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

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

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

Professional disciplinary complaints in NSW

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

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

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

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

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

HCCC v Blackstock is a shocking case.

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

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

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

Health Care Complaints Commission v Blackstock

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

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

The patients’ statements were unchallenged.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Improving safety for patients undergoing cosmetic surgery in NSW

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

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

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

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

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

What is a “cosmetic surgeon”?

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

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

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

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

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

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

Strengthening regulation of cosmetic surgery: five pillars

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

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

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

The 5 pillars are:

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

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

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

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

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

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

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

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

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

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

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

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

NSW Health review of regulation of cosmetic procedures

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

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

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

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

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

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

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

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

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

Image: Mika Baumeister

Posted by Belinda Reeve on behalf of Cate Stewart

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

Science at warp speed: COVID-19 medical research governance

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

As Professor Stewart and his co-authors note:

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

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

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

COVID-19 public health orders and mental health practitioners

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

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

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

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

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

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

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

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

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

Freedom to protest, public health, and Covid-19

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

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

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

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

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

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

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

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

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


Four things to think about before starting a PhD

Image credit: Green chameleon on Unsplash

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

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

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

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

2. Where should I do my PhD?

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

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

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

3. …on what?

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

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

4. With whom?

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

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

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

As you begin the journey

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

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

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

Rule of law in the Covid-19 response

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

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

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

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

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

Covid-19 and the rule of law

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

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

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

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

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

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

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

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

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

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

Law’s mission in public health

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

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

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

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

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

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

Vaping: the madness of the British?

My google search engine thinks Public Health England (PHE) is a vaping organisation.

“Vaping organisation UK”.  You can try it yourself.

E-cigarettes lie at the centre of PHE’s tobacco control strategy, probably drawing attention and commitment away from alternative strategies for reducing smoking rates.

In September 2017, PHE encouraged smokers to “stop smoking with an e-cigarette”.

E-cigarette promotion also featured significantly in the 2019 NHS “Stoptober” campaign.  “Try an e-cigarette”, urges Public Health England.

This page tells you all you need to know to get started.

Public Health England continues to defend its conclusion, based on the opinion of twelve experts, that “vaping is at least 95% less harmful than smoking” and that “more smokers [should be] encouraged to make the switch from smoking to vaping”.

(A commissioned report that repeats assurances about “95% safer” notes a number of significant limitations, including that “some of the studies [relied on] were tobacco industry funded”). See here, p 171.

 

Politicians are getting the message too.

The Independent British Vape Trade Association re-tweets Conservative Party MP Gareth Johnson who says:

“For the first time in my life, there is something that genuinely can help people to get off tobacco …the more people #vape, the fewer people smoke. We need to highlight that and celebrate it, and the Government should take that forward.”

How, exactly?

Through preferential treatment for the liquid nicotine industry, that’s how.  Bill Grant MP, a member of the industry-friendly Committee that inquired into e-cigarettes in 2018, tells Hansard:

“There should be a shift to a more risk-proportionate regulatory environment; where regulations, advertising rules and tax duties reflect the evidence of the relative harms of the various e-cigarette and tobacco products available.”

Pretty much what the vaping industry itself argued, when it fronted the House of Commons Committee.

What about winding back smoke-free laws, so that people with nicotine addiction can vape wherever and whenever they please?

In a document called “Use of e-cigarettes in public places and workplaces: advice to inform evidence-based policy making”, PHE urges organisations to exempt vaping from their smokefree policies.

According to PHE, “It is never acceptable to require vapers to share the same outdoor space with smokers”.

“[A] more enabling approach may be appropriate in relation to vaping to make it an easier choice than smoking. In particular, vapers should not be required to use the same space as smokers, as this could undermine their ability to quit smoking and stay smokefree” (p 9).

And since vapers require more frequent top-ups to maintain their “desired blood plasma nicotine level”, these differences should also be taken into account.

 

Two camps

Global tobacco control is now split into two camps, divided – irrevocably – by ideology.

Boiled down, traditional tobacco control advocates believe that the best way to deal with the tobacco snake is to cut off its head: to support smokers to quit smoking forever by conquering nicotine addiction.

Deal with addiction, and you’ll eliminate the ability of the tobacco industry to maim and kill – not to mention suck a lifetime’s wealth out of their predominantly socio-economically disadvantaged customers.

Tobacco harm reductionists, by contrast, have all but given up encouraging nicotine abstinence and seem largely focused on encouraging smokers to migrate to recreational nicotine products that will (hopefully) cause less damage to health over the long term.

For harm reductionists, the rhetoric of “saving lives” is powerful.  But under the surface, there’s a deadly serious economic contest as the nicotine and tobacco industries work the corridors of power.

As more public health leaders come out in favour of vaping, there’s a once-in-a-generation opportunity to re-normalise nicotine addiction and rescue recreational nicotine use from the poor image of smoking.

[US advertisement for Blu, an e-cigarette brand owned by Imperial Brands]

 

“No one likes a quitter, so make the switch today”

The e-cigarette industry is delighted with Public Health England’s support for e-cigarettes, seamlessly blending PHE messages into their marketing strategies, as illustrated here.

The UK Vape Industry Association, whose members include British American Tobacco, Philip Morris and Japan Tobacco International, feature Public Health England’s 95% safer claim in their advertising for VAPRIL – Vaping Awareness Month.

In one undercover investigation, 87% of vape shops in England sold e-cigarettes to people who were neither current nor former smokers, violating the Code of Conduct of the Independent British Vape Trade Association, a rival vape trade organisation.  You can watch the footage here.

But it’s not as if these industry codes actually mean anything.

And little point in government taking the high ground when their strategy for alcoholism is to promote light beer.

The Independent British Vape Trade Association, based in “the heart of Westminster” states that “The UK has remained firm in its belief that e-cigarettes should be promoted as an effective tobacco cessation aid”.

IBVTA members include “HealthySmoker”, “Puff in Peace”, “Sweet Cloud”, “Vlad the Inhaler Ltd” and “Liberty Flights”, as in “Liberty Flights Limited is working with the addiction centre at a leading London University on a study funded by a cancer charity, supporting clients who access drug and alcohol services.  The location for the study is an NHS Foundation Trust which provides care and treatment for people with mental health problems.

Liberty Flights Ltd is supplying vaping products and advice for a quit-smoking study.

Essex Vape Company is partnering with a local authority public health department and an NHS Foundation Trust on a smoking cessation program for pregnant women: a voucher scheme helps participants to access the company’s vaping starter kits.

Totally Wicked (“the world’s premier vaping retailer”) delivered “e-cigarette training” to staff involved in a quit smoking program funded by a city council, and provided free e-cigarettes and e-liquids to 1000 smokers.

One gets the impression that the vaping industry has a spring in its step in England, partnering with government, handing out free vapes.

Promoting nicotine has become the Lord’s work.

Although tank systems remain the most popular vaping products in the UK (77% in 2019, down from 83% a year earlier), branded, re-chargeable products with pre-filled cartridges are on the rise (see here, pp 1, 13).

The leading UK e-cigarette brands are Vype (18%) [British American Tobacco], Blu (15%) [Imperial Brands], Logic (11%) [Japan Tobacco], and JUUL [the dominant US brand but a new entrant in the UK market], with 6%.

The reality is that heated tobacco products, and e-cigarettes, are increasingly owned and marketed by transnational tobacco companies – the folks who trade in death on an industrial scale.  See for example here and here.

 

Not everyone shares the excitement of PHE’s approach.

Professor Martin McKee from the London School of Tropical Medicine states that PHE “seems to be doing everything it can to promote e-cigarettes”, exposing a new generation to poorly studied chemicals.

The prominence given to PHE’s “95% safer” claim, by the e-cigarette industry, has led to an “escalation of commitment” in which “evidence that supports the position being held is promoted, whereas that which challenges it is dismissed”.

Professor Jeffrey Gotts, lead author of a recent study in BMJ (see here) told the New York TimesPeople are conducting a huge experiment on themselves about what kind of lung disease you can produce from all these different chemicals that you’re putting into the lung.  And the bulk of the evidence is increasingly that these devices have new and unpredicted toxicity”.

Children, adolescents and teenagers tend not to feature much when tobacco harm reductionists open up about their preference for relaxing controls on e-cigarettes.

After all, they’re not supposed to be using these products, are they?

And yet, every year, arriving in Washington DC to teach, I’ve watched youth vaping rates rise.  From 2011 to 2015, use of e-cigarettes among high school students rose by 900%: from 1.5% to 16%.

In 2019, 27.5% of high school students (aged 14-18 years) were currently using e-cigarettes (4.1 million people), and 10.5% of middle school students (aged 11-13 years).

That’s the power of the “consumer led approach” to e-cigarette regulation that the nicotine industry and its public health followers now advocate.

It’s a fascinating example of regulatory capture.  Without the regulation.

Post Covid: alcohol and the night time economy in the Sydney CBD

Sydney’s CBD has been bleak and empty the past few months, especially at night, but coronavirus restrictions in NSW are slowly easing.

From 1 June, pubs, clubs, cafes and restaurants can seat up to 50 customers (instead of the previous 10), provided businesses ensure social distancing of one person per 4 square metres, and no bookings of more than 10 persons.

If restrictions lift further, venues will likely begin to extend hours of opening and to kick start Sydney’s night time economy.

It’s worth noting the changes to service of alcohol laws introduced for the Sydney CBD late last year.

Complex changes to service of alcohol laws affecting licensed venues in inner Sydney were introduced following a series of alcohol-fuelled “one punch” attacks around 2013-14.

These controls included “lock-out” laws preventing patrons from entering licensed premises after 1.30am, restrictions on the use of glasses and on sales of certain kinds of alcoholic beverages after midnight, and an end to all liquor service at 3am.

Other controls included risk-based licence fees, and additional security and public safety measures, such as RSA (responsible service of alcohol) marshals, and mandatory ID scanning for certain venues.

See here for a review of those laws, and here for subsequent changes made following an independent review in 2016 conducted by former High Court Justice the Hon. Ian Callinan AC.

Opponents of Sydney’s lock-out laws have argued that these controls destroyed Sydney’s night life (and night-time economy).

In May 2019, the NSW Parliament established a Joint Select Committee to inquire into Sydney’s Night Time Economy, including the appropriate balance between community safety and health outcomes.

The Final Report recommended a number of changes that were subsequently implemented through the Liquor Amendment (Night Time Economy) Regulation 2019 (NSW).

Lock-out laws

The “lock-out” laws originally applied to prescribed “precincts” in the Sydney central business district, and Kings Cross.

During the lock-out period, new patrons were prohibited from entering the premises [hence “lock-out”], although patrons could remain on the premises, and leave at any time: see Liquor Regulation 2018 (as amended), s 89(4).

Section 89, as amended, retains the definition of a “lock-out period” to mean the time after 1.30am until 5am the next day.

The lock-out period has not changed, but the changes introduced in December 2019 provide that the lock-out law only applies to the Kings Cross precinct, not the CDB entertainment precinct: see here.

In Kings Cross, the lock-out restrictions continue to apply to hotels, clubs, licenced public entertainment venues and karaoke bars, and high risk venues (defined in s 116B(2) of the Act to mean hotels with patron capacity of more than 120 people that regularly operate after midnight), as well as “level 2” licensed premises that have had previous incidents of violence.

On the other hand, the Regulations allow a Kings Cross liquor licensee to seek an exemption to both the lock-out and liquor sales cessation restrictions: see here.

Liquor sales cessation periods

Section 90 of the amended Regulations deals with the “liquor sales cessation period”.

During a liquor sales cessation period, hotels, clubs, licensed entertainment venues and karaoke bars, high risk venues, and venues to which a level 1 or level 2 licence applies – must not sell or supply liquor: see s 90(3).

The December 2019 amendments have not changed the liquor sales cessation period for the Kings Cross precinct: it begins at 3am and continues to 5am.

For premises in the Sydney CBD Entertainment precinct, s 90 states that if the premises are declared to be subject to a level 1 licence (and there are currently no such licenses), then the same liquor sales cessation period applies: service of alcohol must stop at 3am.

But otherwise, service of alcohol can continue on to 3.30am.

Wind-back of other controls

Section 91 of the Regulations sets out additional controls that apply to after midnight trading (the “general late trading period”) in hotels, clubs, licensed public entertainment venues and karaoke bars in Kings Cross.

These additional controls also apply to premises in other precincts which are declared to be premises to which this clause applies – due to a history of alcohol-related violence, or violence causing serious injury.

These additional controls include the requirement that drinks cannot be sold in glasses and glasses must be removed from patrons.

So, unless they are a declared premises, licensed premises in the CBD don’t have to remove glasses after midnight.  This is another of the wind-backs.

Section 92 provides that, in addition, shots and other drinks containing more than 5% alcohol (but with the exception of cocktails) cannot be sold after midnight.

However, following the December 2019 amendments, this control no longer applies in the Sydney CBD.

On the other hand, controls designed to slow the rate of alcohol consumption (and sober patrons up) remain.  Between 2am and the beginning of the liquor sales cessation period, no more than 2 alcoholic drinks can be sold or supplied to a person, and no more than 4 drinks during the general late trading period (after midnight).

These controls have not been wound back: see s 92(5)-(6).  However, they do not apply to “small bars”, which may apply for extended trading authorisation to trade after midnight.

They illustrate the intent of the legislation, which is to reduce levels of alcohol consumption in large venues, and to encourage a small bar culture. Small bars can now cater to up to 120 patrons (s 39).

Venues in the CBD precinct are no longer required to have an RSA marshal supervise the responsible service of alcohol during the midnight to 3.30am period on weekends and after public holidays, unless they are a declared premises to which this requirement applies (Regs s 94).

On the other hand, the requirement for a “round the clock incident register” continues in prescribed precincts (s 96), and the requirement for CCTV in premises within the Kings Cross precinct remains (s 95).

The ban on motorcycle gang members wearing clothing or symbols that identify their club remains in both the CBD and Kings Cross precincts (s. 98).

The NSW Parliament’s Joint Select Committee found that “due to the historical nature of Kings Cross, venue density and the small size of the precinct, there is a high risk that if the 2014 laws were removed, violence would increase and the rate of assaults would begin to rise again” (p vi).  However, these controls will be reviewed within 12 months.

A final, significant change introduced in December 2019 was the extension of trading hours for take-away bottle shops.  The amended regulations now give an exemption until midnight for premises that are otherwise authorised to trade to 10pm: Regs s. 117.

Did the lock-out laws work?

In August 2019, the NSW Bureau of Crime Statistics and Research studied non-domestic assaults in the 62 months since the lock-out laws were introduced.

They found that non-domestic assaults were reduced by 53% in the Kings Cross precinct, and were reduced by 4% in the CBD precinct.

There was some displacement of violence to surrounding areas.

For example, non-domestic assaults rose by 18% in the proximate displacement area of Pyrmont, Ultimo, Chippendale, Surry Hills, Elizabeth Bay, and the Star City area.

It rose by more 30% in the non-proximate displacement area that included the suburbs of Bondi Beach, Coogee, Double Bay and Newtown.

But overall, the displacement was less than the reductions in violence that these laws achieved, meaning that overall violence was reduced by 13.3%.

Hospital admission statistics are another way of gauging the success of alcohol control laws in the inner city.

A study published in 2018 by The Medical Journal of Australia reported a 10% reduction in the number of violence-related fractures and a 7% reduction in drug and alcohol-related fractures presenting at St Vincent’s hospital.

These reductions suggest that changes to alcohol trading hours – including lock-outs, liquor sales cessation periods, and bans on late-night take-away liquor sales – were part of an effective package for reducing alcohol-related violence.

As with tobacco controls, it can be difficult to definitively quantify the specific contribution of each measure to the reduction in violent assaults.  It is the overall impact of the package of controls that speaks.

At the time the package of lock-out laws were introduced – after multiple, sickening, unprovoked attacks – there was a political imperative for action.

The Government had to do something, and it did.

It’s now five years later.  What strikes me is that the wind-backs introduced in December are relatively modest.

It remains to be seen what impact they will have on incidents of alcohol-related violence, and whether, in particular, they have created incentives for the kind of cultural change that is needed to ensure a safe, but late-night economy in Sydney.

Are you interested in studying health law?  Sydney Law School offers a Masters and Graduate Diploma in this area.  You can start in either the March, or July/August semester.  Click here, or here, for more information.

 

ABC v St George’s Healthcare NHS Trust: a new duty at the intersection of healthcare confidentiality and harm to others

 

DNA
Image: Flickr – Miki Yoshihito

The duty of confidentiality is crucial to building relationships of trust and confidence between patients and healthcare professionals, and to effective  healthcare systems more broadly. However, the law recognises that the duty of confidentiality is not absolute and sometimes needs to yield to other public interests. A recent UK case, ABC v St George’s Healthcare NHS Trust [2020] EWHC 455 (QB), concerned the need to balance the public interest in protecting the confidentiality of health information against the public interest in preventing serious harm to others.

The case arose out of a tragic set of facts. In 2007, ABC’s father shot and killed her mother. He was convicted of manslaughter by reason of diminished responsibility and detained under the UK’s Mental Health Act 1983 at a clinic at Springfield Hospital. The father (referred to as XX in the judgment) received care from a multidisciplinary team, headed by Dr Olumoroti, a consultant forensic psychiatrist. Despite the devastating impact of her father’s offence, ABC continued to be involved in her father’s care, and attended family therapy sessions at Springfield Hospital.

During his detention, XX was diagnosed with Huntington’s Disease (a genetic condition that ABC had a 50% chance of inheriting). XX refused to disclose the diagnosis to ABC or her sister, despite learning in September 2009 that the claimant was pregnant. The Springfield clinical team was informed of the claimant’s pregnancy but disagreed as to whether she should be told about her father’s diagnosis. Ultimately, Dr Omuloroti – as XX’s responsible physician – decided against disclosure.

ABC had her baby in April 2010, and in August of that year, a Mental Health Tribunal directed XX’s discharge. Dr Olumoroti and a social worker visited the claimant’s home, where Dr Olumoroti accidentally disclosed XX’s diagnosis. In a twist of fate, ABC’s sister was then in the early stages of her first pregnancy, but ABC did not want XX’s diagnosis disclosed to her.

In 2013, ABC tested positive for the genetic mutation for Huntington’s Disease. She developed a psychiatric illness as a result and was greatly concerned for her daughter’s future.

ABC brought actions against three healthcare trusts responsible for the clinicians involved in XX’s care, including the Springfield Hospital clinical team. ABC argued that the three defendants had been negligent in failing to alert her to the risk she had inherited the gene for Huntington’s Disease in time to terminate her pregnancy. She also argued there had been a breach of the UK Human Rights Act 1998, but this played a minor role in the case. ABC sought damages for the continuation of her pregnancy, psychiatric harm, and consequential loss.

The case was initially struck out, a ruling that was overturned by the UK Court of Appeal, and the case was finally heard by Justice Yip in the UK High Court. ABC was ultimately unsuccessful against all three defendants, but perhaps surprisingly, Justice Yip held that Springfield Hospital owed her a duty of care in negligence. That duty is the focus of this post.

Justice Yip held that the negligence complained of fell outside of any pre-existing duty of care. However, Her Honour was prepared to create a new duty, based on the application of the Caparo test, the UK’s test for creating a novel duty of care in negligence.

First, harm to the claimant (i.e., psychological harm and the loss of the opportunity to terminate her pregnancy) was clearly foreseeable and had actually been foreseen by the clinical team, as was apparent from the evidence at trial and medical records.

Second, there was a relationship of sufficient proximity between ABC and Springfield Hospital, central to which was the claimant’s participation in family therapy. This created a patient-practitioner relationship between ABC and the hospital (in respect of those sessions), a well-established duty of care. Although the duty didn’t require disclosure of the diagnosis, the relationship meant that the hospital held a significant amount of information about ABC. For example, the clinical team knew she had suffered psychological harm as a result of her father’s offence and were working with her to help her come to terms with it. Had they wished to disclose the diagnosis to her, the family therapy sessions provided an avenue for doing so.

On the third limb of the test, Justice Yip concluded that it was fair, just and reasonable to impose on Springfield Hospital a duty to:

… balance [ABC’s] interest in being informed of her genetic risk against her father’s interest in preserving confidentiality in relation to his diagnosis and the public interest in maintaining medical confidentiality generally… The scope of the duty extends not only to conducting the necessary balancing exercise but also to acting in accordance with its outcome. [188]-[189]

Justice Yip framed this duty of care not as one to simply disclose confidential information when a patient has refused consent, but as a duty to balance the interests the individual concerned against those of the patient, an exercise which may or may not lead to disclosure.

In the result of a legal challenge, the court would review the balancing exercise undertaken by the healthcare professional(s) concerned. There will only be a breach of the duty if the balancing exercise was not conducted properly and if it had been conducted properly, the defendant would have disclosed. The court will also set aside the defendant’s decision if the balancing exercise was conducted properly and the defendant would not have disclosed, but the decision is one that no responsible body of medical opinion would support.

The court’s role in cases involving this duty almost resembles a form of judicial review, where the court reviews whether the decision was reached by the correct procedure, rather than the correctness of the decision per se – unless the decision is completely unsupported by responsible medical opinion.

Generally speaking, it is uncommon (but not unheard of) for healthcare professionals to owe a duty to third parties outside the patient/practitioner relationship. But additionally, the duty in this case conflicts with the obligation of confidence owed to the patient themselves. Justice Yip pointed out that professional guidance (and existing legal authorities) already recognize that the obligation of confidence is not absolute and require a similar balancing exercise. Also, clinicians would be given considerable latitude in this balancing exercise by the courts.

Justice Yip was careful to stress that she was only deciding whether a duty of care arose on the particular facts of the case before her, which were unusual and created a relationship of close proximity between the defendant and the claimant – a central component in finding the duty existed. She was not creating a general duty of care owed by healthcare professionals to anyone who was not their patient, nor would the duty require healthcare professionals to chase down all the genetic relatives of their patient.

However, Justice Yip did not limit the duty to cases involving genetic information, but extended it any kind of confidential health information. Accordingly, it has significant ramifications for UK healthcare professionals in a range of fields.

Australia is yet to see a similar case which creates something resembling a legal obligation to consider whether to disclose confidential information to at risk individuals, when patients refuse consent (Australian legal authorities and professional guidelines permit – but don’t require – disclosure in these circumstances). Such a duty seems unlikely in the near future, given the unusual factual matrix in ABC v St George’s Healthcare NHS Trust, the different legal context in Australia, and our own High Court’s reluctance to create novel duties of care in negligence.

Who’s in control of Australia’s response to coronavirus? Part 2: Operational responses

For part 1 of this post, click here.

One reason why there is a measure of confusion about operational control during an outbreak of disease with pandemic potential is because of the different functions and responsibilities of the Commonwealth, and the States within a federation.

For example, even if the (modest) number of cases meant that an outbreak could be comfortably handled as a jurisdictional health challenge, the fact remains that early cases are likely to be imported into Australia, and border control is a Commonwealth responsibility (see eg the “National CD Plan”, pp 8-12).

Similarly, sharing information with WHO about cases of covid-19 (a declared public health emergency of international concern) is both an obligation under the International Health Regulations and a Commonwealth function, via the National Focal Point (as to which see National Health Security Act 2007 (Cth) s 10).

It might be helpful to think about the escalation of government responses to a disease outbreak in terms of the following stages:

Although an outbreak may begin as a jurisdictional health challenge, the Commonwealth may become involved in coordinating and supporting the State/Territory response where there are “Communicable Disease Incidents of National Significance”.

As shown below, Commonwealth involvement may involve an escalation of governance arrangements in order to ensure a coordinated health sector response, or, in addition, to ensure a broader national response extending beyond the health sector requiring leadership at the highest political levels.  This is shown below.

[Source: Emergency Response Plan for Communicable Disease Incidents of National Significance: National Arrangements (“National CD Plan”) p 4]

 

A national health sector emergency

The distinctions set out above help us to understand the significance of the Australian Health Sector Emergency Response Plan for Novel Coronavirus (COVID-19), published on 18 February.

The “Coronavirus Emergency Response Plan” signals the existence of a national health sector emergency, based on anticipation of the potential for significant cases of community transmission to put pressure on State and Territory health systems.

The Prime Minister announced the implementation of the “Coronavirus Emergency Response Plan” on 27 February, triggered by advice that the world would shortly enter the pandemic phase of covid-19.

The Plan explains the division of responsibilities between the Australian government, and the States and Territories, with respect to planning, surveillance, clinical services, public health measures, research and planning, and communication.

The Australian Health Protection Principal Committee, which comprises State and Territory Chief Health Officers and is chaired by the Australian Chief Medical Officer, is the key decision-making committee, within the health bureaucracy, for health emergencies.  It is now meeting virtually daily and its statements on covid-19 are shown here.

In common with other plans, the Coronavirus Emergency Response Plan conceptualises the management of hazards in terms of a cycle of activities focused on: Prevention; Preparedness; Response; and Recovery.

Australia is currently in the response phase to the coronavirus (obviously).  This phase is usually divided into three further stages:

  • standby
  • action: initial action, and targeted action
  • stand down

The Plan identifies three scenarios: where clinical severity is low, moderate and high.  It also points out that progress through the stages above (eg from Initial action to Targeted action) is independent of “activation of whole-of-government or jurisdictional plans”.

 

An all-of-government response to a national health emergency

By 27 February, the day on which the Coronavirus Emergency Response Plan activated a nationally-coordinated health sector response, an all-of-government response to coronavirus was also emerging, through the National Security Committee and the Council of Australian Governments (COAG).

The Prime Minister explained the role that the Border Force Commissioner, and the Ministers for Education, Home Affairs and Treasury were taking in strengthening the national response.

The Health Minister explained that the focus of the national response was moving from containment to planning for a significant increase in cases of community transmission – by focusing on the sufficiency of the national medical stockpile and personal protective equipment, and the capacity of health personnel to manage a surge in cases and hospital admissions.

On 5 March, the Prime Minister revealed that the Australian Government had activated the National Coordination Mechanism, through the Department of Home Affairs: its role was to work with the states and territories to “co-ordinate the whole of government responses to issues outside the direct health management of COVID-19”.

Finance ministries now sit at the centre of Australia’s response to the coronavirus, attempting to mitigate the impact of sharp reductions in economic activity, spending and consumer confidence with first federal, and now state/territory stimulus packages.

The Commonwealth has also agreed to share the additional costs incurred by States and Territories in diagnosing and treating coronavirus patients, on a 50/50 basis.  (This National Partnership Agreement would operate from 21 January – the date that coronavirus became a Listed Human Disease under federal biosecurity laws).

The “National CD Plan”, which underlies these all-of-government efforts, was published in May 2018 and illustrates just how complex the response to “communicable disease incidents of national significance” really is.

On 13 March, the Prime Minister announced a “new National Cabinet, made up of the Prime Minister, Premiers and Chief Ministers” that will “meet at least weekly to address the country’s response to the coronavirus, COVID-19”.

This new cabinet will be advised by the Australian Health Protection Principal Committee (addressing health sector issues), and the National Coordination Mechanism convened by Home Affairs (addressing issues beyond the health sector).

Within the space of a few weeks, human coronavirus has gone from being a jurisdictional health challenge to precipitating new, creative cabinet structures to address its multi-sector impacts.

Who’s in control of Australia’s response to covid-19?  Currently, a “war cabinet” comprising the leaders of all Australian governments.