California raises the minimum purchase age for cigarettes and e-cigarettes

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Last week was a big week for those who think the law should have a role in helping to reduce the 6 million deaths caused each year by tobacco.

First, tobacco taxes

In 2013, the Rudd government announced a 12.5% increase in the tobacco excise to take effect over 4 years:  1 Dec 2013; 1 Sep 2014; 1 Sep 2015; 1 Sep 2016.

Scott Morrison’s 2016 budget will continue this increase for a further 4 years (2017-2020), taking the price of a pack of 25 cigarettes to around $41 in 2020.

These excise tax increases will be in addition to the usual, bi-annual indexation of excise in accordance with average weekly earnings.

As recognised by the WHO Framework Convention on Tobacco Control, which Australia has signed, tax and price measures are a powerful, cost-effective tool for reducing tobacco consumption, particularly among young people.

Secondly, more wins on tobacco plain packaging

The European Court of Justice has upheld the right of Member States of the European Union to pass plain tobacco packaging laws that exceed the requirements for the standardisation of tobacco packaging contained in the European tobacco products directive.

The Directive includes a requirement for mandatory health warnings, comprising text and colour photographs, covering 65% of the back and front of tobacco packages (Art. 10.1).

Article 24.2 of the Directive preserves the right of member states to introduce further requirements for the standardisation of tobacco packaging “where it is justified on grounds of public health, taking into account the high level of protection of human health achieved through this Directive”.

These further measures must be proportionate, and must not be a disguised form of trade restriction.

The ruling of the Court paves the way for the UK’s tobacco plain packaging legislation (the Standardised Packaging of Tobacco Products Regulations 2015 to become mandatory for all tobacco products on 21 May 2017.

Following Australia’s Tobacco Plain Packaging Act 2011 (Cth), plain tobacco packaging has become an export industry, with Ireland also adopting legislation in 2015.

California raises the minimum purchase age for tobacco

But perhaps the most interesting development is the creeping advancement of higher tobacco purchase laws for tobacco within the United States.

On 4 May 2016, California Governor Jerry Brown signed 2 Bills into law that confirm California’s leadership in tobacco control.

Senate Bill No 7 prohibits the sale of tobacco products in California to persons younger than 21 years.

The Bill includes an anti-pre-emption provision giving freedom to local governments to raise the minimum purchasing age even higher.

With a republican-controlled Congress hostile to public health measures, it has fallen to local and city governments, and to States, to innovate and to protect the health of their populations.

California’s action follows the lead of Hawaii and over 125 local and city governments that have passed legislation to raise the minimum purchase age for tobacco to 21.  This trend is likely to continue, both in the United States, and possibly elsewhere.

The California Bill contains an exception for Military personnel in active duty who are aged over 18 but under 21 years.

This is not the first time U.S. legislatures have bent the rules to facilitate smoking by members of the US armed services.

California Senate Bill No. 5, also signed into law, expands the definition of the term “tobacco products” in the Business and Professions Code to include e-cigarettes, and requires retailers to pay a licence fee to sell e-cigarettes.

It requires all cartridges for e-cigarettes to be in child-resistant packaging;

It also extends the smoke-free controls applicable to cigarettes in California, to e-cigarettes – a regrettable omission in the Public Health (Tobacco) Amendment (E-cigarettes) Act 2015 (NSW).

The California Bill also prohibits selling or advertising or furnishing e-cigarettes to persons younger than 21 years.

Time to raise the minimum purchase age for tobacco in NSW?

Raising the minimum purchasing age for tobacco is a sensible next step towards a tobacco-free generation that is healthier and more productive.

Higher minimum purchasing age laws make sense, since few smokers begin smoking or become addicted to nicotine beyond the vulnerable mid to late teens and early twenties.

A 2013 study of smoking initiation rates in New Zealand confirmed that while initiation after age 24 is rare, the highest initiation rates occur among those aged 15-21 years. Over a four-year period, the rate of smoking initiation for those aged 15-17, 18-19, and 20-24 was 14.2%, 7.0%, and 3.1%, respectively.

An expert Committee of the Institute of Medicine concluded that raising the minimum purchasing age would substantially reduce smoking prevalence and smoking-related mortality, given the numerous life transitions young adults experience between 18 and 20 years.

It could also help to improve foetal, maternal and infant health, by reducing the numbers of young parents smoking.

The Tasmanian Government has released a 5-year strategic plan for health that includes raising the minimum legal smoking age to 21 or 25 as an option for consideration.

Such laws could help to reduce health inequalities.  For example, according to Tasmania’s Council of Obstetric and Paediatric Mortality and Morbidity, more than 33% of Tasmanian teenage pregnant women are smokers (2013 figures).

Raising the minimum purchase age for tobacco would not be costly to implement, although resources should be budgeted for its enforcement, and this includes close monitoring and evaluation of its net effects.

Think about it.  Will there be any parents, including smoking parents, who wish their child had been able to buy smokes on their 18th birthday?

Conversely, how many 30 year olds – facing the economic challenges of life, including breaking into the property market – will be thankful they missed the bullet of nicotine addiction and aren’t now making generous weekly donations to Australia’s tobacco giants?

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.  For further details, click here, and here.

Dancing on Christopher Hitchens’ grave? The tricky business of talking about consequences

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Vanity Fair, February 2004

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A “pro-smoking blogger for the libertarian right”  accuses me of “dancing on Christopher Hitchens’ grave”.

And other stuff.

Christopher Snowdon is a Research Fellow for the UK-based Institute of Economic Affairs, a think tank that receives tobacco funding.  He is an opponent of plain tobacco packaging, keeper of the pure flame of libertarianism etc.

My sin – contained in a paper forming part of a symposium on public health regulation and the “nanny state”, was to reflect on a self-confessed “crime spree” Hitchens took in New York City  in late 2003.

During the course of an autumn day, Hitchens broke as many of the city’s “petty ordinances” as he could, particularly its smoke-free laws.

At the time, Michael Bloomberg was in the second year of his first, 4-year term as NYC Mayor.  He went on to serve 3 full terms, introducing tobacco control laws that saw the adult smoking rate fall by 28% between 2002 and 2012, and the youth smoking rate fall by 52% between 2001-2011 .

Which is a terrible result, if you’re a tobacco company, but a magnificent result for New Yorkers – with changed life trajectories and longer, healthier lives for hundreds of thousands of people.

You can read about Michael Bloomberg’s public health legacy here.

Apparently embittered at the constraints on his smoking, Hitch lashed out, reflecting on the “shriveled core of the tiny Bloombergian mind”, and ending with:

“Who knows what goes on in the tiny, constipated chambers of his mind? All we know for certain is that one of the world’s most broad-minded and open cities is now in the hands of a picknose control freak.”

The editor of Vanity Fair, Graydon Carter, who at the time was being serially fined by the NYC Health Department for flouting its smoke-free laws and smoking in his office, published the whole account.

Then, in June 2010, at the height of his powers, Hitchens announced he had cancer  of the oesophagus.  As one journalist wrote, “The celebrated drinker and smoker who once claimed that “booze and fags are happiness” had succumbed to a cancer most often associated with drinking and smoking.”

Hitchens died less than 18 months later.

Like his hero Hitchens, Snowdon believes that smoke-free laws are anti-libertarian.  The mind boggles at this point, given that globally, one in ten people who die from tobacco are non-smokers who are unintentionally harmed (poisoned) by smokers….

However, to my mind the more interesting theme that excites Snowdon is the question of whether Hitchens’ diagnosis challenged his libertarian convictions.  Snowdon assumes that the rationale for discussing this issue was to concoct some sort of contrived, deathbed confession:

“Magnusson clearly thinks that Hitchens got his comeuppance when he died of cancer and wants to believe that he renounced his principles on his death bed.”

The record shows that Christopher Hitchens castigated those who promoted effective tobacco control, yet spoke frankly and publicly about his own cancer, acknowledging that it was probably caused by his smoking and drinking.

Hitchens made his choices, and talked about them freely.  He made his private life a public matter.

So we have permission, I think, to talk about Hitchens – who I suspect would have approved of being the topic of conversation.

“I’ve come by this particular tumor honestly”, he told Anderson Cooper on CNN in August 2010.  “If you smoke, which I did for many years very heavily with occasional interruption, and if you use alcohol, you make yourself a candidate for it in your sixties.” “I might as well say to anyone who might be watching – if you can hold it down on the smokes and the cocktails you may be well advised to do so”.

Cooper responded “That’s probably the subtlest anti-smoking message I’ve ever heard”.

“The other ones tend to be more strident”, Hitchens replied, “and for that reason, easy to ignore”.

“Even if this weren’t incredibly tasteless” Snowdon writes, “Magnusson could hardly have found a less fitting person to use as an example.”

Snowdon seems to think that the point of discussing Hitchens is to trip him up on his words, seek to make an object lesson out of him, or worse, to gloat.

But there are other reasons why Hitchens’ account of his illness is worth reflecting on.

Certainly, it was a compelling story. Statistics are easy to brush off: just ask a smoker.  But stories are a little harder.

Here comes this libertarian prophet – as sure as any libertarian ever was about the infantilising effect of public health laws – suddenly forced to come face to face with his own premature (and probably preventable) death.  Did he have conflicting feelings, second thoughts?  It’s not an unfair question.

“In whatever kind of a ‘race’ life may be”, Hitchens wrote  in 2010, “I have very abruptly become a finalist….In one way, I suppose, I have been ‘in denial’ for some time, knowingly burning the candle at both ends … .[F]or precisely that reason, I can’t see myself smiting my brow with shock or hear myself whining about how it’s all so unfair … . Instead, I am badly oppressed by a gnawing sense of waste. I had real plans for my next decade and felt I’d worked hard enough to earn it. Will I really not live to see my children married?  To watch the World Trade Center rise again?

Through his story, we catch a glimpse of the public interest that public health laws and policies are intended to protect.

The public interest in tobacco and alcohol control laws does not exist for the sake of some abstracted, disembodied “public”, but ultimately for the sake of all those individuals who might otherwise die prematurely, or just as frequently, as Simon Chapman writes, live long in distress and isolation due to the disintegrating impacts of their illness.

Bloomberg’s tobacco control laws were intended to help prevent the kind of death Hitchens died.  To say that is not to gloat.

Consequences tend to be trivialised or absent when libertarians set out their plans for how the world ought to be.

The narrative we tend to get is the one written by the be-suited Hitchens in 2003, flying through Central Park with his feet off the bicycle pedals, witty, cancer-free, not the man 7 years later, who writes  “The chest hair that was once the toast of two continents hasn’t yet wilted, but so much of it was shaved off for various hospital incisions that it’s a rather patchy affair. I feel upsettingly de-natured. If Penélope Cruz were one of my nurses, I wouldn’t even notice”.

How should public health advocates talk about consequences?

In the United States, gun enthusiasts have become so highly proficient at ignoring consequences that anyone who dares link the most recent gun-related massacre [insert dates & details] with that shocking, leftist, evil thing called “gun control” – is howled down for seeking to “politicise a personal tragedy“.

Plenty of compelling stories, it seems, but never a teachable moment.

But for the rest of us, prevention matters because people matter.  Their needless suffering or death is relevant to how we evaluate the wisdom of government actions, laws and policies.

The nanny state conspiracy theorists overstate their case.  Hitchens’ freedom to make choices about smoking, drinking, diet and lifestyle were his for the taking.  No one stood in his way.

Hitchens had no Damascus conversion over tobacco, or anything else for that matter, but his public expressions of regret were no less powerful for their subtlety.

[Interview between Anderson Cooper (CNN) and Christopher Hitchens, 6 August 2010: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=385×492527 (transcript);  http://ac360.blogs.cnn.com/2010/08/07/video-extended-interview-hitchens-on-cancer-and-atheism/ (video).]

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

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

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

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

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

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

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

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

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

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

A tiny illustration of what the tobacco industry is like

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Click on this link.  It’s a tiny illustration of what the tobacco industry is like.  It ought to be placed on the health curriculum of every school.

Professor Stephen Leeder once wrote that public health is a “contest of raw political power” (S.R. Leeder, “Ethics in public health” Internal Medicine Journal 2004; 34:435-439).  Basically, it’s WAR!  He’s right.

(And if you ever doubted it, read this).

The document I’m referring to was written by the owner and manager of E. M. Bowman & Co, Flinders Island’s longest established general store.  It is a submission to a Parliamentary Committee of the Legislative Council of the Tasmanian Parliament, which is holding hearings into the Public Health Amendment (Tobacco-Free Generation) Bill 2014.

Tasmania’s smoking rate is second-only to the Northern Territory, with daily smoking prevalence of 20.6% in 2011-2012.  The Tobacco-Free Generation Bill proposes an endgame scenario for tobacco in the state.

The Bill proposes to amend Tasmania’s Public Health Act 1997 (Tas) by creating an offence for selling tobacco at retail, in Tasmania, to a member of the “tobacco-free generation” (s. 67J).  The Bill defines a “member of the tobacco-free generation” as a person born after 1 January 2000.  The Bill does not have the support of the Tasmanian government.

The Bill would not prohibit smoking by those born after 1 January 2000.  However, as time went on, the impact of the legislation would be that:

  • adults who were older than the current year (eg older than 21 years during the year 2021) would, by virtue of being born before the year 2000, be able to continue to purchase tobacco during their lives;
  • On the other hand, adults of the tobacco-free generation, who would be the same age, or younger than the current year (eg aged 21 in 2021) would never be entitled to purchase tobacco lawfully in Tasmania.

You can read all the submissions about the Bill here.  This post does not focus on the merits of the Bill.

In her submission, Ms Lois Ireland, owner and manager of E M Bowman and Co, writes how she was contacted by Imperial Tobaco, which attempted to co-opt her into lobbying the Legislative Council against the Bill.

Ms Ireland writes:

“I made a conscious decision to stop gaining a profit from sales of a product that I knew to be highly addictive and that was causing long term health issues with those who I knew personally as members of my community.  I knew they would go elsewhere to purchase their cigarettes but I did not wish to be further implicated in their poor health choices.  As a result I fully endorse any moves that make it more difficult for young people to take up/continue smoking, despite any effects such measures may have on businesses”.

Ms Ireland’s submission to the Parliamentary Committee illustrates two important lessons.

First, it is one, tiny, local example of a global phenomenon: the relentless efforts of tobacco companies to undermine, weaken and resist tobacco control laws and policies, and to identify proxy lobbyists to assist them in doing so.

Secondly, it illustrates a singular act of courage by a retailer whose revenues would have been reduced by the value of the tobacco she chose not to sell.  But she did it anyway.

If you ever visit Flinders Island, make a point of stopping in to E M Bowman & Co.

Why is the U.S. Chamber of Commerce playing patsy to the tobacco industry, and what does this mean for Australia?

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“From Ukraine to Uruguay, Moldova to the Philippines” – according to the New York Times – the U.S. Chamber of Commerce and its affiliates “have become the hammer for the tobacco industry”.  This is revealed by “interviews with government ministers, lobbyists, lawmakers and public health groups in Asia, Europe, Latin America and the United States.”

By Presidential order, U.S. federal agencies are not supposed to promote the export or sale of tobacco products in their global trade promotion activities.  However, the U.S. Chamber of Commerce is a business federation of American companies and business associations, so it can do what it likes.  It spends more on lobbying than any other U.S. industry group.  There’s an Australian branch with offices in all state capitals.  They may be wining and dining our politicians even as we speak.

The pro-tobacco lobbying activities of the U.S. Chamber are summarised in a report recently published by a coalition of U.S. public health and consumer rights groups, entitled U.S. Chamber of Commerce – Blowing Smoke for Big Tobacco.

As the BMJ points out, in 2009, the U.S. Chamber made a submission to Australia’s Preventative Health Taskforce, which had been tasked by former Health Minister Nicola Roxon to develop a national strategy to reduce the burden of disease from alcohol, tobacco, and obesity.  That submission protested against the proposal for mandatory plain packaging of tobacco products.

In 2011, the Commonwealth Parliament passed the Tobacco Plain Packaging Act.  Evidence shows that it was immediately and highly successful in increasing the rate of quit attempts.  For more evidence, see this open access special supplement in Tobacco Control (April 2015) , or read on here.

In 2012, Ukraine lodged a complaint against Australia, arguing that the Act breached Australia’s obligations under a number of World Trade Organisation (WTO) Agreements.

According to Ukraine’s Prime Minister, Arseniy Yatsenyuk, Ukraine’s complaint against Australia was initiated at the request of the U.S. Chamber of Commerce.  The costs of the action were reported to be at least partly funded by British American Tobacco.

In May 2015, the WTO panel hearing the complaint was suspended at Ukraine’s request.  The reasons for this change of heart may include the closer ties between Australia and the Ukraine following the shooting down of MH17 (Australia has opened an embassy in Kiev and provided $100 million in assistance).   Ukraine’s complaint is not only inconsistent with its status as a party to the Framework Convention on Tobacco Control, but with its aspirations for a closer relationship with the EU and perhaps EU membership.  In 2014, the European Parliament and EU Council adopted the revised EU Tobacco Products Directive.

Multinational corporations producing harmful products – such as tobacco, or alcohol – can’t bring proceedings by themselves alleging that the laws and policies of foreign countries breach the WTO rules.  Instead, they rely on friendly governments to pursue complaints for them.  On the other hand, standing may be granted to foreign investors through investor-state dispute resolution clauses in trade and investment agreements.  Within the Asia-Pacific, the U.S. Chamber of Commerce has been lobbying heavily for the inclusion of investor-state dispute resolution clauses in the Trans Pacific Partnership Agreement – with no carve-outs or exclusions for tobacco.

The protection of wealth in the globalized trading system relies increasingly on large and powerful corporations using trade and investment agreements as a political tool, lobbying governments to weaken or abandon domestic health policies that could undermine revenues, and when they fail, trying to claw back compensation under variously worded clauses.  Trade and investment agreements might be complex, but countries that give foreign corporations – especially tobacco firms – the capacity to meddle in domestic health policies risk losing a significant measure of health sovereignty.

Larger countries may be willing to defend their sovereign laws, although doing so may come with a hefty price tag.  Smaller countries may lack not only the money, but the specialist knowledge, and the money to hire the specialist knowledge.  Australia’s bill for defending the complaint brought by Philip Morris Asia under Australia’s bilateral investment treaty with Hong Kong – claiming that the Tobacco Plain Packaging Act represents an expropriation of PM’s investments in Australia – has been estimated so far at $50 million. No wonder the U.S. Chamber doesn’t want any tobacco carve-outs. It knows that the value of the TPPA lies only partly in the legal rights conveyed through the terms of the agreement itself, and perhaps mostly in the political value of the agreement as a tool for tobacco companies to bully governments in an effort to weaken tobacco controls.

But back to the Ukraine. Thanks, apparently, to the U.S. Chamber of Commerce, a country with negligible trade links with Australia, and no tobacco trade, was able to begin the process of hauling a democratically elected government over the coals for passing legislation to reduce death and disease from tobacco use.

This raises some important questions.  Does the U.S. itself think its Chamber of Commerce has acted appropriately, and if not, does it have the capacity to haul it in?  If the Australian Business Council had lobbied, say, Indonesia, to bring a WTO claim against the U.S. attacking certain provisions of the U.S. Family Smoking Prevention and Tobacco Control Act, would that have been considered appropriate by our American friends?  Just how close has the U.S. Chamber gotten to Australian Ministers and negotiators in the current TPPA negotiations?  This is an important question that should be answered, especially since public health experts have been completely frozen out.  If the U.S. Chamber of Commerce is a tobacco lobby, shouldn’t the Australian government declare all meetings with it in which the status of tobacco in the TPPA is discussed, in order to meet its obligations under the Guidelines for Article 5.3 of the FCTC?

Free trade is central to Australia’s economic prosperity, now and in the future.  But saying that doesn’t mean we need to abandon all nuance, and give  tobacco, alcohol, food, pharmaceutical or indeed any other kind of corporations the right to claim compensation if our non-discriminatory health policies undermine their revenues.  For diseases caused by tobacco use, harmful use of alcohol, and poor diet, better health necessarily means avoiding or moderating consumption, and that necessarily means fewer sales.

Currently, Australians can have no confidence that the government is not trading away its health sovereignty under the TPPA.  The government doesn’t trust you to see the draft text. The only way you will see it is if it is leaked.  The TPPA perfectly illustrates the structural weakness in global health governance generally: negotiations that could have a massive impact on the health of future generations are being carried out in secret, in trade and economic forums, and health has no seat at the table.

For cynically disregarding the health sovereignty of nations, for being a shameless patsy to the U.S. tobacco industry in violation of U.S. federal policy, the U.S. Chamber of Commerce is hereby re-named the U.S. Chamber of Tobacco.  Off to the dog box, now, Chamber.  No supper for you…

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

Sascha Callaghan, University of Sydney

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

A definite jurisdiction

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

The particular case

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

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

The long arm of the law?

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

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

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