134Orders for tests if incident has occurred

134 Orders for tests if incident has occurred (1) Subject to subsection (11), the Chief Health Officer may make an order under this section if the Chief Health Officer believes that— (a) an incident has occurred, while a caregiver or custodian is acting in their capacity as a caregiver or custodian, in which, if any of those involved in the incident were infected with a specified infectious disease, the disease could have been transmitted to any of the other persons involved; and (b) any of those persons to whom the disease could have been transmitted— (i) has been counselled by a person of a prescribed class about the risk of transmission of the disease in the particular circumstances and about the medical and social consequences of being infected with the disease; and (ii) has consented to be tested for that disease; and (c) any of those persons who, if he or she were infected with the disease, could have transmitted it— (i) has been offered counselling, irrespective of whether the offer was accepted, and has refused to be tested for the disease; or (ii) is unconscious or otherwise does not have the capacity to consent to be tested for the disease; and (d) the making of the order is necessary in the interest of rapid diagnosis and clinical management and, where appropriate, treatment for any of those involved. (2) An order made under this section— (a) must be in writing; (b) must give details of the incident which led to its making; (c) must name the person to whom it applies; (d) must name the disease for which the person must be tested, which must be a disease for which another person has agreed to be tested under subsection (1)(b); (e) must require that the person named in the order give a sample of blood or urine or submit to a sample of blood or urine being taken; (f) must specify the place where the person named in the order is required to give a sample of blood or urine or submit to a sample of blood or urine being taken; (g) has effect from the time that it is served on the person named in the order or, if the order is made in respect of a person who is dead, from the time that the order is made. S. 134(3) amended by No. 37/2014 s. 10(Sch. item 136.3(a)). (3) If the Chief Health Officer believes that it is necessary to do so to enforce an order made under this section, the Chief Health Officer may apply to the Magistrates' Court for an order to authorise a police officer to use reasonable force to— (a) take the person named in the order to the place specified in the order; or (b) restrain the person named in the order so as to enable a registered medical practitioner to take a sample of blood or urine; or (c) take the person named in the order to the place specified in the order and restrain the person named in the order so as to enable a registered medical practitioner to take a sample of blood or urine. S. 134(4) amended by No. 6/2018 s. 68(Sch. 2 item 103.1). (4) If the Magistrates' Court is satisfied by evidence on oath or by affirmation or by affidavit that the circumstances are so exceptional that the making of the order is justified, the Magistrates' Court may make the order applied for by the Chief Health Officer subject to any conditions that the Magistrates' Court considers are appropriate. (5) The Chief Health Officer may also make an order under this section in respect of a person who is dead if the Chief Health Officer believes subsections (1)(a), (1)(b) and (1)(d) apply. (6) For the purposes of this section, a person is to be treated as not having the capacity to consent to be tested even if— (a) the lack of capacity is due to a temporary cause; or (b) there is another person who has the capacity to consent to testing on that person's behalf. (7) An order must not be made under this section if more than 1 month has passed since the happening of the incident which would enable the order to be made. (8) The Chief Health Officer may make an order under this section subject to any conditions the Chief Health Officer considers appropriate. (9) The Chief Health Officer may vary or revoke an order made under this section. (10) In this section, ***caregiver or custodian*** means— (a) a person who is employed or engaged by, or performs work at, a health service; (b) a registered medical practitioner; S. 134(10)(c) substituted by No. 13/2010 s. 51(Sch. item 44.4). (c) a person registered under the Health Practitioner Regulation National Law— (i) to practise in the dental profession as a dentist (other than as a student); and (ii) in the dentists division of that profession; S. 134(10)(ca) inserted by No. 13/2010 s. 51(Sch. item 44.4). (ca) a nurse or a midwife; S. 134(10)(d) substituted by No. 13/2010 s. 51(Sch. item 44.4), amended by No. 15/2022 s. 23(a). (d) a student who is registered under the Health Practitioner Regulation National Law by the Medical Board of Australia, the Dental Board of Australia, the Nursing and Midwifery Board of Australia or the Paramedicine Board of Australia; S. 134(10)(e) substituted by No. 15/2022 s. 23(b). (e) a person registered under the Health Practitioner Regulation National Law to practise in the paramedicine profession as a paramedic (other than as a student); (f) a person who is employed or engaged by, or performs work at, a pathology service; (g) a person who— (i) removes human tissue from a person, whether alive or dead; or (ii) handles human tissue— in accordance with the **Human Tissue Act 1982**; (h) a person who carries out an activity of a kind referred to in section 42(1) of the **Human Tissue Act 1982**; (i) a legal custodian of a person who is in legal or protective custody and any person who is employed or engaged by the legal custodian in the course of keeping that person in legal or protective custody; S. 134(10)(j) substituted by No. 37/2014 s. 10(Sch. item 136.3(b)). (j) a police officer; (k) a person who is prescribed to be a caregiver or custodian for the purposes of this section. (11) If in giving effect to this Division alternative measures are available which are equally effective in ensuring the rapid diagnosis and clinical management for any person affected, the measure which is the least restrictive of the rights of the person should be chosen.