Safe behaviours and disclosure

In a number of instances, post-HIV test discussions and discussions during subsequent consultations have been relevant to criminal proceedings against individuals charged with exposing others to HIV infection or transmitting HIV. Health care providers have been called to give evidence about the information they provided to their patients, and their understanding of their patients’ awareness of their obligations to prevent transmission. For example:

• In 2002, a Western Australian man (Houghton) was charged with unlawfully inflicting grievous bodily harm under section 297 of the Western Australian Criminal Code, for having transmitted HIV infection to a woman through sex. Though aware of his HIV-positive status, Houghton claimed that counselling (now known as ‘discussion’) led him to believe it was safe to have unprotected sex if he did not ejaculate semen into the sexual partner. Houghton did not disclose his HIV-positive status to the complainant, testifying he did not want to ‘scare her off’. On appeal, the court held that Houghton had not had an honest belief that withdrawal prior to ejaculation during sexual intercourse would prevent transmission, because he would not have received such advice from the medical professionals who counselled (i.e. undertook post-test discussion with) him. The court also noted Houghton had had unprotected sex with his ex-wife who remained HIV negative but had conceived a child by him after his diagnosis.
• In 2006, a New South Wales man (Kanengele-Yondjo) was charged with two counts of malicious wounding or infliction of grievous bodily harm under section 35 of the NSW Crimes Act 1900, for transmitting HIV infection to two women through sex. The court accepted the accused had told the women he did not have HIV, and pressured and coerced them into having sex without a condom, including removing a condom during sex on at least one occasion. Evidence relating to his post-HIV test counselling (discussion) and to discussions that ensued was central to the case (see box below), as the judge accepted that the experienced medical practitioner had clearly and diligently communicated Kanengele-Yondjo’s obligations to prevent HIV transmission.

These cases emphasise how important it is for doctors to provide clear and unambiguous advice to patients who test positive for HIV about the risks of transmitting HIV to others and their responsibility to take steps to avoid transmission.

When advising patients, clinicians should explain the strong clinical evidence that demonstrates that someone with a sustained undetectable viral load has a next-to-zero/negligible chance of sexually transmitting HIV ^[2]. ASHM has now issued the Guide for Clinicians and other Healthcare Providers to discuss Undetectable = Untransmittable.

The courts are yet to examine the scenario in which an individual accused of exposing others to HIV or transmission of HIV, uses undetectable viral load as a defence against the allegation; on the grounds that they were uninfectious. Where evidence is adduced that the individual’s clinician advised them that they could have condomless sex with effectively no risk of transmission of HIV due to maintaining an undetectable viral load, the court would consider whether the clinician acted reasonably and would likely have regard to what is the accepted standard of care. With the development of the ASHM Guide on U=U, there is now evidence-based, peer advice supporting clinicians’ choice to promote the benefits of the U=U message. This will likely be considered an authoritative source of what is best practice. As mentioned above, it is strongly recommended that clinicians record in their clinical notes the content of any discussion about risk.

The following is an extract of court proceedings from the appeal of Kanengele-Yondjo v. R [2006] NSWCCA 354, convicted of two counts of causing grievous bodily harm for transmitting HIV infection to two women. The doctor’s evidence was used to establish the facts of Kanengele-Yondjo’s diagnosis, his interactions with clinical staff, and to confirm the patient understood his obligation to avoid transmitting HIV. His appeal was unsuccessful. Kanengele-Yondjo was sentenced to 12 years imprisonment. 

The transcript is included here as an example of the way in which a court may treat a doctors’ evidence in an HIV-related trial. 

The undisputed acts as stated by the sentencing judge in his Remarks on Sentence were as follows:

• In February 1999, [the general practitioner] advised [the accused] that he was HIV positive.
• [The general practitioner] was the attending medical officer providing ongoing HIV medical care to Kanengele-Yondjo.
• On 2 February 1999 [the general practitioner] interviewed [the accused]. On 4 February 1999, HIV antibody testing was undertaken and on 5 February 1999 [the accused] was diagnosed as HIV positive.
• On 5 February 1999, in addition to notifying the accused of his HIV-positive result, the accused was counselled by [the general practitioner] in relation to how the HIV virus was transmitted, how to undertake safer sexual practices, the fact that all persons with HIV remain infectious to their sexual partners for life, the legal responsibility to notify future sexual partners of his HIV status, and of the necessity to use a condom on all occasions of sexual intercourse.
• In the course of the counselling on 5 February 1999 [the general practitioner] also told [the accused] that if he was to transmit HIV infection to anyone, in the future civil or even criminal action could potentially be undertaken against him if there was a failure to take steps to prevent the transmission of HIV by notifying sexual partners and by using a condom.
• In the course of this counselling, the accused’s responsibility to notify of his HIV status and to use condoms in the course of sexual intercourse were emphasised several times. The modes of transmission of HIV, the need to adhere to safe sexual practices and the accused’s legal responsibilities were emphasised as a priority during initial consultations.
• [The general practitioner] who has eighteen years’ experience in the field of HIV/AIDS clinical care, sexual health care and prevention of sexually transmissible infections, was assured by [the accused] that he could understand his responsibilities at that time.
• In the case of [the accused] [the general practitioner] gave to him more information and more explicit direction than any other person for whom she has provided medical care. Over the course of several interviews [the general practitioner] emphasised to the accused that contact details of all known sexual partners were needed to identify anyone with HIV so that they could access appropriate treatment if needed and so that those persons did not transmit HIV to their sexual partners.
• The accused was initially reluctant to disclose the information relating to his sexual partners. He was seen by a second medical practitioner [who] advised the accused of his responsibilities to provide the information and of the consequences of failure to provide that information.
• On 21 February 2001 [the accused] indicated to [the general practitioner] that he would be going to Africa for a 4-6 month period. On 2 March 2001 the accused was noted as having stable immune monitoring. The accused told [the general practitioner] that he was going to remain off treatment while overseas.
• On 10 February-April 2000 [the accused] was referred to a clinical psychologist for support concerning issues relating to directions in his life and the need to meet family obligations in Australia and in Africa. The accused failed to attend a pre-arranged follow-up consultation.
• On 6 June 2001 the accused told [the general practitioner] that he had returned from a 12 month visit to Africa. He was tested at the [clinic] and was advised to attend for further assessment in 6 weeks’ time and to discuss possible recommencement of antiretroviral therapy. [The accused] was lost to follow-up following this visit and [the general practitioner] had no further contact with him for clinical care.

From the transcript of the appeal decision in Kanengele-Yondjo v. R [2006] NSWCCA 354. 
* General practitioner full name and accused’s name removed. 

The HIV Futures 9 ^[1] (2018/19) report found that of the 847 HIV-positive people living in Australia surveyed for that study:

• Nearly one in three (30.1%) had not been sexually active in the past six-months, 16.8% had been sexually active with only one regular partner, 28.2%% had been sexually active with a regular partner plus other sexual partners, while 24.6% had been sexually active with casual partners only.
• 7% were in a regular relationship with one partner
• Of those in a regular relationship, 29.8% reported their partner was HIV positive, 65.5% reported their partner was HV negative, while 4.7% did know how their partner’s HIV status.
• 3% agreed with the statement “HIV has had a negative impact on my sexual pleasure”
• 45% agreed with the statement “I have avoided sexual and intimate relationships since I was diagnosed with HIV”
• 7% agreed with the statement “I enjoy sex more when my partner is on PrEP”

In HIV Futures 8^[1]  (2015/2016): the report found that of the 895 HIV-positive people living in Australia surveyed for that study:

• 2% had not been sexually active in the past 6-months, 16.6% had sex with one regular partner only, 18.1% had sex with more than one regular partner or regular plus casual partners, and 29.1% had sex with casual partners only.
• 0% were in a regular relationship with one partner, and 8.4% were in a regular relationship with one partner plus other regular or casual partners.
• Of those in a regular relationship, 30.9% reported that their partner was HIV positive, 67.1% reported that their partner was HIV negative and 2.0 did not know their partner’s HIV status.
• Of those in a regular relationship, 98.3% had disclosed their HIV status to their partner.
• Of those in a regular relationship, 6.5% reported that their (primary) partner had used PrEP, 4.1% reported that their partner had used PEP at least once, and 25.5% indicated that they and their partner always used condoms during sex.
• 1% indicated that they understand the current laws in their state or territory regarding disclosure of HIV status to sexual partners
• 1% agreed/strongly agreed that they are worried about disclosing their HIV status to sexual partner’s because of the current laws
• 9% agreed/strongly agreed that they are worried about disclosing their sexual practices to service providers because of current laws.
• 9% agreed/strongly agreed that laws making it a criminal offence to knowingly expose a person HIV would make them less likely to disclose their HIV status to a potential sexual partner.