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Sunday, 31 May 2009

New Zealand: HIV confidentiality laws may change due to 'HIV predator' case

In my last entry on the alleged NZ 'HIV predator' case – when I highlighed that was pushing for the arrest and prosecution of an HIV-positive gay man in Auckland who allegedly meets men online, 'persuades' them to fall in love with him and then to have unprotected sex – I suggested this may turn out to be New Zealand's version of the Michael Neal case. Turns out I was right, both in terms of the mainstream coverage and the potential political fallout.

The New Zealand government is now considering changing the 1956 Public Health Act to allow for health authorities to inform police if they believe an HIV-positive person is putting others at risk. According to the New Zealand Herald, the moves are being supported by New Zealand's major HIV charity.

Health authorities were told the HIV-positive man was allegedly infecting people in Auckland and Wellington with the virus months ago but were not obliged to tell police, the Sunday News reported. Under the Public Health Act 1956 - which pre-dates HIV by many years - health professionals are not required to disclose the fact someone is HIV-positive or could be spreading the virus. The only exception is when a clinician knows a specific person is at risk, then the Medical Office of Health can be notified.


Health Minister Tony Ryall said he would meet with officials this week to discuss the possibility of a law change.

And New Zealand AIDS Foundation's spokesman Simon Harger-Forde, told the paper: "I think there needs to be more power for legislative agencies to prevent harm to others." Interesting, then, that in 2005 they produced a poster for the Pan-Pacific HIV/ AIDS Conference which concluded: "Relying on the law to protect you from HIV is a risky strategy. Disclosure does not stop HIV transmission, condoms + lubricant do."

Not coincidentally, New Zealand's confidentiality laws were dissected last week in a feature.

The implications of an alleged HIV+ predator infecting young gay men in our communities for a year or more are sinking in, and one of the first questions to emerge is: "Why didn't someone do something sooner?"


Under the elderly Public Health Act 1956, which could not have predicted the emergence of HIV, health care professionals are not required to disclose an HIV positive person's identity to those authorities with the responsibility and powers to aggressively 'track and trace' health threats and proactively head off those threats. Therefore privacy legislation rules.

However valuable or even vital it may be, short of a court order to provide the details an HIV positive person's information must remain locked in his personal file, accessible only to the person who put it there. And a court order is unlikely to happen without a formal police investigation which cannot happen unless a victim makes a formal complaint to the police.


Essentially, the only person who can get the ball rolling to stop the pattern of infection is one of the infected victims. And there are any number of reasons why they might not feel able to take that step. They may not even be aware that they are part of 'a situation.' Perhaps some less formal process can come into play?
Update: June 4th. Interesting blog entry from Kevin Hague, former executive director of the New Zealand AIDS Foundation, who concludes
Reform of the Public Health legislation to give the medical Officer of Health a more finely graded set of responses will be very welcome if and when it finally occurs, but I can’t see any case for a change to privacy law.

[Back to original posting, below]

Indeed, much has transpired since my last blog entry two weeks ago. Notably, the man in question was arrested last Thursday, according to and although he was granted interim name suppression during Friday's hearing, he was refused bail.
Judge Bouchier said the men who had been infected would never be cured and would suffer for the rest of their lives. She said she was concerned that if the accused was given bail, he might interfere with complainants and witnesses. "He has contacted one complainant several times and asked him not to contact police. The victims are fearful of him being granted bail. I don't believe the court could make any bail conditions which would prevent the defendant from having access to the internet and continuing internet dating. He should be remanded in custody in the public interest."

The man is charged under NZ's Crimes Act 1961 for wounding with intent, or reckless disregard, for allegedly transmitting HIV to three men, aged 17, 24 and 26, and attempting to infect a fourth man, aged 31.

According to Judge Bouchier, the maximum penalty is seven years in prison for attempting to infect with HIV, and 14 years for transmitting HIV.



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