Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 October 2014.)

The Hon. M.C. PARNELL (17:49): In speaking to the second reading of this bill I would like to put on the record a number of serious concerns that have been communicated to me by a number of organisations—primarily health organisations, but also the Law Society. The purpose of the bill is to provide for blood tests to be carried out in certain circumstances where a police officer has come into contact with the bodily fluids of another; in particular, where a police officer may have been spat upon. Spitting on police officers—in fact, spitting on anyone—is a pretty despicable act. It is an assault and it is punishable, and so it should be.

The object of this legislation appears to be to try to keep police officers safer, or to at least calm any concerns they might have that, as result of being spat upon, they might contract some disease. I note that the government bill is confined to police officers. There are a number of amendments on file, and an amendment from the Liberals extends the range of victims (if I can use that word) to firefighters (MFS and CFS), SES volunteers, ambulance workers (whether paid or St John volunteers), surf lifesaving officials and volunteers, and emergency ward workers in hospitals. These are categories of people whose services we rely on, whose work we applaud, and who we want to keep as safe as possible. The Hon. John Darley has an additional extension to the list, adding licensed security agents—again, people we rely on to keep us safe.

I might say, at this stage, that in terms of the politics, or the optics, of these amendments and the bill itself it is good for members of parliament to be out there reminding people in these jobs that we support their work, that we are batting for them. These are all groups that play a vital role in our society and we want to keep them as safe as possible, just as they keep us safe. However, I think the threshold question that we have to address is whether this bill does keep these workers safer. Will it give them peace of mind, and will it advance community understanding of communicable diseases? The overwhelming response I have received so far from the Law Society and from health bodies is that it does not achieve those ends.

If I start with the Law Society's submission, they make the point that state-authorised invasive procedures, such as blood tests, should be limited to occasions where they are strictly necessary—for example, for the proper investigation of a serious offence. They say that parliament should be slow to introduce mandatory forensic procedures such as those proposed in the bill. They point out that there appear to be adequate safeguards in relation to the misuse of this biological material (and when I say 'misuse', that means using it for a purpose other than detecting whether a disease is present). The Law Society seems to believe that the safeguards are in place, and wants to make it very clear that it would be unacceptable for this material to be used as evidence in legal proceedings.

When we get to the committee stage I will pose more questions around that; in particular, whilst the material itself has to be destroyed, whether any results that come from testing that material also need to be destroyed or whether we will find that people have, on police files, records of their disease status (or lack of) that was contained in their blood at the time the tests were taken.

When you look at the submission from the Australasian Society of HIV Medicine, they again make the point that they support police officers (as we all do), but they are concerned that this legislation would ultimately run contrary to the purpose of protecting police officers. They make the point that hepatitis C and HIV cannot be transmitted through contact with saliva. They point out that there are national guidelines and practices that protect people who may have been in a position to contract a blood-borne virus. They say:

This proposed legislation would confuse the current best practices and standards within the South Australian jurisdiction and result in misunderstandings of risks, increased anxiety amongst officers and the public and ultimately potentially put officers and their families at greater risk.

So I ask the minister, when she concludes the second reading of this debate, to address the concerns of the Australasian Society for HIV Medicine. I understand that all members have that communication. Hepatitis SA makes the point that the risk of contracting HIV or hep C via saliva from a positive source is zero, even if it ends up in the recipient's eyes or mouth or even via bites that break the skin. They say that the risk of contracting hep B via those same methods is very low, and police officers and emergency workers are generally vaccinated against hepatitis B and hence would be at no risk of contracting hep B. Hepatitis SA states:

The legislation is a total contradiction of the first principle that guides the national testing policies for viral hepatitis in Australia which states that testing should be confidential and voluntary, with informed consent.

Hepatitis SA believes the proposed legislation will only serve to foster discrimination against all people with blood borne viruses while providing little real benefit (and indeed may cause harm) to police officers and emergency workers, and their families.

Similar views were expressed by Positive Life SA. They say that this legislation will reinforce inaccurate information about HIV transmission and will fuel irrational fears amongst police and the general public. Positive Life SA states:

Positive Life SA requests that the government withdraw this amendment and undertake a comprehensive investigation into effective and appropriate strategies for safeguarding police officers from abusive behaviours by a minority of the general public.

I think the one area on which everyone in this parliament will agree is that our police and, I think by extension, a range of other vocations that are sought to be included within the umbrella of this legislation are all activities that we want to support. As I say, we want to keep them safe as they keep us safe, but the Greens have serious concerns about whether this bill is the way to go and whether it will in fact achieve the objective of keeping our police safer. With those words, we look forward to the minister addressing the concerns that were raised by the organisations I have mentioned and to the committee stage of this debate.

The Hon. J.A. DARLEY (17:58): I rise to speak on the Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Bill. Those members who have been here long enough will recall that in 2007 my colleague Senator Nick Xenophon introduced into this place the Summary Offences (Medical Examination of Suspects) Amendment Bill. In short, that bill provided that, where a person believes that as a result of the commission of an indictable offence he or she may have come into contact with bodily fluid from an offender, the person could request that a person arrested on suspicion of the offence be subject to a medical examination.

The rationale behind the bill was that requiring an offender to undergo a medical examination would go some way towards overcoming the anguish and uncertainty that an affected person would otherwise encounter as a result of having to wait some three to six months for blood tests and results. It arose as a result of lobbying by a representative of licensed security agents who was exposed to blood in his face and mouth in an incident with a patron at a city hotel.

When the agent approached the police to ascertain whether the patron had any blood-borne diseases, he was advised that there was no requirement at law for a blood test of the patron to be taken, and that he would have to wait 12 weeks, the same as police, to find out whether he had an infection such as HIV or hepatitis C. Although the bill before us is much more restricted in scope than what Senator Nick Xenophon initially proposed when he was a member of this place, it goes without saying that I am supportive of it in principle.

As recently as last Friday, in an article entitled 'The violent, traumatic reality of our hospitals', The Advertiser reported that alcohol-fuelled attacks on doctors and nurses by intoxicated patients are now a daily occurrence in Australian hospitals. The article reported that doctors report being knocked unconscious by drunk patients, and pregnant nurses have been physically threatened, with staff saying that spitting, punching and kicking are all common occurrences.

According to a study by the Australasian College of Emergency Medicine, a startling 93 per cent of Australian emergency department staff have been physically assaulted or threatened by drunk patients, and 98 per cent have been verbally abused. Sydney's St Vincent's Public Hospital's Professor Gordian Fulde, the longest-serving emergency department director in the nation, who runs what he calls 'the most alcohol besieged emergency department in Australia', says that the incidence of being abused both physically and verbally has become a daily occurrence, and people come into hospital totally out of control. He states:

Of course we've been punched. Of course the security people get hit and there's blood and things like that.

The Advertiser article also reported on a submission to the Alcohol Harm in Emergency Departments Project, in which a female nurse stated:

I've been verbally threatened and physically assaulted, pushed, punched, spat on and bitten. I have been threatened in our hospital car park.

In that same submission a doctor stated that he was assaulted and knocked unconscious by an intoxicated patient.

There is no question that the subject of this article is part of a much larger problem, namely, the impacts that alcohol-fuelled violence is having on our community and on the resources of our hospital emergency departments, especially when this results in otherwise unnecessary treatment delays for other patients. That said, it also demonstrates very clearly why it is that we need this legislation. It is not acceptable that any person should be the subject of physical or verbal abuse. It is certainly not acceptable that nurses, doctors, ambulance officers and security guards are subjected to punching, spitting and biting in the course of carrying out their duties.

These people are at the front line of our emergency services; they do an amazing job saving people's lives. The least we can do is offer them some peace of mind when things get out of hand and they are subjected to assaults and exposed to the risk of disease. I can relate to this issue because my niece, who is a surgeon, was attacked by a patient while trying to administer medical treatment. She was aged 35 at the time. The patient who attacked her was HIV positive. She went through an agonising four-month wait before being given the all clear. It was the longest four months of her life. It was an agonising period for all of us.

There is absolutely no reason why this bill ought to be restricted to police officers, and as such I will support the opposition's amendments to broaden the scope of the bill to include emergency workers. I foreshadow that I will also be moving amendments that would add licensed security guards to the list of prescribed individuals who will benefit from the legislation.

I note that Hepatitis SA and Positive Life SA have written to all honourable members, urging them to reconsider the government's bill on the basis that it will be counterproductive and will only serve to foster discrimination against all people with blood-borne viruses, while providing little real benefit to those it is seeking to assist, namely, police officers. I acknowledge the concerns raised by these organisations and I appreciate the challenges in finding an appropriate balance between someone's right to confidentiality and informed consent on the one hand and mandatory testing on the other.

I appreciate also that there have been instances in which police officers have misinterpreted a person's physical or mental disability as signs of intoxication, and that in some cases this has resulted in unwarranted altercations. This is clearly unacceptable, and more needs to be done to ensure that our police officers are able to identify the difference between a disability and intoxication.

That said, the bill is not targeted towards those individuals. It is clearly intended to deal with those individuals who are threatening and abusive and who use physical force, or demonstrate other inappropriate behaviour, to cause harm to police officers and emergency workers, in some instances exposing them to potential health risks.

In principle, you would expect the same treatment if you were caught driving under the influence of alcohol or drugs. As honourable members are aware, the Road Traffic Act provides police with the ability to require a driver to undergo a blood test in instances where they have submitted to a breath analysis or a drug screening test and the results of those tests indicate a presence of alcohol or drugs.

Now I appreciate that in those instances the testing is not done for the purposes of establishing whether an individual is a carrier of a blood-borne virus, and that is where these organisations' concerns rest, but I simply make the point that testing does arise out of the suspected wrongdoing of an individual in other areas of the law. We are not talking about individuals who are going about their business in a civilised or decent way; we are talking about individuals who are assaulting emergency workers.

Whilst I appreciate the concerns raised, in this instance, respectfully, I have not been persuaded to oppose the bill. That said, I do support measures aimed at monitoring the concerns raised by both Hepatitis SA and Positive Life SA.

The Hon. K.L. VINCENT (18:09): I speak today on behalf of Dignity for Disability at the second reading of this bill, the Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Bill 2014. We are prepared to support the second reading of this bill at this stage to ensure further debate, but we do so with serious concerns with the premise of this bill.

Firstly, I would like to acknowledge the extraordinary work that people who work on the frontline in community, social and health services in South Australia do. Whether you are a nurse or a doctor in the ER or intake unit at the Royal Adelaide Hospital, Lyell McEwin, Glenside campus or other SA Health hospital, a police officer at the Christies Beach Police Station, a Families SA child protection worker, or a disability support worker in a school, group home or other environment, we at Dignity for Disability certainly salute your work.

We thank you for your commitment to supporting and empowering people who may be sick, have a disability or in trouble with the law or facing other challenges in their lives. It is not always easy to work with people who have highly stressful and difficult circumstances in their lives.

Where a police officer, support or health worker, or security officer finds themselves in a violent situation it is, of course, never okay for that person to be assaulted in any way, shape or form, whether they are being spat on or having faeces or blood or urine thrown at them, being scratched, hit or face a needlestick injury.

Unfortunately it is a reality of the work of those in the frontline services that one can often face safety risks. For this reason it is more important than ever that we adequately resource our prisons, hospitals, aged care homes, schools, ambulances and houses that are home to people living with a disability so that risks to the teachers, prison guards, ambulance workers and other workers in the frontline are not unduly placed at risk of injury or future illness as a result of violence.

However, this bill which seeks to compel offenders who have assaulted a police officer to submit to a blood test, is of great concern to Dignity for Disability. We would like to put on record these concerns as they are, I guess you could say, threefold. Firstly, the lack of scientific evidence involved in this bill should be a great worry to us all. It is my understanding that zero police officers have acquired HIV or hepatitis through an assault in Australia.

The science suggests that there is either no risk, or negligible risk, of acquiring HIV or hepatitis through spitting and that this risk is also very minimal as a consequence of other methods of assault. At this point I would like to read out two letters submitted to my office by Hepatitis SA and PositiveLife SA. I think it is very important that their concerns are put on the record in their entirety. Firstly, the Hepatitis SA Spitting and Blood-Borne Viruses Fact Check has been circulated to all MPs, as I understand it, and I would like to quote from that today:

1. The risk of contracting HIV, hepatitis C (HCV) or hepatitis B (HBV) from spitting

Saliva in mouth or eyes and bites that break the skin from a known positive source having HBV, the risk is very low.

While there is a very low risk of transmission of HBV, police officers and emergency workers should be vaccinated against the possibility and hence be at no risk of contracting hepatitis B.

Australian Society for HIV Medicine:

'HIV cannot be transmitted through saliva. The only blood-borne virus that can possibly by spitting is hepatitis B, and this is extremely low risk, especially as most health care workers, ambulance officers and police officers are vaccinated against hepatitis B.'

Dr Stephen Christley, Chief Medical Officer SA Health

Advertiser 14.8.14

2. Outcomes for Spitting Incidents in 2013, quoted in The Advertiser on 15.10.14

Of the 77 spitting incidents recorded against SA Health staff and the 111 spitting incidents involving SA Police during 2013, none contracted a blood-borne virus.

'There have been no positive tests in the follow-up…(of spitting incidents)'

Dr Stephen Christley, Chief Medical Officer SA Health

Advertiser 14.8.14

3. Assertion that an SA Police Officer contracted hepatitis C from spittle.

This assertion was made by Mr Morry Bailes, President of the Law Society of South Australia, in his article 'Actions A spit in the Face of Authority' in The Advertiser (18 August 2014).

In this case P v The State of South Australia (South Australia Police) 2013…(12 April 2013) the judge summed up the case of HCV transmission was from the exchange of blood, with no mention of spitting causing the transmission:

'…it has been proved the worker had a significant cut above his nose which bled freely and ultimately required two stitches to close. Secondly, D suffered a number of blows to his face and when observations were recorded following his arrest his face was covered in blood. That in all likelihood was his own blood. During the course of the arrest the worker had to fight with D to restrain him. It is overwhelmingly likely that D's blood smeared parts of the worker's body and clothes, including his hands. In my conclusion it is also to be expected that following the cessation of hostilities the worker would have touched his face to check his condition. This would have given the occasion necessary for the transmission of any infection'.

The submission from Hepatitis SA goes on to mention that:

With a syringe full of blood and a struggle ensuing, there is still the potential for a needlestick injury with a far higher risk of transmitting any blood-borne virus, than spitting.

Under the separate title of 'Testing Issues', it states:

The potential to have false positive test result causing more panic than if the source had not been tested at all.

The potential for a false negative test would lead to false sense of security about not being infected and thus not practising the usual safeguards for the required window period following a new infection.

If the source person is in the window period, (only recently infected), he/she may not give a positive diagnostic test, but still be able to transmit the virus.

The legislation is a total contradiction of the first principle that guides the national testing policies for viral hepatitis in Australia which state that testing should be confidential and involuntary with informed consent.

The third and final headline is 'Stigma and discrimination', under which it states:

Hepatitis SA believes that the proposed legislation will only serve to foster discrimination against all people with blood-borne viruses while providing little real benefit (and indeed may cause harm) to police officers and emergency workers, and their families.

I will end there in quoting that document. I would also like to put on the record the correspondence that Positive Life SA has sent my office about this bill. I also note that both of these letters had references for the evidence that they are citing, which is something lacking, I think, in the bill before us. I will briefly quote the Positive Life SA letter:

Positive Life SA has recently been made aware of proposed changes to the Criminal Law (Forensic Procedures) Act 2007 detailed in the Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Bill 2014 currently before the South Australian Parliament. While we are aware that this is now at its third reading, we strongly urge you to reconsider this ill-conceived legislative amendment that will most certainly not achieve its stated intention, and may even cause harm.

Positive Life SA agrees that it is unreasonable for police to be spat on whilst carrying out their duties. Anyone would react emotionally and may even fear the transmission of disease. However, it is not logical to think that the involuntary testing of an offender will remove the fear and stress for affected police officers, or reduce their risk of infection.

Whilst the proposed amendment does not explicitly mention HIV, Positive Life SA is concerned that involuntary blood testing of offenders may include testing for HIV. HIV testing of offenders would be counter-productive—potentially causing additional unnecessary stress to police officers and their families, and increasing the risk of onward transmission of HIV.

The letter goes on to make it very clear that HIV cannot be transmitted through spitting, and that there is no value in HIV testing of an offender in an assailant situation. I will leave that letter there for the time being. Secondly, I would like to note that the bill is an infringement of civil liberties for those forced to submit to an invasive procedure (the blood test) without providing improved outcomes for police, as the Hon. Mr Mark Parnell I believe has already pointed out. Police and anyone else captured by the bill if the amendments are accepted will have no greater certainty about their health status as a result of compelling offenders to submit to blood tests.

Finally, and very importantly, I would like to touch on what I suppose you could call the disability impact of this potential legislation that needs to be considered, and in particular the potential impact on someone on the autism spectrum or someone who, for any other reason, has particular sensory communication differences. For example, a person—let us use the autism example for the time being—might react in a very visceral sensory way if they are approached by a police officer because it is an unexpected approach by a strange person. That may well lead them to unintentionally have physical contact with the police officer and they may in turn be required to undergo a blood test, which would cause that person further stress and does not take into account the particular needs of that person with autism or on the autism spectrum, or for any other reason having different communication or sensory needs.

I think that is certainly something that needs to be considered. I understand that my office has raised that with Vickie Chapman and the Attorney-General's office, and we certainly want to keep that issue on the radar as the bill progresses. So, as I said, we are willing, for those reasons, to allow the bill to go through the second reading, but we are very concerned about this bill and will be raising many more questions about it as it progresses. In closing, I would like to thank the Attorney-General's office for providing the comprehensive briefing that my office has received on the issue, but we continue to have significant concerns about this bill and will make those concerns very clear as the debate progresses.

Debate adjourned on motion of Hon. J.M. Gazzola.