HIV and Disclosure - Know your rights and obligations

HIV & Disclosure

Disclosure or telling someone you are HIV positive is a very private and personal step for you to take.
The following information will help you make informed decisions about this important step.

Telling others

First, consider yourself and your needs for support. There’s no panic or hurry so take your time. You may want some more information. Contact us if you do.

We have listed (as best we can) your responsibility around this issue in regards to your medical support team (e.g. doctors, dentists) and your sexual partners.

Public Health

As of January 2017, HIV is now classified as a notifiable disease, just like AIDS, tuberculosis, hepatitis, etc.

Notifiable diseases may be recorded against your personal NHI number.

Your rights of privacy are and should always be respected. Let us know if they are not.
Often those closest to you are the most difficult to tell.
In New Zealand, if you are living with HIV, you do not legally have to disclose your status to your sex partner(s) before having sex as long as you use a condom for vaginal or anal intercourse.
You DO NOT have a legal duty to disclose your HIV status before having:
vaginal or anal sex if you use a condom
You DO have a legal duty to disclose your HIV status before having:
vaginal or anal sex without a condom (regardless of your viral load)

Human Rights Act 1993

In New Zealand it is illegal to discriminate against HIV+ people.

Sect 21(h)(vii) Prohibited grounds of discrimination “The presence in the body of organisms capable of causing illness.”

You cannot be sacked from employment or thrown out of accommodation. You cannot be refused medical, hospital or dental treatment. Shops, business, restaurants and service providers cannot refuse to serve you.

HIV & the Law

2011 Legal Opinion by Prof Paul Rishworth
in 2011 Body Positive asked Barrister Prof. Paul Rishworh to give his opinion on the current legal liability of HIV positive persons engaging in sex.
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You and the New Zealand Medical Association:

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  • Your doctor should make a thorough assessment with you of your circumstances and your sexual relationships and practices.
  • A part of this discussion with you should include, either providing information about HIV/AIDS and the risks to sexual partners, or those sharing IV equipment etc., or arranging for information to be provided.
  • You should be encouraged to tell your sexual partner or others at risk that you are HIV positive, and what the risks are. Your doctor should offer himself or herself or another appropriate professional as someone that your sexual partner may discuss the facts and issues with – but not further and unnecessary information about you. This might best be done together with you.
  • If you are unwilling to do so, and your doctor’s judgement after the comprehensive assessment is that there is a serious and imminent risk to another’s health, then your doctor should consider disclosing this information.
  • In forming this opinion, your doctor should consult with colleagues. This should be not only with a trusted close colleague and co-worker, but also potentially with an expert in the field. Your doctor should tell you that he/she is doing so.
  • If the consensus is that the risk is both serious and imminent and that the information should be disclosed, you must, where possible, be brought into the picture and told the course of action that your doctor intends to take.
  • If your sexual partner is a patient of the practitioner, your doctor may consider relaying the information directly if the final decision is that this should be done. If your sexual partner or the person at risk is not an active patient of that practitioner, then appropriate authorities, usually the local Medical Officer of Health should be informed.

You and the New Zealand law and potential criminal liability:

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The Crimes Act states...
  • (HIV+ people) “... are under a legal duty to take reasonable precautions against, (transmitting infection) and to use reasonable care to avoid such danger, and are criminally responsible for the consequence of omitting without lawful excuse in discharging that duty.”
  • HIV+ people can exercise their “duty of care” by ensuring good quality condoms are correctly used when they engage in sexual activity.
  • In New Zealand there have been several court proceedings and convictions against HIV+ people who have NOT used condoms and NOT declared their HIV+ status before having sex.
  • HIV+ people DO NOT need to declare their HIV+ status when condoms are used. Nor do they need to declare their HIV status when oral sex is performed.
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