Watching the detectives: a successful policy intervention in Victoria
Watching the detectives: a successful policy intervention in Victoria
HIV Australia | Vol. 14 No. 1 | March 2016
By Paul Kidd
Despite three decades of education and awareness-raising, misconceptions persist about the risk posed by people living with blood borne viruses (BBVs) in occupational settings.
These misconceptions most often surface in health care, sporting and emergency services environments, often in response to genuine and well-intentioned concerns for ensuring a safe work environment.
In early 2015, Living Positive Victoria (LPV) was approached for advice on a draft Victoria Police (VicPol) policy that would have had the effect of restricting people with HIV, hepatitis B or hepatitis C infection from serving as sworn police officers in Victoria. This article describes the successful policy intervention the organisation was able to undertake, which resulted in the draft policy being dropped from consideration.
LPV was contacted by a member of the VicPol policy review group, who provided us with a draft Victoria Police Manual document entitled ‘Recruitment and Management of Employees with Blood Borne Transferable Diseases’.
The document set out proposed procedures to be employed where a prospective VicPol recruit or serving member was diagnosed with a BBV. The policy would have required recruits and serving police to: mandatorily disclose any diagnosis with a BBV; undergo ‘ongoing medical risk assessments’ by the police medical officer, including compulsory blood testing; and, where the medical officer so advised, potentially be refused employment (in the case of prospective recruits) or be placed on ‘restricted non operational or alternative duties’ (in the case of serving members).
The policy was contextualised in terms of meeting VicPol’s obligations to provide a safe working environment for its employees and minimising any risk to members of the public. It acknowledged the responsibility of VicPol to provide ‘an equitable, diverse and fair workplace’ as well as its obligation to comply with anti-discrimination laws. These are laudable aims; however it was immediately apparent the proposed policy overstepped what would be reasonable or appropriate measures to achieve them.
Occupational transmission of BBVs
Police work is by its nature high-risk compared to many other professions, and serving police face significant occupational health and safety risks as part of their role, including possible assault, homicide, and mental health conditions arising out of stress, fatigue and trauma, as well as exposure to communicable diseases.1
The risk of occupational transmission of BBVs in police settings has not been conclusively quantified, but transmission via this route is exceedingly rare. More data are available relating to the risk of transmission in healthcare-related settings, which confirm the low level of risk for occupational exposure generally.2, 3
Numerous procedures and guidelines for minimisation of risk of occupational exposure exist, ranging from the use of protective barriers such as gloves and face masks to the implementation of post-exposure protocols including post-exposure prophylaxis (PEP) in the case of possible HIV exposure.
Overseas studies have shown strong evidence for the efficacy of PEP when used by police following blood exposure, but it is rarely used in this context due to the low level of risk of occupational exposure.4, 5
The draft policy included a requirement that all VicPol members who have been diagnosed with a BBV disclose this to their manager; it proposed to institute a program of ‘compulsory annual/ongoing testing’ for members who did so.
The police medical officer would then make a determination of the member’s suitability for duty based on the ‘level of risk’ determined from viral load and other clinical markers.
We considered this a particularly troubling aspect of the policy: there is no scientific basis for restricting duties based on HIV, hepatitis B or hepatitis C viraemia.
We argued that the requirement for members to disclose their BBV status, and to undergo mandatory testing, represented an unacceptable intrusion into the privacy of police employees with no epidemiological or scientific justification.
Lawfulness of the draft policy
Discrimination on the basis of disability (which includes chronic infection with a BBV) is unlawful under both Victorian and Commonwealth law, except in cases where an exception or exemption applies.
In Victoria, Part IV of the Equal Opportunity Act 2010 (Vic) (‘EOA’) prohibits discrimination against employees and prospective employees on the basis of disability.6 The EOA applies to Crown authorities including Victoria Police.7
The Act provides for a number of exceptions to the law, including the scenario where the (prospective) employee’s disability requires the employer to make adjustments to work practices or the workplace in order to accommodate the disability, and where such adjustments cannot reasonably be made.8 As there was no applicable exception or exclusion that applied, the draft policy was prima facie unlawful under the EOA.
Discrimination is also prohibited under federal law via the Disability Discrimination Act 1992 (Cth) (‘DDA’). In similar terms to the EOA, the DDA prohibits discrimination in employment and hiring based on the (prospective) employee’s disability9, except where the employer can show the disability would prevent the employee carrying out ‘the inherent requirements of the particular work’10, or where the adjustments needed would cause ‘unjustifiable hardship’ to the employer11.
The draft policy was apparently drafted with the ‘inherent requirements’ test from the DDA in mind, using this phrase to describe the assessment of the member’s suitability for duty to be made by the police medical officer (although in other parts of the document the requirement was that the member be ‘non-viraemic’).
The ‘inherent requirements’ test was considered by the High Court in 1999 in X v Commonwealth.12
That case concerned an Australian Defence Force recruit who was discharged following a positive HIV diagnosis.
Gummow and Hayne JJ (Gleeson CJ and Callinan J agreeing) held that the test should be applied taking into account the particular circumstances: in this case, deployment to battlefield was a necessary part of the employment of an ADF member, and an inherent requirement of that role was the ability to undergo battlefield injury and medical treatment without endangering others with infection (ie. to ‘bleed safely’).
The High Court accepted the Commonwealth’s argument that the dismissal was lawful as it attracted the s 21A exemption.13
In our response to the draft policy, LPV argued that it was highly unlikely a court would support an exemption to the DDA on similar grounds: the availability of emergency medical treatment across Victoria, the personal protective equipment issued to all VicPol members, and the availability of PEP in cases of percutaneous exposure, all militate against the application of any exemption.
A final aspect of our response was the application of the Victorian Charter of Human Rights and Responsibilities (‘the Charter’).14
While the Charter gives rise to no actionable rights per se, it obliges all public authorities to act in a way that is compatible with the rights set out within it. We argued that the proposed policy was incompatible with the right to equality before the law and the right to privacy, set out in sections 8 and 13 of the Charter respectively.
This was a successful policy intervention for Living Positive Victoria. We were advised that the proposal to restrict employment of sworn police with BBV infections had been dropped from further consideration in response to our submissions.
Our experience in this matter shows that discrimination against people with HIV remains a live issue, despite the strong legislative protections in place across Australia, and the Charter protections for human rights in Victoria and the ACT.
We were able to successfully assist the state police service with achieving a policy outcome consistent with both anti-discrimination law obligations and current medical science. Greater formal and informal contact between HIV sector agencies and police and other emergency services can help achieve similar outcomes elsewhere.
1 Mayhew, C. (2001, February). Occupational Health and Safety Risks Faced by Police Officers. Trends and Issues in Crime and Criminal Justice, No. 196. Australian Institute of Criminology, Canberra.
2 Kuhar, D., Henderson, D., Struble, K., Heneine, W., Thomas, V., Cheever, L., et al. (2013). Updated US Public Health Service Guidelines for the Management of Occupational Exposures to Human Immunodeficiency Virus and Recommendations for Post exposure Prophylaxis, 34(9), Infection Control and Hospital Epidemiology, 875–892.
3 Centers for Disease Control and Prevention. (2001). Updated U.S. Public Health Service Guidelines for the Management of Occupational Exposures to HBV, HCV, and HIV and Recommendations for Postexposure Prophylaxis. Morbidity and Mortality Weekly Report, 50(RR-11), 1–42.
4 Merchant, R., Nettleton, J., Mayer, K., Becker, B. (2008). HIV post-exposure prophylaxis among police and corrections officers, Occupational Medicine, 58(7), 502–505. doi: 10.1093/occmed/kqn083
5 Sonder, G., Bovée, L., Coutinho, R., Baayen, D., Spaargaren, J., Anneke, H. et al., (2005). Occupational exposure to bloodborne viruses in the Amsterdam police force, 2000–2003. American Journal of Preventative Medicine, 5, 169–174.
6 Equal Opportunity Act 2010 (Vic), ss 16, 18.
7 ibid. s 5.
8 ibid. s 23.
9 Disability Discrimination Act 1992 (Cth), s 15.
10 ibid. s 21A.
11 ibid. s 21B.
12 X v Commonwealth. (1999). 200 CLR 177.
13 For a more detailed discussion of X’s Case, see: Hirst, M. (2000). X v Commonwealth: Inherent Requirements and the HIV Soldier: Casualties of the Anti-Discrimination Battlefield. University of Queensland Law Journal, 21(1), 102.
14 Charter of Human Rights and Responsibilities Act 2006 (Vic).
Paul Kidd is the Chair of the Victorian HIV Legal Working Group.