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10.2 HIV/AIDS

29 Aug 2016 - 12:28 | Version 8 |

Contributed by KimGates and DanielAlderman and current to 1 May 2016

Acquired Immune Deficiency Syndrome or AIDS is the name given to the final stage of infection with the Human Immunodeficiency Virus (HIV). HIV infection is detected by a blood test - the HIV antibody test. It may take up to three months to develop antibodies after infection. A person who is infected with HIV is often referred to as HIV positive. A person who is HIV positive may have no or only mild symptoms and not even suspect infection. AIDS is diagnosed when more serious symptoms of immune system dysfunction develop. Although due to advancements in testing and treatment there are very few cases of AIDS in Australia.

HIV is transmitted through contact with infected body fluids, such as blood, semen, vaginal secretions and breast milk. Activities that carry a high risk of infection include unprotected anal and vaginal sex and sharing needles. HIV cannot be transmitted through saliva.

Transmission can also take place at or around the time of delivery from an infected mother to her baby. Medical intervention at this time, including the administration of antiviral medication, has significantly reduced the risk of transmission in this situation.

Significant advances have been made in the treatment of HIV infection. Anti retro viral medications can significantly suppress the replication of HIV in infected people. The Swiss Federal Commission for HIV/AIDS released the following statement known as the "Swiss Statement". People living with HIV are not sexually infectious when:
  • the HIV positive person is taking anti retro viral therapies and are completely adherent to their treatmnet (i.e. they take all pills at the correct dose, on time, every time)
  • they have regular monitoring of their viral load by their treating physician
  • The HIV viral load must have been undetectable for at least the previous six months
  • and no other sexually transmitted infections are present
In Australia this is referred to as Treatment as Prevention (TasP).

HIV Pre-exposure prophylaxis (PrEP) is a key HIV prevention strategy. It is a new approach that involves the use of anti retro viral therapies by HIV Negative people to reduce the risk of acquiring HIV. The daily use of oral PrEP has been shown to be highly effective in several clinical trials.

Anti retro viral therapies cannot eradicate HIV infection from the body but can delay or stop the onset of serious illness and AIDS. People living with HIV can live long and healthy lives.

Medical issues

Being tested for HIV

A person can't be forced to have a blood test. However, as both infection with HIV and AIDS are notifiable diseases under the Notifiable Diseases Act 1981 (NDA), a person who has reasonable grounds for believing they have contracted HIV is required to be medically examined as soon as possible. However, the NDA does not specify that such a medical examination must include a blood test.

A doctor or any other person who carries out a blood test without consent may be committing an assault (see Health consumer rights ). In an emergency, however, a doctor may take any action reasonably necessary to save life, including testing blood. It could be argued that a routine blood test taken in such an emergency situation might also include a test for HIV, especially if there were some grounds for believing the patient is HIV positive. No clear legal precedent has been set in this area. In some circumstances the law may allow prisoners and people whose blood may have been involved in a needle stick injury to be tested against their will and without consent.

Pre test and post test information and discussion should be made available by the doctor. Pre test information must include information on what the test means, including the possible psychological, social, legal and medical consequences with the person given opportunity to discuss these, including on receipt of a positive or negative diagnosis. Patients have the right to be given information in a sensitive, professional and confidential manner.

Notification

Under the NDA, a doctor must notify health authorities when a person is diagnosed with HIV or is suspected of being infected with HIV. To protect patient identity, notification is made by way of code. Neither a doctor nor the health authorities can divulge information about test results to others (see Confidentiality ). However, a person who is or suspected of being infected with HIV is required to provide 'contact' information to enable authorities to identify others who may also have been infected. The relevant authority in the NT is the Chief Medical Officer with the Centre for Disease Control, Department of Health (see Contact points ). A failure to provide such information to the authority is an offence which carries a penalty of $1000 or six months imprisonment.

Under the NDA, a doctor who diagnoses a person with HIV is required to provide advice on the nature of HIV, measures to be taken to prevent its spread and any treatment options available.

Confidentiality

The law considers the professional relationship between doctor and patient to be a special one. A doctor has a duty of confidentiality to their patient. This duty prohibits a doctor from revealing any information about a patient to any other person, including a patient's spouse, except when that patient has given their consent or where a disclosure without the patient's consent is authorised by law. In any other case, a doctor can be sued for breaching confidentiality and a complaint of professional misconduct can be made to the Health Professions Licensing Authority or Medical Board (see Contact points ). The duty of confidentiality also applies to other professionals, such as social workers.

One of the few situations in which a doctor may breach patient confidentiality is to warn someone who is put at significant risk by a patient's conduct. Section 8 of the NDA states that a doctor must, on diagnosing a notifiable disease, notify certain people in the prescribed way. A doctor can only disclose the information necessary to avert the risk. Confidentiality should only be breached as a last resort and only after other methods to avert the risk, such as counselling, have been exhausted.

Medical treatment

A doctor can refuse to treat a patient, but must have valid reasons for doing so. The provision of medical treatment is a service and it is unlawful to discriminate in the provision of a service on the grounds of HIV status, perceived HIV status or sexuality (see Discrimination ).

The Australian Medical Association has adopted a written code of professional conduct and a doctor who breaches the code can be reported to the Health Professions Licensing Authority NT Medical Board (see Health consumer rights ).

Obtaining and using needles

Under the Misuse of Drugs Act 1990, individuals can obtain hypodermic needles from a doctor, chemist or other authorised distributor, such as the Northern Territory AIDS and Hepatitis Council offices in Darwin, Palmerston and Alice Springs (see Contact points ). Unused needles can be passed on to another person. This must be done as soon as is reasonably possible after the unused needles are first obtained. Although it is not against the law to be in the possession of unused needles, the possession of other equipment for injecting or administering illegal drugs is illegal. It is also an offence to inject illegal drugs or assist someone else to do so.

Used needles must be disposed of immediately in the prescribed manner, namely placed in a container that can't be penetrated by needles and returned to the person or organisation where they were obtained or disposed of in a rubbish bin [Misuse of Drugs Act s.12(5)]. Failing to dispose of needles in this way is an offence which carries a penalty of $2000 or two years imprisonment. It is illegal to pass on a used needle.

Offences

Transmission offences

There is no specific law in the NT that makes it an offence to transmit HIV. However, under the Crimes Act 1914, a person who transmits HIV and causes another person's death may be guilty of murder, manslaughter or committing a dangerous act. Whether an offence is committed will depend on the knowledge and intention of the person transmitting HIV and the circumstances in which the transmission occurred. Under the Criminal Code Act a person with HIV who knowingly has unprotected sexual intercourse with another person can theoretically be charged with committing a dangerous act. Protection can be in the form of condoms or Treatment as Prevention (TasP). If they have infected the other person they can also be charged with grievous harm.

Under the NDA, the Australian Red Cross Society is required to obtain a declaration in the prescribed form [s.26A(3)] from every person who donates blood. The prescribed form is contained in the Government Gazette. The form is a declaration that the donor is not infected with a transmittable disease. It is an offence to make a false statement in such a declaration. The penalty on conviction is a fine of $10,000 or two years imprisonment.

Also under the NDA, an authorised medical officer can issue a notice that directs a person infected or suspected of being infected with HIV to carry out specified measures to prevent the spread or possible spread of HIV. Such a notice could, for example, require the person to undertake counselling, or in the most extreme of circumstances, to detain or quarantine a person with HIV. There is a right of appeal against the issue of such a notice.

Using cannabis

Some people with HIV/AIDS are known to use cannabis for therapeutic purposes and as an alternative to prescription drugs. It is believed that cannabis is good for pain relief, increasing appetite, reducing the amount of weight loss and counteracting nausea. There is an increasing amount of medical and scientific evidence in support of the benefits of cannabis to a person with HIV/AIDS. A lot of this information has been compiled and is available to lawyers from the HIV/AIDS Legal Centre in Sydney or from the Australian Federation of AIDS Organisations (AFAO) website at http://www.afao.org.au/ (see Contact points ).

If a person is arrested for using or possessing cannabis, confidentiality of the client's medical condition may be an issue. This can usually be dealt with by handing material up to the judge with any relevant submissions as to why the client does not wish this information to be disclosed.

Compensation

HIV blood testing has been available since May 1985. Before that a large number of people were infected with HIV in the course of medical treatment, through transfusions of infected blood, transplants of infected tissue, or receiving infected blood products. A number of these people have sued hospitals and the Red Cross for compensation. Some of these cases have succeeded and some have not, depending on the state of medical knowledge at the particular time of transfusion. The Federal and some State and Territory governments have set up schemes to provide financial assistance to people with medically-acquired HIV and their dependants.

If a person can establish that they were infected as a result of someone else's crime, they may be able to claim compensation from the Victims Assistance Fund (see Injuries and damage caused by crime ).

Workers compensation may be available if a person can establish that they were infected in the course of their work, for example a health care worker infected by a needle-stick injury.

A person who can prove, on the balance of probabilities, that they contracted HIV from someone who deliberately or negligently had unsafe sex with them may be able to sue that person for compensation or make a claim under the Crimes (Victims Assistance) Act 1999.

Issues facing people with HIV/AIDS

Discrimination

The persistent discrimination faced by people with HIV/AIDS and those associated with them is one of the most serious problems they experience.

The Anti-Discrimination Act 1992 makes it unlawful to discriminate against a person because of their sexuality or because they are infected or are believed to be infected with HIV. The Disability Discrimination Act 1992, a Commonwealth Act that applies in the NT, prohibits discrimination on the grounds of a disability. Infection with HIV is classified as a disability. Both Acts protect against discrimination in the areas of employment, education, accommodation, the provision of goods, services and facilities, club membership, insurance and superannuation. Medical treatment is covered under the area of provision of services.

Depending on the type of discrimination, complaints can be lodged with the NT Anti-Discrimination Commission or the Human Rights and Equal Opportunity Commission. For more details on discrimination law and procedures, see Discrimination & human rights.

Employment and workplace issues

The vast majority of occupations and workplaces do not involve a risk of acquiring or transmitting HIV between workers or to members of the public who come into contact with workers in their course of their work. In most jobs, therefore, HIV status is not relevant.

Workers at increased risk of occupational infection are those who come into direct physical contact with infected tissues, blood and certain other body fluids. However, risk is minimal if universal infection control procedures are followed. If a person's employment could expose them to human blood or other bodily fluids, thereby creating a risk of contracting HIV, they can refuse to work until the work is made safe. A person in this situation should consult their union or occupational health and safety representative (see Employment ).

As a general rule, an employee is not obliged to inform their employer or co-workers that they have HIV and most employers can't require employees to have an HIV test. In some cases, employees may need to make a declaration about their health, including HIV status, to access disability or death benefits in a superannuation fund. However, this information should go to the superannuation fund rather than to the employer.

Superannuation

Most working people now receive superannuation. There are several types of superannuation benefits that a person may be able to get when they leave work.

The HIV/AIDS implications relating to superannuation benefits are discussed below.

For other details about superannuation generally, see Superannuation .

Access to benefits

There is generally no problem for people with HIV in getting access to their superannuation contribution benefits when they retire from work if they retire for reasons of total and permanent disability. In this case, two doctors (usually) must sign certificates stating that the person is unlikely ever to return to work. Someone wanting to leave work because of illness should check that their doctors are prepared to sign such a statement. If a person retires because of illness but their doctors do not agree that they are too ill to work, they cannot withdraw their funds.

A person's own contributions to the superannuation fund can be withdrawn at any time for contributions made before 1 July 1999. Contributions made after that date are treated in the same way as employer contributions: in general, they are not available until the person reaches an age between 55 and 60 years, retires at an age greater than 55 years, or retires early due to permanent incapacity to work. In cases of severe financial hardship or, sometimes, to meet medical expenses, part of the funds may be withdrawn even if the person does not leave work and is not considered totally and permanently disabled.

Death and disability benefits

There are two main categories of funds:
  • individual assessment funds
  • automatic acceptance funds.
People who join individual assessment funds are assessed about their general health and health risk factors when joining the fund. Each person is generally required to complete a questionnaire and may have to undergo a medical examination.

A person must declare if they have been diagnosed with HIV. This will usually result in refusal of coverage or reduced coverage for disability benefits. If a person had been diagnosed with HIV when they joined the fund, and failed to declare this, they may not be entitled to disability benefits, although this is not always the case.

If a person had not been diagnosed with HIV before joining the fund, and if they answered all health questions honestly, they should be entitled to disability benefits even if they are later found to be HIV positive.

In automatic acceptance funds there is no health questionnaire or medical examination - all applicants are accepted for disability cover, regardless of their state of health. Therefore, even if a person has HIV when joining the fund, they should be entitled to disability benefits. Some automatic acceptance superannuation funds have an HIV exclusion clause, which excludes cover for HIV-related disability or death benefits in the first two years of employment. There is a strong argument that such clauses are in breach of Disability Discrimination Act (Cth).

Claiming a disability benefit

There is no clear-cut point at which a person with HIV is said to have become 'totally and permanently incapacitated' - this varies from one person to another. Generally, a person who has progressed to an advanced stage of the illness would usually be able to establish total and permanent incapacity. However, some people with advanced illness are still quite capable of working, and others whose illness has not progressed significantly are already incapacitated. If a person feels they are not able to continue working and their doctor agrees, this is usually enough to establish total and permanent disability.

There is commonly a time limit for claiming disability benefits, and it is generally a good idea to claim before stopping work or within one month of ceasing work. If possible, a claim should always be made before resigning.

The person should tell their employer that they are stopping work for medical reasons, and ask for a claim form for disability benefit. The employer does not have to be told that the person has HIV or AIDS. When completing the claim form, the person must make it clear that they are no longer able to work, and explain why. Medical reports confirming that the person has HIV/AIDS and can no longer work should be supplied.

Many funds have a waiting period of six months from the time of stopping work to the payment of disability benefits. In the past, most schemes were prepared to waive this requirement in the case of HIV/AIDS. However, the development of combination therapy has meant that insurers no longer view HIV/AIDS as automatically meaning a person will be unable to work, and it has become much harder to claim insurance for total and permanent incapacity. Claims can take a long time - even years - and payment is only made when the insurer is certain that the person has no work capacity, and will never regain a work capacity. If a person is unable to work full time but does have the capacity to work part time, they will probably fail the test.

A person can make a formal complaint or take legal action against a fund if there is an unreasonable delay in making a decision on a claim.

Death benefits

Most, but not all, superannuation policies include death benefits. This is usually a lump sum payable to the spouse or dependants of a person who dies while still a member of a fund, or within three or six months after leaving the fund. The 'spouse' of a member includes a de facto spouse, but it is still legally uncertain whether a gay or lesbian partner is included except where they can demonstrate financial dependence on the deceased member.

On entering a fund, a member is usually asked to nominate a person or persons to receive the death benefit if death occurs. Such nominations should be taken into consideration by the trustees of the fund when paying out a death benefit, but trustees are not legally bound to act in accordance with any nomination made unless they have amended their own rules to make such nominations binding. Trustees may also consider claims put forward by other parties. The completion of a nomination is not a testamentary act. It is therefore very important to leave an up-to-date will.

In most cases, if disability benefits have been paid, no death benefits will be payable.
If a claim is rejected

The decision of the superannuation fund is not final. If rejected, a claimant may be able to:
  • ask the superannuation fund to reconsider a rejection by providing further supporting evidence
  • complain to the Superannuation Complaints Tribunal (see Superannuation )
  • complain to the Human Rights and Equal Opportunity Commission (see Discrimination )
  • sue the trustees of the fund, or perhaps the insurers of the fund, to claim the benefit.
Note that time limits apply to the lodging of complaints.

Insurance

People with HIV related conditions and AIDS often have difficulty obtaining insurance for their life or health.

The insurer is obliged to meet its commitments to an existing policy holder if:
  • the policy holder had insurance before becoming aware of their condition or they fully disclosed their condition and all relevant information to the insurance company before the policy was issued
  • the policy does not specifically exclude people with HIV/AIDS or sexually transmitted diseases.
These days, life insurance and disability insurers want to know about risk behaviour. A customer is asked a series of questions, which can be quite intrusive, to determine whether they are participating in high risk activities. A person assessed as a high risk will be required to undergo an antibody test.

Most private health insurers do not cover new members for the first 12 months for conditions that existed before the policies were taken out. However, after the 12 month qualifying period, private health insurance covers the usual benefits for people with AIDS or HIV related conditions, providing of course that full disclosure of all known information was made at the time of signing.

Travelling overseas

Some countries require a mandatory HIV test before an application for entry or permanent residency will be approved. An intending traveller can obtain further information on the health requirements of each country from their travel agent. Generally, travel insurance excludes cover for HIV/AIDS and sexually transmitted diseases.

Pensions and benefits

Centrelink offers two types of payment for people who are unable to work due to medical conditions including HIV/AIDS: Sickness Allowance and Disability Support Pension. Eligibility depends on an applicant's degree of incapacity. A person looking after a person with HIV/AIDS may be eligible for a Carer Payment or Carer Allowance. For more information see Pensions, benefits and allowances.

Housing

It is unlawful to evict someone or refuse them accommodation because they have or are believed to have HIV/AIDS. People who have suffered this treatment will need to be able to establish the link between their status and the action taken but, in any event, should contact their nearest Anti-Discrimination Commission (see Contact points ).

Debts

Lawyers acting on behalf of people with HIV/AIDS have had some success in having debts, such as those run up on credit cards, written off or at least reduced and a satisfactory instalment arrangement reached on the basis of a client's ill health and consequent inability to repay the total debt incurred.

Immigration

Applicants for permanent entry

Applicants for permanent entry to Australia are subject to mandatory HIV testing, and if they test positive, they will not meet the health requirements. However, the health requirements can be waived by the Department of Immigration and Border Protection for certain classes of applicants, including spouses, interdependency applications, children of Australian residents and refugee applications. It may be possible for HIV positive applicants to obtain permanent residence if their application is in one of these classes. The applicant must show that they will not cause undue harm or undue cost to the Australian community. The principal rationale behind this is the cost to the Australian health and welfare system. Advice should be obtained from registered migration agents (see Immigration ).

Applicants for temporary entry

Applicants for temporary entry for a period of more than 12 months must undergo a medical examination. Applicants for entry less than 12 months must only undergo a medical examination if they will be:
  • attending classes involved in health care
  • located in a hospital environment
  • involved in food processing, catering or the hospitality or pharmaceutical industries.
Such applicants are required to take a HIV test only if there are clinical signs of infection.

Useful organisations

NT AIDS and Hepatitis Council

The AIDS Councils are community based organisations which aim to eliminate the transmission of HIV and to minimise the personal and social impact of HIV/AIDS and other blood borne viruses. Contact details are:

46 Woods Street, Darwin, NT

Tel: 8944 7777 Fax: 8944 7700

14 Railway Terrace Alice Springs NT

Tel: 8953 3172

Fax: 8953 2925

Sexual Health Line

The Sexual Health Line Australia is to provide relevant and accessible telephone information and referral in order for men to enhance their relationship capacities and manage the challenges encountered when faced with disruptions to their family life or their primary relationships. It also provides support and information for women and family members who are concerned about the welfare of their partners, husbands or fathers.

Tel: 1800 181 888

Clinic 34

Provides a free, confidential sexual health service.

Tel: 8999 2678 (Darwin)

Tel: 8973 9049 (Katherine)

Tel: 8962 4250 (Tennant Creek)

Tel: 8951 7549 (Alice Springs)

Tel: 8987 0357(Nhulunbuy )

HIV/AIDS and Hep C information website: http://www.mhahs.org.au/

Put together by the Multicultural Association, with information in a range of languages, including Thai, Chinese, Croatian and Indonesian.

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