Reckless Endangerment

Reckless endangerment: criminal & public health

approaches – conflicting or complementary?

Mike Kennedy

AFAO Educators Conference

Wollongong

27 May 2008

Two public policy approaches:

• Criminal law – designed to punish “offender”; provide justice for “victim”; deter others

• Public health law – modifying “risky” behaviours through counselling and support; placing the person under the least restriction possible while protecting public health

Where do I find the law for my State or Territory

www.austlii.edu.au

The law (1)

• Legal offences relating to HIV are covered under State/Territory legislation

• No nationally consistent legislation• Transmission is regulated by two areas of

law – criminal law and public health law• Dual systems in most States/Territories

since the early 1990s (except Western Australia, the ACT and the Northern Territory)

The law (2)

• Lack of consistency in terms of what type of legislation is used in a particular case (i.e. criminal, or public health, or criminal/public health law provisions)

• Lack of consistency in types of offences• Lack of consistency in penalties

Type of legislation used

Jurisdiction Criminal Law Public Health Law

NSW Crimes Act 1900 s33,35 Public Health Act 1991 s13

Victoria Crimes Act 1958 s16, 17, 19a, 22

Health Act 1958 s120

Queensland Criminal Code 1899 s317, 320 Public Health Act 2005 s143

WA Criminal Code s294,297

SA Criminal Law Consolidation Act 1935 s29

Public and Environmental Health Act 1987 s37Tasmania Criminal Code Act 1924 s170,

172HIV/AIDS Preventative Measures Act 1993 s20

ACT Crimes Act 1990 s19, 25

NT Criminal Code Act s177,181

Types of offences (criminal)

Serious diseases and grievous bodily diseases

• Victoria, NSW, Queensland and WA all make it an offence to either transmit , or infect someone with, a serious or grievous bodily disease

• Victoria has enacted specific criminal laws dealing with the transmission of serious diseases (HIV)

• NSW, Queensland and Western Australia have incorporated transmission into grievous bodily harm offences

Grievous Bodily Harm or Serious Harm

Grievous Bodily Harm Serious Harm

NSW

Queensland

Tasmania

ACT

Victoria

NT

Commonwealth

Crimes Act 1900 (NSW)

1 Wounding or causing grievous bodily harm with intent

(1) Intent to cause grievous bodily harm. A person who:(a) wounds any person, or

(b) causes grievous bodily harm to any person

with intent to cause grievous bodily harm to that or any other

person is guilty of an offence.

Maximum penalty: Imprisonment for 25 years


35 Reckless grievous bodily harm or wounding

(1) Reckless grievous bodily harm in company. A person who, in the company of another person or persons, recklessly causes grievous bodily harm to any person is guilty of an offence.

Maximum penalty: imprisonment for 14 years

(2) Reckless grievous bodily harm. A person who recklessly causes grievous bodily harm to any person is guilty of an offence

Maximum penalty: imprisonment for 10 years


2007: NSW amended the Crimes Act 1900 to remove s.36 (causing a grievous bodily disease) and amended s.35 to remove “malicious” as an element of that offence. The s.4 definition of GBH was amended to include causing a grievous bodily disease.

In the NSW case of R –v- Kanengele-Yondjo (2005) Hislop J. set out the difference between an offence under the now-repealed s.36 (which required intent) and s.35 (which arises where someone has been reckless or indifferent)

Criminal Code 1899 (Queensland)

317(b) Acts intended to cause grievous bodily harm and other malicious acts

Any person who, with intent to do some grievous bodily harm or transmit a serious disease to any person, in any way unlawfully wounds, does grievous bodily harm, or transmits a serious disease to, any person is guilty of a crime and is liable to imprisonment for life.

R-v- Reid (2006) One count of intention to transmit a serious disease: unprotected intercourse with another man and intentionally failing to disclose – sentence 10 ½ years

Criminal Code 1899 (Queensland)

• Grievous bodily harm

Any person who unlawfully does grievous bodily harm to another is guilty of a crime and is liable to imprisonment for 14 years.

s.1 defines GBH in part as “any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health”

Endangerment

• Victoria and South Australia extend culpability beyond actual harm and have legislated against a person doing acts that do or may place another person’s life or safety in danger

e.g. Crimes Act 1958 (Vic)

22 conduct endangering life

A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence

Penalty: Level 5 imprisonment (10 years maximum)

Disclosure

• NSW law requires that any person that is suffering from a sexually transmissible condition must disclose their status to any potential sexual partner

• Tasmania is the only other State in Australia that applies a similar disclosure requirement. However, it differs from NSW in that it only applies to a person who is infected with HIV and also requires disclosure where a person living with HIV is sharing needles

Attempts

• In all jurisdictions, attempting to commit an offence also constitutes an offence, although with a lower penalty

Public Health Offences

Infection/Transmission/Exposure

• Victoria and Queensland both make it an offence to transmit or infect another person with an infectious disease/controlled notifiable condition

• Queensland has an additional offence relating to when someone exposes someone else to the risk of contracting a controlled notifiable condition

Reasonable measures to prevent transmission

• South Australia requires that a person “take all reasonable measures to prevent transmission”. Unlike in Victoria and Queensland, the emphasis is on the actions of the infected person to prevent transmission rather than whether infection, or the risk of infection, took place

• Tasmania has a similar requirement to South Australia; however the law also requires that a person discloses their status prior to sex or sharing a needle

Penalties

• Under criminal law, these vary significantly – from life imprisonment for transmitting a serious disease in Queensland to two years for causing GBH in the ACT

• A person can be either imprisoned or fined if they contravene the relevant public health legislation in Queensland, Tasmania and South Australia. In NSW and Victoria the maximum penalty is a fine

The context

A rise in the number of criminal prosecutions in Australia

• Prior to 2004, only a handful of criminal cases relating to HIV transmission in Australia (mostly in Victoria)

• Since then, at least one criminal prosecution in most States (except ACT, NT or Tasmania)

• Key cases– Michael Neal (Vic) - Stuart McDonald (SA)– Andre Paranzee (SA) - James Richards (Qld)– Mark Reid (Qld) - Ronald

Houghton (WA)– Stanislaus Kanengele –Yodjo (NSW)

A move towards national consistency?

• In June 2007, the Australian Health Ministers Conference (AHMC) adopted a recommendation to implement a nationally consistent framework for managing people with HIV who risk infecting others

• Efforts to implement a national Model Criminal Code in the 1990s did not succeed and have now been de-prioritised by Justice/A-Gs Departments

An increased international focus on criminalisation

• UNAIDS currently undertaking a consultation process to revise their 2002 publication Criminal Law, Public Health and HIV Transmission: a policy Options Paper

• In recent years, countries such as China, Singapore, Zimbabwe, Lesotho and Swaziland have enacted or introduced legislation criminalising HIV transmission

• High profile cases in countries such as Sweden, UK, Azerbaijan and Canada

• Plenary and conference sessions on criminalisation at AIDS 2008 in Mexico in August

Australian Health Ministers Council Meeting (24 July 2007)

• 16 recommendations adopted• Support for current systems• “Intent to cause serious harm” – criminal;

“reckless” or “negligent” – public health• Develop agreed police-Health protocols• No evidence that mandatory disclosure is

preventive & may do harm to prevention

7.That States and Territories do not introduce mandatory reporting by clinicians to public health authorities of suspected risk behaviour by patients except in circumstances where clinicians have a reasonable suspicion that a person has intentionally infected or may intentionally infect others. Instead, public health officials should work with clinicians to educate and support them to undertake the full range of their preventative work, including, when appropriate, reporting risk behaviour they cannot manage.

Stop press

• National Guidelines endorsed by Health Ministers - Friday 18 April

• Uploaded on all State/Territory health websites, notification to Medical Boards, professional organisations – 18 May

• State/Territory based training – August-September

• Health-law enforcement protocols – December

NB Check against published Guidelines after 18 May

Referral to police:

• Protocols in place• CHO or equivalent – always with legal advice

– Immediately where there are clear grounds for a charge involving intentionally causing serious bodily harm; or

– After further examination and/or intervention where there is apparent unwillingness to alter behaviour that recklessly or negligently endangers or causes serious harm


Management Framework

Level 1: counselling, education and support

Level 2: counselling, education and support under advice from HIV Advisory Panel to CHO or equivalent

Level 3: Management under behavioural order

Level 4: Detention or isolation

Level 5: Referral to police


Other elements

• HIV Advisory Panel in each State/Territory• Maintain, discharge or escalate management• Administrative and/or judicial review of decisions


Acknowledgments and thanks

David Scamell ACON

Grant Davies Melbourne Uni

Colin Batrouney VAC/GMHC

Health & Medicine

Reckless Endangerment