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In New South Wales, there is a scheme which enables certain frontline workers who have come into contact with another person’s bodily fluid (blood, faeces, saliva, semen) to apply for an order which enables testing of the other person’s blood for diseases such as HIV, Hepatitis B and Hepatitis C.

It is referred to as a ‘Mandatory Disease Testing Order’ with the scheme introduced on 29 July 2022.

The scheme has faced backlash from advocates who argue that it further stigmatises those with bloodborne viruses.

At the time of its introduction, medical epidemiologist Michelle Cretikos commented that the risk of infection from such incidents is very low, and drawing blood samples from people against their will could make them less likely to trust health workers.

“The importance of reducing any stigma and discrimination and improving the quality and accuracy of information about bloodborne viruses is paramount to engaging people in treatment.” she noted.

Since 1994, there have been no reported cases of NSW healthcare workers getting infected with HIV after an exposure in the workplace.

The police campaigned for the scheme to be introduced due to anxiety over officers being exposed to bodily fluids.

The Deputy Police Commissioner at the time, Malcolm Lanyon stated that out of 2,500 assaults on police between 2020-2021, 490 involved exposures to bodily fluids, including 69 bites and 29 needlestick injuries.

The legislation is currently subject to a review by the NSW Ombudsman who has oversight responsibilities in relation to the scheme, as it has been in force for over 12 months.

The Ombudsman is seeking public submissions on the experiences of people who have been subject to a Mandatory Disease Testing (‘MDT’) order, have made an application for an MDT order, or organisations who have advised or otherwise represented these persons.

 

Mandatory Disease Testing Orders in New South Wales

The legislation which creates MDT Orders is the Mandatory Disease Testing Act 2021 (NSW).

Those who can apply for an Order include certain health, emergency services, and law enforcement workers at the:

  • NSW Police Force
  • Corrective Services NSW
  • Youth Justice NSW
  • Fire and Rescue NSW
  • NSW Rural Fire Service
  • NSW State Emergency Service
  • NSW Health Service
  • Office of the Sheriff of NSW
  • NSW Ombudsman
  • Inspector of Custodial Services (NSW)
  • Official Visitors to NSW correctional and juvenile justice facilities
  • St John Ambulance Australia (NSW)
  • Law Enforcement Conduct Commission

The worker can only apply for an MDT order if the third party is 14 years or older, and the contact was deliberate and took place without the worker’s consent whilst they were on duty.

Furthermore, the worker is required to consult a doctor as soon as possible (within 24 hours is preferred, or no later than 72 hours) before they can apply.

The worker will also be required to complete a ‘Mandatory Testing Order Application Form’ and provide it to a senior officer within their organisation.

This form ensures the worker provides all details surrounding the incident including what type of contact occurred (i.e., needle stick injury, bites that break the skin, bodily fluid contact with broken skin, mouth, or eyes, or with intact skin, clothing, and skin-to-skin contact).

The senior officer will then proceed to determine the application within 3 business days.

They are required to seek the third party’s consent to voluntarily provide blood to be tested for blood-borne diseases, provide them with an opportunity to make submissions, before making the order.

It is an offence for a worker or third party to knowingly give false or misleading information to the senior officer, which is punishable by a maximum penalty of an $11,000 fine and/or 2 years imprisonment, as per section 28.

Once the senior officer decides, they must inform the worker of their decision and provide the reasons for the decision. A worker or the relevant third party can apply to the Chief Health Officer for review of a senior officer’s decision.

The Chief Health Officer must then provide written notice of their review determination.

However, the application must be refused or referred to the Local Court or Children’s Court for a Mandatory Testing Order if the third party appears to be a vulnerable third party.

The Act defines a vulnerable third party as someone who is between the ages of 14 and 18 or who has a mental health condition or cognitive impairment which significantly affects their ability to consent to providing a blood sample.

The Court will only make the MDT order where it is satisfied that, on the balance of probabilities, testing the third party’s blood for blood-borne diseases is justified in all the circumstances.

In making this determination, the court will consider factors such as the best interests of the third party, the wishes of the third party and the third party’s parent or guardian, and submissions made by the Chief Health Officer.

Where you are served with an MDT order, you are required to provide a blood sample within 2 days of being served. The order will specify the location that you must attend to provide the sample.

The blood will likely be tested for HIV, Hepatitis B and Hepatitis C, with the results provided to both your doctor and the worker’s doctor.

It is an offence to not comply with a MDT order, with a maximum penalty of an $11,000 fine and/or 2 years imprisonment applicable, as per section 27.

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin