New Mandatory Disease Testing Scheme in NSW

New South Wales has introduced a mandatory blood testing scheme in circumstances where a health, emergency or public sector worker is at risk of contracting a blood-borne disease.

Mandatory Disease Testing Bill 2020 (NSW)

This article applies to health, emergency and public sector workers, and organisations that operate pathology laboratories.

Please be advised that the Mandatory Disease Testing Bill 2020 (NSW) (the Bill) passed its Third Reading in the New South Wales Parliament on 13 May and received Royal Assent on 17 June 2021. The Bill provides for a scheme under which a person (the third party) is required to undergo mandatory blood testing in circumstances where a health, emergency or public sector worker is at risk of contracting a blood-borne disease as a result of contact with the third party’s bodily fluid.

Applications for mandatory testing orders

The Bill provides that, if a worker has come into contact with the bodily fluid of a third party, the worker may apply for an order requiring the third party to provide their blood to be tested for blood-borne diseases (a mandatory testing order). For the purposes of a mandatory testing order, the contact must occur without the consent of the worker and in the execution of their duty, and as a result of a deliberate action of the third party. Classes of person’s classified as workers under the Bill include persons employed in the NSW Health Service, persons engaged by a statutory health organisation within the meaning of the Health Services Act 1997 (NSW) to enable the organisation to exercise its functions, and persons engaged by a public hospital controlled by the Crown to enable the hospital to exercise its functions.

A mandatory testing order must be made in writing to the worker’s senior officer within 5 business days after the contact, and must set out:

  • a detailed description of the contact, including the date, time, place, surrounding circumstances and nature of the contact;
  • the name and address of the third party, if known;
  • a statement that the worker did not consent to the contact, and a statement that, in the opinion of the worker, the contact was a deliberate action of the third party;
  • a statement that the worker consulted a relevant medical practitioner in accordance with section 8 of the Bill, and the name and contact details of the relevant medical practitioner;
  • a copy of any written advice received from the relevant medical practitioner;
  • the name and contact details of a medical practitioner authorised by the worker to receive, on the worker’s behalf, the results of the testing of the third party’s blood; and
  • a statement that the worker consents to the worker’s senior officer discussing the consultation with the relevant medical practitioner and obtaining the worker’s medical records relating to the contact if required.

A worker who applies for a mandatory testing order must, within 24 hours after the contact occurs (or within 72 hours if reasonable in the circumstances), consult a medical practitioner in relation to the contact. The medical practitioner must inform the worker of the risk of contracting a blood-borne disease as a result of the contact, the appropriate action to be taken by the worker to mitigate the risks of contracting a blood-borne disease or transmitting it to another person, and the extent to which testing the third party’s blood for blood-borne diseases will assist in assessing the risk to the worker.

The relevant senior officer may make the mandatory testing order if satisfied that the third party will not voluntarily provide blood to be tested, and that the testing is justified in the circumstances. In the event that the third party is considered to be vulnerable (being a person who is between 14 and 18 years of age, or a person who is suffering from a mental illness or mental condition or who is cognitively impaired within the meaning the Mental Health (Forensic Provisions) Act 1990 (NSW) which significantly affects the vulnerable third party’s capacity to consent to voluntarily provide blood to be tested), the senior officer is required to apply to the Court for a mandatory testing order.

Carrying out of mandatory testing

A mandatory testing order authorises a person of a class approved by the Health Secretary to take blood from the third party in relation to whom the order is made, even if the third party does not consent to provide blood. A person taking blood from a third party under a mandatory testing order must:

  • be presented with a copy of the mandatory testing order relating to the third party before taking their blood;
  • take blood in a manner consistent with relevant medical and other professional standards; and
  • not use force to take the blood, other than force that would ordinarily be required to take blood from a person.

Organisations should note that blood taken from a third party under a mandatory testing order must be tested in a pathology laboratory accredited by the National Association of Testing Authorities for that purpose, and the pathology laboratory must, as soon as practicable, provide the blood test results to:

  • the medical practitioner authorised by the worker to receive the blood test results on the worker’s behalf;
  • the medical practitioner authorised by the third party to receive the blood test results on the third party’s behalf, if any; and
  • the Chief Health Officer, if the third party does not authorise a medical practitioner.

The pathology laboratory may destroy the blood sample as soon as it is no longer required.


Please click here to access the full Bill.

Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au

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