Responding to the NSW Draft Public Health Bill 2010


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This presentation was given by Sally Cameron, HIV Policy Analyst, at the AFAO HIV Educators Conference 2010.

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Responding to the NSW Draft Public Health Bill 2010

  1. 1. Responding to the NSW Draft Public Health Bill 2010<br />Policy Process<br />
  2. 2. Review of NSW Public Health Act<br />1991NSW Public Health Act comes into force<br />2005 Department of Health undertakes a Review of the Public Health Act<br /> Review receives over 90 submissions <br /> Review makes over 40 recommendations <br />2010 Department circulates Public Consultation Draft of the Public Health Bill 2010 allowing for 3 months consultation<br />
  3. 3. Infectious Disease not only focus<br />public health risks during a State of Emergency<br />closure of water supplies<br />Legionella in air handling, water cooling, and hot water systems.<br />cervical cancer through the PapTest Register.<br />clean drinking water supplies<br />spread of serious infectious diseases - surveillance systems <br />transmission of infectious diseases through public swimming pools and skin penetration industries.<br />
  4. 4. The HIV Sector’s Response<br />Submissions from:<br />Australasian Society of HIV Medicine (ASHM)<br />ACON, Bobby Goldsmith Foundation (BGF), Positive Life NSW, NSW Users & AIDS Association (NUAA), and Hepatitis NSW<br />HIV/AIDS Legal Centre (HALC)<br />Australian Federation of AIDS Organisations (endorsing submission)<br />
  5. 5. ASHM’s Submission<br />Focusing on the draft Bill as it applies to medical practitioners:<br />Outmoded reference to ‘AIDS’<br />The requirement that medical practitioners report suspected cases of ‘AIDS’<br />A reduction in a number of thresholds for intervention, eg. From reasonably suspects to suspects or believes<br />A weakening of privacy protections<br />Mandated disclosure of HIV status prior to sexual intercourse<br />Significantly increased penalties<br />
  6. 6. Section 76: Disclosure before sex<br />76 Persons with sexually transmitted diseases to inform sexual partners(cf 1991 Act, s 13)<br />(1) A person who knows that he or she has a sexually transmitted disease is guilty of an offence if he or she has sexual intercourse with another person, unless before the intercourse takes place, the other person:<br />(a) has been informed of the risk of contracting a sexually transmitted disease from the defendant, and<br />(b) has voluntarily agreed to accept the risk.<br />
  7. 7. Sexual Intercourse<br />sexual intercourse means:<br />(a) sexual connection by the introduction into a person’s vagina, anus or mouth of any part of another person’s penis, or<br />(b) cunnilingus.<br />sexually transmitted disease means any scheduled medical condition that is transmissible by means of sexual intercourse.<br />Maximum penalty: 100 penalty units [$5000] or imprisonment for 6 months, or both.<br />
  8. 8. The Report on the Review of the Public Health Act 1991 noted: <br /> section 13 is virtually impossible to police and enforce. ... Behaviour relating to sexually transmissible medical conditions is more likely to be influenced by the provision of information about behaviours that may place others at risk than by the threat of coercive action. Other factors, such as those outlined in submissions also weigh against the utility of section 13.<br />
  9. 9. But the Report continued ...<br />To argue for section 13’s (s.76) inclusion <br />as a pressing reminder of the duty of care owed by persons when engaging in sexual behaviour and [it] provides “teeth” to warnings issued to individuals who engage in risky sexual behaviour’. <br />
  10. 10. How to proceed?<br /><ul><li>How much effort to put in?</li></ul>Contact Health Department to gauge whether any real possibility of impacting this section.<br /><ul><li>How to mount most persuasive argument?</li></ul>Evidence against disclosure as best practice in HIV prevention is spread across numerous areas of expertise, including:<br /> Scientific and medical research - transmission risk<br /> Behavioural research - people’s disclosure practice<br /> Public health practice – experience and evidence based response <br /> Service providers – grassroots understanding of client’s experience of HIV<br /><ul><li> joint submission</li></li></ul><li>Agencies Approached<br />Australian Federation of AIDS Organisations<br />National Association of People Living with HIV/AIDS<br />Australasian Society for HIV Medicine<br />National Centre in HIV Epidemiology and Clinical Research<br />National Centre in HIV Social Research<br />Australian Research Centre in Sex, Health and Society <br />Albion Street Centre<br />ACON<br />Positive Life (NSW)<br />HIV/AIDS Legal Centre<br />Bobby Goldsmith Foundation<br />Haemophilia Foundation Australia<br />
  11. 11. Process & its advantage<br />All agencies tentatively agreed<br /><ul><li>‘Authority’ to communicate broad based evidence
  12. 12. Unified voice across diverse areas of expertise</li></ul>Submission drafted by one person – based on published data or anecdotal evidence of agencies concerned<br /><ul><li>Speed of drafting
  13. 13. Minimal contribution required from each agency</li></ul>All agencies provided comment – and every comment was useful and clearly expert<br /><ul><li>Submission is detailed, sophisticated & persuasive</li></li></ul><li>Research<br />Finalised Charges s.13(1), Public Health Act 1991 – 1991 to 2009<br />2005 Not guilty (Charges dismissed)<br /> Factors: Lack of evidence<br />* NSW Bureau of Crime Statistics and Research<br />2009 Guilty (Discharged without conviction)<br /> Mitigating factors:<br /> Use of condoms<br /> Accused disclosed at the time, following risk episode<br /> Accused made follow up phone call to advise partner of the availability of PEP<br />* HIV/AIDS Legal Service<br />
  14. 14. Reviewed Act<br />13 Sexual intercourse transmissible medical condition <br />(1) A person who knows that he or she suffers from a sexually transmissible medical condition is guilty of an offence if he or she has sexual intercourse with another person unless, before the intercourse takes place, the other person: (a) has been informed of the risk of contracting a sexually transmissible medical condition from the person with whom intercourse is proposed, and (b) has voluntarily agreed to accept the risk. Maximum penalty: 50 penalty units. <br />(2) An owner or occupier of a building or place who knowingly permits another person to: (a) have sexual intercourse at the building or place for the purpose of prostitution, and (b) in doing so, commit an offence under subsection (1), is guilty of an offence. Maximum penalty: 50 penalty units. <br />(3) For the purposes of this section, a person is not to be presumed incapable of having sexual intercourse if the only ground for the presumption is the age of the person.<br /> (4) In this section, "sexual intercourse" means: (a) sexual connection by the introduction into the vagina, anus or mouth of a person of any part of the penis of another person, or (b) cunnilingus. <br />
  15. 15. stop<br />Subsection (2) is dependent on subsection (1) so if they look closely at redrafting they may assume there is a conscious lack of support for repealing the sex industry provision.<br />Three days before deadline<br />All comments in<br />Ready to circulate final draft<br /> do we proceed as is?<br /> include sex work?<br />
  16. 16. Expanding to include Sex Work<br />Draft possible text (so agencies can see exactly what we’re proposing)<br />Contact Scarlet (despite the time frame being way outside their approval process)<br />Circulate to all agencies with explanatory email<br />
  17. 17. Issues<br />Time frame for Scarlet Executive Approval<br /> Scarlet worked within timeline. Stressed that unable to redraft but requested a few omissions.<br />Haemophilia Foundation Australia had to withdraw. National Office accepted sex work proposals but NSW branch consists of volunteers and not enough time to scale up on understanding of sex work issues.<br /> Haemophilia Foundation Australia wrote separate submission reiterating points in joint submission re: individual’s disclosure observations.<br />
  18. 18. Impact <br />Currently being considered<br />Feedback from Ministerial Advisory Committee on HIV and Sexually Transmissible Infection submission had impact, particularly evidence based responses to issues of concern.<br /><ul><li>Now waiting and aiming to apply quiet, diplomatic pressure</li></li></ul><li>Key Points<br />There is no clear framework or communication mechanism for policy/advocacy initiatives<br />There is no single way to approach policy/advocacy<br />Despite best efforts, expertise remains quite siloed<br />Joint submissions can have impact, particularly if they communicate diverse, expert knowledge<br />Policy is about communicating what you know<br />
  19. 19. Policy is about communicating what you know<br />Recognise expertise and different mandates<br />Be persuasive:<br />Refer to expert research (particularly if it refutes mythology)<br />Detail grassroots experience<br />Nothing beats a case study<br />Avoid rhetoric – <br />The impact is in the depth.<br />
  20. 20. Arguments Against Section 13 (1)<br />Undermines the ‘enabling environment’<br />Undermines the message of mutual responsibility<br />Is inconsistent with guidelines on people who put others at risk of HIV transmission<br />Operates outside Health Department HIV management systems<br />Cannot be appropriately policed<br />Confuses individual desires with a legal system supporting HIV prevention<br />Ignores scientific data on transmission risk<br />runs counter to scientific evidence on condom use<br />Does not increase the likelihood of people disclosing <br /> <br />
  21. 21. Arguments Against Section 13 (1)<br />Ignores the significant risk of HIV transmission by persons who are HIV positive but believe themselves to be HIV negative<br />Undermines HIV prevention efforts targeting serosorting practices<br />Undermines HIV prevention efforts which address the fact that some people do not disclose their HIV status prior to sex<br />May increase levels of HIV stigma<br />Contributes to HIV-positive people’s fear of disclosure to sexual partners, and fear of discussion of risk behaviours to service providers<br />Supports the mistaken assumption of HIV-negative people that HIV-positive people will disclose ‘because it’s the law’, and by inference, because it is ‘right’.<br />Undermines capacity to undertake scientific research to inform the HIV response. <br />
  22. 22. Arguments Against Section 13 (2)<br />Contributes to the marginalisation and social exclusion of sex workers living with HIV<br />Is at odds with decriminalisation of the NSW sex industry, and is heavy handed in an environment where s not required<br />Undermines the importance of safe sexual practice in commercial sex settings, and holds a person liable for an ‘offence’ where there is no HIV exposure or transmission risk<br />Is antithetical to evidence of HIV risk, as STI prevalence supports other evidence of the commercial sex industry’s commitment to safe sex practice<br />Is antithetical to the HIV response because it inappropriately targets a low risk population group, i.e. people engaged in commercial sex work<br />Targets disclosure only while ignoring safe sex practice<br />