International Guidelines on Human Rights, Healthy Diets and Sustainable Food Systems: could they make a difference?

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The BMJ has published an Opinion calling on the Director-General of the World Health Organisation, Dr Tedros Adhanom Ghebreyesus, and the United Nations High Commissioner for Human Rights, Dr Michelle Bachelet, to jointly initiate a process to develop International Guidelines on Human Rights, Healthy Diets, and Sustainable Food Systems.

180 signatories from 38 countries have supported this Open Call – experts in global health and development, human rights, food systems, and HIV.

You can join the Call and add your name in support here, at the Healthy Societies 2030 website.

Healthy Societies is also hosting supporting documents, including a suggested process for strengthening links between human rights and healthy diets at the global level, and moving towards international guidelines.  (You can contribute to the discussion form, follow on twitter, and join the mailing list).

But pausing for a moment.

How would International Guidelines on human rights and healthy diets make a difference?

The Open Call published in BMJ draws on the example of the International Guidelines on HIV/AIDS and Human Rights (1998), which clarified the legal obligation of States, under international law, to respect, protect and fulfill human rights in the context of HIV.

These Guidelines helped to consolidate the framing of global strategy for HIV prevention and treatment in terms of the human rights of those affected by HIV.

And they provided language and conceptual tools for civil society organisations to hold governments to account.

In the BMJ Opinion, we argue that joint WHO/OHCHR guidelines could have a similar effect, by putting people at the centre of food systems, and strengthening the protection of health in global and national policies.

 

Framing global strategy effectively: the example of HIV

Getting global strategies right matters because they affect national strategies, actions and budgets.

These days, human rights are at the centre of the global response to HIV.

A focus on human dignity, preventing discrimination, empowering those with, or at risk of HIV, and ensuring that no one is left behind – these human rights values lie at the core of global strategies to prevent transmission and treat infection.

It wasn’t always that way.

In Australia, in the 1980s and early 1990s, public debate about rising rates of HIV infection was often framed by prejudice and fear.

HIV was the “gay plague”.  As a PhD student, I remember seeing a call by the Queensland Association of Catholic Parents to brand homosexuals in order to “stop AIDS”.

In Australia at that time, otherwise sane people were arguing that everyone in the country should be tested for HIV, and those with HIV should be removed from society or quarantined in the desert somewhere.

Fortunately, a kinder, more rational and humane approach – a human rights approach – prevailed.

By working with and through those affected by HIV – rather than against them – HIV rates have remained low in Australia.

It didn’t happen by accident.  It took a great deal of effort to ensure that national strategy was framed in such a way as to make it effective.

(The Honourable Michael Kirby, a former Justice of the High Court, and tireless advocate for a human rights approach to HIV – especially during the critical decades of the 1980s and 1990s – is one of the signatories to this Open Call).

 

Why a human rights frame for healthy diets and sustainable food systems?

So human rights have played an honourable role in the global response to HIV.

But how could they have a similar positive impact on nutrition, diet, and health around the world?

Some of the most urgent public health problems today revolve around the interlinked crises of obesity, poor nutrition, hunger, and climate change.

The starting point is that in many countries, market forces are failing to deliver healthy diets, adequate nutrition and sustainable food systems.

If framing food purely as a commodity, and if framing food systems purely as business networks supplying commodities in response to market demand – was effective, then countries wouldn’t be buckling under the strain of a massive, preventable burden of diabetes, obesity and chronic, diet-related diseases.

The Lancet Commission on Obesity called for “a radical rethink of business models, food systems, civil society involvement, and national and international governance” to address these problems.

While many actions will need to be taken, the BMJ Opinion argues that human rights concepts and language are powerful, under-used tools.

Interested in supporting breast-feeding, and preventing the predatory corporate practices that undermine it?  Try doing that without the moral support of human rights concepts.

Interested in the quality of food and drinks served in schools?  Or the stealth marketing of unhealthy foods and drinks to children using online platforms?  You could, of course, revert to the well-worn concepts of parental responsibility and consumer choice.  How’s that working out?

International human rights law provides a powerful way to frame these, and other challenges.

States owe an obligation to respect, protect and fulfil the right to health, as recognised in Article 12 of the International Covenant on Economic, Social and Cultural Rights.

Amongst other things, this requires States to protect the right to health from interference by others, including corporations pursuing economic interests without reference to the impact on health or the environment.

Joint WHO/OHCHR guidelines could help to push human rights concepts and language beyond the “UN human rights silo”.

The subtle form of forum sharing and coalition building that we advocate, through joint WHO/OHCHR guidelines, is increasingly recognised in other areas of the global health response, such as the Global Strategy to Accelerate Tobacco Control (2019), adopted by the Conference of the Parties to the WHO Framework Convention on Tobacco Control.

Many new ideas appear surprising at first glance.  And action at the global level may appear indirect, and abstracted from reality.

However, International Guidelines on human rights and healthy diets could help to mobilize multisectoral action, strengthen the accountability of States and the private sector, and deepen community engagement in the urgent task of developing healthier, fairer and sustainable food systems.

Let’s leave no one behind.

You can join the Open Call on Dr Tedros and Dr Bachelet here.

 

 

Smoke-free streets and lanes: a growing headache for big tobacco?

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Smoke-free Melbourne?

One of Melbourne’s quintessential experiences is to stroll its laneways, many lined with restaurants.  Smoking here would spoil things for everyone.

In 2014, Causeway Lane, a small restaurant strip running between Bourke Street Mall and Little Collins Street, went smokefree.

You can read reactions to this smoke-free pilot here.

Three more laneways were added in 2015.

Victoria’s Local Government Act 1989 permits local governments, including the City of Melbourne, to make and enforce “local laws” (see ss 3E, 111) that relate to its functions or powers, provided they are not inconsistent with Victorian Acts or regulations.

The City of Melbourne’s Activities Local Law 2019, one of three local City laws, empowers Council to prescribe smoke-free (local) areas (see Part 3A). Click here for more information on City of Melbourne smoke-free places, and click here for a map of these places.

The City of Melbourne is currently reviewing community feedback about a proposal to make Bourke Street mall smoke-free.  See here, and here.

 

Smoke-free North Sydney

North Sydney Council has gone even further, voting in July 2019 to completely ban smoking in its CBD.

Community consultation showed 80% support in favour of the ban.

The traditional justification for second-hand smoke laws – in bars and restaurants, offices, trains and airplanes, is that smokers should not be permitted to harm the health of non-smokers.

With growing demand for fresh air, however, these laws have taken on a life of their own.

Area-wide smoking bans in public places are a logical follow-on from the decade-old smoking bans on Sydney beaches.

Manly beach went smoke-free in 2004, and all harbour and ocean beaches in Sydney’s northern beaches area are now smoke-free.

Bondi Beach also went smoke-free in 2004, and Waverley Council has since extended smoking bans to the Oxford Street Mall.

 

Conceptualising innovations in tobacco control

Second hand smoke controls reduce butt litter and harm to non-smokers, including asthmatics and others with lung and heart conditions.

It seems clear, however, that bans are expanding into areas where the risk of harm to non-smokers is substantially reduced.

It’s a process I call transformation: when the justification for existing legal controls changes over time as a result of norm change, facilitating further expansion.

These days, what functions do smoking bans serve?  Beyond causing harm to non-smokers, are they laws that relate to amenity – the desire of the majority not to have their enjoyment of public places spoiled by even transitory encounters with nasty tobacco smoke?

Or are they about reducing the potential for smoking to function as a socially communicable disease by reducing the visibility of nicotine-seeking behaviour?

Or are they about litter and protection of our waterways?  (I once saw a smoker put their butt in the bin.  Honest, cross my heart).

Or are they simply an exercise in “making tobacco use difficult” (to use Brawley’s term)?

Whatever the reasons, the nanny state theorists aren’t having a bar of it.

Residents’ demand for fresh air, and smokers’ recalcitrance on butt litter went down like “sick in a cup” with radio man Steve Price, who has blasted the ban as a “nanny state solution”.

Other ways in which tobacco controls can expand include through extension (where the purpose of the law remains the same, but the reach or intensity of legal controls becomes more extensive over time (as with prohibitions on tobacco advertising), and through creation (where law imposes distinctively new kinds of controls to help reduce initiation, encourage quitting, discourage relapse, and reduce exposure to second-hand smoke).

[a designated smoking area on Orchard Road, Singapore]

 

Smoke-free districts in asia

A similar trend towards smoke-free streets and precincts looks to be under way in parts of asia.

From 1 January 2019, the Orchard Road precinct in Singapore became a smoke-free zone.

Smoking has not been eliminated entirely along Singapore’s famous shopping strip.  But smokers are required to smoke in designated places, reducing litter, and further reducing non-smokers’ exposure to tobacco smoke in outdoor areas.

It’s a similar picture in Penang, Malaysia.  This wonderful world heritage city has gone smoke-free.

In the United States, Disney World and Disneyland are going smoke-free, and there are no designated smoking areas within these parks.

Not all tobacco control advocates are comfortable with the trend towards smoke-free public spaces.

Simon Chapman has argued that “banning smoking in wide-open public spaces goes beyond the evidence and is unethical”.

One interesting possibility is whether the failure to accommodate smokers’ nicotine addiction constitutes discrimination on the grounds of “disability” or “impairment” under NSW, Victorian and other anti-discrimination or equal opportunity statutes.

While opioid addiction has been considered a disability under the Disability Discrimination Act 1992 (Cth) [see commentary here], nicotine dependence has not yet been regarded as a “disability” or an “impairment” for the purposes of State anti-discrimination laws (see here, and here).

I’m not sure tobacco companies want all their addicted customers categorised as disabled, but you never know.

In the meantime, enjoy the fresh air!

[No smoking in George Town, Penang’s World Heritage site]

Interested in studying health law?  Click here and here for more information.

Breastfeeding rooms in US federal buildings: who would have thought?!

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Last year the US watered down a resolution of the World Health Assembly that would have called on States to “protect, promote and support breast-feeding”, and to provide technical support to “halt inappropriate promotion of foods for infants and young children”.

A step too far, apparently, given the economic interests of US-domiciled formula companies.

See here for a previous post.

In June 2019, however, Congress passed a Bill requiring federal agencies to provide lactation rooms for lactating women in buildings that are open to the public.  Think federal courts, US Social Security Administration buildings, and indeed, within the US Capitol building itself.

The Bill requires the agency to provide a lactation room that is “shielded from view”, “free from intrusion”, and contains a chair, a working surface and electrical outlet.

This ensures a place for women both to breast-feed, and/or to express breast milk.  Importantly, it encourages breast-feeding, and expressing breast milk as a new normal for women with infants who are interacting or indeed working for the federal government.

The bill provides for exceptions: where it is impossible at reasonable cost to re-purpose a space as a lactation room using portable materials, or where new construction would be required to create a lactation room at a cost that is unfeasible.

The Bill is a nice example of a public health intervention that changes the environment to support a behaviour that benefits the health of both the infant, and the nursing mother.  President Trump signed it.  Who would have guessed?

And now for the hard question: Can you imagine anything similar happening in Australia, the clever country?

Click here for a quick summary of the benefits of breastfeeding: you might be surprised how significant and extensive they are.

It’s the kind of stuff the manufacturers of “toddler milk” (Nestle and all the rest) tend not to emphasise.

(By the way, for those interested in tracking US Congressional legislation that impacts global health, click here).

 

Abortion law reform and conscientious objectors in NSW

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New South Wales is on the cusp of reforming its decades-old abortion laws.

Reproductive Health Care Reform Bill 2019 which passed the State’s Legislative Assembly last week abolishes the triumvirate of criminal offences for abortion in the Crimes Act 1900 (ss 82-84), together with any residual common law liability for performing an abortion.

It creates a new offence for an unqualified person to perform or assist in the performance of an abortion.

New requirements for lawful abortion

The version of the Bill passed by the Legislative Assembly includes a number of requirements that were absent from the Bill as originally introduced by Independent MP Alex Greenwich.

The Bill follows Queensland legislation in authorising a medical practitioner to perform an abortion on a consenting woman who is not more than 22 weeks pregnant.

Before doing so, the doctor must consider whether the pregnant woman would benefit from counselling about the proposed abortion, and if so, must provide her with information about how to access such counselling, including publicly-funded counselling (s 7).

Beyond 22 weeks, an abortion may only be performed in a hospital or other approved facility (ss 6(1)(d), 12).

A woman seeking an abortion beyond 22 weeks must first consult a “specialist medical practitioner”, defined to mean a specialist registered in obstetrics and gynaecology, or alternatively – and rather vaguely – “a medical practitioner who has other expertise that is relevant to the performance of the termination, including, for example, a general practitioner who has additional experience or qualifications in obstetrics.”

The first specialist medical practitioner must consult with a second specialist medical practitioner and both must conclude that “in all the circumstances, the abortion should be performed”, having considered the pregnant woman’s medical circumstances, her current and future physical, psychological and social circumstances, and professional standards (s 6).

However, these requirements (including the requirement for the doctor to be a specialist) do not apply if the doctor believes that the abortion is necessary to save the woman’s life or save another foetus (s 6(4)).

The Bill authorises medical practitioners, nurses, midwives, pharmacists or Aboriginal and Torres Strait Islander health practitioners to assist in abortions in the practice of their health profession, provided they comply with the requirements summarised above (s 8).

Conscientious objectors

Then comes the bit about conscientious objectors.

The NSW Bill follows abortion liberalisation laws in other States, including Queensland, Victoria, and Tasmania, in recognising a medical practitioner’s conscientious objection to advising about, assisting or performing an abortion.

However, the Bill requires conscientious objectors who have been asked to perform or advise about an abortion to refer the woman to another medical practitioner (or health service) whom they believe “can provide the requested service and does not have a conscientious objection to the performance of the termination” (s 8).

To me, that looks a lot like compelling a doctor to participate in facilitating an abortion, irrespective of their moral beliefs.

The Bill is oddly worded, but s 10 appears to indicate that failure to perform one’s statutory duty and to refer a woman seeking an abortion to a medical practitioner who is happy to provide one, is something that can be taken into account in considering complaints made against that doctor to the Medical Council of NSW, or complaints to the Health Care Complaints Commission.

So why privilege the conscience of doctors when it comes to abortion, as distinct from treating abortion like any other medical service?

Stop and think about it.

Because abortion is only one of the most long-standing and bitterly contested medical ethics issues of all time, and medical practitioners who sincerely believe that abortion is morally wrong all or most of the time are hardly newcomers to the health system.

Because the foetus is not nothing – just ask the thousands of women out there who would do anything to fall pregnant, or stay pregnant – and if the foetus is not nothing then a medical practitioner ought to be given the moral space to decide whether and under what circumstances they will participate in the process that leads to killing it.  As courts have said in other contexts, a foetus is not just tissue of the woman in the same way as, say, a diseased appendix or diabetic limb.

Rather than recognising that we live in a pluralistic society where fundamental disagreement persists around issues like abortion and assisted dying, the Bill adopts a triumphalist, winner-takes-all approach, presumably in order to eliminate obstacles to access.

It is hardly surprising that in Victoria, where a similar law was introduced in 2008, some conscientious objectors have not complied with their legal obligations.

Triumphalist legislation

The willingness of Australian Parliaments to liberalise abortion laws reflects the gradual strengthening of personal autonomy and individualism as dominant values in Australian life.

(Moral conservatives in the neoliberal camp, with their Thatcherite view of the world, their easy slogans like “personal responsibility” and “nanny state” have, ironically, helped to create the conditions where progressive abortion laws can now be passed).

But the point is that doctors have personal autonomy too.  As professionals – meaning highly skilled and ethically reflective people with a commitment to the ideals of their profession – doctors have never been mere servants to the designs of their patients.

By all means over-ride a doctor’s conscience if an abortion is necessary to save the pregnant woman’s life.  But otherwise, why threaten the right to practice of a doctor who, for deeply felt moral reasons, cannot participate in a referral system for killing unborn babies?

As I read the legislation, the Bill creates an offence for failing to refer a woman to another doctor who “does not have a conscientious objection to the performance of the termination” that has been requested in the circumstances.

It co-opts not only “right-to-lifers”, but others who believe that the moral status of an abortion depends on the circumstances.

A doctor might believe, for example, that terminating a foetus because it is a girl rather than a boy, is wrong.

In response to concerns about sex selection abortion, the Bill requires the Minister to conduct an inquiry on this issue within 12 months.  However, it doesn’t exempt a doctor who might refuse to refer a couple who want to terminate their foetus because it is the wrong sex.

As it stands, most of the reforms in the Reproductive Health Care Reform Bill 2019 are welcome.  But where is the public interest in requiring conscientious objectors to cross moral boundaries?

Some will feel that it ushers in religious discrimination.

And they won’t comply.  They might well say: since when did the State have the authority to require me to be part of a referral system for killing the unborn?

Infrastructure…non-communicable diseases: Australia’s pivot to the Pacific islands an opportunity to take Pacific health priorities seriously

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Barely 100 metres from Australia’s High Commission in Nukoalofa, Tonga, lies this plaque – erected by the People’s Republic of China.

In 2012, China upgraded a small section of road in the Tongan capital, installing drains beside the sidewalk in a town prone to flooding.

Close by, in other parts of the town, rain collects in deep pools and has nowhere to run, even though the sea lies only metres away.  There are no drains.

And two blocks from the Australian High Commission, a dead dog lies in the water outside someone’s submerged front yard.  It takes days, people say, for the rainwater to subside.

Welcome to the Pacific.

Australia’s pivot to the Pacific is welcome news.

Although significantly driven by Australia’s national security interests, higher levels of investment and development assistance provide at least the possibility of alignment with the public health needs of the region, and an opportunity to take Pacific health priorities seriously.

Health security begins with adequate sanitation, drainage, and safe water supplies.  But increasingly, mitigation will be needed against tidal surges and seawater level rises, and the impacts global warming will have on agriculture and food security, water supplies, housing and livelihoods.

Non-communicable diseases (NCDs) including diabetes and cardiovascular disease are out of control in the Pacific, thanks to high rates of smoking, obesity, and the displacement of traditional diets with cheap, imported junk foods.  A culture of feasting may also play a role.  (For further comment, see here, and here).

Significant progress has been made.  Around Nukualofa, for example, you’ll find fresh fruit and vegetable markets, and curbside stalls selling locally-grown produce.

Tonga has also innovated in ways that Australia has not, establishing a statutory Health Promotion Foundation (2007), and training new cohorts of NCD-specialising nurses.

In 2013, Tonga introduced an excise tax on sugar-sweetened beverages, and a T$1 per kilogram tax on a range of animal fats, in order to discourage consumption of fatty meat, including mutton flaps and turkey tails.  Taxes on fatty meats and sugary drinks were increased further in 2017.

But geography and the absence of economies of scale work against these dispersed island groups.  Tonga has beaches and coral waters to die for, yet it is not well known as a tourist destination.

On the island of Foa, in the Ha’apai island group, there are two low-key resorts owned by expats, where you’ll be charged NZ$60 for the 5km drive, across the causeway, to the airport.

A few Tongan nationals work at the resort, but how much money filters down to the impoverished communities that live on the island?

In any event, Pacific island economies need far more than tourism.  They need more economic activity across the board, and the infrastructure to enable it.

Throughout the Pacific, public health legislation needs updating.  Enduring sources of funding are needed to build regulatory capacity, including for enforcement.  Episodic funding, with heavy emphasis on epidemic preparedness, is of course welcome but leaves other core challenges under-funded.  The Pacific Commission’s Public Health Division has done magnificent work; this work, and the funding that supports it, needs to continue.

Australia’s “pivot” is an opportunity to re-set relations and to invest meaningfully in Pacific health priorities.

At least in this area, perhaps a bit of strategic competition isn’t a bad thing.

Are you interested in health law?  Sydney Law School offers a Master of Health Law, and Graduate Diploma in Health Law that is open to lawyers, health professionals and other approved applicants.  Click here, here and here for more information.

Strengthening law’s role in improving Australia’s diet

Alexandra Jones Food, Public Health Law ,

Food_Governance_Conference

Alexandra Jones and Belinda Reeve

This post originally appeared in MJA Insight and is re-posted with the MJA’s kind permission. The original article can be found at this link.

THE law can be a powerful tool for improving population health, but remains underutilised in addressing Australia’s huge burden of diet-related disease.

Taken in a broad sense, the law includes legally binding rules found in constitutions, statutes (or legislation), regulations, and other executive instruments, international treaties, and cases decided by the courts. It also includes the public institutions responsible for creating, implementing and interpreting the law.

Countries around the world are using law in innovative ways to improve nutrition, with a growing body of evidence demonstrating their effectiveness. Many of these innovations will be discussed when experts in the field gather at the University of Sydney’s Law School from 3 to 5 July for the 2nd Food Governance Conference. The conference will explore how law, policy and regulation address food system challenges or contribute to them at the local, national and global levels. The conference opens with a free public oration on Wednesday 3 July from Hilal Elver, the United Nations Special Rapporteur on the Right to Food.

To tackle high rates of obesity and sugary drink consumption, Mexico introduced a 10% tax on sugar-sweetened beverages in 2014. Evaluations of the tax found a 5.5% decline in the purchase of taxed beverages in the first year after its introduction, and a 9.7% decline in the second year. Over 40 countries have now introduced similar taxes on sugary drinks, with more likely to follow suit.

One of the most straightforward measures for improving dietary health is removing industrially produced trans fats from the food supply. Trans fat bans have been introduced by countries such as Denmark, Singapore and Switzerland, and research demonstrates these bans have virtually eliminated trans fats from the food supply. They are also more effective than voluntary measures in reducing trans fat levels in food.

The success of trans fats bans has prompted calls for similar laws to be used for nutrients such as sugar and salt, with South Africa and Argentina taking the lead on setting mandatory limits for salt in a range of commonly consumed foods. Saudi Arabia has recently announced its intention to set similar maximums for added sugar.

It’s not just national governments that are taking legislative action on dietary health. Legal innovations are taking place at the local and global levels.

Local or municipal governments often lead the way with laws or regulations that aim to improve nutrition. London has banned unhealthy food marketing on the underground, train, tram and bus services, following concerns about high levels of childhood obesity. New York City’s attempt to ban large servings of sugary drinks received widespread media and public attention; less well known is the Minneapolis Staple Foods Ordinance, which requires grocery stores to stock a minimum number of staple foods, such as fruits, vegetables and cereals.

At a global level, countries including Australia have ratified international human rights treaties that obligate them to take national action on unhealthy diets. The nature of these commitments has been explained in comments from international treaty monitoring bodies and the UN Special Rapporteurs on the Right to Food and the Right to Health. The monitoring committee for the UN Convention on the Rights of the Child, for example, has expressly called for restrictions on marketing of unhealthy food to children to protect child rights.

This last example illustrates that while legal interventions targeting the food system are important, other areas of law play a profound role in shaping the social determinants of diet-related health. Planning law can be used to ensure easy access to stores selling healthy, affordable food. Social welfare laws address barriers to food security such as poverty, poor quality housing and homelessness. Consumer protection laws shape the information environment (among other things) and provide protection against misleading and deceptive food marketing.

Australia needs strong national leadership on diet-related health, particularly considering our high levels of obesity (nearly two-thirds of adult Australians are overweight or obese) and diet-related non-communicable diseases, combined with rates of food insecurity that are unacceptably high in such a wealthy country.

Yet to date, the federal government has relied on voluntary measures and collaborative partnerships with industry to deal with issues such as marketing of unhealthy food to children, salt reduction, and the Health Star Rating front-of-pack nutrition label.

Evidence shows that these initiatives tend to suffer from limited uptake by food businesses, significant weaknesses in their design and implementation, a failure to manage commercial conflicts of interest, and a lack of transparency and accountability in governance processes.

The Health Star Rating, for example, has now been in place for 5 years but appears on less than one-third of all products, mostly those that score at the upper end of its five-star scale. This limits its value in guiding consumers towards healthier choices.

The benefits of legislation, in contrast, include mandatory compliance, with legal penalties available for non-compliance, and formal, transparent processes of enactment and amendment. The law can reach entire populations and create healthier environments in a way that is significantly more difficult for voluntary measures. This is one reason why 10 countries, including recent adopters Chile, Peru, Israel, Sri Lanka and Uruguay now have mandatory front-of-pack labels.

Australian state governments have taken important steps towards improving nutrition at a population level, for example, through kilojoule information on fast food menus, and removal of sugary drinks from schools and hospitals, but there is more that could be done. For example, legislative frameworks for city planning lie within state control, but tend not to support obesity prevention objectives.

Local government action on diet-related health is also typically overlooked in thinking and decision making on nutrition policy. However, Australian local governments possess a range of functions and powers that could be used to leverage access to healthy food, particularly within a framework of supportive state legislation, and many already have in place initiatives that have an impact on nutrition, for instance, policies on community gardens and urban agriculture.

Australia is a world leader in the use of law to regulate the manufacture, sale and marketing of tobacco products, and won significant victories against tobacco manufacturers in domestic and international courts. Australia now has some of the lowest smoking rates in the world, but we lag behind in using law to improve diet-related health.

The federal Health Minister recently announced the government’s intention to develop a national preventive health strategy. This is a rare window of opportunity to bring Australia to the forefront of action on diet-related health. Legal innovations overseas demonstrate that the re-elected federal government should give serious consideration to more hard-hitting – and effective – measures on nutrition. Now more than ever we need legal change that supports Australians in living longer, healthier lives.

Alexandra Jones is a public health lawyer leading the George Institute for Global Health Food Policy Division’s program on regulatory strategies to prevent diet-related disease. Her current research interests include Australia’s front-of-pack Health Star Rating system, fiscal policies to improve diets (e.g. taxes on sugar-sweetened beverages), product reformulation, restrictions on unhealthy marketing, and the interaction of international trade law and health.

Dr Belinda Reeve is a Senior Lecturer at the University of Sydney Law School and is co-founder of the Food Governance Node at the Charles Perkins Centre. Her research interests lie in public health law, with a particular focus on the intersections between law, regulation, and non-communicable disease prevention.

Medical treatment in the best interests of the child: onshore, and offshore

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There are troubling disparities between the medical treatment that children receive, depending on whether they live onshore – in Australia, or offshore – in immigration detention in places like Nauru.  But do these disparities have a legal basis?

Medical treatment and the best interests of the child: onshore

Exercising their parens patriae jurisdiction, Australian Supreme Courts will intervene – paternalistically, and unapologetically – to ensure that children receive the medical treatment that is in their best interests.

In many circumstances this means granting orders to authorise medical treatment so that Australian children don’t die.

Although the context is very different, recent cases in NSW and Victoria involving the administration of blood products to Jehovah’s Witnesses illustrate the point.

In Sydney Children’s Hospital Network, The Application of [2018] NSWSC 1259, the Supreme Court of NSW authorised the administration of blood products during open heart surgery that the court expected an unborn baby would require following birth.  The pregnant woman was a Jehovah’s Witness who had prospectively refused to allow her child to receive blood.

In a similar case held a few weeks later, the Supreme Court authorised a blood transfusion, if necessary, during surgery on a 6 year-old to remove a tumour.

In Mercy Hospitals Victoria v D1 & Anor [2018] VSC 519, the court order cleared the way for a blood transfusion to be given to a 17 year-old pregnant girl if she haemorrhaged following birth.

People may disagree about the merits of compelling a Jehovah’s Witness teenager to accept a blood transfusion, but the point is that courts have jealously guarded the scope of the parens patriae jurisdiction, and it survives intact to ensure that children in Australia receive medical treatment when it is in their best interests to do so.

Medical treatment and the best interests of the child: offshore

A consensus seems to have arisen among many Australians that treating children poorly and neglecting their physical and psychological needs is the price to be paid for “stopping the boats” and preventing asylum seekers from “jumping the queue”.

This issue has become highly politicised.

Politicians flash border protection pectorals, and many Australians respond positively.

But do Australians really want children to be neglected, and denied medical treatment?

Because that’s what’s been happening for many years, and it’s set to happen again if the “Medevac Bill” (the Home Affairs legislation Amendment (Miscellaneous Measures) Act 2019 is repealed.

Before considering this legislation, let’s pick a case study, but take our facts – not from the Minister’s office, but from an institution in our democracy that should and must remain apolitical: the courts.

Rowena’s story

“Rowena” (a pseudonym) is a young girl; we don’t know her age but we know she is not yet a teenager.

Her parents fled their country of origin, and travelled to Christmas Island by boat.  They arrived in 2013, thereby becoming “unauthorised maritime arrivals” under Australia’s Migration Act 1958.

Under section 198AD, they were transferred to Nauru, a country of 21 sq km that assesses asylum seekers who wish to settle in Australia, pursuant to a Memorandum of Understanding between both governments.

The Australian Government pays all the costs of assessing and housing asylum seekers.

These accommodation precincts (whatever you want to call them) would not exist if they were not a manifestation of Australian government policy.

In 2014, Rowena’s parents were assessed as refugees under the Refugee Convention and granted temporary settlement visas in Nauru.

However, Rowena and her parents were not permitted to settle in Australia.  Unless they chose to return to their home country, they were obliged to remain indefinitely on Nauru, or until a third country agreed to settle them.

Around March 2017, Rowena’s parents separated, and her father went to live with his new girlfriend.

Rowena’s mental health began to deteriorate around April that year.

In October 2017, Rowena told a child psychologist employed by International Health and Medical Services (IHMS, a health services contractor), that a voice tells her that “dying is better than living, you’ll be free”.

Rowena told the child psychologist that “she wants to die and she wants to kill herself and that if she was going to kill herself she could ‘make myself lost in the jungle and put a knife in my stomach’”.

In December 2017, Rowena attempted suicide by taking 14 tablets of her mother’s medication.  She was admitted to hospital with respiratory distress, chest and abdominal pain.

Three days later, a counsellor employed by IHMS wrote in the clinical notes that Rowena said: “The medication didn’t kill me, I will try something else”.  “I will kill myself with a knife or jump off the rocks”.

Rowena told the counsellor that she knew how to kill herself because she “has seen in the movies people stabbing themselves with knives”.

She told the counsellor that “attempting suicide made her feel good”.

A psychiatrist employed by IHMS wrote:

“It was clear that this bright child was a little confused on what it meant to be dead.  She was persistent in her thought of wanting to die and leave this world but it was not quite synonymous with her intent to kill herself.  She interspersed the theme of wanting to die with hopes of leaving Nauru and starting a new life elsewhere”.

Rowena’s mother began sleeping in the same room as Rowena for fear she might commit suicide.

However, on 18 December 2017, Rowena ran away from her mother and according to an affidavit by Professor Louise Newman, a child psychiatrist and Professor of Psychiatry at the University of Melbourne, “was found in a position to jump from a height and said that a voice was telling her to jump, jump, jump”.

Professor Newman concluded that there was “clearly an immediate risk” that Rowena would engage in further suicidal behaviour.

Rowena required, in her opinion, treatment by specialists qualified in child psychiatry “in an inpatient child mental health facility with appropriate supervision”.

On 20 December, Rowena and her mother were transferred to the Restricted Accommodation Area within the Regional Processing Centre on Nauru.

According to Professor Newman, this was not an adequate response.

Professor Newman wrote: “Supervision is essential as this child has now run away on two separate occasions and is experiencing command hallucinations urging her to suicide”.

In Professor Newman’s opinion, Rowena needed a safe environment where she could live with her mother and sister, “supported by trained child and adolescent mental health staff on a 24 hour basis”.

Nauru does not provide such facilities.

Rowena v Minister for Immigration and Border Protection

Rowena’s circumstances came before Justice Murphy in the Federal Court in February 2018.

According to evidence in that case, a panel called the “Overseas Medical Referral” Committee, based in Nauru, was required to approve all medical transfers, in conjunction with Australian Border Force officials.

According to evidence given by a GP who had previously worked for IHMS on Nauru, the Overseas Medical Committee was erratic and poorly administered, and the medical transfer system “inefficient and driven by political and not medical concerns”.

After multiple attempts to obtain authorisation from the Commonwealth, IHMS, and others to transfer Rowena from Nauru, Rowena, through her litigation representative, sought an injunction requiring the Minister for Immigration and Border Protection to transfer her to a specialist child mental health facility that could provide the comprehensive psychiatric care recommended by specialists.

The basis for her case was that the Australian Government (the Commonwealth) owed her a duty of care which it had breached, and continued to breach, by “failing to provide her with access to safe and appropriate medical facilities and treatment”.

As Murphy J stated, “The application essentially alleges a continuing tort”.

The Court considered whether there was an arguable case that the Commonwealth owed Rowena a duty of care, applying well-known “salient features” identified in Caltex Refinieries (Qld) Pty Ltd v Stavar [2009] NSWCA 258, [102]-[103].

The Commonwealth conceded that there was a serious question to be tried, but argued that Rowena’s psychiatric problems could be adequately treated on Nauru, despite there being no child psychiatrist stationed in Nauru, and no specialist child mental health facility there.

[As an aside, the Commonwealth’s concession followed a judgment by Bromberg J in the Federal Court in a well-known 2016 case involving an African woman who, while on Nauru, was raped while she was unconscious and suffering a seizure (likely caused by epilepsy).  The Minister for Immigration, Peter Dutton, refused to transfer the woman from Nauru to Australia for the purposes of having an abortion.  He was, however, willing to fly her to Papua New Guinea, where abortion was illegal and could expose her to criminal liability.

In that case, the Minister denied any duty of care to the pregnant woman.  The Federal Court decided that the Minister did owe her a duty of care which required him to “procure for her a safe and lawful abortion”.  The discharge of the Minister’s duty of care did not require the woman to be brought to Australia.  However, the duty was not discharged by arranging for the abortion in PNG.]

Does the Australian Government owe children and adolescents in immigration detention a duty of care?

In Rowena’s case, Murphy J concluded that:

“I am disinclined to accept that outpatient treatment coupled with a child psychiatrist visiting every few months (or even every month) will provide the mental health care treatment the applicant needs and adequately protect her in relation to the risk of suicide.  I do not consider that the OMR [Overseas Medical Referral] process is adequate or likely to be sufficiently swift to adequately protect against the risk of suicide”.

Murphy J found that the balance of convenience favoured the injunction, and ordered the Commonwealth to “remove [Rowena] from Nauru and place her in a specialist child mental health facility with the capacity to perform a comprehensive tertiary level child psychiatric assessment, in accordance with Professor Newman’s recommendations”.

Rowena’s story is not unique

Similar cases involving sick and suicidal children are reported:

  • here (suicidal 10 year-old boy)
  • here (suicidal 17 year-old boy), and
  • here (adolescent girl who had cut herself, refused food and water and would soon require nasogastric feeding).

In another case, the Commonwealth sought to exclude entry of a two year-old girl with herpes encephalitis, a “serious and life-threatening neurological condition”, arguing (against the evidence of IHMS and consultant specialists) that she could be appropriately treated at the Pacific International Hospital in Papua New Guinea.

What a joy it must be to act for the Minister in these cases: seeking to use the law to deny children urgently needed medical and psychiatric treatment.

In each of these cases, it was Australian courts that provided a measure of decency, compelling the Minister to do what he would otherwise refuse to do: provide a reasonable level of care to children suffering (mostly) psychiatric trauma caused or aggravated by the circumstances of their detention offshore.

Another shared feature of these cases is that the Commonwealth has been forced to concede that there is an arguable case that they owe each of these children a duty of care.

This makes sense.  After all, these children’s daily lives are framed – if not dominated – by Australian government policy.

They depend on the Minister for Home Affairs (previously called the Minister for Immigration and Border Protection) for food, shelter, security and health care.

As Ben Doherty writes, it’s only when these cases get to court that humanity prevails.  Until that time, officials from the Department of Home Affairs delay as long as they can, apparently to please their political masters.

The “Medevac Bill”

In February 2019, against the wishes of the Morrison government, the Commonwealth Parliament passed the “Medevac Bill”.

The Act required the Secretary to identify so-called “legacy minors” (persons aged under 18 years held in a regional processing country as at 1 March 2019), and required the Minister to either approve or refuse the transfer of each legacy minor to Australia within 72 hours after being notified.

Under the legislation, the transfer of minors to Australia is [was] automatic unless the Minister reasonably suspected (on advice from ASIO) that the transfer would be prejudicial to security or that the person has a substantial criminal record (s 198D).

The Act also provides for the transfer to Australia of “relevant transitory persons” where two or more treating doctors form the opinion that the person requires medical or psychiatric treatment that cannot be provided by the regional processing country.

Again, the Minister is taken to have approved their transfer unless, within 72 hours, the Minister intervenes on the basis that [he] reasonably believes that appropriate medical or psychiatric treatment can be provided without their transfer, or that the transfer would be prejudicial to security, or that the person has a substantial criminal record (s 198E).

The Minister’s decision can be appealed to the Independent Health Advice Panel, comprised of independent and Australian government doctors (see s 199B), who can over-rule the Minister about whether the person’s transfer to Australia is necessary in order to provide them with appropriate medical or psychiatric treatment (s 198F).

The legislation also provides that family members of a legacy minor, family members of a transitory person, and other persons recommended by the treating doctor to accompany a transitory person – may be transferred to Australia, unless the Minister intervenes within 72 hours on the grounds above (ss 198C, 198G).

Where the Minister does intervene, [he] must table a statement before Parliament explaining [his] reasons (s 198J).

Thirty-one transfers to mainland Australia have occurred since the Act became effective.  Of nine transfers rejected by the Minister, two were overturned by the Independent Health Advice Panel.

What’s at stake?

The Australian Government opposed the Medevac Bill because it took medical transfers out of the hands of the Minister for Home Affairs, Peter Dutton, substituting an independent medical process.

Following the decisive victory of the Morrison government in the 2019 federal election (18 May 2019), the Home Affairs Minister has stated the Medevac Bill should be repealed in its entirety.

Labor Senator Kristina Keneally has not ruled out considering amendments, but stated that the Act “provides a way for people who are sick to get the care they need and ensures the Minister has final discretion as to who can come”.

Asylum seeker policy will continue to be controversial.

Children, however, are not responsible for the fact of their detention, and should not be conscripted into the endless – and merciless – politics of Australia’s immigration debate.

Denying children – or for that matter, adults – appropriate medical and psychiatric care is miserably cruel.

Politicians who have supported and enabled the denial of medical treatment to children do not represent the values of Australia.  You do not speak for us.

I cannot help thinking that we can learn something here from the common law method.

As every law student learns, courts – conventionally, at least – seek to apply existing principles and to develop them modestly, where necessary, but to avoid making sweeping pronouncements that extend too far beyond what is necessary to reach an appropriate decision.

Perhaps Australian politicians, too, whatever their beliefs about offshore detention, should take an incremental step towards compassion, and do the right thing in the case at hand, granting the children of asylum seekers medical and psychiatric care of the same standard they would want their own children to receive, instead of visiting the sins of the parents upon them.

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