Mandatory Disease Testing

The NSW Ombudsman has a statutory role to monitor the administration of the Mandatory Disease Testing Act 2021, providing for mandatory blood testing of a person whose bodily fluids have come into contact with those of a public sector worker in a work context.

Under the Act, the public sector worker - including health, emergency services and law enforcement workers, must have been on duty at the time of the incident and the contact must be the result of a deliberate action by the person.

Workers can apply for a Mandatory Testing Order through their workplace after consulting with a medical practitioner. A senior officer in the worker’s agency can make a Mandatory Testing Order, refuse the application or apply to the court for an order if the third party is a vulnerable third party. Vulnerable third party means a person with a mental health or cognitive impairment, or a child between the ages of 14 to 18. Children under 14 cannot be subject of an application.

The Department of Communities and Justice has some further information and fact sheets about the scheme here, including which public sector workers can apply for an order.

• We receive statutory notifications from agencies about the decisions made on applications for orders, and review decisions made by the Chief Health Officer where review applications are made. 
• We can request information about applications and the operation of the scheme for the purpose of our reporting.
• We are required to prepare a report to NSW Parliament after 12 months of commencement of the Act and every three years after the first report, including information about our monitoring of the scheme and the exercise of functions under the Act.

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.

If you would like to enquire further about the Mandatory Disease Testing Scheme or would like to provide us with information about your experience of the scheme you can email us at mdt@ombo.nsw.gov.au.