NSW Introduces Bill for Mandatory Disease Testing

On 11 November 2020, New South Wales Minister for Police and Emergency Services David Elliot introduced the Mandatory Disease Testing Bill 2020 (NSW) (“the Bill”) into the Legislative Assembly. The Bill passed the lower house with an amendment on 18 November 2020.

Under current NSW Ministry of Health policies, a healthcare worker that is employed by NSW Health that becomes exposed to a patient’s bodily fluids can request for the patient to consent to disease testing. However, the patient cannot be obliged to provide a sample. Outside of NSW Health, there are no regulations or policies to allow authorities to request a person to consent to disease testing. Furthermore, there are no mechanisms that can require or compel a person to be tested for infectious diseases, even if their bodily fluids came in contact with another person.

The Bill seeks to address this gap by introducing mandatory blood testing for an individual whose bodily fluid comes in contact with a health, emergency, or public sector workers through deliberate action.

Amendments under the Bill

The Bill proposes the introduction of a scheme where a person can be ordered to provide a blood sample for testing where:

1. A health, emergency, or public sector worker has come into contact with the person’s bodily fluid as a result of their deliberate action, and
2. The worker is at risk of contracting a blood-borne disease due to the action

Failure to comply with a mandatory testing order, without a reasonable excuse, will incur a maximum penalty of $11,000, imprisonment for 12 months, or both a fine and imprisonment.

The Bill covers testing only for blood-borne including HIV, hepatitis B, and hepatitis C, but does not cover other communicable diseases. The second reading speech explained that this is because other diseases are likely not to be lifelong, and there are currently no useful screening method and infections are likely to be detectable in the worker in a shorter period than blood-borne diseases covered by the scheme.

If the Bill is passed, prescribed workers will be able to make an application for a mandatory testing order following an incident in which another person’s bodily fluids have come into contact with them. The Bill will allow for other prescribed workers such as police officers, correctional officers, firefighters, and other employees of NSW Health to make an application for a mandatory testing order.

Prior to making an application for a mandatory testing order, prescribed workers must consult with a medical practitioner who has qualifications or experience with blood-borne diseases, as soon as reasonably practicable, no later than 24 hours after the contact occurred. Under special circumstances, consultation can occur up to 72 hours after contact. The application for the order must include things such as a detailed description of the contact and the circumstances, statements that the worker did not consent to the contact, and a statement in the worker’s opinion if the contact was the result of deliberate action by the third party.

The application will be approved if a senior officer is satisfied that:

1. The third party will not voluntarily provide blood for testing
2. Testing is justified in the circumstances

The application is to be determined within three business days. If the individual is between the ages of 14 and 16, the senior officer must either apply to the Children’s Court for the order or refuse the application. If the individual has a mental illness, mental condition, or cognitive impairment that can significantly affect their capacity to consent, the senior officer must apply to the Local Court for the order.

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Mandatory Disease Testing Bill 2020 (NSW) and supporting documents available from TimeBase's LawOne Service