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Legislative Assembly for the ACT: 2000 Week 9 Hansard (7 September) . . Page.. 3104 ..

MR STANHOPE (continuing):

"(j) for the purpose of the suspect's, serious offender's or volunteer's medical treatment if a doctor certifies that medical treatment is necessary because of an imminent risk to the life or wellbeing of the person;

(k) for the purpose of the medical treatment of a victim of an offence if a doctor certifies that medical treatment is necessary because of an imminent risk to the life or wellbeing of the victim;".

Mr Speaker, the amendment to clause 111 is an important amendment. It is about an issue I did discuss previously. The disclosure of a medical condition revealed as a result of an analysis of a forensic swab raises significant issues that are worth considering.

The circumstance we are debating here, Mr Speaker, is a situation in which, as a result of an analysis of a forensic sample, it is discovered that the person from whom the sample was taken is suffering a medical condition or disease or has some genetic predisposition to a medical condition or a disease. This raises a very important question. In what circumstances does a doctor or somebody undertaking an analysis of a forensic swab inform either the person from whom the sample was taken or anybody else who is assumed to have been the victim of that offender of the results of that analysis?

It is a difficult issue. It is a sensitive issue. It is an issue in relation to which the AMA, for instance, has a particularly strong view that it is not appropriate to do so without any reference to protocol or any acknowledgment of a person's inherent right to privacy about their medical situation or condition and, of course, without breaching the fundamental doctor/patient relationship. But it is a difficult issue.

We are dealing with an alleged offender. We are dealing with a suspect. We are dealing with somebody that has not been convicted of a crime, albeit they are suspected. They are alleged to have perpetrated a crime. In circumstances particularly of a sexual offence where there has been an exchange of blood or other body fluid and there is a risk of transmission of disease, of course there would be serious alarm on the part of the victim.

This issue has been addressed in other jurisdictions. As I mentioned before, the Victorian government in introducing the DNA legislation decided that it would be appropriate to allow the disclosure of information to both the person from whom the sample was taken and the victim of a crime in circumstances where the analysis disclosed that there may be an imminent risk to the life or the wellbeing of either the offender or the victim.

This amendment seeks to include the same formulation in this bill, that one of the factors that will be taken into consideration before revealing this sort of information to an alleged offender or to a victim is that there should be an imminent risk to the life or the wellbeing of the offender or victim. In those circumstances, it is appropriate that they be advised of what has been discovered. Of course, there needs to be a significant protocol around how that should be done and how that advice should be provided.

MS TUCKER (11.58): We will be supporting this amendment as well. I can see no rationale for releasing the results of DNA testing for medical purposes if the release pertains only to the offender and it is not at the request of that offender or if the condition is not life-threatening. There are many tests of health that we choose not to take. That freedom to know or not know of our own health or genetic conditions ought not to be stripped from serious offenders merely because the power is there to do so. That would be an abuse of power.

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