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

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

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

Image by Vova Drozdey (Unsplash)

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

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

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

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

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

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

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

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

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

Current controls on alcohol marketing in Australia

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

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

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

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

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

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

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

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

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

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

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

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

COVID-19, patients’ mental capacity and prisoners

@mbaumi via Unsplash

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

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

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

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

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

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

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

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

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

Professor Stewart and his co-authors conclude:

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

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

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

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

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

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

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

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

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

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!

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.

Upcoming event: the 2019 Food Governance Conference

Food_Governance_Conference

Sydney Health Law is hosting the second Food Governance Conference from the 3rd to the 5th of July this year.

The Conference is a collaboration between Sydney Law School, the University’s Charles Perkins Centre and The George Institute for Global Health. The 2019 Conference will explore how law, policy, and regulation address (or contribute to) food system challenges such as sustainability, equity and social justice in global food systems, and malnutrition, obesity, and diet-related diseases.

The Conference will open on the 3rd of July with a public oration by the UN Special Rapporteur on the Right to Food, Professor Hilal Elver. Also speaking will be Ronni Kahn, the founder of Ozharvest, and Mellissa Wood, General Manager, Global Programs at the Australian Centre for International Agricultural Research. You can register for this free event here.

The main days of the Conference will take place at Sydney Law School on the 4th and 5th of July. Keynote speakers at the Conference include Professor Amandine Garde, Director of the Law and Non-Communicable Diseases Unit at the University of Liverpool, and Dr Juan Rivera, Director of Mexico’s National Institute of Public Health.

Further information about the Conference, including the draft program, can be found here.

 

The ten secrets to surviving Law School REVEALED

I originally wrote this post in 2017, but I’m reposting it this week to share with my new students. Good luck with law school!

one-does-not-simply-one-does-not-simply-stroll-through-law-school

OK, that title was complete clickbait. And usually this is a blog about health law. But we run a Master of Health Law program, as well as doing research, so I thought I’d try something different.

The first year of Law School is tough. I didn’t enjoy it very much and I spent a lot of time flailing around, not entirely sure what I was doing.

I feel like I have a slightly better idea now that I’ve completed two undergraduate degrees and a PhD, and started working as a lecturer.

Lecturer 4
Me, but not really.

So, having lived to tell the tale, here are my top ten tips for surviving law school.

  1. Come to class

I get it. All the lectures are recorded these days, so why bother getting out of your pajamas and coming to class? First, research shows that attending lectures can improve students’ academic performance. Second (and just as important), university can be a lonely place. Lectures are a reason to get out of bed, put on real clothes, and interact with other human beings. Who knows? You may even make a new friend. Lectures give your day a sense of structure, and they could even help us learn to listen without checking Facebook or doing a spot of online shopping.

falling asleep.gif

  1. Read the cases

Every semester I get this question:

Do I really need to read the cases?

The answer is yes. Emphatically, and unequivocally.

Along with statutes, cases are our source of law – not your lecturer, and not the textbook. Lecturers may explain the principle deriving from a case, but if you don’t know the facts or the reasoning behind the decision, how will you know if that principle can be applied to the facts in a problem question? Further down the track, when you’re a practicing lawyer, your client’s case may turn on the meaning of the word “reasonable.” And he or she will expect you to have read and understood all of the relevant cases on what “reasonable” means. There’s a lot of reading, I know, but cases become easier to read with practice, and your writing will improve as your reading does.

Judgments are the foundation of our discipline and our practice, and it makes me feel like this when students seem to think that reading cases isn’t necessary.

giphy angry

  1. Learn how to learn

Law School’s simple, right? Come to class, read cases, take notes, done.

Not so much.

You need to learn a number of new skills along with cramming your head full of content. These include: writing a concise case summary, learning how to answer a problem question, and conveying information effectively in oral and written form. It took me a long time to learn that just taking screeds of notes was not the path to effective study. Learn from my mistakes and think critically about what you’re doing. The Law School has a number of resources for learning the skills required to be a successful law student, and a book like this one may also help.

  1. Get to know how special consideration and appeal processes work – right now

The University of Sydney has a central process for dealing with (most) special consideration requests, and for disability services. It’s a good idea to know about these services before you need to use them. Don’t be the person panicking on the day of the exam because you’re sick and can’t sit the exam, and don’t know what to do next. The same goes for appealing your marks. Hopefully you won’t need to use these processes, but it’s good to have at least a passing familiarity with how they work, just in case you do.

  1. Get help when you need it

There are often a lot of things happening in your life during your time at university: break-ups, moving out of home, an all-you-can-eat seafood buffet that really was too good to be true.  It may feel like there’s no one there to help if you if you’re struggling. But the University has a range of services, including counselling, and the Law School offers various forms of support. Please talk to your tutor or lecturer if you have issues that are affecting your study. They may not be able to solve every problem, but they can offer strategies for catching up on work, for example. There is help available if you reach out, and it’s better to do so sooner rather than later when everything’s falling apart.

  1. Check your email

You’ve emailed me (your lecturer) about an important, life-changing event. I’ve emailed you back. You don’t check your email for a week. There’s not much I can do in the meantime, and it’s frustrating. Check your university email regularly. If you don’t think you’ll remember to do it, set up a redirect so it goes to another account that you do check on a regular basis.

cat giph.gif

  1. Manage stress

One thing that I found invaluable during my time as a student (and in life more generally), is learning techniques for managing stress. This could mean mindfulness, exercise, catching up with friends – whatever works for you, so long as it’s sustainable and beneficial in the long run. Sitting exams and submitting assignments are stressful, and we’ve got to learn how to deal. Remember that prevention is better than cure, and regularly engaging in activities like exercise may help to avoid a death spiral of depression and anxiety.

Meditating.jpg
#blessed.

  1. Get involved

It’s often difficult for students to find time for anything but study or work. But one thing I sincerely regret not doing when I was an undergraduate is participating in the life of my faulty more. This could be performing in the Law Revue, it could be mooting, it could be only the occasional social event. I understand that students may feel like they don’t fit in, or that those sorts of things are not for them. But I can tell you from talking to my students that it’s not uncommon to feel that way. Maybe this is something faculties need to think about. But please don’t let feelings of not-fitting-in (or just plain shyness) stop you from attending events.

  1. Make the most of your degree

There’s a lot of talk about how competitive it is to get a job in law these days, particularly with the increasing number of graduates coming out of law schools. Students don’t need any more pressure to hustle to get a good job when they finish their degree. But you will get out of university what you put in. This means using your time at university to look for opportunities that will help you move towards the career you want to be in when you graduate. I’m not necessarily talking about creating a start-up to help you get a job in a law firm. I put in an application for an obscure summer scholarship that was advertised on a notice board, and that move changed the trajectory of my whole career. There are a variety of opportunities available at University, and it’s important to be proactive in searching out the ones that suit you best.

  1. Have… fun (?)

This blog post could end with a picture of happy smiling students strolling across the law school lawn, and with me saying something like, “Enjoy yourself! University is the best experience of your life, blah blah.” But law school is often demanding, and it’s not necessarily a rewarding experience being broke and living in a share house with people who may or may not have fleas.

So my final suggestion is not “have fun,” but “persist.” You will not like every course. In some, making it through the end of the lecture may be a triumph, and in those courses, survival may be the name of the game.

But you will find courses that you enjoy, and moments where you feel like you have conquered the subject. This is what makes it all worthwhile, as well as finally getting your degree at the end. And what makes it worth it for me is seeing my students getting to graduation, and then moving on to even greater things. Good luck.

Law meme two
I see you Australian Law Memes

Ps. University is a great time to experiment with your style, and if you feel like dying your hair blue, then go for it. It becomes harder to do things like that once you have a serious job, like being a law lecturer. Just don’t do it right before your clerkship interview.

 

Regulation of alcohol advertising is failing Australia’s young people: new research on the ABAC Code

8215268671_61a34c8e71_n

Exposure to alcohol advertising influences the likelihood that young people will begin drinking, that those already drinking will increase their intake, or engage in risky drinking. Accordingly, the World Health Organization calls for regulation that reduces the impact of alcohol marketing on young people, including by addressing the content and volume of marketing, as well as sponsorship activities that promote alcoholic beverages. The WHO also recommends developing effective administrative and deterrence systems for infringements of marketing restrictions.

The main source of alcohol marketing regulation in Australia is the ABAC Responsible Alcohol Marketing Code, an industry-based code containing a series of standards on responsible alcohol advertising. These include a prohibition on advertising that has strong or evident appeal to minors, as well as new rules that aim to prevent alcohol ads from being directed to minors. These rules require advertisers to use age restriction controls where available, place marketing only in media with an audience of at least 75% adults, and ensure that marketing is not placed in programs or other media content designed for children (based on its story line, themes, music, and so forth).

The ABAC Scheme is administered by a Management Committee which includes four representatives from alcohol and advertising industry bodies, as well as a government representative and an independent chair. Public complaints can be made to the ABAC Adjudication Panel, comprising a chief adjudicator with legal expertise, a public health representative, and a broadcasting industry representative.

My study examined whether the ABAC Scheme contained the components of an effective regulatory scheme, focusing specifically on the rules concerned with minors. In other words,  did the ABAC follow the WHO’s recommendations for reducing the impact of alcohol marketing on minors?

I found that there were significant gaps and limitations in the ABAC, both in its substantive rules and in the processes of administration, monitoring, and enforcement created by the code.

These gaps include the exclusion of some media channels and promotional techniques such as cinema advertising and more importantly, sponsorship arrangements.  This second loophole is compounded by the fact that the Free TV Code (which regulates the broadcast of alcohol ads on TV), allows alcohol ads to be broadcast during a sports program on a weekend or public holiday, or during a live sports event at any time – including, for example, during a Sunday morning sports event on TV.

It’s a positive step that the ABAC now contains restrictions on the placement of ads in media directed to children, but these restrictions are unlikely to reduce young people’s exposure to alcohol ads. This conclusion is supported by another recent study by Hannah Pierce and colleagues, which found that the ABAC’s age gating requirements and voluntary audience thresholds are ineffective in reducing alcohol marketing in times and places where young people are likely to be exposed.

Age gating on websites might stop young people from following the Instagram accounts of alcohol companies, for example, but it won’t stop them from seeing material that’s reposted or shared, or from interacting with digital content in other ways.

Another concern is the narrow definition of program and other media content that is “primarily aimed at minors.” Recent determinations from the ABAC Adjudication Panel suggest it interprets this phrase to mean content that appeals exclusively to minors, so that content appealing to both children and adults won’t be included – as with the superhero film Thor: Ragnarok. Pierce reports that the Panel dismissed a complaint about a whisky ad screened before this movie, because while the movie had broad appeal to adolescents, it was not primarily aimed at them.

Along with the loopholes in the substantive rules contained in the ABAC, the Scheme’s governance processes lack independence and public accountability. Although there’s some government oversight, the administration of the scheme is largely industry based, and there’s no independent monitoring of compliance with the ABAC, or external review of the Scheme’s operation. There are also few meaningful penalties available for ads that breach the ABAC. The Panel can order the removal or modification of an ad, but has no way of enforcing its rulings, or escalating to more serious penalties.

Given the serious limitations that remain in the ABAC – despite numerous government reviews and refinements over its 20-year history – it’s time for stronger government intervention. At the very least, the Federal Government could act to close off loopholes on cinema advertising and sponsorship, as well as introducing a comprehensive ban on all alcohol marketing within 150 metres of schools, childcare centres and playgrounds. The ABAC Scheme would also be improved if it was administered by an independent body with a broad range of enforcement options and no vested interest in showing that the Scheme is effective in protecting young people from alcohol marketing. In short, it’s time for a regulatory approach that prioritizes young people’s well-being over industry profits, and truly accords with good regulatory practice.

Upcoming events: Protecting children from unhealthy food marketing – learning from the past, ideas for the future

Junk food marketing.jpg

Along with Cancer Council NSW and the Charles Perkins Centre’s Food Governance Node, Sydney Health Law is hosting an event on regulation of unhealthy food marketing to children.

Protecting children from unhealthy food marketing remains a hot topic, given increasing concern about children’s diet-related health.

In Australia, food marketing to children is regulated largely through two voluntary food industry initiatives. In the lead up to the 10th anniversary of these initiatives, this event will examine their success in improving the food marketing environment, along with the recent ACCC v Heinz decision and developments in food advertising regulation at a state level.

Details for the event are as follows, and you can register to attend here.

Date: Wednesday 7th November

Time: 6-8pm (canapés from 5.30pm)

Venue: Law Foyer, Level 2, Sydney Law School 

Speakers:

  • Research on food marketing and children’s health – the state of play: Associate Professor Bridget Kelly, University of Wollongong
  • Consumer law and food marketing in ACC v Heinz: Adrian Coorey ACCC, and Jane Martin, Obesity Policy Coalition
  • The food industry’s initiatives on marketing to children: Geoffrey Annison, Australian Food and Grocery Council, and Jane Martin, Obesity Policy Coalition
  • State government regulation of food advertising on transport infrastructure: Wendy Watson, Cancer Council NSW, and Emily Harper, ACT Health

Some recent cases on s 5O of the Civil Liability Act 2002 (NSW)

35338052561_5faa3a5165_n
Image: Matt Madd, Flickr

Section 5O of the Civil Liability Act 2002 (NSW) (CLA) introduced a modified version of the Bolam principle into the law of civil liability in NSW, extended to professionals other than medical professionals (the original subject of the principle). The effect of s 5O(1) is that a court is prevented from making a finding of negligence against a defendant professional where it can be shown that he or she acted in accordance with a practice widely accepted as being competent by peer professional opinion, unless that opinion is irrational (s 5O(2)) (s 5P excludes the application of s 5O to risk warnings in certain circumstances). Three recent cases involving s 5O provide some guidance on how the provision should be interpreted.

“A practice”

In Sparks v Hobson [2018] NSWCA 29 (recently covered on this blog by Professor Roger Magnusson) the plaintiff, Mr Hobson, required corrective surgery to straighten his spine, which took place in two stages. The first stage proceeded without incident, but the second stage had to be brought ahead of schedule and done urgently. The surgery was terminated after the anesthetist, Dr Sparks, became concerned that Mr Hobson’s blood pressure and oxygen levels were dangerously low as a result him being positioned face down for the surgery. While a later surgery successfully addressed the spinal condition, Mr Hobson was rendered paraplegic as a result of the second urgent surgery. He brought an action in negligence against the hospital and members of his treating team, including Dr Sparks and the principal surgeon Dr Grey. The trial judge found that both doctors had been negligent in not terminating the surgery 13 minutes sooner than they did, and that s 5O could not be made out. The defendants appealed to the NSW Court of Appeal.

Dr Grey was successful in establishing that he had not been negligent, but a majority of the Court of Appeal found that Dr Sparks had been negligent in failing to terminate the surgery sooner. Justice McFarlan and Justice Simpson accepted that they were bound by the Court of Appeal’s reasoning in McKenna v Hunter & New England Local Health District [2013] NSWCA 476. Here, the court held that in order for s 5O to be established, a medical practitioner must demonstrate that what he or she did conformed with a practice that was in existence at the time the medical service was provided. Then, he or she must establish that that practice was widely (although not necessarily universally) accepted by peer professional opinion as competent professional practice.

Justice Basten rejected the requirement that there be “a practice” (described as a “regular course of conduct adopted in particular circumstances”), on the basis that the Court of Appeal’s decision in McKenna was overturned on appeal to the High Court and its reasoning was no longer binding. However, His Honour agreed with Justice McFarlan (but on different grounds) that Dr Grey’s evidence was insufficient to establish s 5O.

The majority’s judgment in Sparks v Hobson narrows the scope of the operation of s 5O, meaning that it will not be available in circumstances where the defendant cannot show that he or she followed a discrete, established “practice”. This includes in unusual factual situations or potentially, situations involving new medical techniques or procedures. The High Court recently denied an application for leave to appeal from the Court of Appeal’s decision.

“Irrational”

Under s 5O(2) peer professional opinion cannot be relied upon for the purposes of s 5O(1) if the court considers that the opinion is “irrational”. The NSW Court of Appeal considered the meaning of this term in South Western Sydney Local Health District v Gould [2018] NSWCA 69. The plaintiff, a young boy, slipped and fell on wet concrete and injured his thumb. He was administered antibiotics at Campbelltown Hospital and a different antibiotic at Liverpool Hospital, which he was transferred to in the evening on the day of the incident. However, gangrene developed in his thumb after he was discharged and it was amputated. The plaintiff successfully brought a claim in negligence against the health district responsible for Liverpool Hospital. The trial judge found that the treating team at Liverpool Hospital had been negligent in failing to give the plaintiff an additional course of a different antibiotic, and that the opinion of the defendant’s two expert witnesses (that the additional course of antibiotics was not required) was irrational under s 5O(2).

On appeal to the NSW Court of Appeal, Justice Leeming (with whom Meaghar J agreed) made a series of comments on s 5O after considering the history, objective and statutory context of the provision. Justice Leeming concluded that ([96]):

Text, context and purpose [of s 5O] all support the conclusion that it is a seriously pejorative and exceptional thing to find that a professional person has expressed an opinion that is ‘irrational’ and even more exceptional if the opinion be widely held. To consider a body of opinion to be ‘irrational’ is a stronger conclusion than merely disagreeing with it, or preferring a competing body of peer professional opinion.

Justice Leeming held that the trial judge had erred by conflating the process of resolving a conflict between competing expert opinions “with the entirely different process required by s 5O(2) of determining whether an opinion is ‘irrational’” ([65]). It was also procedurally unfair for the trial judge to find the evidence of the defendant’s witnesses irrational when this point had not been argued at trial or raised with either party. Further, the evidence of the defendant’s witnesses was sufficient to establish s 5O(1) and the appeal was allowed.

Does s 5O operate as a defence?

Based on the decision in Dobler v Halveson (2007) 70 NSWLR 151, s 5O has commonly been interpreted as a defence, meaning that the plaintiff must establish a breach of the duty of care for the purposes of s 5B of the CLA (as well as the other elements of negligence), following which the defendant must raise evidence that his or her conduct accorded with competent professional practice for the purposes of s 5O.

In Gould, Justice Leeming commented that the proper interpretation of Dobler was that if the defendant could establish the preconditions in s 5O, then it would act to set the standard of care. If the preconditions in s 5O could not be established then ss 5B and 5C of the CLA would apply. However, “[t]here is no occasion to compare the s 5O standard with that which would be considered in the application of s 5B in a case where the preconditions of s 5O have been made out” ([129]). Justice Leeming noted that this interpretation of s 5O was also suggested by Justice Basten and Justice Simpson in Sparks v Hobson. In that case, Justice Basten commented that ([18]):

…once s 5O is invoked, arguably the general exercise required by s 5B becomes otiose. There can only be one standard against which to judge the conduct of a professional defendant, although that standard may depend upon the resolution of conflicting evidence called by the plaintiff and the defendant. It is only if one takes the plaintiff’s evidence in isolation that a two-stage process, involving the assessment of the plaintiff’s claim followed by assessment of an affirmative defence, will arise. However, in a practical sense, that is not how the dispute should be determined. Rather, a judgment will be given based on all of the evidence. Nor is the exercise helpfully clarified by speaking of shifting burdens of proof. The question for the trial judge is ultimately whether the plaintiff has established that the conduct of the defendant failed to comply with the relevant standard of care.

According to Justice Basten, s 5O will be engaged where there is evidence of a widely accepted professional practice supporting the defendant’s conduct, but that evidence, when available, will set the relevant standard: “there cannot be two legally supportable standards operating in the one case” ([24]). So while the defendant may need to establish the elements of s 5O, it is the starting point for determining the standard of care owed by the defendant and whether the defendant fell below the standard of care – not a defence that is considered after breach has been established for the purposes of s 5B of the CLA.

“Professional”

The word “professional” is not defined in s 5O. It clearly extends to medical professions, but it is unclear which other professions it might include. The meaning of the word “profession” was considered in Zhang v Hardas (No 2) [2018] NSWSC 432. In this case, Ms Zhang sued Mr Hardas, a chiropractor, alleging that he had been negligent in treating her over 12 consultations between February and September 2007, causing her to develop a depressive disorder. The case concerned Mr Hardas use of an “activator” device on Ms Zhang’s spine, which delivered a significant force to the spine for the purpose of moving bones in the spine. Ms Zhang alleged that the device had been applied hundreds of times to her cervical spine during each of the consultations with Mr Hardas.

Justice Leeming in the NSW Supreme Court rejected this argument, with the evidence supporting Mr Hardas’ position that the device had been used no more than a dozen times during each session with Ms Zhang. Further, it was not reasonably foreseeable that a person of normal fortitude might suffer a recognized psychiatric injury as a result of undergoing treatment with the activator device when it was used no more than a dozen times on each occasion. However, Justice Leeming considered whether s 5O would apply, if His Honour was incorrect on the point of whether the plaintiff owed the defendant a duty of care, as argued by the defendant.

Justice Leeming considered whether Mr Hardas, as a chiropractor, could be said to be “practicing a profession”. After reviewing the history of professionalization, Justice Leeming stated that he preferred the view “that the essential nature of practising a profession is closely linked to a partial monopoly, justified by education and public benefit, and involving a measure of altruism distinct from the drive for profit” ([144]). However, Justice Leeming did not express a conclusive view of the meaning of the word “profession” for the purposes of s 5O, but instead confined his decision to the narrower question of whether chiropractors practiced a profession.

Justice Leeming noted that at the time the incident occurred, chiropractors were regulated under a series of acts, including the Chiropractors Act 2001 (NSW), the Health Care Complaints Act 1993 (NSW) and the Public Health Act 1991 (NSW). The Chiropractors Act established a Registration Board that developed a code of professional conduct for chiropractors and also included definitions of “professional misconduct” and “unsatisfactory professional conduct.” Public complaints could be made to the board, and the Act also established a Chiropractors Tribunal that dealt with complaints that could involve suspending or cancelling a chiropractor’s registration. The Public Health Act provided that a person could not engage in spinal manipulation unless they were a registered chiropractor.

Justice Leeming concluded that s 5O “was enacted in a context in which (a) it was plain that the conventional medical profession was squarely within the mischief to which it was directed and (b) legislation treated chiropractors in ways which were similar to medical practitioners”, including through the creation of a tribunal dealing with instances of professional misconduct, combined with statutory concepts of professional misconduct and unsatisfactory professional conduct ([169]).

The Chiropractors Act 2001 also consistently treated chiropractors as professionals and “there is every reason for the defined term “professional” in s 5O to extend to occupations regarded by the same Legislature as professional” ([169]). Accordingly, chiropractors could be regarded as practising a profession for the purposes of the provision. Further, “the notion of a licensed monopoly of people who practice spinal manipulation, with educational qualifications and mechanisms for admitting and excluding those who meet or fail to meet those standards, also appears to apply” ([170]).

Mr Hardas could establish that he had acted in a manner that was widely accepted in Australia as competent professional practice as he had established that the “activator technique” was widely accepted in Australia, and the fact that other chiropractors used different methods did not prevent him from establishing that he had followed competent professional practice (s 5O(3)). Justice Leeming left to one side the issue of whether s 5O required the defendant to establish that he or she had followed “a practice” but noted that Mr Hardas’ conduct would have met this requirement if necessary.