This page summarises some of the material in the Ministry of Health’s Guidance on Infectious Disease Management under the Health Act 1956, which was prepared to coincide with commencement of the Health (Protection) Amendment Act 2016 on 4 January 2017.
For a fuller explanation, please refer to the full guidance document. The relevant provisions in the Health Act, which the Health (Protection) Amendment Act amended, can be accessed from: www.legislation.govt.nz.
On this page:
- Specific diseases
- Contact tracing
- Public health measures
- Financial considerations arising from the new public health measures
Health practitioners and the people in charge of medical laboratories officially report (‘notify’) actual and suspected cases of disease.
The diseases that must be notified are listed in Schedule 1 (infectious diseases) and Schedule 2 (non infectious diseases) of the Health Act 1956. They are diseases at the serious end of the spectrum and may need a public health response as well as follow-up treatment by health practitioners.
Health practitioners must notify the medical officer of health in the local DHB’s public health unit. If the disease is listed in Section A of Part 1 of Schedule 1 (mostly foodborne illnesses such as acute gastroenteritis), health practitioners must also notify the local authority.
The people in charge of laboratories must notify the requesting health practitioner as well as the medical officer of health.
Level of suspicion activating the notification requirements
Health practitioners must ‘forthwith’ notify when, in attending their patient, they have reasonable suspicion that the patient has a notifiable disease.
The people in charge of laboratories must immediately notify results on the infectious nature of the disease concerned. (See sections 74 and 74AA of the Health Act.)
Health practitioners who notify diseases
A ‘health practitioner’ is ‘an individual who is, or is deemed to be, registered with an authority as a practitioner of a particular health profession’.
For notification purposes, the term will almost always refer to medical practitioners, nurses (with a relevant scope of practice) or midwives.
The notification process for health practitioners
Health practitioners must notify the local medical officer of health by electronic means (eg, fax or email), unless this is impractical, in which case they must notify by post or delivery.
These requirements should not discourage health practitioners from notifying urgent cases by telephone in the first instance, but notification should be promptly followed with the completed prescribed form contained in Schedule 2 of the Health (Infectious and Notifiable Diseases) Regulations 2016 (the HIND Regulations).
With regard to patients who are still living, the health practitioner will either use the general disease form, form 1 (ie, for diseases listed on Sections A or B of Part 1 of the Schedule 1 of the Health Act) or, when the disease is listed on Section C of Part 1 of Schedule 1 of the Act, form 2.
When the patient has died of a notifiable infectious disease, the health practitioner must notify the medical officer of health ‘forthwith’ using the post-mortem form prescribed in the HIND Regulations. This is either form 3 with the identity of the case disclosed, or form 4 when the identity of the case must be protected because he or she has a Section C disease.
The notification process for laboratories
There is no prescribed form for communicating laboratory results to medical officers of health and requesting health practitioners. The Act simply says that the person in charge of the laboratory must ‘tell’ the local medical officer of health and requesting health practitioner. However, laboratories are subject to mandatory, minimum information requirements. These are in Schedule 3 of the HIND Regulations and include items referring to patient details, details of the disease and details of the person in charge of the laboratory and relevant health practitioner.
As with health practitioner notifications, the laboratory person notifying must protect the patient’s identity when informing the medical officer of health, if the disease in question is a Section C infectious disease (eg, AIDS, HIV, gonorrhoea or syphilis).
Special identity protections in notifying Section C diseases
The person notifying must not disclose the case’s name, address, place of work or education and contact details (including phone number, email address and URL). (HIND Regulations 2016, regulation 6.)
However, both the identifying case forms (for Section A and B infectious diseases) and the non identifying case forms (for Section C infectious diseases) do enable notification of NHI number, ethnicity, first two letters of last name and first letter of first name, DHB district, date of birth, sex, nature of work or education, recent travel history (etc).
The reason for these identity protections is to encourage people to seek medical diagnosis and treatment without fear of stigma or discrimination.
Mistaken disclosure of the case’s identifying details
If you mistakenly disclose identifying details in the course of notifying a Section C disease, try to recall the email when the erroneous notification is made by email. In any case, immediately telephone the relevant public health unit to advise them to delete or destroy the incoming notification in order to protect the case’s identity, on the basis that you will shortly forward a notification on a non-identifying basis.
This is distinct from the situation where the medical officer of health has received a notification on a non-identifying basis and then requires the identifying information from the health practitioner or laboratory. This is permitted on an exceptional basis (under section 74(3B) or section 74AA(2B)) when the information is necessary to respond effectively to a public health risk.
Rapid test results not normally notifiable
The person doing the testing will not in some cases be subject to the notification requirements in the Health Act because he or she is not a ‘health practitioner’ with a relevant scope of practice. Alternatively, the rapid test results may require follow-up, at which point confirmatory diagnostic tests would be notifiable.
However, if the health practitioner administers the rapid test and the results, together with other circumstances, mean that the health practitioner has a reasonable suspicion the person has an infectious disease, or the laboratory has results that a person is, may be or may have been infected, the notification requirements in the Act apply.
Notifying and managing ‘venereal diseases’
Since January 2017, the term ‘venereal diseases’ is no longer used, with sexually transmitted infections included within Schedule 1 of the Health Act. The Venereal Diseases Regulations 1948, and sections 88 to 92 of the Health Act concerning venereal diseases, have been replaced by the infectious disease notification and management provisions in the Health Act.
The most serious of the sexually transmitted infections – HIV, AIDS, gonorrhoea and syphilis - are now notifiable infectious diseases, on a non-identifying basis, and listed on Section C of Part 1 of the Health Act.
Other infectious diseases, listed in Part 2 of Schedule 1 of the Health Act, are not notifiable, but medical officers of health and others may exercise statutory powers in managing them. Some of them are sexually transmitted – eg, chlamydia, herpes, venereal granuloma and venereal warts. When a medical officer of health wishes to use their powers in Part 3A of the Health Act to manage the ‘other infectious diseases’, he or she must consult with the Director-General of Health (now delegated to the Director of Public Health).
Notifying and managing tuberculosis
The Tuberculosis Act 1948 and Tuberculosis Regulations 1951 have been repealed. Notification and management of tuberculosis has been ‘mainstreamed’ under the Health Act with other notifiable, infectious diseases.
Tuberculosis is in the general category of infectious diseases that are notifiable on an identifying basis and listed in Section B of Part 1 of Schedule 1 of the Health Act.
In ordinary usage ‘contact tracing’ refers to health practitioners, community workers, sexual health clinic staff or the staff of family planning or other NGOs identifying and communicating with the associates or ‘contacts’ of a person who has or is likely to have an infectious disease. This is in order to tell the contacts about the disease risk and prevent any further transmission.
Partner tracing is normally used to refer to the case contacting and informing their own partners of the disease risk. Contact tracing does not necessarily refer to partner tracing as it extends to other contacts, but can involve this.
Formal and informal contact tracing
Formal /statutory contact tracing is done by a medical officer of health, health protection officer or nominee and is prescribed in Part 3A of the Health Act. It involves specific process steps, preconditions and requirements and can only be done by specific, authorised people or office holders. It also involves a mandatory requirement that the case answer questions/provide particular information about their contacts; and failure to do so comprises an offence.
Informal, or ‘in ordinary usage’ contact tracing, is not legislatively prescribed and occurs on a voluntary, informed consent, basis. By itself this form of contact tracing does not carry with it a power to require information from the case about their contacts.
When formal contact tracing is appropriate
Formal contact tracing will only be appropriate when it is likely to:
- identify the infectious disease’s source
- make contacts aware they may also be infected and encourage them to seek testing and treatment if necessary, and
- limit the transmission risk.
A medical officer of health may take into account any recommendations by the case’s medical practitioner in deciding whether to contact trace. However, formal contact tracing is not mandatory. It is most likely to be useful when there is an outbreak or the suspected disease has serious consequences if contracted or is of rapid onset, or the case is not cooperating with informal measures – including informal contact tracing.
Formal contact tracers under the Health Act
Formal contact tracing under the Health Act must be completed by a medical officer of health, health protection officer or suitably qualified health or community worker nominated by a medical officer of health or DHB (in practice, the relevant manager).
Process for nominating formal contact tracers
The term ‘suitably qualified’ means that the nominator should try to match the skill set and experience of the nominee with the disease risk the case poses. For example, a sexual health clinic employee working in a clinical or social work capacity is likely to be ‘suitably qualified’ to contact trace the partners of a client with HIV.
Beyond this, the Health Act does not prescribe the nomination process.
Individuals doing their own contact tracing
A formal contact tracer must allow the case the opportunity to undertake some or all of the contact tracing themselves if the contact tracer considers this would be likely to achieve the purpose of contact tracing. (See When formal contact tracing is appropriate under the Health Act above.)
When the case does his or her own contact tracing, the formal contact tracer must follow up on the case’s progress in informing contacts of the disease risk. In addition, the formal contact tracer should take over if the process is not effective in identifying and managing that risk.
Contact tracing prompts on some notification forms*
* Forms 2 and 4 from Schedule 2 of the HIND Regulations – health practitioner notifications.
The prompts to notifying health practitioners on some of the prescribed notification forms are: Are there other persons infected or likely to have been infected with the disease? If not already referred to contact tracing, do you consider contact tracing is required?
These prompts are used only in the context of notifying Section C infectious diseases on a non identifying basis, either when the case is alive or after a post-mortem.
The prompts do not mean notifying health practitioners or sexual health clinics should refer many more cases to public health units or DHBs so that they must do formal contact tracing under the Health Act. Instead, an aim is to encourage health practitioners to consider whether they themselves should contact trace informally, and if something more structured and mandatory is required in the circumstances, taking account of the presenting public health risk, refer the matter to the local public health unit (eg, when the case is not cooperative, the infection risk is very serious or there is an outbreak).
Diseases where contact tracing can be useful
Contact tracing can be useful for diseases with rapid, or ease of, transmission (eg, measles), or where the consequences of infection can be very serious, expensive or fatal (eg, HIV, tuberculosis, hepatitis B or C, or meningococcal). It is also useful for partner tracing of sexual partners when the disease is sexually transmissible. The ‘window’ of time for contact tracing contacts varies depending on the disease.
Guidance on the practical or clinical aspects of contact tracing
The Ministry of Health’s Communicable Disease Control Manual 2012, and the contact tracing resources set out in chapter 6 of the Ministry’s Guidance on Infectious Disease Management under the Health Act 1956, contain contact tracing information. Among other things, the guidance refers to the New Zealand Sexual Health Society’s Partner Notification Management – Summary at: www.nzshs.org.
Public health measures
Guiding principles of disease management
People and courts exercising responsibilities under Part 3A of the Health Act must follow the overarching principles set out in sections 92C to 92H. In summary, these are:
- respect for individuals
- voluntary compliance
- individuals to be informed
- least restrictive alternative
- measures to apply no longer than is necessary.
The paramount consideration in applying these principles is the protection of public health.
As well as the overarching principles above, there are some rights of review and appeal, safeguarding the rights of cases and contacts from abuse of power.
Public health risk
Some of the powers cannot be used unless there is a ‘public health risk’.
‘Public health risk’ is defined in the infectious disease management context to mean:
A substantial risk of serious harm that one or more individuals who have, or may have, an infectious disease pose to the health or safety of one or more other persons because of the infectious disease, having regard to –
The nature of the infectious disease, including, without limitation, the transmissibility and mode of transmission of the infectious disease; and
The relevant circumstances of the particular case.
Disease management measures in Part 3A of the Health Act
Apart from voluntary measures, medical officers of health have the following choices to counteract the public health risk individuals pose because of infectious diseases:
- court orders
- urgent public health orders
- consider prosecution for offences.
Medical officers of health can use four types of directions when an individual poses a public health risk, and provided the statutory preconditions for each are met.
- Public health directions to cases, such as to refrain from work, attend counselling, restricting travel or activities, or to take preventive steps against disease transmission
- Directions to contacts – these include conditions similar to public health directions to cases
- Medical examination directions – to undertake a medical examination/s with a specified health provider/s within a specified time/s
- Educational institution directions to the person in charge to close all or part of the institution, or to direct a person to remain at home.
Medical officers of health give directions in writing. The directions are time limited, with the duration specified being within a maximum timeframe of not more than six months (most will be nowhere near that duration).
Medical officers of health can apply to the District Court for three kinds of court orders.
- Public health orders imposed on cases, such as requiring treatment, detention in a hospital, to stay at a specified residence, supervision, or to take specified actions addressing the public health risk
- Orders for contacts imposed on contacts of cases – these include conditions similar to public health orders
- Medical examination orders – for use when a medical officer of health or medical practitioner has asked the case to undergo an examination and the case has not complied.
Court orders, like directions, are time limited – they are not more than of six months duration.
Urgent public health orders
Medical officers of health can impose urgent public health orders, which are administrative orders. The effect of urgent public health orders is to detain a case for 72 hours at a specified premises of parts of premised, subject to any stated conditions.
Medical officers of health can only impose urgent public health orders if the case poses a public health risk and the medical officer of health cannot adequately manage it by imposing a direction, urgent action is necessary to address the risk, and it would not be practicable to wait for the District Court’s decision on whether to impose a court order.
The medical officer of health can apply to the District Court before the 72-hour period expires when the public health risk posed is likely to continue for more than 72 hours.
Protecting personal information
Medical officers of health imposing or applying for public health measures under Part 3A must continue to comply with the Privacy Act 2020 and Health Information Privacy Code 2020.
They have additional powers in some situations to require, use or disclose information from individuals, but only for effective management of infectious diseases.
In some situations, such as contact tracing, there are additional constraints on using or disclosing the information (eg, section 92ZZG says that a contact tracer who approaches a contact must not, as far as practicable, disclose that case’s identity to the contact).
Contact tracing across public health districts
Apart from the situation when a medical officer of health has designated powers in more than one district, he or she can contact trace across public health districts. The aim is to enable efficient management of the disease risk and avoid unnecessary disclosure of personal information about the case and contacts.
Nature of protection from liability
Medical officers of health and others carrying out notification or infectious disease management functions under the Health Act will not face any civil or criminal liability for any conduct unless there is bad faith or lack of reasonable care.
Financial considerations arising from the new public health measures
Public funding of diagnosis and treatment
A person who has, or is suspected of having, an infectious or notifiable disease is eligible to receive those publicly funded services specified in clause B23 of the Health and Disability Services Eligibility Direction 2011. This does not depend on residency status in New Zealand.
Costs arising from mandatory public health measures
DHBs have no legal obligation to compensate people for the expenses they incur in complying with public health measures (eg, staying away from work for a period of time, losing accommodation). However, there is nothing legally preventing DHBs from choosing to voluntarily compensate the case or contact. It is important to note that any payment could create an expectation for future cases, so should be handled with care.