Locked out by the Nanny State? The public health case for Sydney’s lockout laws

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This blog post incorporates a post previously published by Caterina Giorgi on DrinkTank. We’re grateful to Caterina for giving us permission to republish her post.

Sydney’s lockout laws have had a polarizing effect. One view is that they’ve killed off Sydney’s once-thriving nightlife, compromised the incomes of those in the hospitality industry, and simply redistributed alcohol-fuelled violence to other parts of Sydney.

Supporters of the laws – including NSW Premier Mike Baird, the families of assault victims, and St Vincent’s Hospital – cite statistics showing a significant drop in alcohol-related violence in affected areas and no increase in violence in other suburbs.

As a public health lawyer, to me these laws illustrate several themes that often arise in debates about the need for government intervention in public health matters.

  • Public health is only one “social good” among many. Sometimes we need to balance public health objectives against other social and economic goals, such as a vibrant nightlife – although that would be a hard argument to make to the parents of young men who’ve been killed by alcohol-related violence.
  • The introduction of public health legislation can have negative consequences, particularly on groups with a vested interest in the product or practice being regulated, including the hospitality industry.
  • However, these negative consequences can be mitigated, as when Australian government organisations replaced tobacco industry sponsorship of sports clubs with public funding, to ensure that clubs weren’t out of pocket when industry sponsorship was removed.
  • Finally, public health laws become normalized over time. Remember coming home from a club reeking of smoke? What seems like an invasion of individual freedom now often turns into a valuable health protection measure as social norms evolve over time.

Are the lock out laws an example of the Nanny State at its worst, or a proportionate measure designed to protect the public from the harmful, reckless actions of others? I’ll leave that for you to decide. Below we republish (with kind permission) a recent blogpost by Caterina Giorgi at the Foundation for Alcohol Research and Education (FARE) on the public health case for the lockout laws.

 Sydney is not dead. Sydney is not closed

 By Caterina Giorgi

Over the past few months, a small but vocal minority of people in Sydney have called for the Premier to wind back trading measures introduced to reduce alcohol-related violence. They present a narrow, exaggerated argument that Sydney is now ‘closed’ and that Sydney’s reputation as a global city is in shambles.

Some background.

Two years ago the New South Wales Government introduced laws that meant people cannot purchase alcohol from bottle shops after 10pm, and from bars and clubs in Sydney CBD and Kings Cross after 3am. They also introduced a one-way door policy (more commonly referred to as a ‘lockout’), which meant that people cannot move between venues in this precinct after 1.30am. These measures were introduced to keep people safe and stop the violence and deaths that were occurring as a result of alcohol use. Today a vast majority of people in New South Wales (68 per cent) support these measures.

Two years on and these measures are working. Alcohol-related assaults in Sydney have declined by 20.3 per cent and Kings Cross has seen a significant 45.1 per cent decline, there has been no displacement to other areas and businesses continue to grow, with liquor licence numbers continuing to increase across Sydney.

Those opposed to these successful measures allege the measures were a response to “hysteria” and a “knee-jerk reaction following the deaths of some young men”.

Let’s put to one side the seeming disregard and disrespect for those who lost their lives.

And ignore for the time being the hysteria and hyperbole inherent in the ridiculous claims that Sydney is ‘closed’ or the even more insensitive suggestion that the city is ‘dead’, complete with flower adorned casket.

But the suggestion that the introduction of modest trading hour measures was a knee-jerk reaction is completely false and conveniently ignores the evidence.

These measures are as far from a knee-jerk reaction as a policy can be. Reducing the availability of alcohol as a measure to reduce harms was raised with the State Government in 2003 at the New South Wales Alcohol Summit, 11 years before the measures were introduced.

These measures were advocated for after their introduction in Newcastle in 2008, six years before the legislation was implemented in Sydney.

And finally, they were again advocated for when a young man, Thomas Kelly, was killed 18 months before the measures were finally introduced in February 2014.

These measures have been advocated for because international and national research shows that they reduce violence.

In fact, when Yvette D’Ath, Attorney-General of Queensland, spoke about the introduction of similar measures in Queensland in Parliament just last week she said she has never seen so much independent evidence on a bill.

On Sunday thousands of people marched against the earlier closing times and lockouts in Sydney. Part of me thinks that it’s great that people decided to take time out of their lives to march for something that they believe in. But I can’t help wonder: what it is that these people have lost in their lives that they felt driven to protest?

Were they comparing themselves to people who have marched and protested over the weekend for Medicare, refugees or gender equality?

Do they genuinely think that alcohol is needed around the clock for their lives to be whole and fulfilled? And more importantly, if yes, what does this mean more generally about Australia as a society?

Sydney is not dead.

Sydney is not closed.

Sydney responded to significant levels of violence and deaths by introducing evidence-based measures that had been advocated for by experts, doctors, police and community members for many years. Instead of protesting against these measures, we should be congratulating members of government for doing what policy makers should do, fixing a significant social problem by introducing evidence-based solutions.

Premier O’Farrell and Premier Baird should be congratulated for doing what many politicians are afraid to do, introducing and maintaining measures that benefit the community ahead of significant vested interests. For that I congratulate them and I sincerely hope that the New South Wales Government continues to prioritise evidence ahead of hysteria.

 

 

NBOT Annual Workshop – Call for Papers

Date: 10 March 2016

Venue: Sydney Law School, University of Sydney

In March, the Network for Bodies, Organs and Tissues (NBOT) will host its annual multi-disciplinary workshop on bodies and tissues. The event provides a forum for discussions of moral, ethical and regulatory issues relating to the access and control of tissue. The Network welcomes papers that examine the challenges posed by the different uses of tissues (e.g. reproductive, therapeutic, regenerative, research, education, etc.), and debates about how to manage and resolve body-based conflicts. It encourages contributions from a diverse range of disciplines, and which explore the broader implications of changes in the way we regard the human body, organs and tissues.

We are currently calling for expressions of interest from Network members and their colleagues.

Please send abstracts (200 words) to cameron.stewart@sydney.edu.au by Friday 19 February 2016.We encourage you to pass this invitation onto students and other interested colleagues who wish to speak about their research in an encouraging and supportive environment.

Attendance at the workshop will be free but registration is essential.  Register here

Children with gender dysphoria and consent to treatment: time for a change in the law?

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Gender dysphoria is a condition where a person feels that their biological sex is deeply incongruent with their perceived gender, causing him or her significant distress. Stage 1 of treatment involves the administration of puberty-suppressant hormones. Stage 2 involves the administration of cross-sex hormones that promote the development of physical characteristics of the opposite sex.

Treatment for gender dysphoria has become an important topic within the law on consent to medical treatment, because the Family Court receives an increasing number of applications to authorize treatment for children with gender dysphoria. If you’re not familiar with this area, some background on children’s ability to consent to medical treatment is helpful before discussing these cases.

Consent to medical treatment: the role of parents and children

Marion’s Case remains the foundational case on minors’ ability to consent to medical treatment. This case dealt with the sterilization of a 16 year old woman with an intellectual disability, who was incapable of consenting to treatment. In this case the High Court held that a child can consent to medical treatment when he or she “achieves a sufficient understanding of and intelligence to enable him or her to understand fully what is proposed” (following the English case of Gillick v West Norfolk and Wisbech Area Health Authority).

If a child is not “Gillick competent,” then her parents can consent to medical treatment on her behalf. However, the High Court in Marion’s Case held that there are some forms of treatment (known as “special treatment”) that fall outside of parental authority and require court authorization.

Marion’s parents could not consent to her sterilization because it was “non-therapeutic” treatment, and because the procedure was irreversible, there was a significant risk of making the wrong decision (either about the child’s capacity to consent or as to what was in her best interests), and the consequences of a wrong decision were particularly grave.

Since Marion’s Case the courts have extended the category of “special treatment” to include other procedures. In doing so, they have categorized these procedures as “non-therapeutic” and applied the list of factors relied upon by the High Court in Marion’s Case.

Consent to treatment for childhood gender dysphoria

The Family Court originally held that treatment for gender dysphoria was a form of special treatment, and required court authorization for both stage 1 and stage 2 treatment. However, Re Jamie modified this position. In this case the court held that treatment for gender dysphoria was therapeutic and that parents could consent to stage 1 treatment. Children could consent to stage 2 if they were Gillick competent, but if they were not, then court authorization remained appropriate.

Relying on Marion’s Case, the Family Court also held that the court must determine whether the child is Gillick competent, as stage 2 treatment was irreversible, there was a significant risk of making the wrong decision, and the consequences of a wrong decision were particularly grave.

Re Martin: problems with the current position

The Family Court considered a case on treatment for gender dysphoria just before Christmas, Re Martin. The case did not change the Family Court’s position on treatment for gender dysphoria (being the judgment of a single judge), but Justice Bennett (who decided the case), offered an insightful critique of Re Jamie.

Martin (aged 16) was born a girl, but identified as male from a very young age, and had been diagnosed with gender dysphoria. Martin lived as a boy, but he experienced worsening depression as he approached puberty. Martin’s parents and treating physicians supported cross-sex hormone therapy and applied to the court for authorization.

In her Honour’s decision, Justice Bennett argued that the Family Court’s reliance on Marion’s Case in Re Jamie was contradictory and inconsistent. One of the grounds for this argument was as follows:

The Full Court in Re Jamie accepted that gender dysphoria is a recognized psychological condition and that treatment is “therapeutic.” However, the court decided that it still needed to authorize stage 2 treatment if the child was not Gillick competent (relying on the factors listed in Marion’s Case).

According to Marion’s Case, parents can consent to therapeutic treatment even if it has grave and permanent effects. However, the approach taken by the Family Court suggests that therapeutic treatment can still be classified as special treatment based on an assessment of the factors set out in Marion’s Case. Accordingly, court authorization will be required for some forms of therapeutic treatment.

Re Jamie seems like a case of wanting to have your cake and eat it too. The court respects children’s rights by allowing Gillick competent children to consent to stage 2 treatment. But the court seems uneasy about the idea of stage 2 treatment taking place without any form of court oversight, hence it retains a role in either confirming that a child is Gillick competent or in authorizing treatment where the child cannot consent on her own behalf.

This appears to strike a good balance between respecting children’s autonomy and recognizing their need for protection. But the court’s ruling is a significant departure from Marion’s Case, and it blurs the distinction between therapeutic and non-therapeutic treatment (although this distinction has always been problematic).

Time for a change in the law?

As pointed out by Justice Bennett in Re Martin, there are good practical reasons for not requiring court authorization of treatment for gender dysphoria. In uncontroversial cases (which they almost always are), the court will simply follow the doctors’ advice, and it is difficult to see what advantages are added by court involvement.

Court proceedings have significant emotional and financial costs for children and their parents. Some children may forego treatment because their families cannot afford to make a court application. On the other hand, this is a complex area of medical practice, and stage 2 treatment can have profound and irreversible effects on children’s social and sexual identity.

Justice Bennett concluded Re Martin by finding that Martin was Gillick competent, but her Honour also invited the court (or parliament) to change the law. This seems sorely needed – both to clarify the position on “special treatment,” and to facilitate access to treatment for children for gender dysphoria. On balance, the costs of court authorization outweigh any possible benefits, suggesting that court oversight in undisputed cases is not in the best interests of children with gender dysphoria.