AVN vs HCCC: An HCCC loss not an AVN victory

I am not a lawyer.

On Friday the NSW Supreme Court ruled in favour of the Australian Vaccination Network’s appeal against the HCCC’s public health warning.

Based on Justice Christine Adamson’s interpretation of the HCC Act, the HCCC did not act within jurisdiction. This means the HCCC warning is no longer valid. The outcome also means that the HCCC recommendation for the AVN to post warnings as to it’s antivaccination, non-medical and non-governmental stance are void. Complaints upheld by the HCCC can no longer stand.

Whilst congratulations rightly apply to the AVN their “victory” has come at the price of conceding any real community impact and the denial of certiorari (crucial to Dorey’s promised OLGR appeal). Confirmation of being a Health Care Provider may bring complications for the usually free falling AVN.

Initially Dorey’s argument was that the HCCC investigation was “illegal”. That they did not fall under HCCC jurisdiction because the AVN is not a health care provider. Dorey conceded in the Supreme Court on July 28th 2011 that the AVN did fall under the HCCC jurisdiction as a health care provider.

Because the HCCC jurisdiction to investigate requires a complaint, the court ruling then focused on interpreting the HCC Act under section 7(1) – What can a complaint be made about? The HCCC had upheld two complaints against the AVN. The judge deemed that section 80 of the Act provided specific functions of the HCCC that ruled out dealing with complaints “per se”.

The judge rejected the HCCC submission that section 7(1)(b): a health service which affects the clinical management or care of an individual client, was an alternate source of jurisdiction to that provided under 7(1)(a): the professional conduct of a health practitioner. The HCCC submission that the word “affects” should be read broadly, was not accepted. The judge ruled that the HCCC did not have jurisdiction to investigate complaints not concerning subject matter encompassed in section 7(1) entire. The ruling included:

In my view, the use of the words “the clinical management or care of an individual client” evince an intention that only a complaint concerning a health service that has a concrete (even if indirect) effect on a particular person or persons is within jurisdiction. Complaints about health services that have a tendency to affect a person or group, but which cannot be shown to have had an effect, would appear to be excluded.

I’m sure many of you have wrapped your thinking lobes around this outcome by now. Not being a lawyer my opinions are varied. Given that the Act was written in 1993 I think the HCCC inferred somewhat reasonably where Justice Christine Adamson wrote:

The HCCC submitted that I ought infer that the information the plaintiff has published on its website about vaccination has affected the decisions of people to vaccinate themselves or their children.

However the reality of legislation lagging behind lives deeply influenced by online access and communities is axiomatic. In this light perhaps the HCCC could have sought to cover all bases. This question becomes more relevant when we note that with a good deal of legal help Dorey wrote to the HCCC in December 2009 “again asking for information on jurisdiction”. Page 1 and 2 deal explicitly (and strikingly) with interpretation of the Act just as we saw it eventually impact upon the final judgement. Page 2 includes:

It seems however that the HCCC is seeking to interpret section 7 of the Act in a way that extends its jurisdiction beyond the reasonable (and legislatively established) limits set out in section 7(1)

The HCCC had earlier argued (14 December 2009) via correspondence that a complaint may be made under 7(2) “unrestricted in any way”. Regrettably, and with the help of hindsight over two years later, one can now see that section 7(1)(a) and (b) must be taken together. In fact if no tendency to have a direct affect upon the clinical management or care of a person or persons can be shown then jurisdiction does not apply. Adamson again:

In my view, the use of the words “the clinical management or care of an individual client” evince an intention that only a complaint concerning a health service that has a concrete (even if indirect) effect on a particular person or persons is within jurisdiction.

Should the HCCC have ensured this aspect was covered? Arguably yes. The very problem it would face in court had been laid out before them by the AVN well in advance. The Act dictates how the HCCC function and this entire matter had grown from complaints – the subject of section 7.

So yes, the HCCC should have been prepared. Could “direct affect” upon clients have been established?

There are many written examples of individuals attesting to the AVN having a direct affect upon clinical management or care. A small few include the first letter here republished by Meryl a year ago. A proud dad not vaccinating his daughter last month. An extended admission in support of Dorey speaking at Woodford, last December. This one even popped up just yesterday:

I’d not give these absolute credence in court, but a certain volume would be hard to ignore. However there are also doctors, paediatricians, neonatal nurses and many more who may well have confirmed this in a legal declaration. Justice Adamson herself noted the ease with which the HCCC could have accessed proof of direct affect from one of the complainants. She then wrote:

However, the ease with which it might have done so is not the test. It did not do so. As I have found, the evidence adduced before me is not sufficient to bring the complaints within s 7(1)(b) of the Act.

Yes. It appears that direct affect upon clinical management or care could have been established by the HCCC. I wonder if Adamson’s original draft has “head desk”, scribbled in the margin?

Let’s not forget who we’re talking about here. Dorey isn’t just anti-vaccine but pro-disease.

You may remember the vicious attack in Police called in by anti-choice zealot because mum exposed child to chicken pox!

While this became news locally, how many West Australians were killed by medical error, adverse reactions to properly prescribed medications and hospital-borne infections. (sic) Why isn’t that written up in the newspapers? […]

But no – a mother who exposes her child to chicken pox – a disease that has never been considered deadly… an action that all our mothers and grandmothers would have taken – is threatened with police action or child protection because a man who considers vaccination to be a sacrament of medicine, reported her to the authorities and they didn’t laugh him down.

Keep in mind that giving someone a live virus vaccine (chicken pox, measles, mumps, rubella) is already deliberately infecting them with the virus.

Now that the AVN is a Health Service Provider under the HCCC’s jurisdiction one wonders just how much more feral ranting can go unnoticed. There can be no doubt what influence on care is intended by that article.

To this we can add the sum of the rubbish Dorey sells online as alternative health choices and natural cures. The very purpose of such material is to influence clinical care. It is reasonable to suggest the HCCC missed an opportunity which cost it a case.

Yet exactly how much of a “victory” it has been for the AVN has not yet been decided.