The Public Health Act lists HIV as a notifiable disease. Provisions under the Act which theoretically could be applied to HIV are very generalised, written to address a broad range of communicable diseases. The Act includes laws criminalising exposing a person to risk of an infection through presence and conduct in public places, despite the conditions described not preventing any risk of HIV transmission.
The Act includes obligations for a person with a notifiable disease, or a person who suspects they have a notifiable disease, to notify others. There is also an obligation for others (including head of the family, other relative or health care staff to check notification has been made, and if not, to notify. Failure to do so is an offence.
Section 143 states that upon notification, an authorised officer shall take all steps to prevent the spread of the disease in conjunction with the medical officer. These measures may include ordering the patient or contacts or carriers to be detained in hospital or isolated in a suitable place until the medical officer with the approval of the Director of Health is satisfied that there is no risk of the patient or any contact or carrier spreading the disease.
There have been no known HIV criminalisation cases in Tonga, which as of 2015, had only 19 people ever diagnosed with HIV.
Public Health Act 1992
Public Health Act 1992
Section 138 (Schedule 4 – HIV is a notifiable disease)
People with a notifiable disease have a duty to notify cases of the disease, and other people who may be aware that a person has a notifiable disease also have a duty to notify. Where anyone does not, they will be guilty of an offence.
Section 139 – Duty to notify cases of diseases
(1) Where any person is suffering from an illness which creates a reasonable suspicion that he is suffering from a notifiable diseases, it shall be the duty of that person forthwith to notify a medical practitioner or a nurse or an authorised officer or a health officer of the district where that person is residing.
(2) As soon as he becomes aware that a person described in subsection (1) may be suffering from a notifiable disease:
(a) the head of the family of that person;
(b) the nearest relative living in the same premises as that person;
(c) anyone in attendance on that person; or
(d) the occupier of the premises in which that person resides, shall enquire of that person whether notification has been made in accordance with subsection (1) and if he has any reasonable ground to believe such notification has not or may not have been made, he shall immediately notify a medical practitioner or a nurse or an authorised officer or a health officer of the district where that person resides.
(3) On receipt of notification under subsection (1) or (2) the medical practitioner. nurse, authorised officer of health officer shall immediately record the information in the form prescribed under Schedule 5 and deliver such form or the information on such form to the Director of Health within twelve hours of the notification.
(4) Any person who contravenes the provisions of this section is guilty of an offence.
Section 143 – Duty of authorised officer
On receipt of the notification of a case or suspected case of notifiable disease, the Director of Health shall require an authorised officer to take all steps to prevent the spread of the disease in conjunction with the medical officer. These measures may include provisions to:
(a) examine the patient and determine the best practicable means of dealing with the case;
(b) examine contacts or carriers including the taking of specimens for bacteriological and virological or other investigation;
(c) detain, examine and take specimens from any animal or bird or from any material or object which it is considered may be a source of infection or for the transmission of infection;
(d) carry out such concurrent and terminal disinfection and disinsection as is necessary;
(e) vaccinate or immunize the patient and any close contacts of the patient when the medical officer so advises;
(f) order the patient or contacts or carriers to be detained in hospital or isolated in a suitable place until the medical officer with the approval of the Director of Health is satisfied that there is no risk of the patient or any contact or carrier spreading the disease;
(g) prohibit the patient or his contacts or anyone else whom he considers might spread the disease from engaging or being employed in the sale, preparation; storage, packing. conveying or delivery of food or of an ingredient or package for such food;
(h) advise the relatives in the case of death of the patient on the best practicable means of preventing the risk of spreading the disease including measures to be taken before and after the funeral of the deceased. If the relatives cannot afford to carry out the measures advocated, or if the relatives cannot be found, then the Director of Health shall arrange for the Ministry to carry out these measures including the interment of the body;
(i) prohibit the removal of the body of a person who has died from a notifiable disease from premises until the Director of Health is satisfied that all measures have been taken to prevent the spread of the disease.
Section 144 – Penalty for Failure to Comply
Any person shall be guilty of an offence who:
(a) knowing or believing that he is suffering from a notifiable disease exposes other persons to the risk of infection by his presence or conduct in any street, public place, public transport vehicle, place of entertainment, assembly, club, hotel, restaurant or shop;
(b) having care of a person whom he knows or believes to be suffering from a notifiable disease, causes or permits that person to expose other persons to the risk of infection by his presence or conduct in any of the aforementioned places;
(c) gives, lends transmits or exposes without previous disinfection or disinsection any clothing or bedding or any other article(s) which he knows or has reasonable grounds to believe many carry infection from a notifiable disease;
(d) rents, hires leases or sells any premises where he knows or believes there is or has been a case of notifiable disease before any necessary terminal disinfection or disinsection has been completed.
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.