The people’s award for undermining taxpayer-funded health promotion messages goes to…

(drum roll)

The people’s award for undermining taxpayer-funded health promotion messages goes to…

Mars Wrigley Confectionary, makes of Maltesers, a confectionary multinational who have just launched this Maltesers-inspired chocolate bar into Australia.

 

You’ll want to sit down for this, it urges in billboard advertising.

Clearly something momentous.  A new chocolate bar.  With Maltesers.  Call a press conference or something.

Sharing the billboard with and cleverly undermining a taxpayer-funded marketing campaign from the Australian Sports Commission which encourages Australian children to “find your 30” minutes of physical activity each day.

You can read more about their campaign here.

I wondered if they were taking the mickey.  Let’s move it Aus – find your 30!

Err…no.  Sit down, be a couch potato and snack on a British import that is 53% sugar and 30% fat.

According to the Australian Bureau of Statistics, 25% of Australian children are either overweight or obese.

 

Verifying IVF births involving donated sperm, eggs or embryos: changes to the law in New South Wales

A previous post discussed the case of Natalie Parker, an Australian mother of two young boys who, following the conclusion of IVF treatment, donated three spare embryos to a woman she met on the Embryo Donation Network, a place where donors and recipients can advertise and make contact.

Parker was prepared to donate the embryos, but with conditions attached: she wanted ongoing contact between the genetic siblings.

Usually a recipient of a donor egg or embryo will have no reason to hide the fact of pregnancy from their ART (assisted reproductive technology) provider.  Pregnancy will be a shared goal of both parties.

In this case, however, the recipient evidently wished to sever contact with Parker, or to be free of the conditions that had been imposed.  The recipient apparently lied to IVF Australia in order to conceal the fact of pregnancy.

She was just thinking about the baby”, Parker said, “and now she’s got the baby she wants to enjoy it herself and not acknowledge it’s got other connections outside the family”.

“They’ve just used me for what they wanted and then just tossed [me] aside”, she later told 60 Minutes.

Legal and regulatory changes have now been introduced into NSW that are intended to reduce the likelihood of incidents like this occurring in future.  This post briefly reviews them.

 

Changes to the Code of Practice for Assisted Reproductive Technology Units

The Code of Practice for Assisted Reproductive Technology Units, which is overseen by the Reproductive Technology Accreditation Committee of the Fertility Society of Australia now requires the ART provider to obtain a written declaration from the recipient, prior to the treatment cycle, that the patient/couple will “provide information about the treatment cycle outcome”.

In this case, the recipient of Mrs Parker’s embryo declined to attend for an IVF test to confirm pregnancy, and may have told IVF Australia that she had miscarried in order to convey the impression that she was not pregnant.

Changes to the Assisted Reproductive Technology Act 2007 (NSW)

Amendments to the Assisted Reproductive Technology Act 2007 (NSW) beef up the counselling requirements that apply to IVF providers, requiring them – in cases where the woman receiving treatment involved the use of donated gametes – to receive information about the “extended list of matters” set out in s 13(3).  These matters include the obligation that the ART provider has to obtain information about the recipient and any offspring born as a result of the procedure: see s 13(3)(c).

Secondly, the legislation imposes an obligation on ART providers to take reasonable steps to find out, between 1 month and no later than 4 months following treatment, whether the recipient of the gamete or embryo became pregnant as a result of the treatment: s 30(5).

The legislation refers to a woman using a “donated gamete”, but this term includes a reference to a gamete used to create a donated embryo”: s 4B.

Section 30(7) requires the ART provider to take reasonable steps to find out, between 10 months and no later than 15 months after the ART treatment whether the pregnancy resulted in a live birth, and the full name, sex, and date of birth of the offspring.

Thirdly, record-keeping obligations have also been strengthened.  Section 31 of the Act requires ART providers to keep records of the matters in respect of which they are required to take reasonable steps to verify.

For a woman who has received treatment using a donated gamete, the ART provider must keep records that indicate whether the recipient became pregnant within a month of receiving the treatment, unless the ART provider does not know this (s 31(1)(b1)).

Where a child has been born as a result of an ART procedure, the ART provider must keep details of the full name, sex and date of birth of the offspring, as well as details of the birth mother and gamete donor: s 31(1)(c).

The ART provider must also record, within 15 months following the provision of ART treatment, whether the recipient gave birth as a result: s 31(1)(c1).

Under s 33, where an ART provider becomes aware that a child was born following treatment involving a donated gamete, they must provide (to the Secretary of the Health Department) full particulars of the records that they are required to keep under s 31.

Where an ART provider does not know – 16 months following treatment involving a donated gamete – whether a child was born as a result, the Secretary must also be informed.

Fourthly, under s 34, the Secretary is authorized to issue directions to a health service provider requiring them to provide information for the purposes of determining whether a child was born as a result of ART treatment involving a donated gamete.

Fifthly, the Assisted Reproductive Technology Act 2007 provides for the establishment of a “central register” to allow access to “identifying information…about a donor by an adult offspring of the donor” who was born as a result of a procedure involving the donor’s donated gamete (ss32A, 32C).

Finally, s 62 of the Act has also been amended.  S 62 creates an offence for giving false or misleading information “in response to a request for information that an ART provider is required to obtain, or to take steps to obtain, under Part 2.”

This offence provision would apply to the recipient of a donated egg or embryo who gave false information to the effect that they did not fall pregnant as a result of the ART procedure involving the donated embryo.

This offence has a maximum penalty of 200 penalty units for an individual, which is 200 X $110 = $22,000, a substantial monetary penalty.

In summary, the focus of the amending legislation is to require the ART provider to obtain information about whether or not a recipient of donor eggs or embryos falls pregnant, and the details of any child who is subsequently born.

The legislation also seeks to ensure that there is no repeat of a situation where a recipient lies to the ART provider about whether or not they became pregnant or have given birth to a child involving donated eggs or embryos.

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

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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.

Manslaughter by gross negligence, or systemic failure? Implications of the Dr Hadiza Bawa-Barba case for Australia

Sydney Law School and the Menzies Centre for Health Policy at the University of Sydney are co-hosting an evening seminar entitled “Manslaughter by gross negligence, or systemic failure?  Implications of the Dr Hadiza Bawa-Garba case for Australia”.

This event will be held at the Law School on Thurs 8 November, 6.00-7.30pm.  You can register here.

The event features Professor Ian Freckelton QC as the keynote speaker, with responses from a panel including Dr Penny Browne, Chief Medical Officer, Avant Mutual, Dr Andrew McDonald, Associate Professor in Paediatrics, Western Sydney University School of Medicine and former shadow Health Minister and Jane Butler, Senior Associate at Catherine Henry Lawyers.

You can find out more about the event here.

Background to the Dr Bawa-Garba case

On Friday morning, 18 February 2011, six-year-old Jack Alcock was admitted to the Leicester Royal Infirmary Hospital in England in a limp and unresponsive state, following 12 hours of vomiting and diarrhoea.

By 9.20pm that night he was dead, due to sepsis and organ failure arising from pneumonia, which remained undiagnosed during the day.  Dr Hadiza Bawa-Garba was the doctor on duty in the Children’s Assessment Unit at the hospital, where Jack remained for most of the day.

On 4 November 2015, Dr Bawa-Garba was found guilty of manslaughter by gross negligence.  Her conviction sparked scrutiny and criticism from doctors around the world.

Following her conviction, the Medical Practitioners Tribunal Service suspended Dr Bawa-Garba from practice for 12 months, but decided against striking her from the medical register.  The UK General Medical Council appealed this decision to the High Court, which removed her from the register in January 2018.  On appeal, the Court of Appeal restored the decision of the Tribunal, re-instating the suspension of Dr Bawa-Garba for 12 months, subject to review.

On the day of the tragedy, Dr Bawa-Garba was covering the Children’s Assessment Unit because she had volunteered to fill in for a colleague who was absent.  She worked a double shift, without any breaks, also covering cases in the general paediatrics ward, and the Emergency Department.

In a letter of support for Dr Bawa-Garba, 159 pediatricians condemned the punitive approach taken against one doctor “against a background of numerous systemic failures”, adding that they would be confident to employ Dr Bawa-Garba upon her re-instatement to the medical register.

In this seminar, Professor Ian Freckelton QC will review the Bawa-Garba case and consider its implications for medical practice in Australia.  Was Dr Bawa-Garba treated unfairly, and how should the Medical Board of Australia (and in NSW, the NSW Medical Council) and other professional bodies respond in such cases?  How should community expectations be met in tragic cases like this one?  Are there solutions to the staffing challenges that place unreasonable demands on medical practitioners?

Are you interested in studying health law?

Sydney Law School offers a Master of Health Law (MHL) and Graduate Diploma in Health Law that includes units of study in medical law, public health law, mental health law and global health law and governance. It is open to both legally qualified candidates as well as those without a law degree. For more information, click on the following links: Master of Health Law; Units of study on offer in 2019; About health law study.

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

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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

First, protect the child, then worry about the penitent sinner: South Australia’s new mandatory reporting legislation

South Australia is on a collision course with the Catholic Church hierarchy following passage of the Children and Young People (Safety) Act 2017.

Chapter 5, Part 1 (ss 30-31), deals with reporting of suspicion that a child or young person may be at risk.  These sections come into effect on 22 October 2018, and impose a duty on ministers of religion, including priests, to report suspicions of child abuse, irrespective of whether that information was obtained during a confession.

Under the Children’s Protection Act 1993 (SA), which currently applies, ministers of religion and employees and volunteers in religious organisations owe a duty to notify suspicions of abuse or neglect: s 11(2).

However, a priest or minister of religion is given a specific exemption from divulging “information communicated in the course of a confession made in accordance with the rules and usages of the relevant religion”: s 11(4).

That changes in October.

Section 31 of the new Act requires health and welfare professionals and ministers of religion to report the suspicion that a child or young person is “at risk”.  There are no exemptions for information disclosed during a confession.

Priests are not singled out in the new legislation.  Section 30 applies to ministers of religion and employees or volunteers of organisations formed for religious or spiritual purposes.  The obligation also applies to medical practitioners, dentists, nurses, psychologists, pharmacists, police officers, community correction officers, social workers, teachers, and employees or volunteers for organisations that provide health, welfare, education, sporting, recreational child care or residential services for children.

Concept of “at risk”

Section 31 requires health and welfare professionals and ministers of religion to report the suspicion that a child or young person is “at risk”.

The concept “of risk” is defined in section 18: it includes circumstances where a child has suffered harm or is likely to suffer harm of a kind from which a child or young person is ordinarily protected.  This includes sexual assaults and related criminal offences.

The concept of “at risk” also includes a suspicion that a child is to be removed from the state for the purposes of undergoing female genital mutilation.

Section 31(3) states that a health or welfare professional may – but is not required – to report when they suspect on reasonable grounds the physical or psychological development of an unborn child is at risk, whether because of the pregnant woman’s behaviour or otherwise.

“Course of employment”

The obligation to report under s 31 arises when a health or welfare professional has a suspicion on reasonable grounds that arises in the course of their employment.

The concept of “employment” is defined broadly to include an employee, independent contractor, volunteer, as well as someone who “carries out work as a minister of religion or as part of the duties of a religious or spiritual vocation”.

Priests to defy new law

Debate about South Australia’s new mandatory reporting requirements takes place against the background of the conviction of Adelaide’s Archbishop Philip Wilson for concealing a serious indictable offence by failing to report credible allegations of sexual abuse of two altar boys by a paedophile priest.

This information did not come to Archbishop Wilson in the confessional and Catholic doctrine did not preclude him acting on it.

The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that any minister of religion convicted of a crime relating to child sexual abuse should “in the case of Catholic priests and religious [orders], be dismissed from the priesthood and/or dispensed from his or her vows” (16.56.a).

Archbishop Wilson was sentenced to 12 months imprisonment, but has said he will appeal the conviction.  In the meantime, he has refused to resign, indicating, however, that he would resign if the conviction was upheld.

Meanwhile, Acting Archbishop Greg O’Kelly has confirmed that priests are bound by church doctrines and that the new law “doesn’t affect us”.

Appraisal

The fact that a minority of priests have committed sexual offences against children, and that other senior Catholic clergy have failed to act on knowledge of such offences does not mean that sexual predators regularly or even occasionally confess to sexual offences during confession.  The two issues are distinct.

However, even if information about the abuse of a child reaches a priest during a confession only rarely, what does the Catholic church’s rule about absolute secrecy say about its sense of right and wrong?

The very position that such information should remain absolutely confidential if conveyed during the Sacrament of Reconciliation suggests that it is more important to encourage the penitent sinner to seek absolution than to protect the child.

You’d have to be a priest, as distinct from a parent, to follow the logic or the morality of that.

I’m a parent, and I’ll tell you what every other parent will tell you: the over-riding moral priority is to protect your child.

Protect the child.  That’s more important than swearing secrecy to someone who reveals that they are a sexual predator.  What’s not to understand?

In fact, how does someone – acutely sensitised to the rightness and wrongness of things – get to a place where they don’t understand this?

Do penitent sexual offenders never re-offend?

If the person who confesses is truly penitent, surely they would not want the child they harmed to be isolated from services to help them recover from their trauma?

The confessional should not enable further wrong-doing.

It this case it’s secular morality, and the South Australian Parliament, that is leading the way.

Trump: the war on breastfeeding

The New York Times reports that US officials threatened to unleash trade sanctions and withdraw military aid from Ecuador unless it withdraw a resolution at May’s World Health Assembly calling on governments to “protect, promote and support breast-feeding”.

The article is worth reading in its entirety.

As the father of a currently breastfeeding infant, I find this kind of behaviour utterly repellent.

There are echoes of Right to Health language (respect, protect, fulfil) in the resolution which might have displeased the Americans, but the real motivator was American support for large corporate manufacturers of breast-milk substitutes.

(Like Chicago-based Abbott Laboratories.)

Ecuador backed off from the offending resolution, as did “at least a dozen other countries, most of them poor nations in Africa and Latin America”.

Then Russia stepped in, and the intimidation apparently stopped.

“We’re not trying to be a hero here”, said a Russian delegate to the World Health Assembly, “but we feel that it is wrong when a big country tries to push around some very small countries, especially on an issue that is really important for the rest of the world.”

Plenty of ironies here.  But they have a point.

According to the New York Times report, a Department of Health and Human Services spokesperson said: “The resolution as originally drafted placed unnecessary hurdles for mothers seeking to provide nutrition to their children.  We recognize not all women are able to breast-feed for a variety of reasons. These women should have the choice and access to alternatives for the health of their babies, and not be stigmatized for the ways in which they are able to do so.”

Well gosh, that ought to sort out the doubters.

The Lancet reports that scaling up breast-feeding to near universal levels could avoid 823,000 deaths of children under 5 each year, and 20,000 maternal deaths from breast cancer.

Breastfeeding protects both mother and child, and it’s free, which is important if you’re poor.

Yet for billion dollar formula companies, the temptation to monetise the act of feeding by targeting young mothers, is just irresistible.

Read the Guardian’s investigation into Nestle’s marketing practices flogging formula to poor women in central Manila here.  Then weep.

Here is the resolution that eventually passed in the World Health Assembly, with American support.

Amongst other things, it requests the WHO Director-General to provide, upon request, “technical support to Member States to establish, review and implement national laws, policies and programmes to support infant and young child feeding”.

However, US hostility scuttled language that would have called on WHO to provide “technical support to member states seeking to halt “inappropriate promotion of foods for infants and young children.”

“Inappropriate” in this context would refer to the promotion of foods in contravention of the International Code of Conduct of Breast-milk Substitutes.

The Code prohibits the advertising of infant formula and other breast-milk substitutes to the general public, to pregnant women and mothers, and to health workers who are concerned with infant and maternal nutrition.  It also prohibits the giving of samples and other incentives for purchase. Governments are urged to implement the Code through national legislation, regulations or other suitable measures.

In addition, the Code states that infant formula should contain a clear statement of the superiority of breastfeeding, and a statement that the product should only be used following advice from a health worker. The container and labels should not contain pictures of infants, or include pictures or text that “may idealize the use of infant formula”.

Appropriately, the resolution does urge Member States (of the World Health Organisation) to strengthen national initiatives to implement the Code.

However, when you put it all together, it appears the Trump administration does not want sovereign countries receiving technical support from WHO about how best to frame their laws and policies to prevent predatory marketing practices that breach the Code.

It’s the Trump administration’s war on breastfeeding women.

Click here for information about the Australian Breastfeeding Association.

ANNOUNCEMENT: Sydney Law School and the United States Studies Centre at the University of Sydney are co-hosting an evening seminar entitled “Public health law and health leadership in the United States: What can Australia learn?” on 19 July 2018, 6.00-7.30pmClick here for the brochure and further details.  A separate post will follow about this event.

If you’re interested to learn more about law and non-communicable diseases, Sydney Law School is offering a Masters unit, “Law, Business & Healthy Lifestyles” in the coming semester.  Click here for more information.