Our new Nanny State? The Senate inquiry into tobacco, alcohol, and bicycle helmet laws

New Yorkers’ had a Nanny. Do Australians have one too?

Earlier this month, Senator David Leyonhjelm announced aSsenate inquiry into legislative and policy measures introduced to restrict personal choice “for the individual’s own good,” including laws related to tobacco, e-cigarettes, alcohol, marijuana, bicycle helmets, and film classification.

Leaving to one side the irony of a government inquiry into government’s unreasonable interference in our lives, many of the products to be considered by the inquiry are of central concern to public health. Smoking remains Australia’s largest preventable cause of death and disease, responsible for some 15,000 deaths, and costing Australia $31.5 billion in social and economic costs annually. Alcohol is linked to over 60 different health conditions, and accounts for around 3430 deaths per year.

Public health advocates call for a strong government response to these health problems, because preventive measures are more cost-effective than treatment, and because legislative and policy measures work.

Laws and regulations concerned with restricting the sale or promotion of cigarettes and alcohol are often seen as examples of the “Nanny State” in action, i.e., unwanted government interference in what should be our own, freely-made choices. But it’s wrong to frame these measures simply as the state acting “for the individual’s own good.” Governments have a legitimate interest in ensuring population health, and in preventing the healthcare costs associated with alcohol and tobacco consumption. So too do we, as taxpayers.

Governments also act a check on the powerful corporate interests that have a profound influence on our drinking, smoking, and eating habits. We might as well ask, why isn’t there an inquiry into Big Tobacco and Big Alcohol, and their impact on our freedom to live healthy, productive lives?

It’s possible for governments to overstep their boundaries, and to introduce measures that are overly paternalistic and completely out of step with community needs. But by adopting the prejudicial language of “personal choice” the Senate inquiry seems to have closed itself off already to the kind of useful debate that we might have about the role of the modern state in protecting population health.

Perhaps the inquiry should consider a new collection papers published in the journal Public Health under the heading “Who’s afraid of the Nanny State? Freedom, regulation, and public health.” This special issue explores and unpacks the meaning of the Nanny State rhetoric so beloved by Senator Leyonhjelm, drawing upon work by academics from a variety of disciplines. It offers new ways to conceptualise the role of the state, and highlights the vast array of tools available to governments when acting to protect public health.

Don’t be fooled by the rhetoric. Laws and policies on bicycle helmets, cigarettes, and alcohol save lives. And they do so in a much less intrusive way than chemotherapy for lung cancer, a liver transplant, or surgery for traumatic brain injury.

Policing parenting: is the Family Court going to punish you for having a drink?

Sascha Callaghan, University of Sydney

News outlets have pounced on a Family Court “order” for parents of a six-year-old boy to not smoke around the child and to limit their alcohol consumption while caring for him. Readers commented that the case represents an unacceptable “intervention by the courts into the personal space of the individual”, and that it was an attempt at “social engineering” . The idea of a court intervening in family life to prevent what might seem like fairly ordinary activities, such as occasional tobacco smoking or having a glass of wine or two, might seem like evidence of an overreaching “nanny state”. And perhaps it would be if that’s actually what happened – but it didn’t. It is true, though, that the “right to parent” according to one’s own values and proclivities isn’t actually unfettered. The state can and will intervene in family life in various circumstances.

A definite jurisdiction

State Supreme Courts have powers to make orders under their protective jurisdiction to allow important medical treatment to go ahead if parents won’t consent, for instance. The NSW Supreme Court did exactly that in a 2013 case where a Jehovah’s Witness parent refused a life-saving blood transfusion on behalf of their child. State agencies can also intercede in family life under child protection laws when a child is at risk of significant harm. This kind of coercive intervention is reserved for serious cases where the child’s basic needs are not being met. And it generally requires much more than a parent who smokes or drinks too much from time to time to trigger intervention. But child protection laws have also been invoked when parents of a severely overweight boy didn’t go to hospital for treatment, or appropriately manage his diet (the ten-year-old boy later died from heart failure associated with obesity). And when a father, who believed HIV was an invention of pharmaceutical companies, refused to give his child the antiretroviral medication prescribed by doctors. Not everyone will agree on the limits drawn around decisions parents are allowed to make. But most will agree that the public interest in protecting children means limits must be placed somewhere. And “risk of significant harm” doesn’t seem like a bad starting point. In addition to child protection laws, the Family Court will intervene in the parenting of children when asked to do so by parents who cannot agree on the relevant decisions themselves. In settling these disputes, the guiding principle is that the court will act to protect the “best interests of children”. But how do courts interpret this rather wide concept, and where do the limits of personal parental prerogatives lie when a court tries to strike a balance between the strongly held views of parents who bitterly disagree?

The particular case

In the case that has provoked so much comment, the Family Court decided that despite the fact the child’s mother was his primary carer and was “utterly dedicated to the child’s needs”, it would be in his best interests to live with his father.

The Family Court will make parenting decisions when asked to do so by parents who can’t agree on the decisions themselves. from shutterstock.com The orders were influenced by the mother’s preference for the advice of her naturopath over an accredited medical practitioner, which the court found was to the detriment of the child; her “conscientious objection to vaccination”; and her “clear and unwavering belief that the child obtains nothing from an ongoing relationship with his father”. The father, on the other hand, appeared to the court to have a better view of the child’s medical needs and was “the parent more likely to support [the child] in his relationship with his mother”. Among the 45 orders the court made were two proposed by the mother – that both parents be “restrained from smoking in the presence of the child” and that they will refrain from consuming alcohol “to excess”, or at least to the point of being unable to drive, while the child is in their care. The father agreed to these, in a suite of orders in which his interests mostly prevailed. These are known as “consent orders” – and they’re quite different to coercive interventions under child protection laws. In fact, health-related agreements are becoming a common feature of consent orders in a culture that increasingly values health and wellness, and in which many parents are likely to want assurances from the other that their child will be in a “healthy” environment when not in their care. These kinds of concessions are negotiated in families every day of the week – “take Harry to the physio”, or “please can we not have pizza again because last time Sam got sick”. In this sense, consent orders reflect familiar family compromises and the parents’ own values – rather than an out-of-control nanny state imposing orders on passive parents. It’s just that these fairly unremarkable agreements have been written down and stamped by the court because goodwill has evaporated and parents no longer trust each other to honour everyday deals.

The long arm of the law?

Indeed, the most interesting aspect of this case is perhaps not the agreement by both parents not to smoke in front of their child or get so drunk that they can’t drive, but that in determining a child’s best interests, the overriding priority for the court was securing “the benefit to the child of having a meaningful relationship with both of the child’s parents”. To many people the idea that a father who had never been in a stable relationship with the mother and had little previous involvement with him should be entitled to a relationship with the child to the extent that his mother’s role as primary carer was lost, would seem ludicrous. But the Family Law Act takes the position that a relationship with both parents will, in the absence of risk of harm to the child, be considered paramount. With regard to smoking and drinking, there was agreement between the parents with the imprimatur of the court – rather than an order being “imposed”. The most serious issue that remained in dispute was the child’s right to a relationship with both his parents – and this was where the court really did impose the values of the Family Law Act. Otherwise, unilateral state intervention is reserved for much more serious cases where significant harm is in the offing. So, you can still have a smoko while your child is at home without fear of being touched by the long arm of the law. The Conversation

Sascha Callaghan is Lecturer in Health Law & Bioethics at University of Sydney.

This article was originally published on The Conversation. Read the original article.