe sex and safe injecting practices, nor is it a cure for HIV. It does not always work and may have unpleasant side effects.
This treatment is not available for exposures to hepatitis.
If you feel you have been discriminated against, you can make a complaint to the SA Equal Opportunity Commission. Making a complaint is free, but there is a time limit - you have 12 months from the date the discrimination happened in which to make a complaint. Alternatively, you can lodge a complaint with the Human Rights and Equal Opportunity Commission. You should seek legal advice regarding where to lodge your complaint.
If you feel you are being treated badly at work because of your HIV status, seek legal advice early on, as the problem may be able to be resolved in a way that enables you to keep on working with your employer without any further problems.