Mandatory Blood Testing

From the 2nd Reading Speech for the Police Administration Amendment Bill 2016 (NT) on 27 June.

The purpose of the Police Administration Amendment Bill 2016 is to provide for the mandatory blood testing of a person who has, in proscribed circumstances, transferred a substance to a police officer, and to enable the analysis of that sample to determine if that person has an infectious disease.

Early detection will allow appropriate medical, physical and psychological treatment to be provided to that police officer. I will go through a few key features of the bill to provide clarity for those who do not appear to fully grasp its content. I will also provide responses to issues that have been raised, most notably by the nurses’ federation and the organisation supporting lesbian, gay, bisexual, transgender and intersexual populations.

A key feature of the bill is to organise a blood sample to be taken from a person by a medical practitioner, nurse or qualified person and the analysis of the blood sample for an infectious disease. The bill will also provide powers for police to apprehend and detain a person to enable the determination of an application of a disease test approval. Or, to apprehend and detain as long as reasonably necessary to enable the taking of a blood sample and to enable the disclosure of the results of the analysed blood sample to be provided to the authorised persons.

In the history of the bill and its consultation phase, the Northern Territory Police Association has long lobbied for police to be given broader powers in seeking non-consensual orders for intimate procedures on offenders who spit, bite or otherwise assault an officer in way likely to have transferred blood or any other bodily fluid to that officer.

The police association sought reform in line with the current model which is operating in Queensland. The bill is based on the Mandatory Testing (Infectious Diseases) Act 2014 from Western Australia. That follows a jurisdictional comparison where it was considered that Western Australia has the most appropriate model as it provides a level of transparency of the processes. In late 2015, the following organisations were targeted in consultation in relation to introducing similar powers under the Police Administration Act as in the Mandatory Testing for Infectious Diseases Act of 2014. They include the Police Association, the Law Society of the Northern Territory, the NT AIDS and Hepatitis Council, the Chief Magistrate and the Chief Justice, the Anti-Discrimination Commissioner and the Information Commissioner.

During that process, concerns were raised by the Law Society, the NT AIDS and Hepatitis Council, the Anti-Discrimination Commissioner and the Information Commissioner. I will go through the concerns that were raised, and I will provide a response.

One concern was about the infringement of a person’s rights by the conduct of a medical procedure without consent. The response is that there is already power under section 145 of the Police Administration Act which provides for this. Testing will only occur where there has been a transfer of a substance from a person to a police officer following an assault of the officer by the person or during the arrest or detention of the person. The procedure will be conducted by a medical practitioner, nurse or qualified person and oversight is provided where approval for the procedure is given by a Superintendent or above, or a Local Court judge in instances where the transferer is a protected person who is satisfied there are grounds for such disease testing.

In relation to the disclosure of a person’s private health information, analysis of the blood sample will be conducted by a pathology laboratory. Provision of the results will only be disclosed to the transferer or affected member, their respective health practitioner or psychologist, psychiatrist or social worker, and where required, notified to the Department of Health Centre for Disease Control. This will maintain, as much as possible, the confines of the doctor/patient relationship and ensure sensitive health information is limited to authorised persons. Information relating to a transferer’s medical result will not be placed on the PROMIS system or the police real time online management information system.

In relation to false positive or false negative results, it is acknowledged that there is potential for false positive and false negative results. The intent of this legislation is not to change how officers respond to biological exposure incidents, but to provide a means for early identification to reduce stress and anxiety for exposed officers and their families and contribute to decisions regarding treatment and appropriate counselling.

Transfer of bodily fluids from victims to a person to whom an officer is providing first aid was a question raised. This power does not apply to these situations and it is not a result of an assault against a police officer, or during an apprehension or detention of a person.

Police take all reasonable precautions against exposure to contagion such as personal protective clothing apparatus, and also Hepatitis B vaccinations appropriate to such situations.

There was a question about the transfer of a substance from a person to a police officer’s clothing or skin that is intact. The power in this bill does not apply in these situations.

A question has been raised about the reinforcement of a common misunderstanding of the way blood-borne viruses are transmitted. The Northern Territory Police Force is working with the Department of Health to provide guidance and education, such as appropriate material and information sessions on infectious diseases which may be transferred to police officers.

There are questions about detaining those not linked to serious criminal offending. Assaulting a police officer is an indictable offence, and in its own right a separate offence in the Criminal Code, section 189A. In some circumstances this can attract a penalty of imprisonment for up to 16 years, otherwise if found guilty summarily, three years.

In regards to inequity in appeal mechanisms for protected and non-protected persons, a high level of oversight should be provided to those who are be too young or not capable of fully understanding the implications of compliance.

In relation to no discretion to the decision maker to evaluate the likely risk of infection, Northern Territory police will include a process for risk assessment to be made by an on-call physician prior to seeking a disease test authorisation. The information provided by the physician will be noted by the senior member on the application for a Disease Test Authorisation. It was not considered appropriate to legislate this process. It will form part of the internal policies and procedures under this new regime.

There was a final question about detaining a person for disease testing when the person has not been and will not be charged with an offence. A person has committed an offence by spitting at or biting a police officer.

It is interesting to go through the information that has brought us to the position where we are able to introduce this bill. The problem being solved through the amendment is an issue of workplace health and safety for Northern Territory police officers. We will support NT Police officers’ welfare following a biohazard incident, allowing early identification of potential transmission of an infectious disease to an officer or provision of prophylactic medication, treatment and counselling, further reducing stress and anxiety for exposed officers, especially their partners and families, including their children. We will allow notification of results from a transferor, identifying a positive test to an infectious disease to obtain appropriate treatment and counselling through the health system.

It is important to look at the circumstances in a numerical point of police officers who are spat at or bitten in the line of duty. In the financial year 2013-14 there were 27 cases of officers on the front line who were spat at or bitten, with a [potential transfer of saliva, blood or faecal material, which has caused disturbing and distressing situations.

In the 2014-15 financial year there were 35 incidents, and this current financial year, which is currently drawing to a close, there have been 37 incidents. Of those incidents in the 2015-16 financial year, needle and syringe injuries have had an occurrence of one. There has been one occurrence where an alleged offender has vomited on a police officer. There have been 19 occurrences where a police officer has been spat at or upon. There have been 15 occurrences where a police officer has been exposed to a potential transfer of blood. There has been one instance of a police officer being bitten.

I want to run through some example of these occurrences through the financial year. I will only read a few, and I will not include any identification in these examples. An offender who was placed under arrest resisted violently and in the process bit the police officer on the wrist, then, immediately after, bit the officer on the hand. The bite caused the member’s skin to break and expose blood. The member attended hospital to have the wound cleaned and bloods taken. That officer, under the current regime before this bill passes, will have to wait three months to identify whether or not he has been subjected to the transfer of a communicable disease.

I am not a police officer, but I can only imagine the amount of pain and suffering an officer goes through, emotionally, physically, psychologically as an individual and how does that impact on their families. Particularly from an intimate point of view with their partner, or with the play time they may have with their kids. I think that this legislation is a no brainer. I will give more examples to prove the point. In a second example, an offender was taken into protective custody and placed into the back of a police vehicle. Without warning, the offender spat through the cage directly into the member’s face with the spittle making direct contact with the member’s right eyeball, cheek and nose. The member attended hospital to have bloods taken.

The third example, while arresting an offender the member has been bitten by the offender under their left armpit. The bite caused instant pain, bruising, swelling and a 5 cm laceration. Medical treatment was obtained at hospital and a blood test completed, a tetanus injection was also received and the wound addressed, but this officer has to wait three months as well.

Another offender had a cut lip and spat a combination of blood and saliva into a member’s face, droplets of their spittle landed in their eye and their face. It is horrific to hear about the circumstances in which police operate in the Northern Territory, but I find it offensive to think there may have been the transfer of a communicable disease and currently there is no testing regime that can shorten the information cycle to be less than three months.

Another example, members attended a general disturbance and arrested a person. That person was placed in the rear of a police van with handcuffs due to their high level of aggression. While checking the welfare of the offender, the offender spat at the member, hitting the member in the face. When the police member made a second arrest the offender again spat at the police officer. The affected police member placed antibacterial lotion over their face and hands as aftercare, in an attempt to clean the spit from their face. The member’s mouth was open at the time; however there was no blood in the spit, only saliva.

They are a few examples of the circumstances police are facing on an everyday basis. This legislation is designed to fix that. I will go through some more information briefly. These are the concerns that have been raised by the Northern Territory AIDS and Hepatitis Council. There is a question about the bill perpetrating the common misunderstanding that HIV can be transmitted through contact with saliva, such as through spitting. As clearly stated in the Australian Society of HIV Medicine’s guiding document entitled Police and Blood-borne Viruses, which I will refer to as BBV, there are only certain bodily fluids that contain HIV in sufficient concentration to be implicated in an HIV transmission, that is, blood, semen, pre-ejaculation and vaginal fluids and breast milk. Saliva is not only of those.

The response to that is testing of a transferer is not simply triggered because an officer has been exposed to bodily fluids during their course of duty. The legislation provides for defined circumstances where an application for testing may be authorised such as if a person spits, throws or wipes a substance – that is, blood, spit or faeces – on that police officer and it enters their mouth or eyes or lands on an open wound.

Notwithstanding the proposed amendments specify BBV or blood-borne viruses, this is so the police force is open and transparent to the public about the standard testing that will be conducted on a blood sample. It is also consistent with the tests that are currently undertaken on a police officer’s sample following exposure.

There is provision to include a broader definition of ‘infectious diseases’ by regulation which will allow the testing of infectious diseases that are not BBV, but is transmissible by saliva or faeces into the broken skin or mucous membrane of a police officer.

A second area of concern raised by the Northern Territory AIDS and Hepatitis Council was even if a positive BBV result is returned, it cannot establish whether an officer has contracted a BBV. A negative BBV result is also not conclusive as there is a window period for BBV tests of a minimum of three months.

That is correct in the test in time, but current protocol for an officer who has suffered a biohazard injury is to seek medical attention for a risk assessment and undergo testing or treatment if warranted. The intent of the legislation is not to change how officers respond to such incidents in the workplace.

There was a question about the HIV testing policy which states that informed consent is required for HIV testing, except when a legal order is made for testing. Generally taking blood from a person without their consent involves the criminal offence of assault and civil trespass. That is the question that was raised. The response is that the proposed amendments will introduce a power to test a person for an infectious disease, regardless of consent. If approved it is required to be served on the transferor to explain the purpose and effect of the approval, that force may be used and that failure to comply is an offence. It does not remove the need to request consent. This will form part of the application process when an officer seeks a Disease Test Authorisation.

Another question concerned individuals who test positive for HIV may be charged under general criminal law for exposure and transmission of HIV with laws that potentially criminalise people with HIV that undermine the suite of national BBV strategies.

My response is that the test results under this new power will not be placed on systems such as PROMIS nor available to police officers in general. A restricted list of authorised persons will have access to the results, including the transferor, the affected police officer and their respective health practitioners.

The results from this process cannot be used for any other purpose than a test for an infectious disease. There are significant penalties which follow the disclosure of information or use of blood sample for any other purpose.

Under these provisions there is no penalty should a positive result be returned from a transferor.

A final point responds to a point which raises the question of guidelines and procedures. To minimise the risk of an officer contracting HIV or other blood-borne viruses following an exposure the Northern Territory AIDS and Hepatitis Council provided a community-based training on BBVs on a fee-for-service basis. The Northern Territory police already have vigorous guidelines and procedures in place regarding the risk of infectious diseases and minimising exposure in a policing environment.

If the legislation is passed in Parliament today, further work will be undertaken with the Department of Health on education about infectious diseases.

I would now like to respond to questions raised by the Australian Nursing and Midwifery Federation. One of their concerns is that the bill will provide no further protection to police in contracting communicable diseases. The Federation say is it their protective equipment that helps to reduce and stop contamination.

My response is that the proposed legislation has been drafted with officer health and welfare in mind. The proposed legislation is based on keeping officer health and welfare in mind. It will support the workplace health and safety of police officers and their welfare following a biohazard injury, allowing earlier identification of potential transmission of such infectious diseases and provision of earlier treatment to be provided, which assists in further reducing the stress and/or anxiety for exposed officers and their partners and families.

The NT Police already have rigorous guidelines and procedures in place regarding risk of infectious diseases and how they better prepare for it. Some questions have been asked about whether police could wear safety masks when they leave the station, and I think that is a ridiculous request.

There is a subsequent question about concerns regarding putting health professionals under pressure to forcibly take blood for testing, saying this would be an ethical and human rights dilemma, besides possibly putting their registration at risk for professional conduct. There is already a provision under the Police Administration Act, most notably under section 145, which allows for the taking of a blood sample, known as an intimate procedure. For the purpose of providing evidence relating to an offence punishable by imprisonment, in the Traffic Act – a good example is section 29AAG, which requires a blood sample if a police officer reasonably believes the concentration of alcohol in the person’s breath or blood is such that a person has committed an offence against the act, or the officer has reasonable cause as a result of a positive indication from a saliva, to suspect the person’s body contains a prohibited drug.

Section 147FR(4) under clause 6 of the bill provides for a medical officer, nurse or qualified person to not be required to take a blood sample as authorised in the disease test authorisation until the practitioner, nurse or qualified person is satisfied that: (a) there is no serious risk that serious harm would be caused to the transferor, or another person, by the taking of the sample; and (b) the health of the transferor would not be adversely affected by the taking of the sample.

Protection from liability is also provided for medical practitioners, nurses or qualifies persons under section 148B, which is clause 7 of the bill. It states under ‘Protection from liability’: (1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act. ...

To those who say that this is not fair and is a breach of human rights, I have one very pointed message: if you do not like it do not spit on police, do not bite police, do not pass bodily fluid to police and do not pass faeces to police. It is abhorrent; police are out there protecting every single citizen in the Northern Territory. To think that police currently have to go through the pain and suffering of waiting three months is outrageous.