It is unlawful to discriminate against someone because of their sexual orientation or marital status (including living in a same-sex relationship) when providing goods and services. This includes medical treatment and other health services. (See ‘Discrimination')
Health complaints process
If you are unhappy with how you have been treated by a medical practitioner, a hospital or other health service provider, you can make a complaint to:
Health Services Commissioner
Tel 8601 5200 or 1800 136 066 (country callers)
ACCESS TO RECORDS
Under the Health Records Act 2001 (Vic) a person has the right to access their own health information held by a health service provider (public or private).
However, you cannot gain access to your health records if:
- the access would pose a serious threat to the life or health of any person, or
- the information was given in confidence by another person with a request that it not be communicated to the individual concerned. The person who provided this access can consent to the information being given to you.
Subject to the exceptions above you can complain to the Health Services Commissioner if access to your health information is denied.
Disclosure to domestic partner
In general, your health information must not be disclosed unless you consent. New laws have given same-sex couples rights in this area. If you become incapable of deciding whether to give consent, a health service provider can disclose health information about you to ‘an immediate family member'.
Under the Health Records Act, ‘immediate family member' includes a parent, child, sibling, spouse and domestic partner. In this context a domestic partner is someone who you are in a relationship with as a couple, whether you are living together or not.
A health service provider will disclose health information about you to an ‘immediate family member' if:
- the disclosure is necessary to provide health services or care to you; or
- the disclosure is made for compassionate reasons; and
- the extent of the disclosure is limited to the extent reasonable and necessary; and
- you are incapable of giving consent; and
- the disclosure is not contrary to any wish expressed by you before you became incapable or is known to the health service provider.
AUTHORISING MEDICAL TREATMENT
The need for informed consent
Every person has a right to decide what should be done to their body. This is why hospitals and doctors must have consent for medical treatment, except in a life-threatening emergency. To be valid, consent must be given freely and should be ‘informed'. This means you must have a full understanding of what is being proposed. ‘Informed consent' can only be given by someone who is capable of forming that understanding.
Right to refuse medical treatment
Everyone has a right to refuse treatment. In addition you can sign a Refusal of Treatment certificate either generally or for a specific condition. If you are incapable of refusing medical treatment your partner or next of kin can refuse treatment for you if you have given them an Enduring Power of Attorney (Medical Treatment). (See ‘Taking action')
A person holding an Enduring Power of Attorney (Medical Treatment) can also apply for a Refusal of Treatment certificate on your behalf.
An application can be made to the Victorian Civil and Administrative Tribunal for a Refusal Certificate to be revoked or suspended.
Becoming incapable of consent - who can decide for you
If you become incapable of consenting to medical treatment, someone else will need to make treatment decisions for you. You can take charge of this process before becoming incapacitated by appointing an Enduring Power of Attorney (Medical Treatment) or an Enduring Guardian (see ‘Taking action'). Otherwise a guardian can be appointed by a court, tribunal or by the Office of the Public Advocate to make decisions on your behalf.
Permanent incapacity The Guardianship and Administration Act 1986 (Vic) sets out who can consent to medical treatment on behalf of a ‘disabled person'. That means a person who is incapable of giving informed consent to a proposed treatment or is unable to communicate their consent, regardless of whether this is a temporary or permanent state.
If no one has been formally appointed to consent to treatment for you, consent can be given by (in order):
- your domestic partner or spouse
- your primary carer
- your nearest relative.
In this context, your ‘domestic partner' need not be living with you (see definitions under ‘Relationships'). If the hospital refuses to recognise you as the domestic partner, you can make a complaint about discrimination on the grounds of marital status with the Victorian Equal Opportunity and Human Rights Commission (see ‘Discrimination').
Restrictions on hospital visiting vary with the seriousness of the illness. Decisions about who can visit are a matter of hospital policy. The approach varies from hospital to hospital and ward to ward. In practice, few hospital staff will deny access to a same-sex partner.
If you are denied access to your partner in a public hospital, contact the Nurse Manager or the Patient Representative (employed as an advocate for patients). If unsuccessful, you can complain to the Health Services Commissioner (see details above, ‘Discrimination'). Also, denying access may amount to unlawful discrimination (see chapter 3, ‘Discrimination'). If you are acting as a sick person's Enduring Guardian or have their power of attorney you have automatic access to them in hospital. (See Authorise others to act for you, ‘Taking action'.)
Where to get help:
Office of the Public Advocate
Tel 9603 9500 or 1300 309 337 (country callers)
TTY 9603 9529
Victorian Civil and Administrative Tribunal
Tel 9628 9911 or 1800 133 055 (within Victoria)
Victorian Equal Opportunity and Human Rights Commission
(formerly Equal Opportunity Commission(Victoria))
Tel 1800 134 142
TTY: 9281 7110
It is unlawful to discriminate against someone on the basis of their actual or presumed HIV status, in employment, education, accommodation, the provision of goods and services, clubs and their membership, sport and local government (see ‘Discrimination'). Some exemptions do apply. Some must be approved by the Human Rights and Equal Opportunity Commission (Commonwealth), the Victorian Equal Opportunity and Human Rights Commission or a tribunal such as VCAT.
Disclosure of HIV status
You do not have a general legal obligation to tell people about your HIV status. However, you may need to disclose your status to sexual partners so that you don't place them unknowingly at risk, or to avoid committing an offence relating to transmission of HIV. Failure to do so may lead to prosecution.
See ‘Offences relating to transmission of HIV/AIDS'
You do not have to tell anyone at work about your HIV status. Your employer has an obligation to provide you and your co-workers with a safe working environment by setting up work practices that prevent the occupational transmission of HIV. Your co-workers have a right to accurate information about HIV transmission, but they do not have a right to know the HIV status of others. It is unlawful for your employer to ask for information about your HIV status that could be used for discriminatory purposes. If disclosure of your status has led to discrimination, you can complain to the Victorian Equal Opportunity and Human Rights Commission (see ‘Discrimination').
An insurance company can legally ask for information or an HIV test as part of their risk assessment. The presence of HIV is considered a disability under the Disability Discrimination Act. The Act does not render it unlawful for an insurer to refuse cover or to amend conditions relating to cover to a person on the grounds of their disability. Therefore insurers can legally refuse to provide life insurance based on a positive HIV status. Information about your HIV status must be kept confidential (see ‘Privacy').
Health insurance is available to same-sex couples, but this is at the discretion of the insurance provider. This does not provide legal recognition of the relationship. Always ask if your health insurance providers include same-sex couples in their products.
Doctor-patient confidentiality and reporting of information
HIV/AIDS is one of many infections which must be reported to the Department of Human Services to reduce the public health risk. Information is recorded and passed to the department about HIV/AIDS tests and about each confirmed case of HIV/AIDS. Individuals are not named in these reports, which are coded using initials and date of birth.
In any follow-up by the department, the person who has tested HIV positive remains anonymous and doctor-patient confidentiality is maintained.
Under the Health Act a person who finds out, through providing you with any type of service, that you have been tested for HIV or that you are HIV positive must take reasonable steps to protect your privacy. If they fail to do so, you can report this to the Department of Human Services, which may refer the matter to the relevant professional body. If your complaint is about a health service provider you can contact the Health Services Commissioner (see ‘Health complaints process', above).
Right to closed court hearings
Court and tribunal hearings can be closed if the court thinks that information about someone's HIV status will be disclosed during the hearing and that this could have a negative effect on them. The court can also restrict publication of information about the proceedings. Anyone breaching such a court order can be prosecuted and fined under the Health Act.
If you decide to be tested for HIV/AIDS, the person testing you must make sure that you have been counselled by a qualified and trained person about the possible results, and the medical and social consequences of being tested. Your request for an HIV test and a blood sample will be passed on by your doctor to a testing service. Your request is coded so that you cannot be identified from it but the doctor can still link it to their records. If the test results are positive, you must be given the results in person by a doctor or trained counsellor. They must give you information about the medical and social consequences of the virus.
The Department of Human Services has the power to take action against individuals to limit the spread of HIV/AIDS and other infectious diseases. If the department believes that a person has or is likely to contract an infectious disease and is likely to pass it on and that there is a serious risk to public health, the department can (in writing):
- order the person to be examined and tested for the infection
- impose restrictions on the person's behaviour and movements
- isolate and detain the person. If tests show the person has the infection, the department can also order counselling.
Note that these powers apply to a wide range of infections. To date they have been used rarely in relation to HIV/AIDS but their use is becoming more common.
Offences relating to transmission of HIV/AIDS
It is an offence under the Health Act to knowingly or recklessly infect another person with an infectious disease. The maximum penalty for this offence is a $20,000 fine. Note that the Department of Human Services is unlikely to charge a person with this offence except as a final sanction. While there have been few prosecutions under the Health Act so far, a Victorian man was charged in 2006 with 17 offences.
It is a separate indictable (serious) offence under the Crimes Act to:
- intentionally cause another person to be infected with HIV (maximum penalty 25 years jail),
- recklessly engage in conduct that endangers another person's life (maximum penalty 10 years jail) or that places them in danger of serious injury (maximum penalty 5 years jail).
To date, there have been successful prosecutions against individuals in Queensland, New South Wales and the United Kingdom for intentionally or recklessly infecting others with HIV.
You should be aware that some countries can request that you take a HIV test prior to obtaining a visa. Some countries will not allow travellers who are HIV positive to enter. As each country has differing requirements, if you are HIV positive you will need to check with relevant consular web sites prior to arranging overseas travel.
Where to get help
HIV/AIDS Legal Centre
Free legal advice and referral to people affected by HIV/AIDS
Tel 9863 0444 or 1800 622 795 (country callers)
People Living with HIV/AIDS (Victoria)
Tel 9865 6772
Victorian AIDS Council
Gay Men's Health Centre
Tel 9865 6700
Tel 9347 6099 or 1800 133 392 (country callers)
Support and advocacy for women with HIV/AIDS by women with HIV/AIDS
Tel 9276 6918
Online resource guide, includes health, counselling and support, finance, housing,
transport, legal issues - also in print from HIV/AIDS agencies
Disability Discrimination Legal Service Inc
Advocacy for people with disabilities
Tel 9654 8644 or 1300 882 872 (country callers)
TTY 9654 6817