First, protect the child, then worry about the penitent sinner: South Australia’s new mandatory reporting legislation

South Australia is on a collision course with the Catholic Church hierarchy following passage of the Children and Young People (Safety) Act 2017.

Chapter 5, Part 1 (ss 30-31), deals with reporting of suspicion that a child or young person may be at risk.  These sections come into effect on 22 October 2018, and impose a duty on ministers of religion, including priests, to report suspicions of child abuse, irrespective of whether that information was obtained during a confession.

Under the Children’s Protection Act 1993 (SA), which currently applies, ministers of religion and employees and volunteers in religious organisations owe a duty to notify suspicions of abuse or neglect: s 11(2).

However, a priest or minister of religion is given a specific exemption from divulging “information communicated in the course of a confession made in accordance with the rules and usages of the relevant religion”: s 11(4).

That changes in October.

Section 31 of the new Act requires health and welfare professionals and ministers of religion to report the suspicion that a child or young person is “at risk”.  There are no exemptions for information disclosed during a confession.

Priests are not singled out in the new legislation.  Section 30 applies to ministers of religion and employees or volunteers of organisations formed for religious or spiritual purposes.  The obligation also applies to medical practitioners, dentists, nurses, psychologists, pharmacists, police officers, community correction officers, social workers, teachers, and employees or volunteers for organisations that provide health, welfare, education, sporting, recreational child care or residential services for children.

Concept of “at risk”

Section 31 requires health and welfare professionals and ministers of religion to report the suspicion that a child or young person is “at risk”.

The concept “of risk” is defined in section 18: it includes circumstances where a child has suffered harm or is likely to suffer harm of a kind from which a child or young person is ordinarily protected.  This includes sexual assaults and related criminal offences.

The concept of “at risk” also includes a suspicion that a child is to be removed from the state for the purposes of undergoing female genital mutilation.

Section 31(3) states that a health or welfare professional may – but is not required – to report when they suspect on reasonable grounds the physical or psychological development of an unborn child is at risk, whether because of the pregnant woman’s behaviour or otherwise.

“Course of employment”

The obligation to report under s 31 arises when a health or welfare professional has a suspicion on reasonable grounds that arises in the course of their employment.

The concept of “employment” is defined broadly to include an employee, independent contractor, volunteer, as well as someone who “carries out work as a minister of religion or as part of the duties of a religious or spiritual vocation”.

Priests to defy new law

Debate about South Australia’s new mandatory reporting requirements takes place against the background of the conviction of Adelaide’s Archbishop Philip Wilson for concealing a serious indictable offence by failing to report credible allegations of sexual abuse of two altar boys by a paedophile priest.

This information did not come to Archbishop Wilson in the confessional and Catholic doctrine did not preclude him acting on it.

The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that any minister of religion convicted of a crime relating to child sexual abuse should “in the case of Catholic priests and religious [orders], be dismissed from the priesthood and/or dispensed from his or her vows” (16.56.a).

Archbishop Wilson was sentenced to 12 months imprisonment, but has said he will appeal the conviction.  In the meantime, he has refused to resign, indicating, however, that he would resign if the conviction was upheld.

Meanwhile, Acting Archbishop Greg O’Kelly has confirmed that priests are bound by church doctrines and that the new law “doesn’t affect us”.

Appraisal

The fact that a minority of priests have committed sexual offences against children, and that other senior Catholic clergy have failed to act on knowledge of such offences does not mean that sexual predators regularly or even occasionally confess to sexual offences during confession.  The two issues are distinct.

However, even if information about the abuse of a child reaches a priest during a confession only rarely, what does the Catholic church’s rule about absolute secrecy say about its sense of right and wrong?

The very position that such information should remain absolutely confidential if conveyed during the Sacrament of Reconciliation suggests that it is more important to encourage the penitent sinner to seek absolution than to protect the child.

You’d have to be a priest, as distinct from a parent, to follow the logic or the morality of that.

I’m a parent, and I’ll tell you what every other parent will tell you: the over-riding moral priority is to protect your child.

Protect the child.  That’s more important than swearing secrecy to someone who reveals that they are a sexual predator.  What’s not to understand?

In fact, how does someone – acutely sensitised to the rightness and wrongness of things – get to a place where they don’t understand this?

Do penitent sexual offenders never re-offend?

If the person who confesses is truly penitent, surely they would not want the child they harmed to be isolated from services to help them recover from their trauma?

The confessional should not enable further wrong-doing.

It this case it’s secular morality, and the South Australian Parliament, that is leading the way.

Public health law in the USA: What can Australia learn?

SEMINAR ANNOUNCEMENT: 

Public Health Law and Health Leadership in the United States: What can Australia learn?

Thursday 19 July, 6.00-7.30pm, Sydney Law School

In 2016, life expectancy at birth in the United States fell for the second year in a row.  Since his inauguration in 2017, President Trump and his administration have taken a number of actions that arguably weaken America’s public health infrastructure.

At the same time, the Unites States remains one of the world’s great innovators. With 52 States and more than 89,000 local and city governments, the United States frequently functions as a social laboratory for social policies, and public health laws and practices. While constrained in some areas by its constitutional design, the United States remains a leader: its influence and innovations in public health law cannot be ignored.

What can Australia learn from recent American experience with public health law and regulation?  What are the good ideas?  What should be avoided?  How can Australian jurisdictions adapt the best American innovations and create an enabling legal and political environment for public health and wellbeing?

This seminar features presentations reviewing public health law and leadership in the United States, with particular reference to: communicable diseases and pandemic preparedness, non-communicable diseases, health care, injuries and global health leadership.

This seminar is co-hosted by the United States Studies Centre at the University of Sydney, and Sydney Law School.

This event features a keynote presentation by Professor Lawrence Gostin, who is the Linda and Timothy O’Neill Professor of Global Health Law, Georgetown University Law School, Washington DC, and Faculty Director of the O’Neill Institute for National and Global Health Law. Prof. Gostin is also the Director of the WHO Collaborating Center on National and Global Health Law.

For further information on this event, further speaker details, and to register for this event, click here.

Trump: the war on breastfeeding

The New York Times reports that US officials threatened to unleash trade sanctions and withdraw military aid from Ecuador unless it withdraw a resolution at May’s World Health Assembly calling on governments to “protect, promote and support breast-feeding”.

The article is worth reading in its entirety.

As the father of a currently breastfeeding infant, I find this kind of behaviour utterly repellent.

There are echoes of Right to Health language (respect, protect, fulfil) in the resolution which might have displeased the Americans, but the real motivator was American support for large corporate manufacturers of breast-milk substitutes.

(Like Chicago-based Abbott Laboratories.)

Ecuador backed off from the offending resolution, as did “at least a dozen other countries, most of them poor nations in Africa and Latin America”.

Then Russia stepped in, and the intimidation apparently stopped.

“We’re not trying to be a hero here”, said a Russian delegate to the World Health Assembly, “but we feel that it is wrong when a big country tries to push around some very small countries, especially on an issue that is really important for the rest of the world.”

Plenty of ironies here.  But they have a point.

According to the New York Times report, a Department of Health and Human Services spokesperson said: “The resolution as originally drafted placed unnecessary hurdles for mothers seeking to provide nutrition to their children.  We recognize not all women are able to breast-feed for a variety of reasons. These women should have the choice and access to alternatives for the health of their babies, and not be stigmatized for the ways in which they are able to do so.”

Well gosh, that ought to sort out the doubters.

The Lancet reports that scaling up breast-feeding to near universal levels could avoid 823,000 deaths of children under 5 each year, and 20,000 maternal deaths from breast cancer.

Breastfeeding protects both mother and child, and it’s free, which is important if you’re poor.

Yet for billion dollar formula companies, the temptation to monetise the act of feeding by targeting young mothers, is just irresistible.

Read the Guardian’s investigation into Nestle’s marketing practices flogging formula to poor women in central Manila here.  Then weep.

Here is the resolution that eventually passed in the World Health Assembly, with American support.

Amongst other things, it requests the WHO Director-General to provide, upon request, “technical support to Member States to establish, review and implement national laws, policies and programmes to support infant and young child feeding”.

However, US hostility scuttled language that would have called on WHO to provide “technical support to member states seeking to halt “inappropriate promotion of foods for infants and young children.”

“Inappropriate” in this context would refer to the promotion of foods in contravention of the International Code of Conduct of Breast-milk Substitutes.

The Code prohibits the advertising of infant formula and other breast-milk substitutes to the general public, to pregnant women and mothers, and to health workers who are concerned with infant and maternal nutrition.  It also prohibits the giving of samples and other incentives for purchase. Governments are urged to implement the Code through national legislation, regulations or other suitable measures.

In addition, the Code states that infant formula should contain a clear statement of the superiority of breastfeeding, and a statement that the product should only be used following advice from a health worker. The container and labels should not contain pictures of infants, or include pictures or text that “may idealize the use of infant formula”.

Appropriately, the resolution does urge Member States (of the World Health Organisation) to strengthen national initiatives to implement the Code.

However, when you put it all together, it appears the Trump administration does not want sovereign countries receiving technical support from WHO about how best to frame their laws and policies to prevent predatory marketing practices that breach the Code.

It’s the Trump administration’s war on breastfeeding women.

Click here for information about the Australian Breastfeeding Association.

ANNOUNCEMENT: Sydney Law School and the United States Studies Centre at the University of Sydney are co-hosting an evening seminar entitled “Public health law and health leadership in the United States: What can Australia learn?” on 19 July 2018, 6.00-7.30pmClick here for the brochure and further details.  A separate post will follow about this event.

If you’re interested to learn more about law and non-communicable diseases, Sydney Law School is offering a Masters unit, “Law, Business & Healthy Lifestyles” in the coming semester.  Click here for more information.

Cracking the Codex: the new frontier for nutrition labelling

Alexandra Jones, Global health lawyer and PhD Candidate at The George Institute for Global Health and the University of Sydney
Dr Anne Marie Thow, Senior Lecturer in Health Policy at the University of Sydney
Dr Carmen Huckel Schneider, Senior Lecturer, Health Policy at the University of Sydney and co-lead of the Health Governance and Financing Group and the Menzies Centre for Health Policy

Food labels hit the New York Times recently when leaks from North American Free Trade Agreement negotiations suggested the US was being urged by big American food and soft-drink companies to limit the ability of the pact’s three members – Mexico, Canada and the US – to implement warning labels on unhealthy foods.

There is no escaping the health imperative here. Obesity has nearly tripled since 1975 worldwide: 41 million children under 5 are now overweight, while 1.9 billion adults are overweight or obese. Spiralling health and economic costs mean governments are turning to evidence-based policies to prevent and control diet-related diseases like obesity, heart disease, stroke, diabetes and dental caries.

Better nutrition labelling – including front-of-pack labels that interpret nutrition information through symbols, colours or words – are part of the comprehensive package recommended by the World Health Organization. Over 20 countries already have policies in place – they include the UK’s traffic lights, France’s Nutriscore, Chile’s ‘stop sign’ warnings (which Peru appears set to follow), and Australasia’s Health Star Rating.

This proliferation and diversity poses trade and commercial challenges, and calls for some degree of consistency in global approach have been made.

Cracking the Codex (Alimentarius Commission)

This is where the international food standards body – the Codex Alimentarius Commission – comes in.

A UN body created by the WHO and UN Food and Agriculture Organization, Codex has a dual mandate: to protect consumer health, and promote fair trade practices.

Codex standards and guidance are voluntary, but in practice frequently act as a touchstone for countries looking to develop national policies. As Codex enjoys recognition as an international standards setting body by the WTO, guidance it develops also has potential to show up in trade discussions around food.

In short: what happens at Codex matters for public health nutrition.

Done well, Codex could bolster countries to take action. Left unchecked, there’s a risk outcomes could deter countries’ from implementing policies desperately needed to stem the rising global tide of non-communicable diseases.

As Codex is also notoriously slow – there’ll be a general meeting 2-6 July in Rome, and a further discussion paper for feedback later this year – it’s critical that the process itself not be used as a ‘brake’ on growing global momentum to implement strong front-of-pack labels.

Time for public health to assume a seat at the Codex table

Industry Observers have been quick to jump on opportunities to provide input into new Codex work on front-of-pack labelling. The first working group included representation from 13 international organizations representing the food industry, particularly the sugar and beverages sectors. Only two consumer groups were there.

It’s now critical we ensure public health bring their perspective to the table.

What you can do:

Read our briefing note for more information, and

  • Get involved – contact your national Codex Contact Point or join an Observer organization
  • Speak up about the public health priorities, like:
    • the importance of a definition of ‘front-of-pack nutrition labelling’ that supports schemes most likely to be effective in achieving public health objectives – and not, for example, industry preferred options such as the Guideline Daily Amount that aren’t backed by evidence
    • preserving policy space for strong and innovative measures – evidence is rapidly evolving but currently suggests for informing consumers and improving diets, this may include mandatory labels that use interpretive elements like colours, symbols or words, underpinned by robust and transparent criteria for scoring foods
  • Encourage continued action at a national level – remember, nothing in the current process prevents interested countries from pursuing front-of-pack labelling

Want to read more?

 

This piece was originally posted on the PLOS Global Health Blog on 25/06/2018, and has been re-posted with author consent.

 

Sparks v Hobson must go to the High Court: here’s why

In NSW, Section 5O of the Civil Liability Act provides a defence to a doctor or health professional who is defending a negligence claim.

Under s 5O, a person will not be liable “if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice”.

S 5O is often regarded as re-introducing a version of the Bolam test, since the standard of care required of a professional person is ultimately determined by the practices of his or her peers.

In Dobler v Halverson, the NSW Court of appeal clarified how s 5O operates.  It pointed out that in a medical negligence case, both parties will call expert evidence to attempt to demonstrate that what the defendant did fell short of – or did not fall short of – acceptable professional practice [59].

According to the Court, the effect of s 5O is that if the court finds the doctor’s conduct was in accordance with “professional practice regarded as acceptable by some” in the profession, then (subject to the court considering professional opinion to be irrational), that professional practice will set the standard of care and the plaintiff patient will therefore fail: [59].

 

Sparks v Hobson; Gray v Hobson

Understanding about the scope of s 5O has been thrown into disarray by the NSW Court of Appeal in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 (1 March 2018).

The facts are complex.  Mr Hobson suffered from Noonan Syndrome, a genetic disorder that resulted in serious curvature of his spine and a reduced chest cavity that prevented his left lung from filling with air.  This caused breathlessness and restrictive airways disease.  He underwent surgery that was intended to strength his spine and relieve pressure on the chest cavity.

The first stage of the operation was uneventful; however, the second stage was brought forward because Mr Hobson was in intensive care due to pneumonia in his left lung and the obstruction of his left airway.  The second stage of the operation required Mr Hobson to lie face down on the operating table, while screws were placed in his spine.

The position of Mr Hobson during the operation, and the placing of the screws, created further pressure on the chest wall, further restricting his breathing.

Mr Hobson was regarded by the expert witnesses as presenting a “very unusual and difficult anaesthetic challenge due to the significant compression of his left main bronchus by his spine and due to the requirement for prone positioning during surgery” [296]

The operation began at 7pm on 17 November 2009.  The level of carbon dioxide in Mr Hobson’s blood rose during the surgery, and at 9.30pm, Dr Sparks administered a drug called vecuronium to try to improve ventilation.  It led to no improvement; also, vecuronium was a muscle relaxant, and it meant that spinal cord monitoring was thereafter ineffective.  From that point onwards, Dr Sparks could only be guided by the oxygen and blood pressure readings “as his criteria for stopping the operation” [177].

Dr Sparks described Mr Hobson’s high blood carbon dioxide level, at 8.30 to 8.35pm as “very serious”.  He had what the clinicians called “profound respiratory and metabolic acidosis”.  At 8.50, Dr Sparks made two telephone calls to two colleagues (Dr Barratt, an anaesthetist, and Dr Marshman, a cardiothoracic surgeon), but they were unable to make any further suggestions about how to reduce the risk of cardiovascular failure.

At around 9.25pm, Mr Hobson’s blood pressure and oxygen levels dropped dramatically, and at Dr Spark’s request, the wound was closed rapidly and the operation terminated.

One of the issues in dispute was whether Dr Sparks should have terminated the operation at a time earlier than he did.  There was evidence that due to respiratory collapse around 9.30pm, precipitated by obstruction of circulation (causing lack of oxygen), irreparable damage was done to Mr Hobson’s spinal cord, leaving him a paraplegic.

Although the surgery was later completed successfully, Mr Hobson’s paraplegia remained.

The trial judge found against both Dr Sparks, and the principal surgeon, Dr Gray.

On appeal, the Court of Appeal unanimously allowed Dr Gray’s appeal.  However, Dr Sparks’ liability was upheld by a majority of 2:1.

The Court of Appeal’s decision in Sparks v Hobson raises a number of issues relating to the interpretation of provisions in the Civil Liability Act.

These include the relationship between s 5O and s 5B, and the meaning of s5I.

This post focuses specifically on the court’s interpretation of the defence in s 5O.

The uncertainty introduced by the irreconcilable judgments of the Court of Appeal in Sparks v Hobson is so significant that it will be a great shame if leave to appeal to the High Court is not granted.

 

Irreconcilable judgments

In McKenna v Hunter & New England Local Health District [2013] NSWCA 476, Macfarlan JA pointed out that the defence in s 5O is premised on the defendant doctor demonstrating that they conformed with “a practice that was in existence at the time the medical service was provided” and secondly, that the “practice was widely although not necessarily universally accepted by peer professional opinion as competent professional practice”: [160].

This emphasis on the existence of a “practice” – in the sense of a pattern of response by medical practitioners to a clinical scenario, is in contradistinction to there simply being a widespread view among peers that what the defendant did in the circumstances of the case constituted “competent professional practice”.

The significance of the need for a “practice”, as suggested by Macfarlan JA, is that in an unusual case, there may be no relevant practice in existence that the defendant doctor can identify and appeal to for the purposes of a defence.

 

Basten JA

In Sparks v Hobson, Basten JA rejected the suggestion in McKenna that the defence in s 5O only applies where the defendant can identify “a regular course of conduct adopted in particular circumstances” [31].

McKenna was overturned by the High Court, so Basten JA thought that the reasoning of the majority of the Court of Appeal, on the interpretation of s 5O, was no longer binding: [35]

He said: “there is no grammatical or semantic difficulty in describing an argument run by counsel in a novel case as demonstrating competent or incompetent professional practice” [31].

In a novel case, Basten JA thought that a defendant may invoke the defence in s 5O “by reference to how an assessment of the circumstances (which may be unique) would be undertaken by a knowledgeable and experienced practitioner” [31].

Although Basten JA did not think a defendant needed to establish they acted in accordance with a “practice” (understood in the sense of an established course of conduct followed in the circumstances of the case), he nevertheless concluded that Dr sparks had failed to establish a standard, widely accepted in Australia, of competent professional practice, for the purposes of availing himself of the s 5O defence.

 

Macfarlan JA

In Sparks v Hobson, Macfarlan JA reiterated his approach in McKenna.  He said: “It is not enough that experts called to give evidence consider that the conduct was reasonable and that it would have been so regarded by other professionals if they had been asked about it at the time of the conduct” [211].

In this case, the surgery was highly unusual.  Although the expert witnesses all agreed Dr Sparks acted reasonably in the actions he took during the operation, and although they considered professional peers would likely have taken the same view, the experts and the defendant did not point to an established practice that was followed by Dr Sparks in the circumstances of the case [221].

In Macfarlan JA’s analysis, this was fatal to Dr Sparks’ defence: see [223].

 

Simpson JA

The third justice in the NSW Court of Appeal was Simpson JA, who considered that she was bound to accept the construction of s 5O adopted in the McKenna case.

But for the constraint of precedent, Simpson JA would not have adopted the approach of Macfarlan JA.

She said: “As construed in McKenna, s 5O can apply only in limited circumstances, where the defendant can, or seeks to, identify a discrete practice to which he or she conformed.  It necessarily excludes unusual factual circumstances, such as occurred in McKenna, and such as occurred in the present case.  It does not appear to me that s 5O was intended to have such limited application.  However, as I have said, I consider myself constrained to follow and apply that decision” [336].

In Justice Simpson’s view, Dr Sparks failed to establish a defence based on s 5O because he could not identify a “practice” to which he conformed in the highly challenging and unusual circumstances of the case.  This, “notwithstanding that the overwhelming medical evidence was that his conduct was in accordance with what was widely accepted in Australia as competent professional practice’” [346].

Despite this, Simpson JA found in favour of Dr Sparks because she thought that in the circumstances of the case, s 5I applied.

S 5I provides that a person is not liable for the materialisation of an inherent risk that cannot be avoided by the exercise of reasonable care and skill.

In her Honour’s view, once it was found that Mr Hobson’s deteriorating condition warranted the surgery “as emergency surgery”, and that the surgery carried the risk of paraplegia, s 5I applied to excuse Dr Hobson from liability.

In addition, Simpson JA concluded that the evidence did not establish that the failure by Dr Sparks to terminate the operation before 9.30pm amounted to a departure from the standard of reasonable care and skill required of a specialist anaesthetist [350], given that Mr Hobson “needed urgent surgery to ensure his survival”: [352].

 

The future of the s 5O defence

As things stand, the judgments of Justices Macfarlan and Simpson in Sparks v Hobson give majority support to an interpretation of s 5O that limits its scope as a defence for doctors in medical negligence proceedings.

The issue at stake goes to the heart of what the defence requires courts to do.

In the view of Justice Simpson, the task of the court when considering the defence in s 5O is not to choose between competing views but to determine whether as a factual matter, the acts and/or omissions of the defendant that give rise to allegations of breach of duty of care “had the acceptance of peer opinion, even if other peer opinion was different”: [345].

This view is consistent with the assumption that s 5O was intended to introduce a version of the Bolam principle into New South Wales law, thereby ensuring that medical practices, rather than a court, ultimately define the standard of care by which a doctor’s conduct will be judged.

If the view of Justice Macfarlan is followed, by contrast, the role of the court would focus on determining whether a relevant “practice” exists on which a defence might be founded.

In cases where no such practice exists, s 5O can have no application.

The question of standard of care and breach would then fall to be determined by the court, applying common law principles, “guided by the evidence of medical practitioners skilled in the area of medical practice in question” [321], and altered (to the extent that it is altered) by the principles set out in 5B [see [338] per Simpson JA].

 

So, on what basis did the  majority Justices consider that Dr Sparks had breached his duty of care?

Justices Basten and Macfarlan held against Dr Sparks.

According to Justice Macfarlan, Dr Sparks’ failure to terminate the operation was not limited to a short period of time, but extended for at least 20 minutes after the two telephone calls to Dr Barratt and Dr Marshmann until 9.25pm, when Mr Hobson’s blood pressure and oxygen level dropped.  By then the damage had been done.

Essentially, Justice Macfarlan thought the breach of duty was made out because Dr Sparks unreasonably ignored a “serious and imminent intra-operative danger” (the high carbon dioxide levels) when the other countervailing risk (the risk to Mr Hobson if the operation was terminated) did not have the same immediacy: [188].

Also, “Dr Sparks had to assess and respond to the immediate danger to Mr Hobson (rather than the more remote risks that could eventuate if the operation was not completed) because Dr Sparks’ duty as principal anaesthetist was to protect the patient’s well-being whilst the operation was in progress” [182].

Justice Basten agreed that the decision to allow the operation to continue for so long, after he had sought help from experienced colleagues, without success, was more than just an “erroneous clinical judgment” but was a breach of his duty of care to Mr Sparks [93].

What becomes of a country that cannot protect its young?

 

March for our lives, Washington DC, 24 March 2018

 

It’s too early to say if the grassroots social movement initiated by students who survived the gun massacre at Stoneman Douglas High School in Parkland, Florida will be successful in nudging America’s gun laws in the direction of rationality and evidence.

After killing 17 people with an AR-15 style semi-automatic weapon, and injuring 17 more, 19 year-old former student Nikolas Cruz left the school premises, blending in with the crowd and remaining free for an hour before arrested.

On March 24, students and gun control advocates took to the streets of Washington DC in a “March for Our Lives”.

They’re trying to start a movement.  You can join them.

“To the leaders, skeptics and cynics who told us to sit down and stay silent, wait your turn! Welcome to the revolution!” said student Cameron Kasky.

Barack Obama tweeted: “Michelle and I are so inspired by all the young people who made today’s marches happen. Keep at it. You’re leading us forward. Nothing can stand in the way of millions of voices calling for change.”

In the thick of it, as usual, my friend Professor Lawrence Gostin from Georgetown University Law School, who leads the O’Neill Institute for National and Global Health Law.  You can read about the march on his twitter account here.

He writes: “From a long life’s experience on health and human rights I have found that no meaningful change happens without bottom up social mobilization.”

He’s right.  This is true of gun control, tobacco control, and much else in public health.

Is there constitutional space for rational, evidence-based gun control laws in the United States?

It’s sometimes assumed that the US Second Amendment, which states that “the right of the people to keep and bear Arms, shall not be infringed”, leaves little room for rational, evidence-based gun control policies and laws.

This is not so, argues Professor Gostin in a recent paper published in the Journal of the American Medical Association.  For additional resources, click here, here, and here.

In fact, rational firearms laws are compatible with the Constitution and with recent caselaw, suggesting that the real problem is a political one.  Rational, evidence-based measures to reduce firearms deaths in the United States could include:

  • mandating a higher minimum purchasing age for firearms
  • prohibiting dangerous individuals from purchasing or owning firearms
  • requiring safe storage
  • banning weapons with especially hazardous properties such as military-style rapid-fire firearms and high capacity magazines, and
  • banning open carry of firearms (an emerging issue for college campuses, where academics receive advice about what to do in “active shooter” situations).

Young people exercising another of their constitutional rights, March for our lives, Washington DC, 24 March 2018.  (However, Rick Santorum suggests they would be better served taking CPR classes)

 

What makes bottom-up change happen?

This is a neglected but vitally important questions for public health lawyers.

Will the anger and conviction that fuels the “March for our lives” movement endure?  Will it prove capable of raising the resources that will be necessary to make a compelling case for change to the American people?

Public health advocates often focus on content: the technical content of the policies they advocate, the evidence, and the rational case for change.  And then nothing happens.

More than ever, advocates need to better understand the factors that catalyse change, the factors that make social movements successful, and enduring.

Jeremy Shiffman has written about why some global health issues attract attention while others languish: his scholarship is helpful in also analysing national public health issues.

For social constructionists like Shiffman, global health problems like HIV, polio, or non-communicable diseases do not have any inherent priority or significance.  The attention an issue receives, while not unrelated to epidemiological facts, is “always mediated by social interpretations”.

From a social constructionist perspective, the “core activity” of global health advocates is ideational: health advocates must advance truth claims about the problem and its solutions that resonate with the values and shared interpretations of political leaders and those who control resources.

On this view, global health (and the same could be said of national public health priorities) is a competitive – and brutal – process of portraying and communicating severity, neglect, tractability and benefit in ways that appeal to political leaders’ social values and concepts of reality”.

Yet increasingly, reality itself is no longer a shared experience.  Gun control advocates and gun enthusiasts might as well live in different universes.  Their sources of information are completely unrelated; the things they find persuasive utterly different.

Speaking in Sydney on a recent visit, Barack Obama said that “social and political structures had not yet worked out how to deal with rapidly changing communications technology, a world in which people no longer watched the same TV channels or read the same newspapers. The rapid pace of change was having a flow-on effect across the globe, and was likely to get faster still. Discourse was becoming increasingly fragmented, with people becoming hermetically sealed off from each other inside very different information universes.”

The triple cocktail of extreme individualism, neoliberalism, and populism have created a social landscape in which there is less and less shared ground when it comes to values and visions for a better life.

Speaking as a non-American, it seems to me that the scale of the challenge, for gun control advocates, is reflected in the reflexive tendency of the pro-gun lobby to castigate the very mention of rational gun laws, following [America’s latest semi-automatic gunfire massacre: insert details here] as exploitative – as politicizing a tragedy.

A couple of examples.  Jesse Hughes, whose band, Eagles of Death Metal, was performing at the Bataclan theatre in Paris on 13 November 2015 when terrorists stormed in and took hostages, eventually killing 89, went on an on-line rant, calling the Stoneman High School students “disgusting vile abusers of the dead”.

Another right-wing media type tweeted the following about David Hogg, one of the Florida students advocating for stricter gun laws: “I’ve been hanging out getting ready to ram a hot poker up David Hogg’s ass tomorrow.”

All because some students who survived a mass murder at their school dared express their opinion that government ought to introduce gun control laws to help make such rampages less frequent.

Like the tragedy of the massacre at Sandy Hook Elementary School, the gun massacre at Stoneman Douglas High School reflects the failure of policy, the failure of politics and politicians, and ultimately, the potential failure of a society.

What becomes of a country that cannot – or will not – protect its young?

Authoritarian regimes, that fail the protect basic freedoms, or do so only partially, start to look a whole lot better.

That’s bad news for freedom, and bad news for America.

 

Professor Larry Gostin will be speaking at Sydney Law School on 19 July, as part of an evening event titled: ‘Public health and health leadership in the USA: what can Australia learn’.  Sydneyhealthlaw.com will advertise this event in due course.  Professor Gostin will be teaching the unit of study, Global Health Law on 17-20 July; for more information on this unit, click here.  For more information on Sydney Law School’s Master of Health Law, click here and here.

Santa, Coke and Christmas: Why we need legislative restrictions on unhealthy food marketing to children

coke bus shelter

Laws in many countries prohibit false and misleading advertising. The recent case of ACCC v Heinz (which I discussed in a blog post last week) shows how these laws can knock out false and misleading food advertisements. But what about the perfectly legal promotions for unhealthy foods and beverages that fill our TV screens, social media platforms, billboards, and bus shelters?

In some countries, governments are moving to reduce children’s exposure to unhealthy food marketing by placing legislative restrictions on when and where unhealthy food products can be marketed. For example, Chile has banned unhealthy food advertisements on TV before 10pm, along with a range of other obesity-prevention measures.

In countries like the US, Australia, and NZ, restrictions on unhealthy food marketing are found in self-regulatory codes developed by the food or advertising industries. However, these codes often contain significant loopholes and do little to reduce children’s exposure to unhealthy food marketing. This is illustrated by two complaints recently determined by New Zealand’s Advertising Standards Complaints Board.

The Complaints Board hears public complaints about breaches of the Children and Young People’s Advertising Code, developed by an advertising industry body. Following a recent review, the Code now contains a series of principles and rules on the marketing of “occasional food and beverage products” to children and young people. These products are identified using a Ministry of Health nutrient profiling system that distinguishes between “everyday”, “sometimes”, and “occasional” foods. The Code also distinguishes between children (aged under 14 years) and young people (aged 14-17 years).

Principle 1 of the Code states that “[a]dvertisements targeted at children or young people must not contain anything that is likely to result in their physical, mental or moral harm and must observe a high standard of social responsibility.” Among the rules listed under this principle are (1)(i), which states that “[a]dvertisements (including sponsorship advertisements) for occasional food or beverage products must not target children or be placed in any media where children are likely to be a significant proportion of the expected average audience.”

Under rule 1(j) advertisers must exercise a special duty of care in advertising occasional food and beverage products to young people (as opposed to children).

The Code uses three criteria to determine whether an ad targets children or young people: (1) whether the nature and intended purpose of the advertised product or service is principally or generally appealing to children/young people; (2) whether the presentation of the advertisement content (e.g., theme, images, colours, wording) is appealing to children/young people; and (3) whether the expected average audience at the time or place the advertisement appears includes a significant proportion of children/young people. Measures for determining the likely child audience of an advertisement include whether a medium’s audience comprises 25% or more children; whether the medium appears in child viewing time zones; whether a medium contains content with significant appeal to children; and whether an ad appears in locations where children gather, e.g., schools and playgrounds.

Principle 3 of the Code states that “[a] special duty of care must be exercised for Occasional Food and Beverage Product sponsorship advertising targeted to young people.” The rules under this principle include 3(a), which prevents sponsorship advertising from depicting an occasional food or beverage product, such product’s packaging, or consumption of such products.

Healthy Together Auckland has laid a series of complaints that aim to test the Code’s rules on unhealthy food marketing.

One recent complaint concerned an advertisement on a bus shelter in close proximity to a primary school and a secondary school, and to shops where a large number of children and young people stopped on their way to and from school. The advertisement (pictured above) featured Santa Clause riding in a car holding two bottles of Coke, one a no-sugar version of the product, and the other a “classic” or “full sugar” version. It included the logos for Youthline (a help line for young people) and Coca-Cola, and text encouraging donations to Youthline.

The Board upheld the complaint that the ad was a sponsorship advertisement for an occasional beverage that targeted children and young people.

In considering whether the ad targeted children and young people, the Board held that full-sugar Coke was a product that appealed to children and young people and was an occasional beverage. In relation to the content of the ad, the Board said that Youthline would not have strong appeal to children, but would with young people – Youthline’s target audience. Crucially, Santa Claus was the most prominent image in the ad, and has strong appeal with children and is closely associated with Christmas, and children asking Santa for presents, all of which would encourage children to engage with the ad. According to the Board, while Santa has less appeal for young people, his particular presentation in this ad (e.g., riding in a car) would appeal to the 14-17 year age group.

The Board held that children under the age of 14 years were unlikely to be a significant proportion of the ad’s audience (given the bus shelter’s distance from the primary school), but it would be seen by a significant proportion of young people, as it was close to the secondary school, and young people caught the bus from the stop that the ad appeared at and would gather at near-by shops.

Accordingly, the Board held that the ad breached Principle 1 and rule 1(i) of the Code by promoting an occasional beverage to children, as well as Principle 3 and rule 3(a), but note rule 1(j) (on exercising special care in unhealthy food marketing to young people) or another rule on the responsible use of characters that are popular with children (1(h)).

While this first complaint was upheld in part, a second complaint, related to Coca-Cola Christmas in the Park events held in Auckland and Christchurch, was dismissed by the Board.

The complaint concerned the events themselves, as well as event promotions that appeared on bus shelters, in newspapers and on news websites, and included fireworks, people dancing on a stage, and the messaging, “Coca-Cola Christmas in the Park. Supporting Youthline. Merry Christmas from Coca-Cola. Come share the magic.” The complainant was also concerned that hundreds of free Coke drinks were given away to children at the events, who made up a large percentage of the audience.

The Board held that it did not have the jurisdiction to consider the event itself or the product give-aways at the event. This was because the events did not constitute “advertising” for the purposes of the Code: they were a “community initiative”, of which Coke was one of many sponsors, and the event’s intended purpose was entertainment rather than influencing the choice, opinion or behaviour of consumers to purchase the product, as required by the Code’s definition of advertising.

Promotions for the events could be defined as sponsorship advertisements, meaning that they fell within the scope of the Code. However, there were no images of Coke products in the advertisement, and while the ad did include the Coke logo, the focus of the ad was on promoting the events rather than persuading views to purchase Coke. Accordingly, the ads did not promote an occasional food or beverage.

The creative content of the ads would have appeal to children and young people, as would Christmas in the Park, Youthline and the Coca-Cola Company Brand. However, the Board held that the placement of the ads was directed to parents, as children would not comprise 25% of more of the readers or viewers of the media that the ads appeared in (e.g., the New Zealand Herald), and on balance, it was unlikely that the ads would be seen by a significant proportion of children.

As the ads did not promote an occasional food or beverage product and were not targeted to children, the Board determined that the ads did not breach any of the Code’s principles and rules on food marketing to children and young people.

The New Zealand Code contains rules that are stronger in some respects than similar rules found in codes in other jurisdictions, including the two codes developed by the food industry  in Australia. For example, the New Zealand Code restricts unhealthy food marketing in settings where children gather (including around shops or bus shelters, as illustrated by the first complaint). Equivalent restrictions in the Australian codes only apply to pre-schools, primary schools and daycare centres.  However, these complaints illustrate that the New Zealand Code still contains a number of key loopholes that are common to regulation on food marketing to children in other jurisdictions.

The first of these is the need to identify advertising that is targeted to or appeals to children, as distinct from families or parents. While the Code contain a relatively strong definition of advertising that is targeted to children, it can still allows advertisers to use creative content that children find appealing. Coke asserts that it doesn’t market its products to children under 12, and claims that the association of Coke with Christmas and Santa is aimed at families rather than children. This ignores the fact that, as the Complaints Board has pointed out, Santa and Christmas have significant appeal to children, and marketing using this imagery is likely to be attractive and persuasive to children, regardless of the target audience. However, in the second complaint the Board held that Coke’s ads were not targeted to children as they appeared in media with large adult or family audiences, despite using imagery that appealed to children. In short, Coke respects the letter but ignores the spirit of its own self-imposed restriction – and in this instance, the Code permitted it to do so.

The second problem is that the NZ code (and other self-regulatory codes) continue to exclude some marketing techniques commonly used by food companies. As illustrated by the second complaint, these include brand advertising, where companies promote a particular brand, but not the products associated with that brand, which may be unhealthy. By imposing restrictions on the types of products advertised to children, the Code allows companies like Coke to circumvent restrictions by marketing only the Coca-Cola brand without featuring images of the product itself.

A third problem is that these codes are based on a single advertisement model. The Board may uphold a complaint about one advertisement, but its determination doesn’t necessarily address a sophisticated, widespread campaign that promotes a product across a number of different platforms. Further, a complaints-based system only puts a tiny dent in children and young people’s cumulative, on-going exposure to a large volume of unhealthy food marketing.

This last issue is partly due to deficiencies in the governance processes attached to self-regulatory codes, in addition to loopholes in their substantive terms and conditions. Frequently, there are no sanctions for non-compliance, nor is there any kind of systematic, independent monitoring of compliance, meaning that it’s up to advocacy groups to identify problematic ads and report them to complaint bodies.

We have legislative restrictions on false and misleading food advertising. Given the problems with self-regulatory codes on unhealthy food marketing to children, perhaps it’s time for legislation on that issue too.