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HIV and viral hepatitis disclosure
Deciding to disclose your HIV or viral hepatitis (hepatitis B or hepatitis C) status is a personal choice. There are few situations where you are legally required to disclose your HIV or viral hepatitis status, however, 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.
Avoid making spur of the moment decisions about disclosure. Think the situation through and discuss with people or organisations you trust, so that you know ahead of time what you want to do or say.
The following FAQs cover some of the issues regarding disclosure of HIV or viral hepatitis status in sex and health situations. Other situations relating to disclosure may arise, for example, immigration applications for permanent residency, employment and insurance.
In South Australia do I have to disclose I have HIV or viral hepatitis?
In most situations, no.
There are no specific laws in South Australia that require people with HIV or viral hepatitis to disclose their status to sexual partners. However, there have been cases in Australia where courts have found that a person knowingly exposed others to HIV or transmitted HIV to others and that person has been prosecuted and jailed. These cases have been prosecuted under criminal laws about causing harm to others.
There are public health laws that require people with any communicable disease, including HIV and viral hepatitis to take 'reasonable steps or precautions' to avoid placing others at risk of contracting that disease. If you think you may have put someone else at risk, let them know as soon as possible about post exposure prophylaxis (PEP) for HIV or hepatitis B. Correctly using condoms, sterile injecting practices and practising safer sex would most likely be considered 'reasonable steps or precautions' for the prevention of HIV or viral hepatitis transmission. In addition to those precautions, the use of HIV treatments to achieve and sustain an undetectable HIV viral load, thus rendering the person non-infectious would also most likely be considered as a ‘reasonable precaution’ for the prevention of HIV transmission. For more information about the use of treatments to achieve an undetectable HIV viral load see the ASHM position statement on Undetectable = Untransmissible.
When do I have to tell someone I have HIV or viral hepatitis?
There are a few situations, mostly about employment, where you are required to disclose your status.
The Australian National Guidelines for the Management of Healthcare Workers Living with Blood Borne Viruses and Healthcare Workers who Perform Exposure Prone Procedures at Risk of Exposure to Blood Borne Viruses 2018 (the national guidelines) allow healthcare workers living with HIV or viral hepatitis, who are following the national guidelines, to perform exposure prone procedures such as surgeries. All healthcare workers who perform exposure prone procedures are required to take reasonable steps to know their blood borne virus status and to follow the national Guidelines. 'Implementation guidelines for healthcare workers in South Australia (PDF 91KB)' have also been developed; this should be read in conjunction with the national guidelines.
The defence forces and the aviation industry have restrictions regarding people with HIV and viral hepatitis.
Some insurance policies require disclosure of HIV or viral hepatitis status – if it is relevant to the type of insurance you are seeking.
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 viral hepatitis status.
Do I have to tell someone I have HIV or viral hepatitis if I am having medical treatment?
There is no legal requirement that you disclose your HIV or viral 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 viral hepatitis medications may interact with other medications; and HIV or viral hepatitis may have an impact on other medical conditions you might have. Discuss with your regular HIV or viral hepatitis doctor whether disclosure to other practitioners is medically necessary.
What if I travel interstate or overseas, do the laws differ?
Until recently, laws regarding HIV disclosure varied between Australian states and territories. There are now no specific laws requiring disclosure. However, there may be differences in how each state and territory interprets the use of “reasonable precautions”.
Most places around the world have no restrictions on travelling with HIV, however, some countries have strict requirements for granting visas, and some restrict entry for people living with HIV. Others may allow people living with HIV to enter for shorter stays, such as on tourist visas, but impose different requirements on applicants for longer or permanent visas. Restrictions are not always consistently enforced and may change with little notice, so it is important to seek up to date information. See the Global Database on HIV-Specific Travel and Residence Restrictions website for more information.
The Australasian Society for HIV, Viral Hepatitis and Sexual Health Medicine (ASHM) have developed a resource, Hepatitis B and immigration, to assist clinicians with patients who have chronic hepatitis B and are required to disclose their status through the process of applying for a permanent Australian visa.
Do I have to disclose my own or my child’s HIV or viral 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 viral hepatitis status.
What do I do if I feel I have been unfairly treated because of my HIV or viral hepatitis status?
Discrimination occurs when someone is treated less favourably than other people in the same or similar circumstances because of a particular characteristic they have, such as having HIV or viral hepatitis. In Australia, the Disability Discrimination Act (1992) makes it illegal to discriminate on the grounds of a person’s HIV or viral hepatitis status for employment, education, the provision of goods, services and facilities, accommodation, buying and selling property, club membership, sport and administration of Commonwealth programs.
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 Australian Human Rights Commission. It is a good idea to seek legal advice regarding where to lodge your complaint before you do so. Free legal advice can be obtained from the Legal Services Commission of South Australia.
Privacy and confidentiality
The legal duty of confidentiality obliges healthcare practitioners to protect their patients against inappropriate disclosure of personal health information. Healthcare workers must not disclose a person’s health information without consent except in a very limited number of circumstances. Exceptions must be taken very seriously. They may include where there is a serious risk to the patient or another person, where required by law or where there are overwhelming societal interests.
Note: The general public are not bound by these laws or codes, so if you are concerned about privacy, think carefully about whether you trust the person to keep your information private.
My Health Record
My Health Record is an online summary of your health information. Healthcare providers such as doctors, health specialists and pharmacists can add clinical documents about your health to your record, including about your HIV or viral hepatitis status. People with or affected by blood borne viruses and sexually transmitted infections or communities where legislative barriers still affect their health may want to further explore the implications of data sharing around My Health Record. You may also want to have a conversation with your doctor about what information you consent to being uploaded to your My Health Record. For more information, the Australian Federation of AIDS Organisations (AFAO) has developed a My Health Record consumer factsheet (PDF 248KB).