The Mandatory Disease Testing Act 2021, recently passed through the New South Wales Parliament, establishes a new scheme under which a person can be ordered to provide a blood sample for the testing of blood-borne viruses if, as a result of their deliberate action, their bodily fluid has come into contact with a health, emergency or public sector worker. The mandatory test can be ordered if the worker is considered to be at risk of contracting a blood-borne virus as a result.
A key issue with the new law is whether it strikes the right balance between promoting the welfare of workers and protecting the rights to bodily autonomy or integrity and privacy of others. On the one hand, it can be argued that some limitations to the right to privacy, bodily integrity and autonomy are justified to protect the health and safety of workers. On the other, it can be argued that informed consent remains an important legal principle in relation to any medical procedure, with a small number of exceptions for extraordinary and emergency circumstances. In our submission to a parliamentary inquiry on the law, we argued that extraordinary limitations on the rights of the individual to bodily autonomy, integrity and privacy should only be allowed in exceptional circumstances, and that this shouldn’t include situations where the risk of transmission is negligible or hypothetical.
Under the Legislation Review Act 1987, the Legislation Review Committee must report on whether any law trespasses personal rights and liberties. This is the closest that the New South Wales Parliament has to a human rights scrutiny process. In its review of the legislation, the Committee observed that
- the invasive nature of the procedure,
- the power to perform such a procedure without consent, and
- the requirement to submit to a procedure on pain of penalty or arrest
all impact on the individuals’ right to personal physical integrity. The Committee further noted that the law contains certain safeguards, including a review process and oversight by the New South Wales Ombudsman. Ultimately, the Committee referred the matter to Parliament for its consideration, recommending that Parliament debate the law and consider the concerns and positions of various stakeholders in the community about the impact the law would have on personal rights.
In our submission, we also argued that the legislation has the potential to stimulate and exaggerate fear and misunderstandings about the prevalence and transmission risk of blood-borne viruses such as hepatitis C and that it undermines existing evidence-based approaches to combating these viruses. Rather than protect workers, it is more likely to exacerbate stigma by encouraging a perception that these viruses are more dangerous or contagious than is the case. For example, the law is drafted to include bodily fluids such as saliva, faeces and urine that carry no risk of transmission of the specified diseases, including hepatitis C. In our view, better education programs would be a more effective way to address worker concerns around blood-borne viruses.
To support informed debate and improve the law, we put forward a number of suggestions, including:
- Establishing clear criteria to guide decisions on whether an order to test should be made
- Clarifying and ensuring consistency in the standard of proof required to make an order
- Putting the decision-making power in the hands of a person with the medical expertise to assess transmission risk, in part to combat the lack of risk assessment-qualifications of officers and their potential conflicts of interest of officers connected to the incident, and
- Lengthening the time frame to make a review application, therefore increasing procedural fairness.
During the parliamentary debate, a number of amendments were agreed upon, including a requirement that police not use blood taken under a mandatory testing order for an unauthorised purpose, an increase to the Ombudsman’s oversight powers, provision for the destruction of blood samples once they are no longer required, and a prohibition on the use of blood samples or the use of information derived from them in other legal proceedings or as the basis for search warrants. We had argued that if the law was to proceed, some adjustments would be needed, including improvements in the Ombudsman’s oversight powers.
The law has now passed Parliament and will commence upon proclamation, although will not take effect until the Chief Health Officer issues and makes publicly available guidelines on the operation of the law.
As we noted, the final legislation includes an important oversight role for the Ombudsman. By collecting data on how many people are ordered to receive tests and how many occupational transmissions occur, the Ombudsman can evaluate the scheme’s effectiveness as a means to protect workers and monitor whether it gets disproportionately applied to certain groups or has other unintended outcomes. This oversight, together with clear guidelines, is crucial to enable accountability and assessment of the scheme’s efficacy.