Alcohol causes 3 million deaths each year. Eliminating conflicts of interest is vital to bringing this number down

Alcohol causes three million deaths each year, including 13.5% of deaths amongst those aged 20-39 years.

The personal and economic costs of alcohol-related harm are not met by the alcohol industry, which (like tobacco) is increasingly dominated by large multinational companies.

At the global level, there have been many calls for a binding international legal instrument on alcohol control; for example: here, here, and here.

Yet global health scholars warn that a framework convention on alcohol control would be premature at this point. Even if politically feasible, it might “bake in” weak norms that may do little to accelerate the implementation of priority policies for alcohol control. 

You’ll find interesting discussion about this issue here, here, here, and here.

Alcohol industry influence

The WHO’s Global Strategy for Prevention and Control of Noncommunicable Diseases, adopted in 2000, didn’t even mention alcohol as a risk factor.  This was apparently due to effective lobbying by the industry.

The Global Strategy to Reduce the Harmful Use of Alcohol was adopted by the World Health Assembly in 2010, yet WHO Member States have made little progress in adopting effective measures to reduce alcohol-related harm since that time, and global per capita alcohol consumption is expected to increase by 2025 (see here, para 13).

WHO documents have referred to the alcohol industry as “economic operators” and framed them as global stakeholders in reducing alcohol-related harm, encouraging them to implement “self-regulatory initiatives”: see, eg, here (para 45), and here (p 135).

Contrast this with the realisation in the case of tobacco that there is a ‘fundamental and irreconcilable conflict of interest’ between the tobacco industry and public health interests (see Guiding Principle 1 here).

The extent of WHO’s engagement with the alcohol industry is summarised in the Global Status Report on Alcohol and Health, published in 2018.

Acknowledging the significant influence of the alcohol industry at global and national levels, including efforts to influence policy and bias research, this report states:

‘Despite this a dialogue has continued with economic operators in alcohol production and trade at the international level seeking ways they can contribute to reducing the harmful use of alcohol in their roles as developers, producers, marketers and sellers of alcoholic beverages’ (p 130).

‘The main areas for the dialogue include self-regulation of marketing within coregulatory frameworks, labelling and consumer information, alcohol content in alcoholic beverages as well as provision of data useful for improving estimates of alcohol consumption in populations. In this context it has to be underlined that regulatory controls on the market must be decided and enforced by governments, with public health interests as the primary goals. Such regulations and their enforcement need to be protected from industry interference.’ (p 135)

The global alcohol industry has effectively exploited the prevailing conceptual approach to addressing NCDs – which emphasises public-private partnerships and a multisectoral, all-of-society approach.

(See, for example, paras 43-44 of the Political Declaration of the 3rd High-Level Meeting of the UN General Assembly on NCDs (2018), or do a word search for “partnership” in the WHO’s Global Action Plan for Prevention and Control of NCDs).

However, engaging with the alcohol industry has failed to reduce alcohol-related harm.

In reality, it has probably been counter-productive. Scholars have pointed out that it has created a welcome environment for influence by the alcohol industry.

WHO itself points out that alcohol industry lobbying is a key reason for countries’ lack of progress in implementing measures to reduce harm (eg here, para 67).

Alcohol and global health: a clear conflict of interest

WHO does not partner with the alcohol industry.

Yet it relies heavily on industry estimates of levels of alcohol consumption (see eg here, pp 398, 407).

And it apparently continues to consult with the industry about how “economic operators” might contribute to:

-the Global Strategy to Reduce Harmful Use of Alcohol (2010);

-the Action Plan (2022-2030) to Effectively Implement the Global Strategy to Reduce the Harmful Use of Alcohol [adopted by the World Health Assembly on 28 May 2022]; and to

-implementing the commitments made at High-level Meetings of the UN General Assembly on NCDs. For examples, see here, (p 3/31; 2019), here (2020), and here (2021).

The Action Plan (2022-2030) to Effectively Implement the Global Strategy was developed precisely because progress in global alcohol control has stalled.

The Action Plan highlights the ‘inherent contradiction between the interests of alcohol producers and public health’ (see para 14).

Yet according to the Foundation for Alcohol Research and Education (FARE), even this document was weakened during the consultation process: see Analysis of Changes to the World Health Organization Global Alcohol Action Plan 2022-2030.

It is mistaken to assume that just because opportunities exist to reduce the harm from promotion and sale of alcohol, that engaging or partnering with the industry will benefit public health.

This important lesson also applies to vaping regulation: see here.

If alcohol-related harm were diving sharply, then those who advocate for dialogue and direct engagement might have a point.  But it isn’t.

An OECD report states that Covid-19 may have intensified the problem of harmful alcohol consumption by those who drink to excess. 

Australian evidence suggests that alcohol brands have exploited people’s sense of isolation during Covid-19, and need for support, to push brand awareness: see here, and here.

At the global level, another recent report illustrates that the primary purpose of alcohol industry submissions to the Action Plan (2022-2030) to Effectively Implement the Global Strategy was to:

-challenge concerns about conflicts of interest

-promote collaboration and partnership between government and the alcohol industry; and

-keep the focus of policy efforts directed towards reducing harm from alcohol rather than reducing global consumption overall. See Alcohol Industry Submissions to the WHO 2020 Consultation on the Development of an Alcohol Action Plan: A Content and Thematic Analysis.

So long as they’re part of the conversation, whether at global or national level, the alcohol industry will use their access to policy-makers to advance their economic interests.

Those economic interests, unsurprisingly, involve growing markets for alcohol consumption, strengthening brands, and encouraging consumption.

Closing the Gap and health governance reform: a brief review

7566_National_Reconciliation_Week, Cadigal Green, Darlington Campus.

NSW Premier Dominic Perrottet has confirmed that the Aboriginal flag will fly permanently atop the Sydney Harbour Bridge “as soon as possible“.

As important as this symbolism is, arguably more important is the Premier’s announcement that he will be taking an all-of-government approach to the national “Closing the Gap” targets, by committing his entire cabinet to “close the gap in their respective portfolios under a new section of their ministerial charter“.

The National Agreement on Closing the Gap is an ambitious all-of-government framework for improving the health and welfare of Australia’s first nations peoples.

This post briefly reviews the Agreement and considers its significance as an example of health governance reform.

Health and “governance reform”

A great deal of public health law is outward looking: it regulates the “world out there”, whether it be harmful products, the businesses that sell them, occupiers, premises, professionals, or the population generally. Equally important, however, are the actions taken by governments to structure their own functions and activities effectively.

Sometimes this takes statutory form, such as legislation to establish a National Children’s Commissioner, or the legislation that established Australia’s “zombie” health agency, the National Preventive Health Agency (the legislation remains in force, but in 2014 the agency was abolished and its functions absorbed back into the Commonwealth Health Department).

At other times, health governance initiatives may consist of new organisational structures, “frameworks”, and agreements – including inter-governmental agreements.

One of the most important inter-governmental agreements in Australia today, on any measure, is the National Agreement on Closing the Gap.

This is an agreement between the Council of Australian Governments or COAG (comprising the Commonwealth, States, Territories and the Australian Local Government Association) and the Coalition of Aboriginal and Torres Strait Islander Peak Organisations (“Coalition of Peaks”).

The “Coalition of Peaks” convenes over 50 community-controlled Aboriginal and Torres Strait Islander peak and member organisations in every state and territory.

While not intended to be legally enforceable, the Closing the Gap Agreement is our best hope yet of addressing the appalling disparities that persist between the health and socio-economic circumstances of indigenous and non-indigenous Australians.

COAG no more

The National Agreement on Closing the Gap was made between the Council of Australian Governments (COAG) and the Coalition of Peaks.

However, on 29 May 2020, COAG was replaced by the National Cabinet, a new inter-governmental forum that now excludes local government: see here, here and here.

[National Cabinet has also established National Cabinet Reform Committees in five areas, although at the time of writing there is little publicly available information. These committees include the Health Ministers’ Meeting Forum (formerly the Health Council), which is supported by the Health Chief Executives Forum, formerly the Australian Health Ministers Advisory Council (AHMAC).]

In addition to the National Cabinet, another inter-governmental structure is the National Federation Reform Council. Meeting annually, the Council convenes the Prime Minister, Premiers and Chief Ministers, Treasures and the Australian Local Government Association: see here and here. See these links for summaries of 2020 and 2021 meetings.

The National Federation Reform Council has established several NFRC Taskforces to address inter-governmental priority areas falling outside the job creation focus of National Cabinet, including the Women’s Safety Taskforce, and the Indigenous Affairs Taskforce.

Closing the Gap

Back to the Closing the GAP Agreement. The Agreement took effect on 27 July 2020.  It built on an earlier Partnership Agreement on Closing the Gap, which recognised that the key to accelerating improvements in health and livelihoods of Aboriginal and Torres Strait Islanders lies in “shared decision making with Aboriginal and Torres Strait Islander community controlled representatives in the design, implementation and monitoring” [of the National Agreement].

As expressed in the Preamble to the National Agreement on Closing the Gap:

6 This Agreement also stems from the belief that when Aboriginal and Torres Strait Islander people have a genuine say in the design and delivery of services that affect them, better life outcomes are achieved. It recognises that structural change in the way Governments work with Aboriginal and Torres Strait Islander people is needed to close the gap.

7 In response, all Australian Governments are now sharing decision-making with Aboriginal and Torres Strait Islander people represented by their community-controlled peak organisations on Closing the Gap, the Coalition of Aboriginal and Torres Strait Islander Peak Organisations (Coalition of Peaks). This is an unprecedented shift in the way governments work, by encompassing shared decision-making on the design, implementation, monitoring and evaluation of policies and programs to improve life outcomes for Aboriginal and Torres Strait Islander people.

In addition to embedding formal partnerships and shared decision-making, the National Agreement on Closing the Gap set out a number of additional priority reforms (see para 6):

  • to strengthen the Aboriginal and Torres Strait Islander community-controlled sector to deliver services to support closing the gap;
  • to transform mainstream government organisations “to improve accountability and respond to the needs of Aboriginal and Torres Strait Islander people”; and
  • to improve access to data for the purposes of monitoring progress in closing the gap.

The Agreement sets out targets for the priority reforms mentioned above, as well as socio-economic outcomes and targets; the latter are discussed further below.

Parties to the Closing the Gap Agreement committed to agreeing to “partnership actions” throughout the life of the Agreement, which would be implemented by all Parties in order to ensure “joined up national action on the Priority Reforms“.

The Agreement provided for the development of implementation plans by the Commonwealth, States and Territories, Australian Local Government Association, and Coalition of Peaks. Jurisdictional Implementation Plans must be “whole-of-government plans, covering government agencies and statutory bodies“, developed and implemented in partnership with other governments, the Coalition of Peaks, and other Aboriginal and Torres Strait Islander partners.

See here for the current NSW Implementation Plan.

The Commonwealth Implementation Plan can be found on the website of the National Indigenous Australians Agency, a Commonwealth agency established in 2019 to lead the development and implementation of Commonwealth government policies and programs on indigenous affairs.

Public accountability: The National Agreement on Closing the Gap called for annual, public reports by each Party, with progress monitored by the Joint Council (see below), a comprehensive review of progress every three years by the Productivity Commission (and a further Independent Aboriginal and Torres Strait Islander led review within 12 months of the Productivity Commission’s review).

Joint Council on Closing the Gap

The Partnership Agreement on Closing the Gap 2019-2029 announced the creation of a Joint Council on Closing the Gap.

Co-chaired by the Commonwealth Minister for Indigenous Australians (the Hon. Ken Wyatt AM MP), and the Lead Convenor of the Coalition of Peaks (Ms Pat Turner AM), the Joint Council embodies the promise of shared decision-making and accountability.

The Joint Council convenes one Minister with responsibility for Closing the Gap from the Commonwealth, States, Territories and one representative from the Local Government Association, together with twelve representatives from the Coalition of Peaks.

The Joint Council is responsible for “monitoring the implementation of the National Agreement on Closing the Gap, including progress by the Parties against their Implementation Agreements” (see also here).

National Federation Reform Council – Indigenous Affairs Taskforce

The Indigenous Affairs Taskforce formed under the new National Federation Reform Council (referred to above) does not displace the governance arrangements to which governments have committed under the Closing the Gap Agreement. The Taskforce convenes the Commonwealth, State and Territory ministers with responsibility for indigenous affairs.  Meeting twice a year, and involving government members of the Joint Council on Closing the Gap, the Taskforce will consider issues referred to it by the Joint Council, and other policy issues requiring “in-depth focus, collaboration and agreement from the Federation“.

7618_Rural_Health_Orange_Dubbo. School of Rural Health, students, Medicine.

Closing the Gap Targets

The National Agreement on Closing the Gap is supported by outcome measures, and targets.

The targets provide an important accountability mechanism for measuring performance and if realised, will transform the lives and opportunities available to Aboriginal and Torres Strait Islander people.  For example:

  • Target 1: Close the gap in life expectancy within a generation, by 2031.

The Australian Institute of Health and Welfare reports that for Aboriginal and Torres Strait Islander people born in 2015-17, life expectancy is 71.6 years for males and 75.6 years for females: that’s 8.6 years lower than for non-Indigenous Australian males (80.2 years), and 7.8 years lower than for non-Indigenous Australian females (83.4 years).

Other health-related and socio-economic targets relate to healthy birthweight (Target 2), early-childhood development (Target 4), completion of tertiary education (Target 6), and appropriately sized (not overcrowded) housing (Target 9).

There are targets for reducing the rate of Aboriginal and Torres Strait Islander young people in detention (Target 11), the rate of Aboriginal and Torres Strait Islander children in out-of-home care (child protection) (Target 12), and the rate of violence against Aboriginal and Torres Straight Islander women and children (Target 13). Target 14 calls for “significant and sustained reduction in suicide of Aboriginal and Torres Strait Islander people towards zero“.

These targets depend on and are supported by targets to strengthen Aboriginal and Torres Strait Islander cultures and languages, relationships with land and waters as well as “equal levels of digital inclusion”.

The Closing the Gap framework, described above, illustrates institutional structures and arrangements for working across all levels of government, across ministries and sectors (all-of-government), and in particular with Aboriginal and Torres Strait Islander peoples and organisations, through the Coalition of Peaks.

State institutional reforms

Understood against the background of the inter-governmental governance arrangements that make up the Closing the Gap framework, the decision by NSW Premier Dominic Perrottet to embed Closing the Gap actions across his entire cabinet makes perfect sense.

But it’s worth keeping an eye out for further institutional changes, such as the appointment of Aboriginal and Torres Strait Islander Children’s Commissioners, to complement the Children’s Commissioners at State and Federal level.

Victoria appointed a Commissioner for Aboriginal Children and Young People in 2013, and South Australian in 2018 – see also here (Part 2A).

Together with the strengthening of community-controlled child protection and family support services, Aboriginal and Torres Strait Islander Children’s Commissioners could play an important role in reducing Target 12 of the Closing the Gap Agreement: to reduce by 45% the rate of over-representation of Aboriginal and Torres Strait Islander children in out-of-home care. See, further, here.

Freedom to protest, public health, and Covid-19

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

Lock-out laws

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

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

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

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

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

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

Liquor sales cessation periods

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

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

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

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

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

Wind-back of other controls

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Did the lock-out laws work?

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

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

There was some displacement of violence to surrounding areas.

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

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

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

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

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

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

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

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

The Government had to do something, and it did.

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

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

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

 

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).

 

Why the media gets it wrong on obesity

“I’m not overweight”, writes columnist Katrina Grace Kelly in The Australian.  “I’m just the helpless pawn of a vicious corporate conspiracy”.

Amusing read, but it also illustrates why public health researchers are failing to cut-through with governments and the broader community on obesity.

“The ‘obesogenic environment’ is the culprit here, apparently”, Kelly writes, referring to a recently-released report from the Obesity Collective, and to recommendations from the Senate Select Committee into the Obesity Epidemic in Australia.

“The creators of the obesogenic environment are government, society in general and the harbingers of all evil – corporations, specifically, companies in the food and beverage sector, now being referred to as Big Food.”

She adds: “We are fortunate to have researchers on the public payroll, so they can conduct studies to arrive at such previously unimaginable conclusions”.

 

It’s all personal responsibility, stupid

Kelly’s beliefs about obesity illustrate why the problem is so hard to tackle at a population level.

The dominant framing of obesity as purely a matter of personal responsibility seems obvious, intuitive.  No one is force feeding us, right?

But it has a downside: if you’re fat, look in the mirror, you only have yourself to blame.

According to the Australian Bureau of Statistics, the proportion of adults who are overweight or obese has increased from 56% in 1995, to 67% in 2017-18, with an additional 900,000 adults becoming overweight in the 3 years since the previous survey in 2014-15.

There is a troubling trend here, but for many people, it’s difficult to accept that the causes of the trend might be different from the causes of an individual’s obesity.

 

Personal policy, and public policy

If you are obese, having greater personal responsibility is an excellent suggestion – it’s an excellent “personal policy”.

But it turns out to be a rather silly and unproductive explanation for the trend towards population weight gain.

For one thing, personal responsibility is not a new idea; in fact, it’s a strategic failure, so urging people to have more of it is unlikely to reduce obesity rates in future.

Viewing obesity in terms of the failure of personal responsibility also means that the dramatic trend towards weight gain over the past couple of generations – affecting many millions of people in most countries of the world – is best explained in terms of an unprecedented, mass deterioration in self-control.

Who could have guessed?!

Framing obesity in terms of individual responsibility probably does little to help those who are obese, although it might make the rest of us feel smug.  It also deflects attention from both the causes of, and the solutions to, the problem at a population level.  And that’s what healthy public policy needs to be directed towards.

Are you interested in health and medical law?  Sydney Law School offers a Master of Health Law, a Graduate Diploma in Health Law, and single unit enollment.  For more information, click here, or here.  For more information on what it’s like to study at the Law School, click here.

What becomes of a country that cannot protect its young?

 

March for our lives, Washington DC, 24 March 2018

 

It’s too early to say if the grassroots social movement initiated by students who survived the gun massacre at Stoneman Douglas High School in Parkland, Florida will be successful in nudging America’s gun laws in the direction of rationality and evidence.

After killing 17 people with an AR-15 style semi-automatic weapon, and injuring 17 more, 19 year-old former student Nikolas Cruz left the school premises, blending in with the crowd and remaining free for an hour before arrested.

On March 24, students and gun control advocates took to the streets of Washington DC in a “March for Our Lives”.

They’re trying to start a movement.  You can join them.

“To the leaders, skeptics and cynics who told us to sit down and stay silent, wait your turn! Welcome to the revolution!” said student Cameron Kasky.

Barack Obama tweeted: “Michelle and I are so inspired by all the young people who made today’s marches happen. Keep at it. You’re leading us forward. Nothing can stand in the way of millions of voices calling for change.”

In the thick of it, as usual, my friend Professor Lawrence Gostin from Georgetown University Law School, who leads the O’Neill Institute for National and Global Health Law.  You can read about the march on his twitter account here.

He writes: “From a long life’s experience on health and human rights I have found that no meaningful change happens without bottom up social mobilization.”

He’s right.  This is true of gun control, tobacco control, and much else in public health.

Is there constitutional space for rational, evidence-based gun control laws in the United States?

It’s sometimes assumed that the US Second Amendment, which states that “the right of the people to keep and bear Arms, shall not be infringed”, leaves little room for rational, evidence-based gun control policies and laws.

This is not so, argues Professor Gostin in a recent paper published in the Journal of the American Medical Association.  For additional resources, click here, here, and here.

In fact, rational firearms laws are compatible with the Constitution and with recent caselaw, suggesting that the real problem is a political one.  Rational, evidence-based measures to reduce firearms deaths in the United States could include:

  • mandating a higher minimum purchasing age for firearms
  • prohibiting dangerous individuals from purchasing or owning firearms
  • requiring safe storage
  • banning weapons with especially hazardous properties such as military-style rapid-fire firearms and high capacity magazines, and
  • banning open carry of firearms (an emerging issue for college campuses, where academics receive advice about what to do in “active shooter” situations).

Young people exercising another of their constitutional rights, March for our lives, Washington DC, 24 March 2018.  (However, Rick Santorum suggests they would be better served taking CPR classes)

 

What makes bottom-up change happen?

This is a neglected but vitally important questions for public health lawyers.

Will the anger and conviction that fuels the “March for our lives” movement endure?  Will it prove capable of raising the resources that will be necessary to make a compelling case for change to the American people?

Public health advocates often focus on content: the technical content of the policies they advocate, the evidence, and the rational case for change.  And then nothing happens.

More than ever, advocates need to better understand the factors that catalyse change, the factors that make social movements successful, and enduring.

Jeremy Shiffman has written about why some global health issues attract attention while others languish: his scholarship is helpful in also analysing national public health issues.

For social constructionists like Shiffman, global health problems like HIV, polio, or non-communicable diseases do not have any inherent priority or significance.  The attention an issue receives, while not unrelated to epidemiological facts, is “always mediated by social interpretations”.

From a social constructionist perspective, the “core activity” of global health advocates is ideational: health advocates must advance truth claims about the problem and its solutions that resonate with the values and shared interpretations of political leaders and those who control resources.

On this view, global health (and the same could be said of national public health priorities) is a competitive – and brutal – process of portraying and communicating severity, neglect, tractability and benefit in ways that appeal to political leaders’ social values and concepts of reality”.

Yet increasingly, reality itself is no longer a shared experience.  Gun control advocates and gun enthusiasts might as well live in different universes.  Their sources of information are completely unrelated; the things they find persuasive utterly different.

Speaking in Sydney on a recent visit, Barack Obama said that “social and political structures had not yet worked out how to deal with rapidly changing communications technology, a world in which people no longer watched the same TV channels or read the same newspapers. The rapid pace of change was having a flow-on effect across the globe, and was likely to get faster still. Discourse was becoming increasingly fragmented, with people becoming hermetically sealed off from each other inside very different information universes.”

The triple cocktail of extreme individualism, neoliberalism, and populism have created a social landscape in which there is less and less shared ground when it comes to values and visions for a better life.

Speaking as a non-American, it seems to me that the scale of the challenge, for gun control advocates, is reflected in the reflexive tendency of the pro-gun lobby to castigate the very mention of rational gun laws, following [America’s latest semi-automatic gunfire massacre: insert details here] as exploitative – as politicizing a tragedy.

A couple of examples.  Jesse Hughes, whose band, Eagles of Death Metal, was performing at the Bataclan theatre in Paris on 13 November 2015 when terrorists stormed in and took hostages, eventually killing 89, went on an on-line rant, calling the Stoneman High School students “disgusting vile abusers of the dead”.

Another right-wing media type tweeted the following about David Hogg, one of the Florida students advocating for stricter gun laws: “I’ve been hanging out getting ready to ram a hot poker up David Hogg’s ass tomorrow.”

All because some students who survived a mass murder at their school dared express their opinion that government ought to introduce gun control laws to help make such rampages less frequent.

Like the tragedy of the massacre at Sandy Hook Elementary School, the gun massacre at Stoneman Douglas High School reflects the failure of policy, the failure of politics and politicians, and ultimately, the potential failure of a society.

What becomes of a country that cannot – or will not – protect its young?

Authoritarian regimes, that fail the protect basic freedoms, or do so only partially, start to look a whole lot better.

That’s bad news for freedom, and bad news for America.

 

Professor Larry Gostin will be speaking at Sydney Law School on 19 July, as part of an evening event titled: ‘Public health and health leadership in the USA: what can Australia learn’.  Sydneyhealthlaw.com will advertise this event in due course.  Professor Gostin will be teaching the unit of study, Global Health Law on 17-20 July; for more information on this unit, click here.  For more information on Sydney Law School’s Master of Health Law, click here and here.

Upcoming events: The Food Governance Showcase

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On Friday the 3rd of November, Sydney Health Law is co-hosting the Food Governance Showcase at the University of Sydney’s Charles Perkins Centre.

The Showcase will present new research from University of Sydney researchers and affiliates, examining the role of law, regulation and policy in creating a healthy, equitable, and sustainable food system. The Showcase will feature presentations on a wide variety of topics, including food safety law in China, Australia’s Health Star Rating System, and taxes on unhealthy foods and micronutrients.

The Showcase will open with a panel event featuring three legal experts, who will speak on a specific area of law (including tax law, planning law and international trade law), and how it impacts on nutrition and diet-related health.

Later in the day, a speaker from NSW Health will discuss the Department’s new framework for healthy food and beverages in its health facilities.

Further information about the Showcase, including the program, is available here.

The event is free, but registration is essential.

Any questions about the Showcase can be directed to Belinda Reeve (the co-organiser): Belinda.reeve@sydney.edu.au

 

Enabling the angels of death?

Draft voluntary euthanasia legislation, called the Voluntary Assisted Dying Bill 2017 (NSW) has been released for public comment.

Drafted by a cross-Parliamentary working group, it may be the closest contender yet for the legalisation of assistance-in-dying for people living in NSW who are suffering from a terminal disease.

A short summary of the Bill appears further below.

Australians have not had lawful access to assisted dying since 1997, when the Euthanasia Laws Act 1997 (Cth) [introduced as a private member’s Bill by Kevin Andrews MP, with the assistance of the Howard government] overturned the Northern Territory’s brief, 8 month experiment with euthanasia – the Rights of the Terminally Ill Act 1995.

Relying on the plenary legislative power of the Commonwealth to make laws for the Territories, the Euthanasia Laws Act withdrew from the NT and ACT the power to make laws with respect to assisted dying.  The Act was a victory for conservative political forces in Australia.

Since that time, despite polls suggesting that most Australians favour legalising a right for those suffering a terminal illness to die with medical assistance, all the voluntary euthanasia Bills introduced into State Parliaments have failed.

There are various explanations for this.

The legalisation of assisted dying may suffer from the reality that although a majority of the population support it, those who oppose it are deeply committed opponents for whom the issue is a vote-changer.  This makes the passage of laws that might have majority support a net vote loser.

Another explanation is that Australians, or at least their elected representatives, are far less progressive than right-to-die advocates would like to believe.

Will the Voluntary Assisted Dying Bill 2017 give legal cover to those “angels of death” who up to now have provided their assistance informally, in the “euthanasia underground”?

The Voluntary Assisted Dying Bill 2017 (NSW)

The Bill would authorise a 25 year-old, ordinarily present in NSW, to request their primary medical practitioner for assistance to end their life in circumstances where that person (the patient) has been informed by their primary medical practitioner that the patient is suffering from a terminal illness, and where the patient is experiencing severe pain, suffering or physical incapacity that is unacceptable to the patient (cl 4).

The request for assistance must be in writing (see below), and the patient may rescind their request at any time (cl 5).

Assistance may take the form of prescribing and preparing a (lethal) substance for self-administration by the patient, or may involve the direct administration of the substance to the patient when the patient is physically incapable of self-administering it (cl 3).

A medical practitioner may only provide assistance with substances identified in the Regulations as “authorised substances”, presumably because of their reliable euthanatic properties (cl 10).

The patient’s primary medical practitioner is not obliged to provide assistance (cl 6), and the patient may, in writing or by means of an audio-visual record, nominate a third party, who must be at least 18 years old, to provide the assistance (cl 7).

A number of requirements must be met before the assistance can be provided.

The patient must be examined by their primary medical practitioner, and by an independent, secondary medical practitioner who must be registered “in a specialty of the medical profession that is relevant to the patient’s diagnosis or treatment of the terminal illness from which the patient is suffering” (cl 14(3)(a)).  The specialist must not be “closely associated” with the primary medical practitioner, ie the former must not be a close relative, employee, or member of the same medical practice as the latter (cl 14(3)(b)).  In addition, the specialist must not be a close relative of the patient (cl 14(3)(c)).

Conflict of interest provisions also apply. A person (that is, any person) must not promise any financial benefit to the primary medical practitioner, and the primary medical practitioner must not accept any financial benefit in return for providing assistance to the patient, other than reasonable payment for medical services (cl 12).

It seems difficult for the primary medical practitioner to be a close relative of the patient, or the former would fail the conflict of interest provisions by virtue of receiving a financial benefit through inheritance (cl 11(a)).

The patient’s request for assistance must be confirmed by the patient after the primary medical practitioner has examined the patient and indicated the likely course of the patient’s illness, and treatment options, including palliative care, counselling and psychiatric support (cl 15).

Next, the patient must be examined by an independent psychiatrist or psychologist who must provide a written report to the primary medical practitioner and specialist which confirms that the patient is of sound mind and has made a free and voluntary decision (cl 16).

The primary medical practitioner must not provide assistance unless they have examined the patient and formed the medical opinion that the patient is suffering from a “terminal illness” (ie an illness that in reasonable medical judgment will cause death within 12 months) that is causing “severe pain, suffering or physical incapacity to an extent unacceptable to the patient” (cl 17).  The primary medical practitioner must also believe that there is no cure, and that the only treatment reasonably available to the patient is the relief of pain and suffering (ie palliative care).  The primary medical practitioner must also believe that the patient has considered the impact of the assisted death on the patient’s spouse or de-facto partner or family.  The specialist must also confirm these assessments in a written statement provided to the primary medical practitioner (cl 17).

A patient who requests assistance in dying must also fill out a request certificate.  The Bill envisages an initial request made by the patient, followed by a period of not less than 7 days, before the patient signs the request certificate (c. 18).

If the patient is physically unable to sign the certificate, the certificate may take the form of an audio-visual record of the patient reading the patient’s declaration in the certificate; however, the primary medical practitioner must be present during the signing and must also sign a declaration on the request certificate.  The specialist must also sign the certificate (cl 18).

A cooling off period applies after the patient requests assistance: this disentitles the primary medical practitioner from providing assistance for at least 48 hours after the request certificate was completed (cl 8).

The Bill also requires an interpreter to become involved if the patient is unable to communicate fluently, in any language, with the two medical practitioners and the psychiatrist or psychologist (cl 19).

The Bill provides a mechanism for close relatives to apply to the Supreme Court and for the Court to invalidate the request certificate if statutory requirements are not met.  Grounds for invalidating the certificate include a finding that the patient was not suffering from a terminal illness, or was not of sound mind at the time they made the initial request for assistance and signed the request certificate.  The Court may also inquire into whether or not the patient’s decision was made freely and voluntarily after due consideration, and whether or not the patient’s capacity was adversely affected by his or her state of mind (cl 21).

The Supreme Court’s jurisdiction, which includes its parens patriae jurisdiction, is not affected by the Bill (cl 23).

The Bill gives health care providers and any other person a right not to participate in providing the patient with assistance to end their life (cl 24).  Unlike Victoria’s abortion legislation, a medical practitioner or other person with a conscientious objection to assisted dying is not obliged to refer a patient to a medical practitioner whom they know has no such scruples, although they are required to transfer a copy of the patient’s medical records to a new medical practitioner (cl 24).

A “protected person” is not criminally or civilly liable (this includes liability in any disciplinary proceedings) for actions taken in good faith to participate in the provision of assistance to die in accordance with the Act.  This includes administering a lethal substance, selling or preparing such a substance, and being present when the assistance is given (cl 25).  A protected person means the primary medical practitioner or specialist, the psychiatrist or independent psychologist, a health care provider or nominee (cl 25).

The Bill could further confirm this protection by extending it to the person who fills a prescription or prepares or compounds the substance that is intended to be used to assist the patient to die.  The person who provides the substance may have no way of knowing whether the requirements of the Act have, in fact, been fulfilled.  The Bill is not clear about where the drugs used in the assisted dying procedure will be sourced.

Clause 25 does not refer specifically to administration or preparation of an “authorised” substance, although elsewhere the Bill requires only authorised substances to be used (cl 10).  Immunity does not extend to dealings with “unused substance” except for the purposes of destruction (cl 25(5)).

A well-worn debate?

Twenty years ago, moral opposition to the Northern Territory’s euthanasia legislation was spear-headed by the Catholic and Anglican churches, whose record on human rights has since been subjected to scrutiny by the  Royal Commission into Institutional Responses to Child Sexual Abuse.

Despite this, the Bill is unlikely to escape the usual criticisms that are made of assisted dying legislation.  These include the criticism that vulnerable patients will simply engage in doctor shopping until they find medical practitioners willing to give them what they want.

Opponents argue that it would be better to improve the funding and technical capability of palliative care services, rather than authorising cheap alternatives to such care.

Advocates for assisted dying point out that if palliative care could successfully reduce suffering to levels acceptable to patients, without sedating them into permanent unconsciousness, there would be no continuing drive for euthanasia.

Opponents argue that legislation to deliver a right to die with assistance, while simultaneously protecting vulnerable people from potential abuse, is difficult if not impossible to achieve.

Opponents also worry about the slippery slope, an idea summarised by Robert Manne at the height of debate about the Northern Territory’s legislation:

For anyone who understands social processes the expansion of the circle of those who can be killed will come as no surprise. For once we agree to the principle of doctors performing voluntary euthanasia by what effort of societal will, on what rock of ethical principle, can we resist its extension to ever new categories of sufferers?  There is no such will: no such fixed and reliable principle…The slippery slope…involves a subtle transformation of ethical sensibility.  Over time we become blind to how we once thought [Robert Manne, “Life and death on the slippery slope” Quadrant, Vol 39, issue 7-8, July/Aug 1995, pp 2-3].

The debate goes round and round.

 

The fate of the Voluntary Assisted Dying Bill remains hard to predict.  Ultimately, however, the decision will lie with legislators – human beings voting on the basis of their conscience and sense of what is right and decent.  It is not a poll.

 

Are you interested in studying health law?  Sydney Law School’s Graduate Diploma in Health Law, and Master of Health Law are open to both lawyers and non-lawyers.

Professor Cameron Stewart teaches “Death Law” within the Master of Health Law program.

Professor Roger Magnusson wrote Angels of Death: Exploring the Euthanasia Underground, published by Melbourne University Press in 2002.

The Callinan inquiry into Sydney’s lock-out laws

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A few questions came to mind when I read that former High Court Justice Ian Callinan had been appointed to head the independent inquiry into amendments to NSW’s liquor licensing laws, including the controversial lock-out laws”.

Mr Callinan was a member of the High Court when it decided, by a 3:2 majority, that hoteliers owe no duty to use reasonable care to prevent patrons from causing harm to themselves as a result of excess drinking.  Despite the economic interest hoteliers have in encouraging patrons to drink, and to keep drinking.

The primacy of personal responsibility was clearly the over-riding value in the statement by Justice Callinan that:

Except for extraordinary cases, the law should not recognise a duty of care to protect persons from harm caused by intoxication following a deliberate and voluntary decision on their part to drink to excess [Cole v South Tweed Heads Rugby League Football Club [2004] HCA 29, at [121]].”

The lock-out laws that currently apply in the CBD and Kings Cross precincts of Sydney were neither an exercise in temperance by the NSW Government, nor a response to the fact that alcohol is responsible for 5% of Australia’s burden of disease (Australia’s Health 2016, p 59).

Rather, the lock-out laws were part of a package of amendments seeking to reduce the number of unprovoked alcohol-fuelled assaults by yobbos on Sydney streets.

For a short review of the “one-punch” reforms, see here.

The impact of the liquor licensing amendments on supermarkets and bottle shops was discussed here.

The death of Thomas Kelly, who was punched in the head during a night out in Kings Cross, was partly a catalyst for these changes.

In July, the Kelly family suffered a further loss with the death of another son, Ralph.

The injustice visited upon this family is heart-breaking, it is dizzying.

But it truthfully illustrates how alcohol-related harm spreads outwards – through families and beyond, like the ripples in a pond.

Much of that harm is externalised by the alcohol industry onto others.

What is the industry’s response?

Industry-funded “DrinkWise” public health messages/advertisements (can’t tell which) like this one, that build brand value for alcohol companies and associate beer brands with water sports.

Yep, that ought to work.

Watch out for the new “SmokeWise” e-cigarette advertisements – brought to you by Philip Morris….

 

Highlights from the Callinan report

In his report, Mr Callinan gave particular weight to the opinions and experience of police and the medical profession.  He said:

“The police and the medical profession, the latter of whom are financially and generally otherwise disinterested in the relevant issues, are strongly, adamantly, of the opinion that it is the Amendments in total and in combination that make them effective in reducing alcohol-fuelled violence and anti-social behaviour in the [CBD and Kings Cross] Precincts”.

He concluded that the Precincts were “grossly overcrowded, violent, noisy, and in places, dirty, before the Amendments, but that after them, they were transformed into much safer, quieter and cleaner areas” (p 10).

Mr Callinan was dismissive of the assumption that the vibrancy of a city at night can only be measured by the amount of alcohol consumed or available.  However, he acknowledged that opportunities for live entertainers may have diminished, and that the amendments may have contributed to some closures of premises selling alcohol, and some reductions in employment opportunities:

“The Amendments have come at a cost which is not quantifiable but which should not be exaggerated to employment, live entertainment and the vibrancy of the Precincts” (p 11).

Mr Callinan did not accept that violence had simply been displaced to other areas.  In response to the usual suggestion that anti-social drinking should be addressed by “cultural change and education”, rather than regulation, he said: “Cultural attitudes are difficult and slow to change.  The legislature in the meantime has to deal with the situation as it exists” (p 6).

Mr Callinan pointed out that the lock-out laws had enabled more police to be deployed in detecting and preventing non-alcohol-related harm, rather than tying up resources (pp 8-9).

Mr Callinan stated that he regarded the 10 pm curfew as making “little or no contribution to violence and anti-social behaviour in the Precincts” (para 9.10), although he acknowledged it might contribute to domestic violence (para 9.11).

He recommended relaxing the hours of sale for takeaway alcohol at licensed premises to 11 pm, and home delivered alcohol until midnight (para 9.10).

Two of the more controversial liquor control measures included in Mr Callinan’s inquiry were the “lock out” and “last drinks” provision.

For a trial period of two years, Mr Callinan recommended a relaxation of the lock-out laws from 1.30 am to 2.00 pm, but only to enable patrons to enter those parts of premises offering live entertainment.  He recommended a further relaxation of the liquor sales cessation period, from 3.00 am to 3.30 am, but only in respect of patrons in the “live entertainment” parts of the premises.

The NSW Government has indicated it will respond to the Callinan report before the end of the year.