Legal management of the novel Coronavirus (2019-nCoV) in Australia

rogermagnusson Uncategorized , , , ,

On 31 January the Director-General of the World Health Organisation, Dr Tedros Adhanom Ghebreyesus declared the novel coronavirus (2019-nCoV) a public health emergency of international concern (PHEIC), following the advice of the Emergency Committee.  (See here).

Under the International Health Regulations, which govern global management of infectious disease outbreaks, a declaration that a PHEIC exists is a prerogative of the Director-General, and triggers the requirement to issue temporary recommendations, after receiving information from the Emergency Committee (See IHR, Arts. 15, 49).

You can see the WHO Director-General’s recommendations to the People’s Republic of China here. (And see here for the most recent WHO situation reports).

2019-nCoV was first identified in Wuhan, China, around 12 December.

As at 6 February 2020, over 28,060 cases had been identified in China, with 564 deaths; 24 countries outside China have also identified cases, with one death confirmed in the Philippines.

In Australia, as at 6 February, 15 cases of 2019-nCoV had been identified in 4 States: 5 in Qld, 4 each in NSW and Victoria, and 2 in SA.  You can see latest updates for Australia, and other resources here.

You can see a timeline of events from Australia’s perspective here, and from a US perspective here.

From a legal perspective, how is Australia managing the risks posed by 2019-nCoV?

Australia has imposed travel restrictions on foreign nationals departing from or transiting mainland China.  These apply for 14 days from 1 February, and may well be extended.

There are no exceptions for Chinese (international) students studying at Australian universities or attending Australian schools: almost two thirds of the 190,000 Chinese students who have Australian visas are still overseas.

Australian citizens currently in China are permitted to re-enter Australia, but must self-isolate for 14 days.  This means not attending public places including work, school or university, or childcare, not allowing visitors into the home and wearing a surgical mask if it becomes necessary to leave the home for medical treatment.  See here.

With the exception of the blanket travel ban, which a number of other countries including New Zealand, and the United States have also imposed, Australia’s response remains low-key.

States and Territories are primarily responsible for managing outbreaks of infectious diseases within their territories, and this remains the case with 2019-nCoV.

The Commonwealth, on the other hand, has “primary responsibility for international border surveillance and responding to public health events occurring at international borders”: see the National Health Security Agreement (para 22).

The Australian Government Department of Health website states that:

“The Australian Health Protection Principal Committee has taken a highly precautionary approach in recommending the 14-day isolation period, with the aim of this policy being containment of novel coronavirus and the prevention of person- to-person transmission within Australia.”

Australia has not yet imposed centralised control or activated the coercive powers that are available if this outbreak were to gain momentum.

In Australia, the Australian Health Protection Principal Committee (AHPPC) is the peak body for national emergency health planning, preparedness, response and recovery during public health emergencies.  AHPPC is administered by the Office of Health Protection, a division of the Australian Department of Health.

The National Health Security Agreement identifies a number of potential triggers for a coordinated national response, led by the AHPPC, with operational control vested in the Director of Human Biosecurity.  However, it remains for the Commonwealth to assess whether the risks of disease transmission are so significant that they require a centralised, national operational response (see para 24).

An audit of the Health Department’s coordination of communicable disease emergencies notes the relative ambiguity of the conditions that would justify a national operational response (see pp 30-33, 47).

With travel bans keeping imported cases to a minimum, and limited scope for significant person-to-person spread within Australia, the States and Territories will very likely continue to retain operational control.

The Biosecurity Act 2015 (Cth) does give the Commonwealth a wide range of coercive powers, where necessary.

For example, under ss. 44-46, entry and exit requirements (as distinct from recommendations) may be imposed on classes of people to prevent the spread of a “listed human disease”, and there are civil penalties for failing to comply.

Similarly, individuals can be subjected to a “human biosecurity control order” containing any of a number of specific “biosecurity measures”, including isolation measures (s 97), restrictions on movement and behaviour (s 87), and the requirement to undergo examination and provide body samples (ss 90-91).

However, as s 44(1) and s 60 makes clear, these powers apply to a “listed human disease”: they exist to prevent a “listed human disease” from entering or spreading in Australia.

Section 42 contains the test that the Director of Human Biosecurity (the Commonwealth Chief Medical Officer) must apply before he or she lists a human disease.  (The test is whether the disease is communicable and may cause significant harm to public health, and if the Director of Human Biosecurity has consulted with the chief health officers of the States and Territories.)

While there is nothing in principle to prevent the Chief Medical Officer from issuing a legislative instrument making 2019-nCoV a listed human disease under s 42, I am not aware that this has happened.

Nor does it appear that 2019-nCoV has yet been added to the National Notifiable Disease List: the national set of diseases that is the result of national reporting arrangements by the States and Territories (see National Health Security Act 2007, s 11).

This does not mean that self-isolation “recommendations” are voluntary.  It simply means that cases or contacts entering Australia are subject to the relevant State or Territory legislative framework that governs disease spread.

In NSW, “Novel Coronavirus 2019” was scheduled under the Public Health Act 2010 (NSW) by executive order on 21 January.  As a result, a number of statutory obligations and public health powers thereafter apply to identified cases, and to those who have come in contact with a case.

For example, 2019-nCoV is notifiable by medical practitioners and laboratories (ss 54-55).  A person infected with 2019-nCoV who is in a public place must take reasonable care not to spread the condition (s 52), and the Secretary of the NSW Health Department may direct a person to undergo medical examination on reasonable suspicion that they represent a risk to public health (s 61).  There is a financial penalty for non-compliance.

If a person who is infected with or has been exposed to 2019-nCoV is behaving in a way that will likely endanger the public’s health, the Chief Health Officer of NSW can make a public health order requiring the person to refrain from behaviour that places others at risk and to undergo medical treatment and testing (s 62).

These are time-limited orders not exceeding 28 days (s 63) which can be reviewed by the Civil and Administrative Tribunal and, where necessary, extended (ss 65-66).  Failure to comply with a public health order may result in a substantial fine (up to $11,000) or imprisonment.

These muscular State (and Territory) laws are, of course, premised on an infectious condition being scheduled under the Act, and on there being an adequate case definition to identify cases and contacts.

Early on in an outbreak of a novel infectious disease, a precise, workable case definition may not exist, together with information about modes of transmission, incubation period (prior to symptoms) and capacity for pre-symptomatic transmission.  See here for the somewhat unwieldy definition of a “suspect case” of 2019-nCoV adopted in NSW, and Victoria, respectively.

Are you interested in studying health and medical law?  Click here or here, for more information.

Australia and the language of fire

rogermagnusson Uncategorized , , , ,

There are currently 100 fires burning across New South Wales.  Fifty of them are uncontained, as the weather swings between baking hot, and blustery southerlies.

Here in Sydney, the sky looks yellow.  Soot is washing up on Sydney beaches, and clouds of dust are turning New Zealand glaciers pink.

According to the Bureau of Meteorology (BOM):

“Climate change is influencing the frequency and severity of dangerous bushfire conditions in Australia and other regions of the world, including through influencing temperature, environmental moisture, weather patterns and fuel conditions. There have been significant changes observed in recent decades towards more dangerous bushfire weather conditions for various regions of Australia.”

BOM is not a political organisation, but an executive agency of the Australian Government, established in 1906, charged with providing weather services and advice.

See here for a joint BOM-CSIRO assessment of the State of the Climate, or read this NASA assessment.

 

The politicisation of fire

Fire affects Australians of all political persuasions.  It shouldn’t be politicised.

But that’s exactly what’s happening because what we do in response to bushfire risk intersects with economic policies and entrenched economic interests.

Twenty-three former fire and emergency Commissioners have been trying to meet with the Prime Minister since April, warning that Australia is ill-prepared for the growing severity of climate-influenced bushfires, and calling for an inquiry into how expensive, national firefighting assets might be funded and managed.

You can read their statement here.

The Prime Minister – famous for sneaking a lump of coal into Parliament – refused to meet with them.

According to him, Australia could increase its greenhouse gas emissions without making the fires worse.

“The suggestion that any way shape or form that Australia, accountable for 1.3% of the world’s emissions, that the individual actions of Australia are impacting directly on specific fire events, whether it’s here or anywhere else in the world, that doesn’t bear up to credible scientific evidence”.

According to journalist Peter Hartcher, the Prime Minister is in “frozen immobility on this because he does not want to upset the internal Coalition truce on climate and coal”.

Greg Mullins, former Commissioner of Fire and Rescue NSW, climate counsellor, says:

“[C]ommunities are increasingly under threat from extreme weather-driven events caused by climate change.  If it’s not time now to speak about climate change and what’s driving these events – when?  This fire season is going to go for months, so do we just simply get gagged?  Because I think that’s what happening; some people want the debate gagged because they don’t have any answers”.

“The Grenfell fire in London? People talked about the cause from day one.  Train crashes?  They talk from day one.  And it’s OK to say it’s arsonists’ fault, or pretend that greenies are stopping hazard-reduction burning – which simply isn’t true – but you’re not allowed to talk about climate change.  Well we are, because we know what’s happening.”

 

Raving inner-city lunatics

Back in November, Nationals leader Michael McCormack also took offence – in grand style – at those who draw a link between Australia’s bushfire crisis, and climate change.

“We’ve had fires in Australia since time began, and what people need now is a little bit of sympathy, understanding and real assistance – they need help, they need shelter”–

“But why is it wrong to ask those questions?”

“Well they don’t need the ravings of some pure, enlightened and woke capital city greenies at this time when they’re trying to save their homes and when they’re going out in many cases and saving other people’s homes and leaving their own homes at risk; what they don’t need is Adam Brandt and Richard Di Natale [Australian Greens’ politicians] trying to get a political point score on this, and it is disgraceful, it is disgusting, and I’ll call it out every time.”

It’s an interesting political position for the Nationals to take.  It’s not woke, inner city, latte-sippers who stand to lose their homes to fire.

It’s homeowners on the edges of cities, rural and regional Australians, including those living on the land – in the grip of a drought that grinds on and on.

Climate change has risen rapidly to become one of the most important – perhaps the pre-eminent – public health challenge.

The difficulty with climate mitigation strategy, shared by non-communicable diseases – is the need for governments to do lots of things across many portfolios (see here for the WHO’s Global strategy on health the environment, and climate change).  There is no silver bullet.

On the other hand, there are powerful economic interests that benefit from inaction.  And tragically, the issue has become politicised.

The political struggle begins at the level of language: there’s a contest about framing, about whose version of reality gains ascendency.

 

Australia and the language of fire

What can we learn from the language of fire in Australia?

On the planet Mars, two Martians, Mick and Scotty are discussing politics on earth, quietly pleased with the progress of earth towards a dry and barren planet more to their own liking.

“I think I get it”, says Scotty.  “High temperatures and strong winds cause bushfires, not climate change.”

“And don’t forget”, says Mick.  “Guns don’t kill people, people kill people”.

“You got it Mick!  And if you point to the lack of action on root causes you’ll be “called out” for “exploiting personal tragedy for political gain”.  But don’t worry, it’s OK to discuss the proximate causes and to show sympathy and solidarity with those who are suffering”.

“But if they cannot examine root causes, then how will they strengthen their defences against these terrible events?”

“They won’t”, says Scotty.  “That’s the point.  Ultimately these guys have ideological objections to being part of the solution”.

“Reminds me of an old saying”, says Mick.  “Nero fiddled while Rome burned”.

“It’s like I’ve always said”, said Scotty.  “No need to invade.  Just sit back.  They’re terra-forming the planet and getting it ready for us, without even being asked”.

On Friday 6 December 2019, the Board of the University of Sydney Law School voted unanimously in favour of a resolution declaring a climate change emergency.

You can read the declaration here.

Are you interested in studying health and medical law?  Click here, or here, for more information.

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

rogermagnusson Uncategorized , , , , , , , ,

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?

rogermagnusson Uncategorized , , ,

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?!

rogermagnusson Uncategorized , , , , , ,

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

rogermagnusson Uncategorized , , , , ,

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

rogermagnusson Uncategorized , , , , , , ,

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.