Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Bill
11/11/2014
The Hon. K.L. VINCENT: 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 14.8.1 4
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 14.8.1 4
3. Assertion that an SA Police Officer contracted hepatitis C from spittle.
Th is 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.
