HIV advocates and health experts have renewed their call to the NSW Government to immediately repeal the Mandatory Disease Testing Act 2021, following the release of the NSW Ombudsman’s report which brings into question the health benefits of the legislation for frontline workers.
The NSW Ombudsman report monitoring the operation and administration of the Mandatory Disease Testing Act 2021, tabled in Parliament on 5 February, found the Act does not have “clear and measurable benefits” for workers.
The report recommends the NSW Government consider whether the Act “should be continued at all”. The report also found that the Act is mostly being used in situations where there is no risk of blood-borne transmission to a frontline worker.
NSW Ombudsman Paul Miller said the evidence showed there was not effective.
“Our aim with the report is that it provides the platform for a clear-minded and evidence-based evaluation of the effectiveness of the scheme”.
“The MDT Act tries to balance important competing policy considerations,” said Mr Miller. “The scheme aims to enable testing to be undertaken very quickly, so that the test results might allay the stress and anxiety the worker may be facing, or so that those results can be taken into account in a worker’s medical treatment. At the same time, the Act aims, as it must, to provide protections and procedural fairness to those being tested. It may be that these competing policy concerns are irreconcilable.”
“We did not observe clear and measurable benefits of the MDT scheme for workers. Given that lack of clarity, it is questionable whether the significant and complex legislative and administrative burden of the MDT scheme is warranted for such a small number of exposures,” Miller said.
ACON, Bobby Goldsmith Foundation, Positive Life NSW and the HIV/AIDS Legal Centre have always maintained that the Act is not grounded on evidence but on outdated misconceptions about how HIV and other blood-borne viruses are transmitted, which perpetuate stigma and discrimination.
The HIV organisations say that the laws do not reduce the risk of transmission. Treatments that prevent the transmission of HIV are readily available, and these treatments are prescribed by doctors who are trained in identifying potential risk.
The Ombudsman also found that the Act is disproportionately targeting Aboriginal and Torres Strait Islander people, and the protections for those subject to a Mandatory Testing Order are ineffective.
The report adds that those making decisions about applying a Mandatory Testing Order are not in a position to make determinations and suggests that resources “currently applied to the scheme would be better directed toward providing better avenues of advice and support directly to frontline workers exposed to bodily fluids in the workplace”.
ACON CEO Michael Woodhouse said the report shows the legislation has no bennefit to frontline workers.
“The Ombudsman’s report shows that mandatory disease testing offers no benefit to frontline workers. It only serves to create unnecessary fear about HIV and other blood-borne viruses.
“In the unlikely event that a frontline worker is exposed to HIV, there are simple treatments available that will prevent transmission. These are more effective strategies than mandatory testing.
“NSW does not [support] ineffective laws that only promote fear and discrimination.” Woodhouse said.
HIV/AIDS Legal Centre Principal Solicitor Vikas Parwani also voiced support for the government to review the legislation.
“The Mandatory Disease Testing Act should be repealed in its entirety. Invasive procedures like blood tests, when performed without consent, are a serious infringement on bodily autonomy and human rights. Unsurprisingly, the report confirms that mandatory testing orders are being used in circumstances where there is virtually no risk of HIV transmission, and often, against marginalised communities with limited access to legal recourse.
“In addition, by perpetuating outdated myths about HIV transmission and further stigmatising people living with HIV, the scheme also undermines Australia’s world leading public health response.” Parwani said.
Positive Life NSW CEO Jane Costello also welcomed the report and urged the government to take action.
“Positive Life NSW and the community of people living with HIV that we represent, welcome the NSW Ombudsman’s report and its recommendation that the Mandatory Disease Testing Act should not be continued.
“The Act is unscientific, relies on an outdated understanding of HIV transmission and lacks an evidence base. Mandatory disease testing and the inherent misconceptions around the ways in which HIV can be transmitted perpetuate stigma and discrimination against all people living with HIV and must cease.” Costello said.
The Bobby Goldsmith Foundation’s CEO Nick Lawson said the laws should immediately be repealed.
“Bobby Goldsmith Foundation strongly supports the call for the immediate repeal of the Mandatory Disease Testing Act. This legislation not only lacks a foundation in contemporary scientific evidence but also disproportionately impacts Aboriginal and Torres Strait Islander communities.
“Alongside our sector partners, we believe it is crucial to focus on supporting the broader communities’ frontline workers so that their health and wellbeing are protected without perpetuating stigma and discrimination.” Lawson said.
“We remain steadfast in our commitment to promoting dignity, respect and inclusion for all people living with HIV.”
Similar legislation was introduced in Western Australia by both the Barnett Liberal and McGowan Labor governments similarly against the recommendations of experts in the field of HIV. There were suggestions in 2019 that WA’s mandatory disease testing laws were being overused.
