Liability for failure to effectively manage morbidly obese patients: it’s time to look again at Varipatis v Almario – here’s why

What should a GP do with a morbidly obese patient who is in denial about their weight problem?

Although it involved a complex set of facts, it’s time to revisit Almario v Varipatis (No 2) [2012] NSWSC 1578, reversed on appeal (Varipatis v Almario [2013] NSWCA 76).

Doctors should take no comfort in the fact that Dr Varipatis’ liability was reversed on appeal.  It’s doubtful the case would be decided the same way today.  This post explains why.

Judgments in both courts remain important for their discussion about what a GP’s duty of care requires in terms of specialist referral [see box at the end of this post].

In future, more and more Australian GPs will end up managing obesity and its complications.  The problem is only going to get worse, given the changes in the weight distribution of the population, and the reluctance of Australian governments to take prevention seriously.  In 2014-2015, 63.4% of Australian adults – that’s 11.2 million people – were either overweight or obese, and more than 5% had diabetes.

280 Australians develop preventable Type II diabetes each day (one person every five minutes).

Click here for a recent report prepared by Obesity Australia in partnership with PwC on the cost of obesity in Australia.

Revisiting Almario v Varipatis (No 2)

At the time he became a patient of Dr Varipatis, in 1997, Mr Almario had fatty liver disease and diabetes.  Both problems arose from his obesity.  Both problems were risk factors for more severe kinds of liver disease that could progress to cirrhosis and ultimately liver cancer.

However, Mr Almario was in denial about his weight problem, and believed his health problems were due to exposure to toxic chemicals in the workplace.

Mr Almario had previously worked as a cleaner at the Union Carbide Centre at Rhodes in Sydney, which was a contaminated site.  Mr Almario was not directly involved in remediating the site, but had cleaned toilets and showers used by those who were directly involved.

There was no evidence his liver problems were caused by toxic exposures.

Nevertheless, Mr Almario sought out Dr Varipatis because the latter had an interest in nutritional and environmental medicine.

In 2009 Dr Varipatis had been found guilty of unsatisfactory professional conduct for administering high doses of IV vitamin C to a patient with renal disease.

Dr Varipatis treated Mr Almario between August 1997 and February 2011.  Mr Almario developed cirrhosis in 2001, and this progressed to liver cancer in 2011.

Trial court decision

When it reached the NSW Supreme Court in 2012, Mr Almario’s legal case was essentially that Dr Varipatis’ duty of care required him to take active steps to address Mr Almario’s morbid obesity.

Mr Almario had a history of failed weight loss attempts, and given his beliefs about toxic exposures, he was not a compliant patient.  Nevertheless, there were two main opportunities to prevent further deterioration to Mr Almario’s health: to refer him to a multi-disciplinary obesity clinic or endocrinologist; or to refer him for assessment for bariatric surgery (waist band surgery that physically constricts the size of the stomach and the amount of food that can enter it).

Mr Almario’s case was based on the claim that if he had undergone bariatric surgery, then it was likely he would have lost significant weight: this would have halted the progression of liver disease, preventing the cirrhosis and liver cancer that are complications of liver disease.

In his judgment, the trial judge repeatedly said that the patient had the disease of morbid obesity and that it was life threatening: Almario v Varipatis (No 2) [2012] NSWSC 1578 (21 December 2012), [67], [83], [93], [98].

The trial judge found that given Mr Almario’s co-morbidities and history of failed weight loss attempts, a reasonable GP would have referred Mr Almario to a surgeon for assessment for bariatric surgery by mid-1998: [91]-[93].

In addition, the trial judge found that Dr Varipatis breached his duty of care in failing – by mid 1998 – to refer Mr Almario to a specialist in obesity management who could have investigated all options for managing Mr Almario’s morbid obesity: [98].

The trial judge stressed that management of a patient like Mr Almario was not a passive process.  “More pro-active involvement was required” even to the point of making the appointment for Mr Almario to attend an obesity management specialist: [97].

Varipatis on appeal

On appeal, the NSW Court of Appeal considered three issues.

(i) Doctors may have a duty to refer (although it is not an exercise in futility)

The Court of Appeal said unambiguously that a general practitioner’s duty of reasonable care to their patient may require them to encourage the patient to lose weight, and to encourage the patient to accept an appropriate referral.

Basten JA accepted that the duty of reasonable care may require a GP to advise a patient “in unequivocal terms that weight loss is necessary to protect his or her health, to discuss the means by which that may be achieved and to offer (and encourage acceptance of) referrals to appropriate specialists or clinics”: Varipatis v Almario [2013] NSWCA 76, [38].

On the other hand, that didn’t mean the GP has to write futile referrals if the patient has refused to take the doctor’s firm advice.

The duty of care is not an exercise in futility.

In this case, since the plaintiff had historically failed to follow the advice of his GP, the Court of Appeal thought that there could be no breach of duty in failing to “re-refer” the plaintiff to an obesity clinic: Varipatis v Almario [2013] NSWCA 76, [38]-[39], [114], [118].

(ii) Failure to refer for assessment for bariatric surgery was not a breach of duty (but is that a reasonable conclusion today?)

As far as referral for bariatric surgery was concerned, the Court of Appeal found that the weight of evidence did not support a duty to refer for assessment for bariatric surgery in 1998, since at that time the procedure still carried significant risks and was very uncommon: Varipatis v Almario [2013] NSWCA 76, [51][64], [118].

However, general practitioners should find no comfort in this finding.

Bariatric surgery is now much more common and performed on patients with a BMI of ≥40k/m2 or on those with a BMI of 35k/m2 or more and who have co-morbidies such as diabetes or cardiovascular disease.

Over the past 15 years, the number of bariatric procedures processed by the Australian Medicare system has risen from around 1,350 (2000) to more than 16,700 (2015).

(iii) Failure to refer to an hepatologist?

Thirdly, the trial judge, and the Court of Appeal found that even if the plaintiff had been referred to a hepatologist, Mr Varipatis would have failed (in the absence of bariatric surgery) to achieve weight loss.

Obesity was not understood to be a cause of liver disease before 2002, and there was no evidence that a hepatologist would have done anything other than advise the patient to lose weight, or refer the plaintiff to an obesity clinic: Almario v Varpiatis (No 2) [2012] NSWSC 1578, [155]-[157]; Varipatis v Almario [2013] NSWCA 76, [75]-[88], [118].

Understanding about the role of obesity in liver disease has developed since Dr Varipatis was treating Mr Almario, and if this case were re-litigated today, a court would be unlikely to conclude that no harm arose from failure to refer for specialist assessment.

Meagher JA also dismissed the appeal on the basis that a doctor will not be liable if a defendant can prove that, having taken a course of action that was consistent with reasonable care, the harm suffered would not have been avoided on the balance of probabilities.

In his Honour’s view, in circumstances where a doctor could discharge their duty by taking one or more precautions, the defendant doctor need only show that had they taken one of the precautions that was consistent with reasonable care, it would not likely have avoided the harm suffered by the plaintiff: Varipatis v Almario [2013] NSWCA 76, [106], [118].

 

So…why is the Varipatis decision worth re-visiting?

Dr Varipatis was essentially excused by the fact that his patient had a history of being unable or unwilling to follow advice, bariatric surgery for extreme obesity was still unusual in 1998, and because obesity was not understood as a cause of liver disease.

Close to 20 years later, the factual matrix that arose in Varipatis is really a wake-up call for medical practitioners to respond more aggressively and with a clear strategy to patients who present with severe obesity.[1]

Much more would be expected of GPs in 2017, I believe, than was the case in 1998.

Firstly, GPs could be exposed to lawsuits by obese patients who face fatal outcomes or complications as a result of their failure to receive timely assessment and referral.  That follows from basic principles well established in other cases.

Secondly, complaints against GPs might also be directed to the Health Care Complaints Commission, or to the Medical Council of NSW.  In such circumstances, there would be no need to prove that the complainant suffered harm or damage.

Thirdly, and admittedly in more unusual circumstances, health and social service professionals might also be liable for failure to comply with mandatory notification obligations.

Inquest into the death of “AA”

It’s worth considering all three possibilities against the facts that emerged in the Inquest into the Death of “AA”, a decision handed down on 26 September 2014.

On 29 September 2010, a 10 year-old boy called “AA” died quietly on the way to the John Hunter hospital.

He died from hypoxic brain injury following a cardio-respiratory arrest that was caused by his severe obesity, a condition that his parents had failed to address.

His death was largely unnoticed by the media.

It illustrates the wider epidemic of severe pediatric obesity, which is getting worse.

As the weight distribution of the pediatric population has shifted to the right, those on the extreme right (ie cases of severe pediatric obesity) risk falling off the edge.

The Coroner’s report details the interactions over the preceding two and a half years between AA and his school and the John Hunter hospital.

AA had severe obstructive sleep apnea and a history of missed medical appointments that the Coroner found amounted to medical neglect.

AA’s sister and his parents didn’t realize how critical the situation was because AA was frequently drowsy as a result of obstructive sleep apnea (para 237).

The Coroner found that Child Protection Intervention was necessary for AA’s medical condition to be addressed, because his parents were unable to help him.

Obesity and child protection

In a paper published in the Medical Journal of Australia in 2009, Shirley Alexander, Louise Bauer, Bernadette Tobin and I argued that in appropriate circumstances, failure to notify child protection services when parents of a grossly obese child are unable or unwilling to ensure he or she receives adequate support to moderate food intake and improve diet may constitute a breach of mandatory reporting provisions.

A child is at risk of significant harm if the child’s parents or caregivers are “unable or unwilling” for the child to receive “necessary medical care” (Children and Young Persons Care and Protection Act 1998 (NSW) s 23(b)(1)).

Broader determinants

Actions like referring a morbidly obese child to child protection services illustrate individual-specific solutions to a problem that has wider, societal causes.

A smarter, longer-term solution would be to moderate the influences that have contributed to children having the life-threatening disease of severe obesity.

In July 2016, the NSW government set itself a target of reducing overweight and obesity rates in children by 5% over 10 years: see NSW Strategic Plan for Children and Young People.

Reaching this target will require a basket of actions and will inevitably include the need to improve the food environment.

 

GPs duty of care and specialist referral

It has long been clear that doctors can breach their duty of care by failing to refer a patient for further investigation and management by specialists.  For example, in the missed cancer diagnosis case of O’Shea v Sullivan (1994) Aust Torts Reports 81-271, the court referred to the “golden rule” that “abnormal bleeding is due to cancer until proven otherwise”.  In PD v Harvey [2003] NSWSC 487, Cripps AJ found that the failure of GPs not to follow up a patient with HIV to ensure he kept an appointment they made for him at the Royal Prince Alfred Immunology Clinic was also a failure of reasonable care (para 70).  The patient in question went on to deceive (and infect) his sexual partner, who believed he was HIV negative.

[1] See Sally Gleeson, “Almario v Varipatis – A Weight Issue for General Practitioners”, Precedent (Sydney, N.S.W.), No. 121, Mar/Apr 2014: 48-50.

Dr Rodney Syme and Nembutal

rodneysyme_11a_good_death1

A Good Death

In the mid-1970s, a Melbourne urologist, Rodney Syme, sat facing Len, a man whose invasive bladder cancer was causing incontinence and blood clots that blocked the flow of urine.

Len needed to urinate every fifteen minutes, and frequently wet himself.  He was in excruciating pain.  It is cases like this, Syme would later write, in his book, A Good Death, that have caused generations of surgeons to whisper “Please God, do not take me through my bladder” (Syme 2008, 36).

Pale as chalk, “Len looked me straight in the eye”, Syme recalls, and asked “Isn’t there anything else you can do for me?”

Unwilling to treat Len as a “medical pawn”, Syme responded that he could write a prescription for sleeping tablets that Len could self-administer.

Syme writes: “I will never forget the look of intense relief and simultaneous gratitude that suddenly illuminated Len’s pallid face as his wish was granted” (Syme 2008, 38).

Len’s demise was hardly a textbook case of physician-assisted dying, but it was a turning point for Syme.

“I realized at this point that I had commenced on a ‘life of crime’, and that if future patients like Len were to come to me for help, I would have no option, in all conscience, but to continue in this ‘life of crime’” (Syme 2008, 41).

Len died in the mid-1970s.  But ever since then, Rodney Syme has been quietly, and more recently, not-so-quietly, pushing into the grey zone that separates lawful, palliative care from (unlawful) assisted dying.

In March 1997, when the Commonwealth Parliament used its constitutional powers to make laws for the territories to overturn the Northern Territory’s Rights of the Terminally Ill Act 1995 (NT), Rodney Syme vowed publicly to continue providing quiet assistance to patients when needed.

 

Syme v Medical Board of Australia (2016)

In January 2016, the Medical Board of Australia received a mandatory notification under Victoria’s version of the Health Practitioner Regulation National Law.

The notifier was the GP of a man called Bernard Erica.  Mr Erica had tongue cancer and secondary metastases in his lungs, and was at that time receiving palliative care.  His death was expected within one month.

Mr Erica’s GP advised the Medical Board of Australia that Mr Erica had told him that Dr Syme was going to assist Erica to end his life.

What Dr Syme had done with Mr Erica, as with some of his other patients, was to assure Mr Erica that he would give him a drug called Nembutal (pentobartal), that he could use if he chose to.

Medical practitioners are required to notify reasonable suspicions of “notifiable conduct” committed by other registered health practitioners.

The concept of “notifiable conduct” includes placing the public at risk of harm because the practitioner has “practised the profession in a way that constitutes a significant departure from accepted professional standards” (ss 140-144).

Under delegation arrangements, the powers of the Medical Board of Australia to take immediate action in relation to the subject of a complaint are exercised by the Immediate Action Committee (IAC), which is empowered to act immediately if it believes that “the practitioner poses a serious risk to persons” (s 156).

In this case, the IAC investigated the allegations and imposed the following condition on Dr Syme’s right to practice:

“Dr Rodney Syme [MED0000944514] is not to engage in the provision of any form of medical care, or any professional conduct in his capacity as a medical practitioner that has the primary purpose of ending a person’s life”.

Dr Syme appealed.  In Syme v Medical Board of Australia (Review and Regulation) [2016] VCAT 2150, the Victorian Civil and Administrative Tribunal (VCAT) upheld Dr Syme’s application for review.

VCAT set aside the Medical Board’s condition on his practice on the basis that the Tribunal could not form a reasonable belief that “Dr Syme’s conduct places persons at serious risk or that it is necessary to take immediate action to protect public safety” (para 185).

One of the ironies of this decision was that Dr Syme relied successfully on the much-contested distinction between “foresight and intention”.

He successfully denied intending to hasten Mr Erica’s life, or the life of his other patients, despite sometimes giving them possession of a well-known “euthanatic drug” which could not lawfully be used in medical practice in Australia, and despite knowing that his patients’ suicide was – at least – a possible consequence of his action.

The conventional account of palliative care is careful to maintain the distinction between foresight and intention; that is, it acknowledges a conceptual, legal and moral distinction between intending to end a patient’s life, and taking actions with the foresight that death might be a highly likely consequence of those actions.

This distinction does good work in some areas of medicine.  For example, it permits a surgeon to carry out highly risky surgery, including surgery that will “probably fail”, but which may nevertheless represent a patient’s best hope.

The question the Tribunal faced was whether this distinction is appropriately drawn when a doctor delivers euthanatic drugs into the hand of the patient, clearing the way for the patient to commit suicide.  Can the doctor plausibly deny having any intention to assist the patient’s suicide if the patient goes ahead and takes the drug?

This question turned on whether Dr Syme could plausibly argue that his game plan, in giving his patients Nembutal, was to assist the patient to recover a sense of control about their dying process, thereby relieving psychological distress and re-casting the doctor’s actions as a form of palliative care.

In his evidence, Dr Syme admitted he had counselled approximately 1700 patients about end-of-life matters during his career, and had given Nembutal to approximately 10% of them (para 70).

In rare cases Dr Syme would give Nembutal to a patient on his first visit with them because they were at the end stage of a terminal disease and suffering greatly.

However, Dr Syme did not keep written records of the psychological condition of his patients, nor document their mental state after he gave them Nembutal (para 70).

 

Asserting intentions

In A Good Death, Dr Syme pointed to the frailty of doctors’ intentions, writing that:

A doctor’s intentions in end-of-life decisions may be complex, ambiguous, multifactorial and uncertain, and an inadequate basis for legal definition (Syme 2008, 25).

In this case, however, Dr Syme was clear about the purpose of his actions.

“I can say that categorically, that my intention is to give a sense of control and by so doing to ease their suffering” said Dr Syme (para 57).

Dr Syme agreed that doctors are not authorised to prescribe barbiturates like Nembutal, and that this drug cannot be legally obtained by a medical practitioner.

However, the Tribunal pointed out that the lawfulness of Dr Syme’s conduct in obtaining the drug was not in issue.  The Tribunal’s task was limited to determining whether Dr Syme was a danger to his patients (para 137).

In the end, the Tribunal accepted that Dr Syme’s intention in giving patients possession of Nembutal was to give them relief from psychological and existential suffering, and that this palliation occurs because patients feel an increased sense of control and certainty about how their life will end (paras. 129, 143).

The Tribunal also decided that, to the extent that the giving of Nembutal to patients gave them the opportunity to use the drug to end their lives, that consequence (even if foreseen) was “not intended by Dr Syme and can be seen as a secondary but unintended consequence”.

Referring to the principle of “double effect”, the Tribunal wrote that: “The fact that the treatment also has the effect of providing an opportunity for the patient to later ingest the Nembutal is not intended by Dr Syme and can be seen as a secondary but unintended consequence” (147, para (i)).

The Tribunal concluded by saying that it was satisfied that the “the holistic approach adopted by Dr Syme [was] entirely focused upon supporting the patient in life rather than pre-empting the patient’s death” (para 179).

As a result, the Tribunal disagreed that Dr Syme posed a serious risk to persons, or to Mr Erica, and set aside the condition the Medical Board of Australia had imposed on Dr Syme’s practice.

 

A new boundary for palliative care?

In the well-known case of R v Cox (1992) 12 BMLR 38), a doctor administered Potassium Chloride to a patient with the intention of inducing cardiac arrest and death.

KCl has no therapeutic properties, and so its administration supported the inference of an intention to kill.  Since the body had been cremated, Dr Cox was charged with attempted murder only.  He was convicted; his merciful motive was not considered relevant.

If Dr Cox had merely given possession of the KCL to his patient on the premise that it might relieve suffering by giving the patient a greater sense of control, leaving it up to the patient whether or not to ingest the drug, could he – and should he – have avoided liability on that basis?

That is an issue of criminal law that awaits determination in Australia.

However, unlike the practice of “terminal sedation” – which ensures that a patient dies while unconscious due to sedation, doctors who dispense non-licensed drugs to patients in the quantities that would be needed for a successful suicide are essentially acting outside the conventions of the specialty of palliative care.

Making oneself a test case is a risky business.  Dr Syme risks consequences that go well beyond a condition being placed on his right to practice medicine.

That said, from my knowledge of him, Dr Syme is a decent, compassionate doctor and if I were terminally ill I would consider myself fortunate to have him at my bedside.

Moral conservatives may feel this ruling gives Syme carte blanche to assist suicides, inappropriately asserting an innocent intention while giving patients lethal quantities of a non-therapeutic drug that doctors have no business distributing.

Patients like Mr Erica may beg to differ.  They are less interested in the coherence of medical law, and more interested in a good death.

Are you interested in studying health law?  Sydney Law School’s Master of Health Law and Graduate Diploma in Health Law are open to both lawyers and non-lawyers.  Units of study taught in 2017 include Death Law, taught by Professor Cameron Stewart on 20, 21 April & 11, 12 May 2017.  For information on Sydney Health Law, the Centre for Health Law at Sydney Law School, click here.

Abortion law reform on the horizon in NSW and Queensland

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Contrary to popular belief, abortion is not available “on demand” in NSW.

The Crimes Act 1900 (NSW) contains three criminal offences relating to abortion.

Section 83 creates an offence for unlawfully administering a drug or using any instrument or other means to procure a woman’s miscarriage,

Section 82 creates an offence for a woman to unlawfully procure her own abortion (eg by taking abortion drugs), while section 84 creates an offence for unlawfully procuring drugs for the purposes of an abortion.

The scope of these offences reflect the limits of the law’s protection for the life of the foetus in the face of a decision by the pregnant woman to terminate her pregnancy.

However, the question of whether the doctor’s actions – or those of the woman or another person – are “lawful” has been left to the common law.  The leading decision is a District Court case from 1971 called R v Wald ([1971] 3 DCR (NSW) 25).

According to Wald, lawfulness turns on whether the jury (or judge) accepts that the person who performed the abortion believed on reasonable grounds that their actions were: “necessary to preserve the women…from serious danger to their life, or physical or mental health, which the continuance of the pregnancy would entail” (going beyond the usual dangers of childbirth), and secondly that the actions taken were not out of proportion to that danger.

Courts have elaborated on a number of issues that emerge from the principles set out above.

For example, in CES v Superclinics (Australia) Pty Ltd [1995] NSWSC 103, Justice Kirby wrote that the economic and social stresses that pregnancy and, in due course, motherhood might impose on the woman were relevant to the doctor’s conscientious belief on reasonable grounds that the abortion was necessary to preserve the physical or mental health of the mother (thereby negativing an offence under section 83 of the Crimes Act).

 

Removing abortion from the criminal law

Greens MP Mehreen Faruqi MLC has introduced the Abortion law Reform (Miscellaneous Acts Amendment) Bill 2016 into the NSW Parliament.

The Bill seeks to do four main things.

Firstly, the Bill would remove abortion from the Crimes Act 1900 (NSW) by repealing the three criminal offences in the Act that relate to abortion.

Secondly (to the extent that it exists), the Bill would abolish any remaining rule of common law creating an offence for procuring a woman’s abortion.

 

Abortion and the duty to refer

Thirdly, having banished abortion from the criminal law, the Bill would impose new requirements on doctors that would take effect through the Health Practitioner Regulation National Law – the statutory framework through which the medical profession enforces norms of professional conduct against medical practitioners.

Section 139C of the National Law, in its application to NSW, sets out the matters which may constitute “unsatisfactory professional conduct”.

Under the Greens Bill, a doctor who was approached by a patient seeking advice about abortion would be guilty of “unsatisfactory professional conduct” if they:

  • failed to tell the person about any conscientious objections to abortion that they had;
  • failed to refer the person in a timely manner to another health practitioner who the doctor knew did not have a conscientious objection to abortion, or to the local Woman’s Health NSW Centre, in order to ensure the woman had “full information about all of the person’s options in relation to the pregnancy”.

The intention of this amendment is appropriate.  It ensures that women are not kept in the dark about their options in ending a pregnancy because the doctor morally disapproves of their choice.  Victoria’s Abortion Law Reform Act 2008 contains a similar provision (s. 8).

Nevertheless, under the Greens Bill, a doctor would apparently be in breach of their professional obligations if they failed to refer the woman to someone who had no objections to abortion, irrespective of the woman’s circumstances and the reasons why she wanted the abortion.

So, to take an extreme example, a pro-life doctor would (obviously) be in breach of their professional obligations if they refused to provide a referral for a pregnant teenager who had been raped.

But so would a pro-choice doctor who nevertheless felt it was wrong to help a woman achieve an abortion because she wanted a boy, but had ended up pregnant with a girl.

This last scenario recalls the experience of Dr Mark Hobart, a Melbourne GP who was investigated for potentially breaching section 8 of the Victorian Act for failing to cooperate in an abortion.

“They wanted the abortion because they wanted a boy and they found out it was a girl” Dr Hobart told Ben Fordham on radio 2GB.

The woman was 18 and a half weeks pregnant.

As it turned out, Dr Hobart held a conscientious objection to all or perhaps most abortions.

In his words: “I guess I believe that life begins at conception, that human life is sacred….I know that other people [don’t hold views as strong as that] but that’s what I believe, I find it a big problem if someone asks me to refer them for an abortion”.

When I documented an “underground” in illicit euthanasia among health professionals working in HIV medicine in the late 1990s, in the book Angels of Death, one of the common ways that doctors, nurses, psychologists and others facilitated euthanasia was by referring people who requested it to others whom they knew would provide it.

Those who facilitated euthanasia in this way might have felt it was the right thing to do.  But they didn’t pretend they weren’t morally involved.

Impediments to access to abortion services are real (see eg Heather Rowe et al, “Considering Abortion: A 12 Month Audit of Records of Women Contacting a Pregnancy Advisory Service” (2009) 190 Medical Journal of Australia 69-72).

But requiring a doctor who has explained that they feel morally conflicted in facilitating the abortion in the circumstances of the case – to help the patient achieve it elsewhere – smacks of triumphalism.

The decision a woman reaches about her pregnancy should be respected.

But doctors should not be treated as moral slaves to their patients, especially in the case of this procedure, the moral character of which is notoriously contested.

There ought to be room for a more sensitive balance between the freedom that a woman ought to have to make decisions about her pregnancy, and the sincerely felt moral beliefs of the clinician.

It’s possible that euthanasia may be legalised in an Australian State within the next few years, if not sooner.  Will it also be “unsatisfactory professional conduct” for a doctor who has moral objections to euthanasia to fail to refer a patient to a colleague who is willing to provide a hot-shot?

 

Safe access zones for abortion

The fourth thing the Greens abortion law reform Bill would do is to implement a 150 metre “safe access zone” around abortion clinics.

A similar exclusion zone exists under the Victorian legislation.

Safe access zones were introduced to protect women who wish to access abortion services, and the staff of abortion clinics, from harassment, obstruction and humiliation by protestors.  In some cases, these protests have been carried on for decades.

 

Abortion law reform in Queensland

Two Bills to amend Queensland’s abortion laws have also been introduced into the Queensland Parliament.

Like NSW, Queensland has criminal prohibitions for “unlawfully” performing an abortion, unlawfully supplying drugs or instruments to procure an abortion, or in the case of a woman herself, unlawfully administering any “poison or noxious thing” to procure a miscarriage (sections 224-226).

However, the common law’s articulation of the circumstances in which an abortion is lawful is considered to be narrower in Queensland than in NSW.

In 2010, a young woman and her boyfriend were prosecuted under section 225 for procuring and self-administering RU486.  It took less than an hour for a jury to find them not guilty.

Two years earlier, in a remarkable judgment, a Justice of the Queensland Supreme Court found that parents lacked legal capacity to authorise an abortion for a 12 year old girl who was 18 weeks pregnant.  Rather, court approval was required.

The first Bill, the Abortion Law Reform (Woman’s Right to Choose) Amendment Bill 2016 (Qld) would effectively take abortion out of the criminal law by repealing sections 224-226 of the Queensland Criminal Code.

The Health (Abortion Law Reform) Amendment Bill 2016 then sets out a new regulatory regime for abortion within the Health Act.

The Bill states that abortion procedures must only be performed by qualified medical practitioners, assisted by qualified nurses who may administer drugs at the written request of a doctor.

No limitations are imposed on the performance of abortions before 24 weeks: these procedures would effectively be available upon demand from a willing medical practitioner, as in Victoria.

Abortions after 24 weeks could only proceed when a doctor had consulted with at least 1 other doctor and both believed that continuing the pregnancy would involve “greater risk of injury to the physical or mental health of the woman than if the pregnancy were terminated”.

Nor is there any duty imposed on a medical practitioner to perform or assist in an abortion (except in an emergency, in order to save the woman’s life or to prevent serious physical injury).

The Bill provides protection from harassment, intimidation and obstruction for persons entering or leaving an abortion facility which the Minister has declared to be a protected area.

The Bill also prohibits protests, “by any means”, between the hours of 7.00am-6.00pm or for such other period   as the Minister declares.  The protected area must extend outwards at least 50m from the abortion facility.

In summary: I would be surprised if either the NSW or Queensland Bills are successful.  Already, a Parliamentary Committee of the Queensland Parliament has recommended that the Abortion Law Reform (Woman’s Right to Choose) Amendment Bill 2016 should not be passed.

Rather than seeking to reverse all the perceived problems of current law in a single legislative episode, abortion law reformers may find it more effective to adopt an incremental approach.

In jurisdictions where the public mood remains more conservative, it might be wiser for law reformers to set out to achieve less.

Are you interested in studying health law?  Sydney Law School offers a Graduate Diploma and a Masters degree in health law that is open to qualified applicants.  You do not need a law degree to apply.  Click here for further details.

Muzzling health and welfare professionals in the name of national security: Australia’s Border Force Act 2015

Posted by Roger Magnusson and Cameron Stewart

This is the view from the top of Table Mountain in Cape Town, South Africa.  Take it in.  It helps to have a sense of perspective.

The view from Table Mountain, Cape Town (1)
The view from Table Mountain, Cape Town (1)

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The view from  Table Mountain, Cape Town (2)
The view from Table Mountain, Cape Town (2)

It’s now more than 21 years since apartheid ended.  These days, few people would criticise anyone for having broken those racially motivated laws that were part of South Africa’s statute book during the period of white minority rule.  But why do people feel that way?

For some, it may be the patent absurdity of discriminating against entire classes of people based on the colour of their skin, or whether or not they passed the “pencil test” .

For others, it may be the fact that laws constructing systematic racial discrimination were inconsistent with a higher moral law, or with international human rights instruments that give protection from discrimination on grounds such as race, colour, sex, language, religion, and national or social origin .

With apartheid in mind, let’s return to Australia.  The Box below describes some key features of the Australian Border Force Act 2015 (Cth).  The application of this Act to health and welfare professionals caring for children in immigration detention has attracted a great deal of attention.

Rightly so.

As law professors, health law specialists, and parents, we know we are not alone in believing that whatever sense of obligation we feel to obey the law is eclipsed by the moral imperative to protect children from harm.  Some of the worst abuses of children, causing lifelong harm and distress, are the result of institutional indifference to instances of abuse.  If you think you care about children, or if you have any children of your own, then consider how the Australian Border Force Act will impact on them.

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The Act creates the Australian Border Force, integrating immigration and customs functions into a single entity within the Department of Immigration and Border Protection.

Amongst other things, the Act appears designed to improve the control of information, to prevent leaks, and to reduce unwelcome media scrutiny of the operation of immigration detention facilities arising from public disclosures by Immigration and Border Protection workers.

The Act creates an offence, carrying a penalty of imprisonment for 2 years, if an “entrusted person” makes a record of, or discloses “protected information” (s. 42).

An “Immigration and Border Protection Worker” includes government employees, as well as consultants – doctors, nurses, social workers – engaged by the Department to work inside immigration detention centres.  “Protected information” means “means information that was obtained by a person in the person’s capacity as an entrusted person”.

The Act authorizes the Secretary of the Department to authorize an entrusted person (let’s say a doctor) to disclose protected information (let’s say allegations of sexual assault against a child in immigration detention) to the Department, to police, or to any other authorized body or person.  However, the Secretary may attach written conditions to the permission to make such disclosures (s. 44).

The Act does authorize disclosure of protected information to “prevent or lessen a serious threat to the life or health of an individual” (s. 48).  However, this would not extend to disclosures to the media relating to the systemic conditions in which children are living in detention, or the impact of incarceration on their mental and physical health and wellbeing.

In summary, the Act appears designed to muzzle health and welfare professionals from reporting any information they obtain in the course of their duties (extending, for example, to allegations of sexual assault against children in immigration detention), except with the permission of a bureaucrat.

The culture operating within the Department of Immigration and Border Protection is likely to mean that Secretarial permission will rarely, if ever, granted.

The likely result of the Act is that it will become more difficult for the government’s accountability for the health, welfare and protection of children in immigration detention to be tested in the political arena.

Whatever you think about the merits of mandatory detention of the children of asylum seekers, the constraints on health and welfare professionals appear to strike at the heart of freedom of speech.  The Act might well infringe the implied constitutional freedom of political communication that all Australians enjoy.  No doubt this will be tested soon.

The Australian Border Force Act does not mention the Public Interest Disclosure Act 2013 , but if – as the government asserts – the former Act is subject to the latter , persons speaking out would need to navigate a thicket of statutory conditions in order to escape prosecution.  The intent of the Australian Border Force Act is to change the culture within which services are delivered to persons in immigration detention: that much seems clear.

It is not surprising that health and welfare professionals have pointed to the contrast between the Australian Border Force Act and the protections that apply to Australian children outside immigration detention.

In NSW, the Children and Young Persons Care and Protection Act 1998 imposes mandatory reporting on health and welfare professionals when they have reasonable grounds to suspect a child is being abused or is at risk of significant harm .  On the other hand, unless the Secretary gives their permission, doctors and welfare workers could be committing a criminal offence if they reveal anything at all about the conditions in which children in immigration detention are living.

Writing in the Guardian, over 40 “entrusted persons” have called for civil disobedience:

“We have advocated, and will continue to advocate, for the health of those for whom we have a duty of care, despite the threats of imprisonment, because standing by and watching sub-standard and harmful care, child abuse and gross violations of human rights is not ethically justifiable”.

As law professors employed by one of Australia’s oldest law schools, we live and breathe law, and care about the rule of law.  Frankly, however, we don’t care about it enough to stand by while government tries to muzzle dedicated professionals working in difficult conditions to protect the safety and dignity of children.

Parliament makes the rules.  It decides what is lawful and unlawful.  But when the moral compass goes astray and laws are designed to ensure that the public never even gets to hear about the harm that children are suffering in immigration detention, then that is a step too far.

The President of Australia’s Human Rights Commission, Professor Gillian Triggs, points out that Australia is alone in the world in indefinitely locking up the children of asylum seekers. The Commission’s Forgotten Children report found that this practice violates the right to health that children enjoy under the Convention on the Rights of the Child.  It also ignores the substantial body of evidence of the harm that immigration detention is causing to children.

“Entrusted persons” face difficult choices in the months ahead.  In deciding how to reconcile their professional ethics, moral intuitions and legal obligations, they can at least stand assured that there can be no moral obligation to stand by and do nothing while children are being harmed.

The Australian Border Force Act 2015 needs a radical overhaul.  Otherwise it belongs in the bin.  Both parties ought to think again.

Take another look at the view from Table Mountain.  In the distance you can see Robben Island, where Nelson Mandela spent 18 of his 27 years of imprisonment.

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