Monitor operation of the Mandatory Disease Testing Act
Invitation for public submissions on the Mandatory Disease Testing Act 2021
We are seeking public submissions
An important part of our monitoring is to consider the opinions and experiences of persons who may have been subject to an MDT order, or may have made an application for an MDT order. We are also interested in submissions from organisations who have advised or otherwise represented these persons.
The questions below may assist you to prepare your submission. You do not need to answer each question, and we welcome any additional considerations you are able to provide. Learn more
We monitor the operation and administration of the Mandatory Disease Testing Act 2021. This includes monitoring how agencies and persons exercise their functions under the Act.
The Mandatory Disease Testing Act came into force in July 2022 and provides for the mandatory blood testing of a person where a health, emergency or public sector worker who is working, comes into contact with that person’s bodily fluid. To obtain an order contact must be as a result of the person’s deliberate action, and testing the person’s blood is justified in all the circumstances.
A worker can apply for a mandatory testing order after consulting with a medical practitioner with qualifications or experience in blood-borne diseases. A senior officer in the worker’s agency must determine whether to refuse the worker’s application, make the order, or apply to the court for an order if the person subject to testing is considered a vulnerable third party.
Vulnerable third party means a person with a mental health or cognitive impairment that significantly affects their capacity to consent to being tested, or a person between 14 and 18 years old. Children under 14 cannot be subject of an application.
A senior officer must provide us with written advice of their determination and the reasons for the determination as soon as practicable after making the determination.
A worker or a person ordered to be tested (who is not a vulnerable third party) can apply to the Chief Health Officer for a review of the senior officer’s determination. The Chief Health Officer must provide us with written notice of their review determination. The Chief Health Officer cannot review a court order for a mandatory blood test.
We can require those agencies whose officers can issue a testing order to provide us with information for the purposes of reporting on our monitoring. This includes information about applications for mandatory testing orders, as well as demographic information about third parties subject to applications and orders.
We are required to prepare a report about our monitoring as soon as practicable after 12 months after the commencement of the Act and every three years after the first report.
The Department of Communities and Justice has information and fact sheets about the scheme here.
What we need on notification
Notifications of determinations can be made to us by email at mdt@ombo.nsw.gov.au. These notifications must include the reasons for the determination. A senior officer should clearly record all factors considered when making a determination, and include reference to all reports and advice used when giving us written notice of the determination. This is consistent with the recommendations made by the Chief Health Officer in their guidelines here. Copies of all documents relevant to the determination should be attached to the email.
We may require further information about applications at the time of receiving notifications. This may include requesting CCTV or other footage relevant to incidents the subject of an application, or the status of any related criminal or disciplinary proceedings arising from the third party’s actions at the time.
We may also make written requests for further information from the agency about the applications and orders made, including advice about the outcomes of testing for workers, for the purposes of our reporting on our monitoring.