Breastfeeding rooms in US federal buildings: who would have thought?!

Last year the US watered down a resolution of the World Health Assembly that would have called on States to “protect, promote and support breast-feeding”, and to provide technical support to “halt inappropriate promotion of foods for infants and young children”.

A step too far, apparently, given the economic interests of US-domiciled formula companies.

See here for a previous post.

In June 2019, however, Congress passed a Bill requiring federal agencies to provide lactation rooms for lactating women in buildings that are open to the public.  Think federal courts, US Social Security Administration buildings, and indeed, within the US Capitol building itself.

The Bill requires the agency to provide a lactation room that is “shielded from view”, “free from intrusion”, and contains a chair, a working surface and electrical outlet.

This ensures a place for women both to breast-feed, and/or to express breast milk.  Importantly, it encourages breast-feeding, and expressing breast milk as a new normal for women with infants who are interacting or indeed working for the federal government.

The bill provides for exceptions: where it is impossible at reasonable cost to re-purpose a space as a lactation room using portable materials, or where new construction would be required to create a lactation room at a cost that is unfeasible.

The Bill is a nice example of a public health intervention that changes the environment to support a behaviour that benefits the health of both the infant, and the nursing mother.  President Trump signed it.  Who would have guessed?

And now for the hard question: Can you imagine anything similar happening in Australia, the clever country?

Click here for a quick summary of the benefits of breastfeeding: you might be surprised how significant and extensive they are.

It’s the kind of stuff the manufacturers of “toddler milk” (Nestle and all the rest) tend not to emphasise.

(By the way, for those interested in tracking US Congressional legislation that impacts global health, click here).

 

Medical treatment in the best interests of the child: onshore, and offshore

There are troubling disparities between the medical treatment that children receive, depending on whether they live onshore – in Australia, or offshore – in immigration detention in places like Nauru.  But do these disparities have a legal basis?

Medical treatment and the best interests of the child: onshore

Exercising their parens patriae jurisdiction, Australian Supreme Courts will intervene – paternalistically, and unapologetically – to ensure that children receive the medical treatment that is in their best interests.

In many circumstances this means granting orders to authorise medical treatment so that Australian children don’t die.

Although the context is very different, recent cases in NSW and Victoria involving the administration of blood products to Jehovah’s Witnesses illustrate the point.

In Sydney Children’s Hospital Network, The Application of [2018] NSWSC 1259, the Supreme Court of NSW authorised the administration of blood products during open heart surgery that the court expected an unborn baby would require following birth.  The pregnant woman was a Jehovah’s Witness who had prospectively refused to allow her child to receive blood.

In a similar case held a few weeks later, the Supreme Court authorised a blood transfusion, if necessary, during surgery on a 6 year-old to remove a tumour.

In Mercy Hospitals Victoria v D1 & Anor [2018] VSC 519, the court order cleared the way for a blood transfusion to be given to a 17 year-old pregnant girl if she haemorrhaged following birth.

People may disagree about the merits of compelling a Jehovah’s Witness teenager to accept a blood transfusion, but the point is that courts have jealously guarded the scope of the parens patriae jurisdiction, and it survives intact to ensure that children in Australia receive medical treatment when it is in their best interests to do so.

Medical treatment and the best interests of the child: offshore

A consensus seems to have arisen among many Australians that treating children poorly and neglecting their physical and psychological needs is the price to be paid for “stopping the boats” and preventing asylum seekers from “jumping the queue”.

This issue has become highly politicised.

Politicians flash border protection pectorals, and many Australians respond positively.

But do Australians really want children to be neglected, and denied medical treatment?

Because that’s what’s been happening for many years, and it’s set to happen again if the “Medevac Bill” (the Home Affairs legislation Amendment (Miscellaneous Measures) Act 2019 is repealed.

Before considering this legislation, let’s pick a case study, but take our facts – not from the Minister’s office, but from an institution in our democracy that should and must remain apolitical: the courts.

Rowena’s story

“Rowena” (a pseudonym) is a young girl; we don’t know her age but we know she is not yet a teenager.

Her parents fled their country of origin, and travelled to Christmas Island by boat.  They arrived in 2013, thereby becoming “unauthorised maritime arrivals” under Australia’s Migration Act 1958.

Under section 198AD, they were transferred to Nauru, a country of 21 sq km that assesses asylum seekers who wish to settle in Australia, pursuant to a Memorandum of Understanding between both governments.

The Australian Government pays all the costs of assessing and housing asylum seekers.

These accommodation precincts (whatever you want to call them) would not exist if they were not a manifestation of Australian government policy.

In 2014, Rowena’s parents were assessed as refugees under the Refugee Convention and granted temporary settlement visas in Nauru.

However, Rowena and her parents were not permitted to settle in Australia.  Unless they chose to return to their home country, they were obliged to remain indefinitely on Nauru, or until a third country agreed to settle them.

Around March 2017, Rowena’s parents separated, and her father went to live with his new girlfriend.

Rowena’s mental health began to deteriorate around April that year.

In October 2017, Rowena told a child psychologist employed by International Health and Medical Services (IHMS, a health services contractor), that a voice tells her that “dying is better than living, you’ll be free”.

Rowena told the child psychologist that “she wants to die and she wants to kill herself and that if she was going to kill herself she could ‘make myself lost in the jungle and put a knife in my stomach’”.

In December 2017, Rowena attempted suicide by taking 14 tablets of her mother’s medication.  She was admitted to hospital with respiratory distress, chest and abdominal pain.

Three days later, a counsellor employed by IHMS wrote in the clinical notes that Rowena said: “The medication didn’t kill me, I will try something else”.  “I will kill myself with a knife or jump off the rocks”.

Rowena told the counsellor that she knew how to kill herself because she “has seen in the movies people stabbing themselves with knives”.

She told the counsellor that “attempting suicide made her feel good”.

A psychiatrist employed by IHMS wrote:

“It was clear that this bright child was a little confused on what it meant to be dead.  She was persistent in her thought of wanting to die and leave this world but it was not quite synonymous with her intent to kill herself.  She interspersed the theme of wanting to die with hopes of leaving Nauru and starting a new life elsewhere”.

Rowena’s mother began sleeping in the same room as Rowena for fear she might commit suicide.

However, on 18 December 2017, Rowena ran away from her mother and according to an affidavit by Professor Louise Newman, a child psychiatrist and Professor of Psychiatry at the University of Melbourne, “was found in a position to jump from a height and said that a voice was telling her to jump, jump, jump”.

Professor Newman concluded that there was “clearly an immediate risk” that Rowena would engage in further suicidal behaviour.

Rowena required, in her opinion, treatment by specialists qualified in child psychiatry “in an inpatient child mental health facility with appropriate supervision”.

On 20 December, Rowena and her mother were transferred to the Restricted Accommodation Area within the Regional Processing Centre on Nauru.

According to Professor Newman, this was not an adequate response.

Professor Newman wrote: “Supervision is essential as this child has now run away on two separate occasions and is experiencing command hallucinations urging her to suicide”.

In Professor Newman’s opinion, Rowena needed a safe environment where she could live with her mother and sister, “supported by trained child and adolescent mental health staff on a 24 hour basis”.

Nauru does not provide such facilities.

Rowena v Minister for Immigration and Border Protection

Rowena’s circumstances came before Justice Murphy in the Federal Court in February 2018.

According to evidence in that case, a panel called the “Overseas Medical Referral” Committee, based in Nauru, was required to approve all medical transfers, in conjunction with Australian Border Force officials.

According to evidence given by a GP who had previously worked for IHMS on Nauru, the Overseas Medical Committee was erratic and poorly administered, and the medical transfer system “inefficient and driven by political and not medical concerns”.

After multiple attempts to obtain authorisation from the Commonwealth, IHMS, and others to transfer Rowena from Nauru, Rowena, through her litigation representative, sought an injunction requiring the Minister for Immigration and Border Protection to transfer her to a specialist child mental health facility that could provide the comprehensive psychiatric care recommended by specialists.

The basis for her case was that the Australian Government (the Commonwealth) owed her a duty of care which it had breached, and continued to breach, by “failing to provide her with access to safe and appropriate medical facilities and treatment”.

As Murphy J stated, “The application essentially alleges a continuing tort”.

The Court considered whether there was an arguable case that the Commonwealth owed Rowena a duty of care, applying well-known “salient features” identified in Caltex Refinieries (Qld) Pty Ltd v Stavar [2009] NSWCA 258, [102]-[103].

The Commonwealth conceded that there was a serious question to be tried, but argued that Rowena’s psychiatric problems could be adequately treated on Nauru, despite there being no child psychiatrist stationed in Nauru, and no specialist child mental health facility there.

[As an aside, the Commonwealth’s concession followed a judgment by Bromberg J in the Federal Court in a well-known 2016 case involving an African woman who, while on Nauru, was raped while she was unconscious and suffering a seizure (likely caused by epilepsy).  The Minister for Immigration, Peter Dutton, refused to transfer the woman from Nauru to Australia for the purposes of having an abortion.  He was, however, willing to fly her to Papua New Guinea, where abortion was illegal and could expose her to criminal liability.

In that case, the Minister denied any duty of care to the pregnant woman.  The Federal Court decided that the Minister did owe her a duty of care which required him to “procure for her a safe and lawful abortion”.  The discharge of the Minister’s duty of care did not require the woman to be brought to Australia.  However, the duty was not discharged by arranging for the abortion in PNG.]

Does the Australian Government owe children and adolescents in immigration detention a duty of care?

In Rowena’s case, Murphy J concluded that:

“I am disinclined to accept that outpatient treatment coupled with a child psychiatrist visiting every few months (or even every month) will provide the mental health care treatment the applicant needs and adequately protect her in relation to the risk of suicide.  I do not consider that the OMR [Overseas Medical Referral] process is adequate or likely to be sufficiently swift to adequately protect against the risk of suicide”.

Murphy J found that the balance of convenience favoured the injunction, and ordered the Commonwealth to “remove [Rowena] from Nauru and place her in a specialist child mental health facility with the capacity to perform a comprehensive tertiary level child psychiatric assessment, in accordance with Professor Newman’s recommendations”.

Rowena’s story is not unique

Similar cases involving sick and suicidal children are reported:

  • here (suicidal 10 year-old boy)
  • here (suicidal 17 year-old boy), and
  • here (adolescent girl who had cut herself, refused food and water and would soon require nasogastric feeding).

In another case, the Commonwealth sought to exclude entry of a two year-old girl with herpes encephalitis, a “serious and life-threatening neurological condition”, arguing (against the evidence of IHMS and consultant specialists) that she could be appropriately treated at the Pacific International Hospital in Papua New Guinea.

What a joy it must be to act for the Minister in these cases: seeking to use the law to deny children urgently needed medical and psychiatric treatment.

In each of these cases, it was Australian courts that provided a measure of decency, compelling the Minister to do what he would otherwise refuse to do: provide a reasonable level of care to children suffering (mostly) psychiatric trauma caused or aggravated by the circumstances of their detention offshore.

Another shared feature of these cases is that the Commonwealth has been forced to concede that there is an arguable case that they owe each of these children a duty of care.

This makes sense.  After all, these children’s daily lives are framed – if not dominated – by Australian government policy.

They depend on the Minister for Home Affairs (previously called the Minister for Immigration and Border Protection) for food, shelter, security and health care.

As Ben Doherty writes, it’s only when these cases get to court that humanity prevails.  Until that time, officials from the Department of Home Affairs delay as long as they can, apparently to please their political masters.

The “Medevac Bill”

In February 2019, against the wishes of the Morrison government, the Commonwealth Parliament passed the “Medevac Bill”.

The Act required the Secretary to identify so-called “legacy minors” (persons aged under 18 years held in a regional processing country as at 1 March 2019), and required the Minister to either approve or refuse the transfer of each legacy minor to Australia within 72 hours after being notified.

Under the legislation, the transfer of minors to Australia is [was] automatic unless the Minister reasonably suspected (on advice from ASIO) that the transfer would be prejudicial to security or that the person has a substantial criminal record (s 198D).

The Act also provides for the transfer to Australia of “relevant transitory persons” where two or more treating doctors form the opinion that the person requires medical or psychiatric treatment that cannot be provided by the regional processing country.

Again, the Minister is taken to have approved their transfer unless, within 72 hours, the Minister intervenes on the basis that [he] reasonably believes that appropriate medical or psychiatric treatment can be provided without their transfer, or that the transfer would be prejudicial to security, or that the person has a substantial criminal record (s 198E).

The Minister’s decision can be appealed to the Independent Health Advice Panel, comprised of independent and Australian government doctors (see s 199B), who can over-rule the Minister about whether the person’s transfer to Australia is necessary in order to provide them with appropriate medical or psychiatric treatment (s 198F).

The legislation also provides that family members of a legacy minor, family members of a transitory person, and other persons recommended by the treating doctor to accompany a transitory person – may be transferred to Australia, unless the Minister intervenes within 72 hours on the grounds above (ss 198C, 198G).

Where the Minister does intervene, [he] must table a statement before Parliament explaining [his] reasons (s 198J).

Thirty-one transfers to mainland Australia have occurred since the Act became effective.  Of nine transfers rejected by the Minister, two were overturned by the Independent Health Advice Panel.

What’s at stake?

The Australian Government opposed the Medevac Bill because it took medical transfers out of the hands of the Minister for Home Affairs, Peter Dutton, substituting an independent medical process.

Following the decisive victory of the Morrison government in the 2019 federal election (18 May 2019), the Home Affairs Minister has stated the Medevac Bill should be repealed in its entirety.

Labor Senator Kristina Keneally has not ruled out considering amendments, but stated that the Act “provides a way for people who are sick to get the care they need and ensures the Minister has final discretion as to who can come”.

Asylum seeker policy will continue to be controversial.

Children, however, are not responsible for the fact of their detention, and should not be conscripted into the endless – and merciless – politics of Australia’s immigration debate.

Denying children – or for that matter, adults – appropriate medical and psychiatric care is miserably cruel.

Politicians who have supported and enabled the denial of medical treatment to children do not represent the values of Australia.  You do not speak for us.

I cannot help thinking that we can learn something here from the common law method.

As every law student learns, courts – conventionally, at least – seek to apply existing principles and to develop them modestly, where necessary, but to avoid making sweeping pronouncements that extend too far beyond what is necessary to reach an appropriate decision.

Perhaps Australian politicians, too, whatever their beliefs about offshore detention, should take an incremental step towards compassion, and do the right thing in the case at hand, granting the children of asylum seekers medical and psychiatric care of the same standard they would want their own children to receive, instead of visiting the sins of the parents upon them.

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

 

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