A triumph for religious freedom, or viral spreading? The US Supreme Court in Roman Catholic Diocese of Brooklyn v Cuomo

During his Presidency, President Trump had the opportunity to appoint three new Justices to the U.S. Supreme Court.

  • In 2017, the acerbic conservative Justice Neil Gorsuch replaced Justice Antonin Scalia;
  • In 2018, Justice Brett Kavanaugh replaced retiring Justice Anthony Kennedy; and
  • In 2020, Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg.

These three appointments have tipped the balance of the Supreme Court strongly in favour of conservatives. The impact of a more conservative court in coming decades may be President Trump’s most enduring legacy.  It is also likely to have a significant impact on American health law.

Roman Catholic Diocese of Brooklyn v Cuomo, discussed in this post, provides an early example of the impact of the Trump appointments within the field of pandemic preparedness and control.

In Cuomo, the Supreme Court considered what is called the “Free Exercise Clause” of the First Amendment, which provides that “Congress shall make no law…prohibiting the free exercise [of religion]”.

Constitutional human rights protections…and health

In many cases, human rights guarantees strengthen the protection of public health.

Take, for example, free speech.  A free and fearless media is enormously important for its role in demanding government accountability.  In authoritarian regimes and one party states, where genuinely free and fair elections only happen elsewhere, the lack of a free media, and the lack of media diversity mean that the government’s performance in addressing health risks rarely becomes the subject of public scrutiny or critique.

This diminishes accountability.  (Yet it’s precisely this idea that the government is accountable to the people that is absent in authoritarian societies).

Freedom of speech and a free media also enable the sharing of information (fact, evidence) and opinion between citizens. This enables people to be informed, and it facilitates debate. It enables people to make their own informed choices, including during elections.

However, it’s not always the case that where the constitution guarantees human rights, that the vindication of these rights will advance the health of the population.

The protection of human rights, and health, are frequently, but in my view not always aligned (whatever the health and human rights school may assert).

This is partly because health is only one of a variety of values that are typically given constitutional protection.  Other values include, as noted, freedom of speech, and freedom of religion.

It’s also partly because – in countries that guarantee human rights in their constitutions – the interpretation of the scope of the constitutional guarantee is a matter for the courts.

In countries where the courts are frequently called on to adjudicate on sensitive political matters, the appointment of justices to the highest appellate courts can become politicised.

Australia, in contrast to the United States, has very few constitutionally protected human rights (and although s 116 of Australia’s Constitution uses very similar language to the Establishment Clause and the Free Exercise Clause of the First Amendment, it has been interpreted very differently.

This does not mean that Australia is not a liberal democracy; what it means is that the balancing of human rights considerations is ultimately a matter for Parliaments – and our democratically elected representatives – rather than for the courts.

New York State’s microcluster Covid strategy

New York State Governor Andrew Cuomo was well known for his daily briefings during mid 2020 as New York City bore the early brunt on Covid-19 infections in the United States. On 6 October 2020, Governor Cuomo signed Executive Order 202.68.

This order stated that the Health Department shall determine areas of the State that by virtue of being designated as red, orange or yellow zones, shall be subject to enhanced public health restrictions based on “cluster-based cases of Covid-19”.

In simple terms, yellow, orange and red zones were areas of the state where Covid-19 cases were rising.  A red zone was an area where the 7-day rolling positivity rate was above 4% for 10 days, and red zone restrictions were intended to prevent spread from a specific area.

A yellow zone was a warning zone where the 7-day rolling positivity rate was above 3% for 10 days.

Amongst other restrictions, in places designated as red zones, places of worship were restricted to “a capacity limit of 25% of maximum occupancy or 10 people, whichever is fewer”.

In places designated as orange zones, “houses of worship shall be subject to a maximum capacity limit of the lesser of 33% of maximum occupancy or 25 people, whichever is fewer”.

In other words, places of worship in red zones were restricted to 10 people, and places of worship in orange zones were restricted to 25 people.

In Australia, at the height of the initial lock-down period in New South Wales (around April 2020), places of worship were closed entirely, with limited exceptions.

I am not aware that this ever led to litigation.

[Covid-related restrictions on freedom of expression and movement, on the other hand, were another story, particularly when it came to the right to participate in demonstrations, including those in support of indigenous rights and the black lives matter movement.  See, for example, here, here, here and here].

At the time of writing (July 2021), New South Wales has been returned to hard lockdown in an effort to eliminate community outbreaks of the delta variant.

By executive order, places of public worship have been closed, although wedding services involving not more than 5 people can take place, and a priest or minister of religion can go to a person’s place to provide pastoral care.

Self-evidently, these restrictions neither denigrate religion nor deny its importance in people’s lives. There are many religions in Australia, many people of faith. These restrictions are temporary, as the chronological record of executive orders illustrates, as Australian State governments have clamped down hard on outbreaks, and then opened up again.

You’ll find the full list of Covid-related public health orders, applicable to NSW, here.

Religion comes first

Coming right in the middle of the Jewish holiday of Sukkot (also known as the Feast of Tabernacles), Orthodox Jewish groups saw Governor Cuomo’s Executive Order as religious discrimination.

An orthodox organisation, Agudath Israel of America, and the Roman Catholic Diocese of Brooklyn, sought an injunction against the Executive Order on the basis that it violated the Free Exercise Clause of the First Amendment.

As noted above, the Free Exercise Clause of the First Amendment provides that Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

Although the Free Exercise Clause of the First Amendment refers to “Congress” (that is, the two Houses of Congress that are the supreme Federal law-making body), the constitutional guarantees also protect against interference by State governments, including Gubernatorial executive decrees.

A triumph for religious freedom…or viral spreading?

In Cuomo, the Supreme Court struck down Governor Cuomo’s order by a 5 to 4 majority.

The majority was made up of Justice Clarence Thomas, Justice Samuel Alito, and the three Trump appointees: Justices Neil Gorsuch, Brett Kavanagh, and Amy Coney Barrett.

Justice Gorsuch and Justice Kavanaugh also wrote concurring opinions. Chief Justice Roberts dissented, as did Justices Stephen Breyer, Sonia Sotomayer, and Elena Kagan.

The majority opinion is short.  On p 3, the majority justices agreed that the applicants had demonstrated that the Executive Order was not “neutral” to religion because while a synagogue or church in a red zone could not admit more than 10 persons, these restrictions did not apply to a list of “essential businesses”, which included “acupuncture facilities, camp grounds, garages” and plants manufacturing chemicals and microelectronics”.

I dare say the risks of Covid spread are rather less in an acupuncture facility than in a congregation of the faithful belting out “Onward Christian Soldiers”, but the Supreme Court majority didn’t take the point.*

Having concluded that the law was not neutral, the majority then applied “strict scrutiny”: a standard of constitutional scrutiny that requires the government to prove that the law is “narrowly tailored” to serve a “compelling” state interest.

The majority accepted that stemming the spread of Covid-19 is a compelling interest, but concluded that the regulations were not “narrowly tailored” because there was no evidence of Covid outbreaks among the applicants’ congregations.

What kind of body count would have provided satisfactory evidence, I wonder?

The majority also thought that less restrictive rules could be adopted to “minimize the risk to those attending religious services”, including by linking the maximum attendance at a religious service to the size of the church or synagogue. “[E]ven in a pandemic, the constitution cannot be put away and forgotten.  The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty”, the majority wrote (p 5).

Justice Gorsuch and the protection of the public’s health

A feature of the opinions of the majority Justices is their relative lack of deference to the experience, competence or expertise of public health leaders in crafting pre-emptive measures to reduce Covid spread.

There is no recognition in any of the majority opinions that the risk of Covid spread in churches and other houses of worship, where singing or chanting takes place and where hundreds of people may huddle together, is any different from stores and shops, where people wear masks, and are not so tightly packed.

On p 3 of this concurring opinion, Justice Gorsuch pointedly criticised the 100 year-old case of Jacobson v Massachusetts.  This was a case in which the Supreme Court upheld the right of the State of Massachusetts to require people to be vaccinated for smallpox, or pay a fine.

Justice Gorsuch pointed out (pp 3-4) that courts will apply rational basis review as the standard of scrutiny in their constitutional review of State laws, provided that fundamental or constitutionally protected rights are not implicated.

[Rational basis review is a lower level of constitutional scrutiny.  To withstand rational basis review, the State must show that the State’s laws or actions are “rationally related” to a “legitimate” interest.]

However, Justice Gorsuch pointed out that religious activities must be treated “at least as well as comparable secular activities unless it can meet the demands of strict scrutiny” (p 4).

Justice Gorsuch (pp 5-6) goes on to criticise the opinion of Chief Justice Roberts, who dissented, and to surmise that the dissentients on the court wished “to stay out of the way in times of crisis”.

He continues: “[T]here is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”

Real world consequences

As at July 2021, New York State (population 20.4 million) has had 2.1 million Covid-19 cases, and nearly 54,000 deaths.

Australia (population 26 million) has had 31,000 cases and 910 deaths. With emerging SARS-CoV-2 variants, things could change quickly.

The US has certainly struggled – really struggled – to effectively control the spread of Covid-19, and the world has looked on.  The loss of life has been horrific, and extraordinary for such a wealthy, capable country.

Thoughtful commentary explores why: see, for example, here, here, here and here.

For lovers of democracy and human rights, America’s experience has been tragic in another respect: it adds heft to the narrative of autocrats and dictators that democratic government is ill-fitted to the challenges of the age.

What does make sense, in a democratic society where the rule of law operates, where elected officials are fulfilling the mandate granted by voters, is for them to be afforded a measure of deference – of operational space – to design instruments that prevent disease transmission and loss of life, in an environment that remains substantially uncertain.

If strict scrutiny is ever used as a weapon to paralyse government during a public health emergency, it will come at a price.

Why? Because swift and decisive government action to stamp out outbreaks of lethal variants is the key to saving lives, at least in countries where substantial numbers of the population remain unvaccinated. Viruses don’t care about human rights, and they never went to Law School. They don’t care if you are sincere in your beliefs or if you “truly believe”. They just jump from person to person when you get too close.

Ironically, when government does get it right, and no one dies, it all suddenly starts to look like overkill.

In his dissent, Chief Justice Roberts stated that: “[I]t is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic”.

His Honour wrote: “I do not regard my dissenting colleagues as “cutting the Constitution lose during a pandemic” or “shelter[ing] in place when the Constitution is under attack”.

Chief Justice Roberts then paraphrased Jacobson v Massachusetts (197 U.S. 11 (1905), 38, writing that “[o]ur Constitution principally entrusts [t]he safety and the health of the people to the politically accountable officials of the States to ‘guard and protect’.

It’s not clear, he says, which part of this phrase is so discomfiting to the majority justices.

Justice Breyer, in dissent, joined by Justices Sotomayor and Kagan, expressed similar sentiments (p 27/33).

What does seem clear, when you read the Cuomo decision, is that the new majority on the US Supreme Court will be far less likely to defer to expert opinion (however well founded) or to politically accountable State officials when it comes to scrutinising emergency regulations. It doesn’t bode well for elected officials seeking to discharge the one public duty that most libertarians would grudgingly concede: keeping the body count down during outbreaks of a deadly, contagious disease.

*Indeed, congregational singing was an interesting footnote in a subsequent case in which the Supreme Court struck down a Californian ban on indoor worship services. In South Bay United Pentecostal Church v Newsom, Justice Gorsuch wrote: “Of course we are not scientists, but….[e]ven in times of crisis – perhaps especially in times of crisis – we have a duty to hold governments to the Constitution” (p 5/15). It was left to Justice Kagan, dissenting with Justices Breyer and Sotomayor, to respond: “Justices of this court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging epidemic. The court orders California to weaken its restrictions on public gatherings by making a special exception for worship services….Under the Court’s injunction, the State must instead treat worship services like secular activities that pose a much lesser danger…” (p 10/15).

Sydney Law School will be offering Critical Issues in Public Health Law, a postgraduate unit that explores Australian and international responses to infectious disease, as part of its Master of Health Law, in semester 1, 2022. See here or here for more information.

Big Alcohol and COVID-19: industry rules fail. Again.

By Hannah Pierce, Kathryn Backholer, Sarah Jackson and Florentine Martino

Reposted from MJA Insights: https://insightplus.mja.com.au/2021/11/big-alcohol-and-covid-19-failing-self-regulation-again/

Image by Vova Drozdey (Unsplash)

WE know some people are more likely to drink – and drink more – during times of uncertainty and stress. Unsurprisingly, the alcohol industry is also aware of this.

The COVID-19 pandemic has illustrated how quickly and creatively the alcohol industry will adapt its marketing practices to appeal to people’s vulnerabilities. And in Australia, there are few rules in place to stop these predatory actions. This is despite the link between risky alcohol use and weakening of the body’s immune response to COVID-19; not to mention the long-established impacts that risky alcohol use has on the physical and mental health of individuals, families and communities.

Two studies released recently show just how deceptive the alcohol industry has been during the COVID-19 pandemic and why current industry marketing codes fall far short of protecting public health.

The extent and nature of COVID-19-washing through social media marketing

In a recent study led by the Global Obesity Centre at Deakin University and VicHealth, all COVID-19-related social media posts made by leading alcohol brands and delivery services on their official public accounts were audited over a 4-month period during the COVID-19 pandemic in Australia (February to May 2020). The study found that COVID-19-related marketing on Facebook, Instagram, YouTube and Twitter was highly prolific. Of the 26 alcohol brands and services audited, more than 400 social media posts were identified with up to a million plus “likes” or “shares” for a single post.

Sentiments of “community support” and “coping with stress” were most commonly used as a lure. For example, one brewery posted: “Connect with your mates online and we’ll get through this together, with a [beer brand] in hand”. One alcohol retailer promoted “wine” down time and another encouraged “knock off” drinks from home and “conference calls with colleagues to give you a sense of Knock Off Normality”.

Isolation activities involving consumption of alcohol were also heavily advertised. For example, one alcohol retailer posted videos with cocktail recipes, calling for #virtualhappyhour; organised online trivia nights using Facebook Events “with $300 in [retailer’s] eGift Cards (to help fund your next trivia night)”; gave away boxes of wine (valued at $100) in a competition where “community heroes” could be nominated; and organised virtual whisky tastings in collaboration with a popular brand of scotch.

Citing corporate social responsibility, donations of money and the production and donation of hand sanitisers were also common. By building goodwill, increasing company reputation, and thus insulating themselves from criticism, the alcohol industry may be creating an environment where further regulation of alcohol can be resisted, or worse, existing regulation may be weakened.

In our opinion it is clear that Big Alcohol is using the pandemic as an opportunity to sell more alcohol. But the question is whether there is a system in place that prevents companies from targeting vulnerable communities with harmful alcohol marketing.

Current controls on alcohol marketing in Australia

There are very few controls on alcohol marketing in Australia. Most alcohol marketing is covered only by the alcohol industry’s own rules in the Alcohol Beverages Advertising Code (ABAC) Scheme. This voluntary scheme is developed, managed and funded by the very same companies that spend millions of dollars every year promoting their alcohol products. A substantial body of research has examined the effectiveness of this system over the past 20 years and consistently concluded that the ABAC Scheme does not effectively protect children and young people from exposure to alcohol marketing.

Having observed the industry tactics during the early months of the COVID-19 pandemic, Cancer Council WA and Cancer Council Victoria saw an opportunity to examine whether the current ABAC Scheme was expansive or comprehensive enough to deter harmful promotion of alcohol during this time. To do this, 18 determination reports considering community complaints and other publicly available documents on the ABAC Scheme website that referred to COVID-19-related alcohol marketing were reviewed against a framework for evaluating the effectiveness of industry-based regulation. The report Giving the ok to “Stay In. Drink Up” outlines the result, highlighting five problems with relying on the ABAC Scheme during the pandemic:

  • the objective of the ABAC Scheme is inadequate and unsuitable, resulting in a system that fails to protect the community, and particularly those who are vulnerable, from harmful alcohol advertising;
  • key terms in the ABAC Code are not clearly defined, leading to the dismissal of complaints about promotions that encouraged drinking in the home during lockdown;
  • the ABAC Code provisions are too narrow to capture all the themes alcohol marketers are using during the COVID-19 pandemic;
  • there is no monitoring system, so it’s not possible to know how often alcohol companies are ignoring the rules — harmful promotions stay in market unless a community member goes out of their way to make a complaint that is then upheld; and
  • there are no meaningful penalties for advertisers who breach the ABAC Scheme, providing very little incentive for alcohol companies to avoid using harmful messages during the pandemic.

When assessing the complaints about alcohol ads that referenced the pandemic, the ABAC Panel appeared to give no consideration to the impact the pandemic was having on the Australian community. For example, one Facebook ad promoted a “14-day isolation pack”, which included nine bottles of wine to “help you through” 14 days of isolation. In the determination report, there was no mention of the significant amounts of stress and anxiety that many individuals and families in the Australian community were experiencing due to the pandemic. Instead, the ABAC Panel decided that promoting alcohol via an “isolation deal” was the same as referencing a “Christmas pack”. They believed that the post would not be understood as encouraging people to drink all nine bottles of wine in 14 days and so the complaint was dismissed. Similarly, alcohol ads including the phrases “Stay In. Drink Up”“survival kits”, and “all day every day” were all deemed acceptable.

In our opinion the ABAC Scheme has been inadequate at preventing harmful alcohol marketing during the pandemic. Previous research has focused on the ABAC Scheme’s ability to prevent the exposure of children and young people to alcohol marketing. This is because we know the more children are exposed to alcohol advertising, the more likely they are to start drinking earlier and more heavily. An effective regulatory system is crucial for protecting children from exposure to alcohol marketing.

In our opinion, the COVID-19 pandemic has left many more Australians vulnerable to influential marketing messages from the alcohol industry. The well recognised deficiencies of the ABAC Scheme have allowed the alcohol industry to bombard the community with harmful alcohol marketing at a time when they are most vulnerable.

The need for government regulation to protect Australians from harmful marketing practices

The management of the COVID-19 pandemic in Australia is an excellent example of the positive health outcomes we can achieve when decision makers listen to public health advice and implement evidence-based policies. These new publications mentioned above highlight once again that alcohol companies cannot be trusted to write the rules on alcohol advertising, and demonstrate the urgent need for the Australian Government to introduce legislation to protect the community from harmful marketing practices. It is time for the government to step up, listen to the public health evidence and advice, and put people before profits.

Hannah Pierce is an Alcohol Policy and Research Coordinator with the Alcohol Programs Team at Cancer Council Western Australia. Twitter: @hannahpierce01

Kathryn Backholer is a National Heart Foundation Future Leader Research Fellow and Associate Director of the Global Obesity Centre at Deakin University. Twitter: @KBackholer

Sarah Jackson is Senior Legal Policy Adviser at Cancer Council Victoria and leads policy for Alcohol Change Vic, a coalition of  organisations that campaigns for policy reform to prevent alcohol harm in Victoria.. Twitter: @SarsJackson

Florentine Martino is a Postdoctoral Research Fellow at The Global Obesity Centre (GLOBE) at Deakin University in Geelong. Twitter: @fp_martino

The tricky business of Covid-19 reviews & origins investigations

Dr Dominic Dwyer, Australia’s member of the WHO-convened Global Study of the Origins of SARS-CoV-2, won’t remember me, but he was generous and helpful when I interviewed him as a PhD student in the early 1990s.

His more recent comments to the media illustrate the challenges of attempting to investigate the origins of SARS-CoV-2 as part of a WHO-convened expert team (more of which below).

This post briefly reviews two current Covid-19 review processes, as well as recent media reports about the WHO-convened Covid origins study.

Covid-19 reviews

At the World Health Assembly on 19 May 2020, the Assembly adopted resolution WHA73.1 on the Covid-19 response that, amongst many other things, requested the Director-General to carry out a review on “lessons learned from the WHO-coordinated international health response to COVID-19”, including the functioning of the International Health Regulations and “the actions of WHO and their timelines pertaining to the COVID-19 pandemic” (para 10).

Independent Panel for Pandemic Preparedness and Response

On 9 July 2020, the WHO Director-General announced the Independent Panel for Pandemic Preparedness and Response (IPPR) to “evaluate the world’s response to the Covid-19 pandemic”.

This Panel is co-chaired by the Rt. Hon. Helen Clarke, the former Prime Minister of New Zealand who more recently was Administrator of the UN Development Programme, and Her Excellency Ellen Johnson Sirleaf, the former President of Liberia.

The work of the Independent Panel is ongoing. However, its second progress report is available.

The Panel points out that 12 previous expert commissions have reviewed the operation of the International Health Regulations between 2011 and the outbreak of the coronavirus.

The Panel notes with deep concern that the “failure to enact fundamental changes despite the warnings issued has left the world dangerously exposed, as the Covid-19 pandemic proves” (p 14).

Other key messages from the Independent Panel for Pandemic Preparedness & Response:

Review Committee on the Functioning of the International Health Regulation

On 8 September 2020, also in response to resolution WHA73.1, the Director-General convened a Review Committee on the Functioning of the IHR during the Covid-19 response.

This Committee’s mandate is directed towards how well the IHRs performed during the Covid-19 response, the status of recommendations of previous reviews, and the need for amendments to the IHR.

Its interim progress report is available here.

The Committee pointed to the lack of a robust accountability mechanism to monitor and incentivise compliance with the IHR, beyond the requirement for States Parties’ and the Director-General to report to the World Health Assembly on the implementation of the Regulations (Art. 54). A “robust system of compliance evaluation built into the Regulations” was proposed as one possible approach.

Recommendations to strengthen the IHR have been circulating for years.  See here and here for short, helpful, reviews.

The Committee noted that “A peer-review mechanism, based on the Universal Periodic Review used by the Human Rights Council,” could be a useful way of strengthening countries’ levels of preparedness and response, and compliance with their legal obligations (para 18).

China’s reporting of the initial SARS-CoV-2 outbreak has been widely discussed. The cluster of cases from the Huanan market was reported to the WHO China country office on 31 December 2019, and the market was closed on 1 January 2020.

The interim report states that WHO requested verification of the initial reports on 1 January, receiving a response from the China Focal Point on 3 January.

Under the IHR, States Parties are supposed to reply to WHO requests for verification or further information within 24 hours (IHR, Art. 10), but the report notes that delay beyond 24 hours is not unusual.

The Committee stated that the timelines for country response are not realistic, given that social media can result in information reaching the public domain before a comprehensive risk assessment is completed.  It also noted that “countries may be reluctant to report on events if they perceive consequences, mainly related to travel and trade, deriving from early notification.”

On 9 January 2020, WHO did not recommend any specific measures for travellers, and advised against any travel or trade restrictions on China.

A day later, China media reported the first death from Covid-19, and three days later, the first case was reported outside Chinese territory.

On 29 February 2020, updated WHO recommendations for international traffic in relation to Covid-19 stated: “WHO continues to advise against the application of travel or trade restrictions to countries experiencing Covid-19 outbreaks”.

Australia began to impose travel restrictions in response to Covid-19 on 1 February 2020.  Initially, the ban prevented foreign nationals (excluding permanent Australian residents) who had been in mainland China from entering Australia for “14 days from the time they left or transited through mainland China“.

On 20 March 2020, Australia closed its borders completely to non-citizens and non-residents. They have remained closed since then.

Travel restrictions have since become a staple for national responses to Covid-19 spread, although some scholars argue they breach the IHRs; see discussion here and here.

But no one is listening, then or now. In his annual report to the World Health Assembly on the functioning of the International Health Regulations, the Director-General stated that as at 28 March 2020, 136 countries had reported to WHO under Article 43 about “additional health measures that significantly interfered with international traffic and provided their public health rationale”.

In an ideal world, perhaps borders could remain open and watertight screening, contact tracing and isolation measures could effectively prevent spread.  But it’s a brave country that completely trusts its own implementation of these important public health controls: SARS-CoV-2 is devilishly infectious, and aerosol transmission can occur even when normal hotel quarantine and infection controls are in place.

Public health experts regard Australia’s travel bans as an important and necessary part of Australia’s successful response. For example, Duckett and Stobart regard “Australia’s decision to close its borders to all foreigners on 20 March to ‘align international travel restrictions with risks'” as a “turning point” in Australia’s response.

In her evidence to the Senate Select Committee Inquiry into Australia’s Response to Covid-19, Professor Raina MacIntyre, who leads the Biosecurity Program at the Kirby Institute at the University of New South Wales, described travel bans (border closures) as “the single most important measure” (para 2.43), a conclusion supported by this modelling study. Unfortunate – certainly, but necessary to avoid importing new cases.

WHO-convened Global Study of the Origins of SARS-CoV-2

In late January, an international team of virologists travelled to Wuhan on a fact-finding mission as part of a WHO-convened global study into the origins of SARS-CoV-2.

The findings of this mission were discussed in a press conference on 9 February. Dr Peter Ben Embarek, the chair of the investigation team, said that it was extremely unlikely that the coronavirus escaped from a Wuhan laboratory.

Dr Dwyer shares this assessment. His account of the Wuhan visit, refreshingly devoid of geo-political posturing, illustrates just how much remains unknown.

One giant limitation of the WHO-convened Wuhan study tour was the fact it took place a whole year after the initial outbreak.

Australia’s original call for an independent investigation into the origins of SARS-CoV-2 greatly displeased China.

However, when you consider the scale of the death and economic harm caused by Covid-19, it is simply breath-taking that such an outbreak should go unexamined. Not surprisingly several inquiries are now proceeding.

Investigating the origins of SARS-Cov-2 was and is unavoidably sensitive, not only because it involves asking where the virus may have originated, and the conditions that facilitated its spread into the human population, but because the likely time period during which the first-observed cases arose goes to China’s level of compliance with the IHR, and the impact this may have had on the international spread of SARS-CoV-2.

The controversy surrounding the WHO-convened study has escalated since the international team left Wuhan.

Dr Dwyer noted that the visiting scientists were given access to aggregated data and summaries of medical records (of the tens of thousands of patients in Wuhan with influenza-like illnesses in months prior to December 2019), rather than access to the raw data.

Dr Dwyer also told the ABC that the expert team’s request to test stored samples of blood donations made in Wuhan around December 2019 was denied, apparently for legal reasons, although it might have given a picture of SARS-CoV-2 levels in the wider community at that time.

Requests to test wastewater samples from Wuhan in December 2019 was also not possible because all samples had been discarded. (Many people with Covid-19 have gastrointestinal infection as well as respiratory infection, making wastewater sampling a form of sentinel surveillance for community cases).

These sources of information might have given a clearer picture of whether and how much virus was circulating in the community prior to December 2019.

“We also know the Chinese were reporting the people who went to hospital were really sick,” Dr Dwyer said.  “But we now know there’s a lot of ordinary transmission going on between otherwise healthy people, so there must’ve been many, many more cases in December than were identified.”

However, Dwyer regards the Huanan market as “more of an amplifying event rather than necessarily a true ground zero. We need to look elsewhere for the viral origins”.

On 4 March, 26 international experts in virology, zoology and microbiology, called for a new inquiry, stating that it was “all but impossible” for the WHO-convened researchers to adequately investigate the origins of the outbreak.

The scientists wrote that “We have…reached the conclusion that the joint team did not have the mandate, the independence, or the necessary accesses to carry out a full and unrestricted investigation into all the relevant SARS-CoV-2 origin hypotheses – whether natural spillover or laboratory/research-related incident”.

The Wall Street Journal has reported that WHO has decided to scrap publication of the interim report of the WHO-convened international team. The full report is expected “in coming weeks”.

COVID-19, patients’ mental capacity and prisoners

@mbaumi via Unsplash

The coronavirus pandemic has raised an abundance of issues at the intersection of law and medicine. In recent co-authored articles, Cameron Stewart, Professor of Health, Law and Ethics at the University of Sydney Law School considers some of these issues.

Mental capacity assessments for COVID-19 patients: Emergency admissions and the CARD approach

In this Journal of Bioethical Inquiry articleProfessor Cameron Stewart and colleagues examine the principles of mental capacity and make recommendations on how to assess the capacity of COVID-19 patients to consent to emergency medical treatment.

“The combination of very sick patients, knowledge deficits, and high pressure environments is likely to make capacity assessment very difficult during the COVID-19 pandemic.”

The article provides examples of mental capacity disputes in a number of common law jurisdictions before recommending that in emergency admissions for COVID-19, health practitioners use what Professor Stewart and his co-authors term the “CARD” approach (Comprehend, Appreciate, Reason, and Decide).

“CARD gives clinicians a legally defensible means of rapidly determining the mental capacity of COVID-19 patients, essential to guide urgent treatment and ensure that patients’ best interests are ultimately served in the process.”

COVID-19, Australian prisons: Human rights, risks and responses

Australian prisons have, so far, avoided the levels of COVID-19 infection experienced in the United States and elsewhere, but the potential for high infection rates remains.

In a November 2020 article in the Journal of Bioethical InquiryProfessor Cameron Stewart and colleagues consider what steps the state should take to protect prisoners. The article looks at Australian prisons’ regulatory responses to COVID-19 and considers calls for the release (decarceration) of some prisoners, including the Victorian case of Rowson v Department of Justice and Community Safety [2020] VSC 236. In that case, a prisoner unsuccessfully sought release pending departmental consideration of his application for release into home detention on health grounds — namely, risk of serious injury or death from COVID-19.

Professor Stewart and his co-authors conclude:

“Ultimately, COVID-19 presents an opportunity to reconsider the deeper issues regarding use of incarceration as a punishment and the human rights of prisoners more generally.”

Cameron Stewart teaches in Sydney Law School’s Master of Health Law program, including subjects on Death Law, Health Care and Professional Liability, and Government Regulation, Health Policy and Ethics.

Related posts on COVID-19 from the Sydney Health Law team:

https://sydneyhealthlaw.com/2020/11/04/covid-19-medical-research-governance-and-public-health-orders/

https://sydneyhealthlaw.com/2020/03/18/whos-in-control-of-australias-response-to-coronavirus-part-1-legal-frameworks/

https://sydneyhealthlaw.com/2020/03/19/whos-in-control-of-australias-response-to-coronavirus-part-2-operational-responses/

https://sydneyhealthlaw.com/2020/08/26/rule-of-law-in-the-covid-19-response/

https://link.springer.com/article/10.1007/s11673-020-10055-2

Reckless, incompetent, outrageous: rogue doctors performing cosmetic surgery still a problem in NSW

A previous post briefly reviewed the regulation of cosmetic surgery in New South Wales. 

This post reviews the decision of the NSW Civil and Administrative Tribunal in Health Care Complaints Commission v Blackstock.

Professional disciplinary complaints in NSW

First, some background.  In NSW, professional disciplinary complaints against a medical practitioner can be made on a variety of grounds.  These include that the practitioner:

  • has been convicted of a criminal offence;
  • has been guilty of “unsatisfactory professional conduct” or, more seriously, “professional misconduct”;
  • is not competent to practice;
  • is impaired;
  • or is otherwise not suitable to hold registration (Health Practitioner Regulation National Law (NSW) No. 86A, s 144).

A complaint may be made to the Medical Council of NSW, or to the Health Care Complaints Commission (HCCC), but serious complaints – which, if substantiated, could result in suspension or cancellation of a medical practitioner’s registration – must be referred to the NSW Civil and Administrative Tribunal (s 145D).

The statutory concept of “unsatisfactory professional conduct” includes conduct that is “significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.” (s 139B(1)(a)).

S 139B(1)(a) illustrates the overlap between conduct that provides the grounds for both a professional disciplinary complaint and a medical negligence lawsuit.  In separate medical negligence proceedings, one patient was awarded $204,000 for injuries sustained as a result of breast augmentation performed by Dr Blackstock.

HCCC v Blackstock is a shocking case.

Dr Blackstock’s medical registration was suspended in 2017, and the matters that were the basis for the suspension were referred to the Health Care Complaints Commission, which filed complaints against Dr Blackstock in the Civil and Administrative Tribunal, claiming that he was guilty of unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW).

In July 2019, Dr Blackstock was convicted and fined $255,000 for carrying out breast reconstruction surgeries at the Enhance Clinic in Penrith, in breach of the Private Health Facilities Act 2007 (NSW).

Under s 139C, certain kinds of criminal convictions may constitute unsatisfactory professional conduct.

Health Care Complaints Commission v Blackstock

Accordingly, the first ground of complaint brought by the HCCC was that Dr Blackstock had been convicted of criminal offences for performing surgery at unlicensed premises.

The second complaint was more complex, and related to inadequate, incompetent and outrageous practices by Dr Blackstock.

The patients’ statements were unchallenged.

Dr Blackstock,who was a general practitioner, failed to disclose the risks of  breast augmentation surgery to his patients, and although they typically signed long consent forms, there was no chance to discuss them, and in some cases they did so after having been sedated.

Dr Blackstock was also a director and shareholder of a finance company that helped to finance the surgery for the women, who were described by the Tribunal as “young women with concerns about their body image, who travelled from interstate for their surgery and were influenced by the practitioner’s website” [85].

These patients had no pre-operative consultation, and no attempt was made prior to the surgery to actually find out the size of the implant that the patient wanted, or that was appropriate.

Instead, Dr Blackstock had adopted the practice of waking and sitting his patients up midway through the procedure – after they had been sedated with liquid Valium – to ask them if they were happy with the size.

“Patient F relates what she perceived as a slap on her face during the surgery, that the practitioner sat her up and said “they’re a bit far apart”.  She relates that “I did not know what he was asking me or what he was doing” [97].

“Patient FF reports the practitioner sitting her up during her surgery and asking her if she ‘wanted to go bigger’ and after saying she wanted to be natural she was laid back down” [98].

The HCCC’s expert witness, Dr Bezic, unsurprisingly, was highly critical of this practice, pointing out that the patients were heavily sedated, unable to make an informed choice, and risked contaminating the sterile field.

Worse still, Dr Blackstock sometimes invited parents, boyfriends, and friends into the operating theatre to ask their opinion about the patient’s implants.  This created the risk of infection, a risk that the visitors would experience a vasovagal episode, as well as being a gross breach of privacy.

In the case of Patient H, a 47 year-old woman who had travelled from Tasmania, Dr Blackstock contacted the patient’s partner on Facetime during the surgery to ask him whether to leave the patient’s implant in place or to replace it [203].

Patient E received breast augmentation and labiaplasty at the same time.  Dr Blackstock asked her if she wanted to see the flesh he had cut from her labia and as he did so he said “oh, that’s a lot”.  The Tribunal described this behavior as “abhorrent and grossly unprofessional” [187].

Patients were discharged rapidly after the surgery was completed.  Patient B left approximately 20 minutes after her surgery [107].  Multiple patients experienced pain and complications and had to seek help from their GPs, or were admitted to hospital.  Patient J removed the implant from her left breast herself following infection, and was then admitted to hospital in Newcastle [235].

The surgeries were poorly performed.  Patient C was discharged 44 minutes after the procedure [127].  One week later, Patient C took her bra off and the wound popped open [109].  When she went back to Dr Blackstock, he operated on her in her day clothes, without sedation, leaving her in excruciating pain [110].

In a number of cases multiple surgeries were performed as a result of complications with the initial surgery.  Patient J’s wound became infected after her first surgery. The infection continued for over a year [280].

Patient J’s second, third and fourth surgeries involved Dr Blackstock removing the breast implant, which had become infected, washing it, and re-inserting it back into the infected pocket [289],[295].

The HCCC’s expert said that these repeated surgeries were “indefensible” [316], and that Dr Blackstock should have removed the implant after the first evidence of wound breakdown [291],[295],[298].

The Tribunal dismissed the submission from Dr Blackstock that since he did not intend to practice again, he should not be found to have committed professional misconduct [323].

“What is relevant in our view”, said the Tribunal, “is that the Tribunal’s orders reflect the seriousness with which we regard this practitioner’s conduct, and ensure that the public is protected from him or other practitioners engaging in similar conduct.  Our orders are also intended to have a general deterrent effect” [323].

There has been a lot of media about Dr Blackstock, and you can go online and see videos of some of his patients talking about their experiences.

Dr Blackstock was a GP without specialist surgical training, and that was part of the problem.

In Australia, the words “bank” and “banker” are restricted words, and penalties apply for using them without authorisation from APRA, the Australian Prudential Regulation Authority. These limitations help to ensure the confidence in banks and in other financial institutions that is necessary for the financial stability of Australia’s banking system.

Perhaps it’s time that APHRA – the Australian Health Practitioner Regulation Agency – was tasked to play a similar role in authorising the use of the term “cosmetic surgeon”, in order to better protect the health and safety of those undergoing cosmetic surgical procedures.

The Tribunal found that the cumulative impact of Dr Blackstock’s conduct was sufficient to establish professional misconduct justifying the cancellation of his practitioner’s registration.

Acting under s 149C, the Tribunal cancelled his registration for 7 years.

Are you interested in studying health law? Sydney Law School offers a Graduate Diploma and a Master of Health law. See here, and here for further information.

Improving safety for patients undergoing cosmetic surgery in NSW

If you’ve ever had work done, or thought about it, the decision of the NSW Civil and Administrative Tribunal in Health Care Complains Commission v Blackstock should send a shiver down your spine.

This case is a powerful reminder of how behaviour that constitutes professional misconduct can give rise to professional sanctions, criminal liability, and civil liability for medical negligence.

HCCC v Blackstock will be reviewed in the following post. This post briefly reviews how cosmetic surgery is regulated in Australia.

Cosmetic surgical procedures include rhinoplasty (a “nose job”), breast augmentation or reduction, face lifts and liposuction.

Examples of minor cosmetic medical procedures include laser skin treatments, mole removal, laser hair removal, chemical peels, and hair replacement therapy.

What is a “cosmetic surgeon”?

Cosmetic surgery is not a recognised speciality overseen by a specialist college that controls entry and training. Rather, rival professional bodies train and represent members who perform cosmetic surgical procedures.

On the one hand, members of the Australian Society of Plastic Surgeons are required to hold a specialist qualification from the Royal Australasian College of Surgeons and to have completed at least 12 years of medical and surgical training, including a minimum 5 years of specialist surgical training.

By contrast, the Australasian College of Cosmetic Surgery is a multidisciplinary body that provides specialist training to doctors who have graduated more than 5 years ago and have 3 years of experience in a surgical environment.

Plastic surgery is a recognised field of specialist medical practice approved by the Council of Australian Governments (COAG) Health Council under the Health Practitioner Regulation National Law (for NSW, see s. 13(2)). Training is overseen by the Board of Plastic and Reconstructive Surgery of the Royal Australasian College of Surgeons (RACS). Medical practitioners who have completed the relevant period of training (and been assessed by a specialist college accredited by the Australian Medical Council) and met other eligibility requirements, can apply to the Medical Board of Australia for registration.

Plastic surgeons are trained to practice both plastic and reconstructive surgery (the Australasian Society of Aesthetic Plastic Surgeons represents those with a particular focus on cosmetic surgery). “Specialist plastic surgeon” is a protected specialist title and offences apply under the National Law for unauthorised use of a specialist title by someone not registered in the relevant speciality (ss 113, 117-118).

No such restrictions apply to the use of the term “cosmetic surgeon”. Unlike a specialist plastic surgeon, a “cosmetic surgeon” does not need to be a Fellow of the Royal Australasian College of Surgeons: see here, and here.

Strengthening regulation of cosmetic surgery: five pillars

In 2010, the Australian Health Ministers Council endorsed a report entitled Cosmetic medical and surgical procedures – a national framework (AHMAC 2011).

In this report, the Australian Health Ministers Advisory Council called for a national framework based on 5 pillars.

You can look at these 5 pillars as the relevant areas of practice that would need to be regulated if you were to regulate cosmetic surgery and procedures effectively.

The 5 pillars are:

  • Regulation of practitioner registration;
  • Licensing of private health facilities where cosmetic procedures take place;
  • Implementation of infection control measures;
  • Regulation of some of the devices and substances used in cosmetic procedures;
  • Consumer legislation, including specific legislative protections for children.

This report also called on the Medical Board of Australia to supplement its code of ethical practice (Good Medical Practice: a code of conduct for doctors in Australia) with additional guidelines governing cosmetic surgery for adults and children.

Following a long gestation period, in 2016 the Medical Board released Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures.

Some of the most important features of these guidelines include the requirement for at least a 7 day cooling off period between the time an adult is given information about cosmetic medical or surgical procedures (and gives their informed consent), and the time the procedure is carried out (para 2.5).

For major cosmetic surgical procedures on a patient under the age of 18, there is a 3 month cooling off period, and the patient must be referred to an independent “psychologist, psychiatrist or GP” for assessment to determine whether any psychological factors make them an unsuitable candidate for the procedure (para 3.4).

There is also a 7 day cooling off period for cosmetic medical procedures performed on minors.

If the procedure involves sedation, anaesthesia or analgesia, the medical practitioner performing the procedure must ensure that there are trained staff, facilities and equipment to deal with emergencies, including resuscitation.

It’s worth noting, however, that the Guidelines left two areas untouched.

Firstly, they don’t impose requirements for the training, certification or registration of medical practitioners who perform cosmetic surgical procedures.

Nor did they impose requirements about the facility in which cosmetic surgery is performed.

Both areas would appear to be highlighted by the subsequent case of a Chinese tourist who was charged with manslaughter in September 2017 over the death of a beauty clinic owner in Chippendale. The owner, Jean Huang, asked Jie Shao, a Chinese medical graduate and specialist in dermatology who had practiced in China and Britain, to insert breast fillers under local anaesthetic.

Jie Shao was in Australia on a tourist visa. Ms Huang died several days after the procedure, apparently due to the amounts of anesthetic administered to her. Ms Shao was subsequently charged with manslaughter.

NSW Health review of regulation of cosmetic procedures

As a result of this tragic death, the NSW Government carried out a review of cosmetic procedures.

The report, available here, makes 9 recommendations about how to safeguard patients undergoing surgical and medical cosmetic procedures.

Prior to the review, regulations already required that a private health facility at which cosmetic surgical procedures (as defined in s. 3) are carried out must be licensed under the cosmetic surgery class and comply with the licensing standards for that class (Private Health Facilities Regulation 2017 (NSW) ss 4-6 & Schedule 1, Schedule 2 (Part 5)).

Following the review, the regulations were strengthened to create an offence for a medical practitioner who performs cosmetic surgery in an unlicensed facility (see here and here).

Another recommendation was that the Minister raise the issue of protecting the title “cosmetic surgeon” with the Council of Australian Governments (COAG) Health Council (see here, p 9)

In November 2019, the COAG Health Council “agreed to progress changes to restrict the use of the title ‘surgeon'”, including by self-described “cosmetic surgeons”.

A letter from the federal Health Minister confirms that further consultation with medical and consumer organisations will be required to determine which medical practitioners should be permitted to describe themselves as a “surgeon”.

Following Health Care Complaints Commission v Blackstock, the case for restricting the performance of cosmetic surgical procedures, such as breast augmentation, by non-surgically trained proceduralists offering “bargain basement” deals, appears clearer than ever.  Greater restrictions over the use of the term “surgeon” and “cosmetic surgeon” are long overdue.

COVID-19, medical research governance, and public health orders

Image: Mika Baumeister

Posted by Belinda Reeve on behalf of Cate Stewart

The impact of coronavirus-related biomedical research and public heath laws have been considered in recent articles co-authored by Cameron Stewart, Professor of Health, Law and Ethics at the University of Sydney Law School.

Science at warp speed: COVID-19 medical research governance

In biomedical research focused on developing COVID-19 vaccines and therapies, the need for speed is taken for granted. But “what, if anything, might be lost when biomedical innovation is sped up”? In a timely article in the Journal of Bioethical InquiryProfessor Cameron Stewart and colleagues, consider a study (on the use of anti-malarial drug hydroxychloroquine for treatment of COVID-19) recently retracted from The Lancet to illustrate the potential risks and harms associated with speeding up science.

As Professor Stewart and his co-authors note:

[T]the potential damage caused by not ensuring effective governance of research during epidemics may be immense. Harmful drugs and devices might go on to injure millions of people, useful drugs and devices might be abandoned, the public’s faith in science and medicine might be undermined, and irrational and ineffective healthcare might proliferate.

The article goes on to suggest a range of measures to address weaknesses in technical or methodological rigour, lack of peer oversight, and unmanaged conflict of interest in pandemic research.

“This is a difficult conversation, but one that must be undertaken. After all, this is not the first time that science has been sped up during pandemics with problematic effects, and we will undoubtedly need to speed science up again, many times in the future.”

COVID-19 public health orders and mental health practitioners

Professor Cameron Stewart and colleagues look at restrictive practices in Australian COVID-19 public health orders and their implications for mental health practitioners in the October 2020 issue of the International Journal of Mental Health Nursing.

Their article notes that due to the COVID-19 pandemic, health authorities in all Australian jurisdictions can invoke public health orders that allow for an extremely broad range of coercive orders, including forcible detention, testing, and treatment of any person reasonably suspected of being COVID-19 positive.

The article highlights relevant public health laws for mental health practitioners to be aware of and suggests that mental health units and public health units establish lines of communication to work together.

Professor Stewart and his colleagues conclude with a call for nationally consistent regulation as “the best way to encourage best practice, fair decision-making, the protection of human rights, and the promotion of public safety”.

Cameron Stewart teaches in Sydney Law School’s Master of Health Law program, including subjects on Death Law, Health Care and Professional Liability, and Government Regulation, Health Policy and Ethics.

Related posts on COVID-19 from the Sydney Health Law team:

https://sydneyhealthlaw.com/2020/03/18/whos-in-control-of-australias-response-to-coronavirus-part-1-legal-frameworks/

https://sydneyhealthlaw.com/2020/03/19/whos-in-control-of-australias-response-to-coronavirus-part-2-operational-responses/

https://sydneyhealthlaw.com/2020/08/26/rule-of-law-in-the-covid-19-response

Freedom to protest, public health, and Covid-19

Update: the podcast of the event described below is now available, click here.

Recently, a number of protests have taken place on the grounds of The University of Sydney against Commonwealth government education policies.  See, for example, here (28 August) and here (14 October).

During the latter protest, police were filmed throwing a demonstrator heavily onto concrete (see here: https://twitter.com/honi_soit/status/1316224862889754624, while in this footage (https://twitter.com/honi_soit/status/1316223965568749568), my colleague Professor Simon Rice, the Kim Santow Chair of Law Reform and Social Justice at Sydney Law School, was pushed to the ground, arrested, and issued with a fine.

“It was violent without causing any particular harm”, he told The Guardian. “Disproportionate force, completely unjustified.”  See also here.

Ironically, Simon and I had just been discussing the tension between civil liberties and public health in the context of policing of earlier demonstrations.

Simon will be appearing as a member of a panel discussing these issues in a seminar entitled Protest in a Time of Pandemic, convened by the School of Social and Political Sciences in the Faculty of Arts & Social Sciences, University of Sydney, together with, Sydney Law School, Sydney Institute of Criminology, and Sydney Health Law.

Other Panel members include: Felicity Graham, Taylah Gray, Georgia Carr, Professor Danielle Celermajer and the author.

This is a live online event: Fri 13 November 2020, 11.00-12:30AEDT. See here for details and to register.

This seminar explores whether there is a right to protest during a pandemic, the tension between freedom and the policing of lockdown and social distancing measures, and the forms that protest might take in a liberal society.


Four things to think about before starting a PhD

Image credit: Green chameleon on Unsplash

Everyone’s thoughts are turning towards 2022, and hopefully, how much better it’ll be than the cluster truck that was 2021. For you, thinking about 2022 could mean considering whether or not to start postgraduate studies, and more specifically, a PhD. This is a big call. A life-changing event, in fact. This blogpost covers four things to think about before starting a PhD, divided into when, where, what, and with whom.

  1. When should I start my PhD? Is now a good time? Is it too late for me to start one?

Obviously, there’s no right answer to this question: so much depends on your personal circumstances and what’s right for you. Many people go straight from undergraduate into postgraduate study. Many other people come back to postgraduate study after they’ve had a long career elsewhere and use their PhD essentially as a retraining exercise (so no, it’s not too late to start one now). Some people do a PhD full-time, while others combine it with paid work, childcare, or other commitments.

Before beginning your PhD, think carefully about your rationale for doing one. You’ll need this big-picture goal to sustain you when you’re stuck in the day-to-day tedium of research, and when you’re living off a meagre scholarship rather than a proper wage. It’s almost compulsory to have a PhD for a career in academia, and (as I understand it) for many other research positions in the sciences. Certainly, you could do one just for fun in your backyard shed (like my friend’s Dad) but consider whether you’ve got the staying power to do a 3-4 year research project simply for the joy of it.

2. Where should I do my PhD?

For many people, the answer to this question is driven by convenience: where your family’s located, where your partner’s job is, or where your children are going to school. But if you’re completely free to choose, then you’ll be considering things like where your ideal supervisor’s located (more on this below), or which universities specialise in your field of interest.

Consider, too, what you want to do after you finish your PhD: if you want to work in a law school, it makes sense to do your PhD in a law school. If you want to work in the US, your PhD could be an entrée into the US academic sector. If you want to work at a particular university (or calibre of university), it might be worth doing your PhD at that university. Keep in mind, however, that some universities can be reluctant to hire former students (at least not without a stint elsewhere first).

When considering a particular university, make sure you understand their requirements for undertaking a PhD, and try to find out how they treat their students. What processes are in place for confirmation of your candidature and for annual review? Will you need to do coursework? Are PhD students considered members of faculty (and invited to seminars, for example), or are they treated like ghosts in the machine? Is there financial support available for PhD students and what form does it take? Will you have access to a shared office or a hot desk? What are the likely opportunities for paid research and teaching work during your candidature?

3. …on what?

Before starting a PhD, your topic may look like: “Globalisation… and something.” It’s OK to only have a rough idea of what your topic looks like before you start. Knowing what specialty or topic area you want to work on is helpful, because that’s how you identify potential supervisors. But you may find that your prospective supervisor helps you refine your topic, or has a topic in mind already (or there’s a scholarship available for a project on a particular topic). It’ll change over the course of your PhD anyway: I looked at my thesis proposal the other day and it’s extremely general compared to the more specific topic I ended up doing my PhD on.

You can be pragmatic in how you identify your topic. My PhD focused on regulation of junk food marketing to kids. I chose this topic because it combines my interests in public health, law, and regulation, rather than because of any deep connection with food advertising regulation. Your PhD topic doesn’t need to be your life’s passion, but it does need to be something that can sustain your interest over three or more years.

4. With whom?

Having a good supervisor is one of the most important contributors to successful PhD completion.  I think it’s even more important than topic choice. Obviously, you’ll be looking for the person that’s an expert in your topic area. But apart from that, you also want someone who’s reliable, offers constructive feedback on your research, supports you in advancing your career, and values the relationships they have with their PhD students.

In specialised areas, there may really only be one choice of person. But it’s still worth doing some due diligence on potential supervisors. If you can, talk to their current or former PhD students and ask them about their experiences. Having at least a couple of meetings with a prospective supervisor will also help you to decide whether they’re someone you can have a good working relationship with.

While your primary supervisor will have a significant influence on your candidature, they’re not the B-all and end all. Students can appoint one or more auxiliary or secondary supervisors, offering the opportunity to appoint someone at a different university or with different expertise. You can also reach out to other academics during your candidature for input or advice on particular aspects of your research.

As you begin the journey

Starting a PhD is a bit like having a baby. Everyone’s going to tell you how hard it is, and how you just won’t understand until you’ve done it. It’s great that we discuss the emotional complexity and challenges involved in big life events. But everyone’s experience of their PhD is different. For me, certainly, there were times of immense stress (realising I’d put the page numbers in the wrong place just before printing the final version), as well as periods of tedium and repetition (hello, doing all of my own interview transcription to save money). But there were also many moments of enjoyment and personal satisfaction, and all of those experiences contributed to where I am today.

My best of luck to you as you start out on your PhD journey.

If you’ve done a PhD, feel free to add advice or links in the comments section!

Rule of law in the Covid-19 response

The International Development Law Organisation (IDLO) has released a short publication that highlights the role of law in governments’ response to Covid-19.  See here.

Established by international treaty in 1988, IDLO is an inter-governmental organisation devoted to upholding the rule of law.  Australia, and the United States, are among its 37 member parties, which span both developed and developing countries.

IDLO works in over 30 countries and across a range of legally-relevant areas, including public health, sustainability, access to justice, the rule of law and gender.

Sydney Law School collaborated with IDLO, the World Health Organisation and the O’Neill Institute for National and Global Health Law at Georgetown University in the 2017 publication, Advancing the right to health: the vital role of law.  An update and summary guide to the report was published in 2018, see here.

The vital role of law in the Covid-19 response identifies a number of lessons that both publications have for law’s role in the current coronavirus pandemic.

Covid-19 and the rule of law

A statement by IDLO’s Director-General, Jan Beagle, also draws attention to how the rule of law can contribute to an effective global response to Covid-19.

The rule of law is the principle that law-making processes should be transparent, laws should be enforced fairly, courts and tribunals should be independent, and the administration of law and its substantive content should be consistent with international human rights standards (see here, p 7).

Director-General Beagle draws attention, firstly, to the way that the rule of law and the justice sector can temper raw political responses to epidemics, allowing “carefully tailored” emergency measures that “protect people from infection and disease, while respecting their civil, political, economic and social rights”.

For example, where legal or executive processes are used to create “disproportionately excessive powers”, international human rights law, and legal instruments such as the International Health Regulations, provide standards for restoring balance.

Secondly, Director-General Beagle points out that the rule of law “can be a lifeline for society’s most vulnerable in times of crisis.  She writes:

“When freedom of movement is restricted and resources are scarce, feelings of stress, anxiety and alienation can exacerbate exclusion, discrimination and social fissures and have a disproportionate impact on people living in extreme poverty, women and girls, the elderly, children, people with disabilities, migrants, refugees and displaced persons, prisoners, and those living in situations of conflict and insecurity”.

Evidence of these social fissures is seen, for example, in rising rates of family and domestic violence since Covid-19 began, particularly against women and children.  See here, here and here.  UN Women calls this a “shadow pandemic”.

At times like this, the role of justice institutions and the rule of law is more important than ever to “protect the rights of the least powerful among us”.

Finally, Director-General Beagle refers to the rule of law in providing “concrete pathways for post-emergency recovery”, including by addressing the “socio-economic consequences of the epidemic”.

“This will require greater investments in public institutions and inclusive and participatory policymaking to help communities to come together and maintain social cohesion in the aftermath of this pandemic”.

Law’s mission in public health

Although commenting specifically on the rule of law, Director-General Beagle’s statement helps to identify some key features of the mission that law can have – in my view ought to have – within the arena of public health.

Law is a tool that can be used for deploying, but also constraining, political power.  Wisely used, it can create an effective legal framework for health protection that is led by government, and informed by human rights.

However, in fulfilling its role in health protection, law’s role is not – or should not only be – to improve health “on average”, but to help tackle the factors that drive inequalities in health: the deep pools of disadvantage that persist even when average health improves.  Health law work is certainly about improving average health, but it’s also about effective health protection for those who will be left behind – or trampled underfoot – if all we care about is the law of averages.  A growing literature is beginning to document the social gradient of Covid-19 transmission, in the sense that economic and social disparities can amplify virus transmission, just as they amplify risks and poor health outcomes in other areas.

Finally, in speaking of law’s role in supporting “the resilience of communities against future crises”, Director-General Beagle also draws attention to the future dimensions of public health law.  The purpose of public health law is not only to secure the present, but to create legal frameworks that will help to give future generations the opportunity to enjoy a healthy life.

Law’s mission in public health is ambitious, and the rule of law is a critical part of that mission.  With Covid-19, global warming, and persistent epidemics of non-communicable diseases (and their risk factors) such as cancer, diabetes, and obesity, the need for health law specialists has never been greater.

Are you interested in studying health law?  Click here, here and here for more details.