Sydney Health Law provides information on the latest developments and events in health law, ethics, and governance, focusing both nationally and globally. Follow this site to know more about topics including the ethical dilemmas of biobanks, developments in chronic disease prevention, and the issues posed by refusal of consent to medical treatment and much more.
This post originally appeared in MJA Insight and is re-posted with the MJA’s kind permission. The original article can be found at this link.
THE law can be a powerful tool for improving population health, but remains underutilised in addressing Australia’s huge burden of diet-related disease.
Taken in a broad sense, the law includes legally binding rules found in constitutions, statutes (or legislation), regulations, and other executive instruments, international treaties, and cases decided by the courts. It also includes the public institutions responsible for creating, implementing and interpreting the law.
Countries around the world are using law in innovative ways to improve nutrition, with a growing body of evidence demonstrating their effectiveness. Many of these innovations will be discussed when experts in the field gather at the University of Sydney’s Law School from 3 to 5 July for the 2nd Food Governance Conference. The conference will explore how law, policy and regulation address food system challenges or contribute to them at the local, national and global levels. The conference opens with a free public oration on Wednesday 3 July from Hilal Elver, the United Nations Special Rapporteur on the Right to Food.
To tackle high rates of obesity and sugary drink consumption, Mexico introduced a 10% tax on sugar-sweetened beverages in 2014. Evaluations of the tax found a 5.5% decline in the purchase of taxed beverages in the first year after its introduction, and a 9.7% decline in the second year. Over 40 countries have now introduced similar taxes on sugary drinks, with more likely to follow suit.
At a global level, countries including Australia have ratified international human rights treaties that obligate them to take national action on unhealthy diets. The nature of these commitments has been explained in comments from international treaty monitoring bodies and the UN Special Rapporteurs on the Right to Food and the Right to Health. The monitoring committee for the UN Convention on the Rights of the Child, for example, has expressly called for restrictions on marketing of unhealthy food to children to protect child rights.
This last example illustrates that while legal interventions targeting the food system are important, other areas of law play a profound role in shaping the social determinants of diet-related health. Planning law can be used to ensure easy access to stores selling healthy, affordable food. Social welfare laws address barriers to food security such as poverty, poor quality housing and homelessness. Consumer protection laws shape the information environment (among other things) and provide protection against misleading and deceptive food marketing.
Yet to date, the federal government has relied on voluntary measures and collaborative partnerships with industry to deal with issues such as marketing of unhealthy food to children, salt reduction, and the Health Star Rating front-of-pack nutrition label.
The benefits of legislation, in contrast, include mandatory compliance, with legal penalties available for non-compliance, and formal, transparent processes of enactment and amendment. The law can reach entire populations and create healthier environments in a way that is significantly more difficult for voluntary measures. This is one reason why 10 countries, including recent adopters Chile, Peru, Israel, Sri Lanka and Uruguay now have mandatory front-of-pack labels.
Australian state governments have taken important steps towards improving nutrition at a population level, for example, through kilojoule information on fast food menus, and removal of sugary drinks from schools and hospitals, but there is more that could be done. For example, legislative frameworks for city planning lie within state control, but tend not to support obesity prevention objectives.
Local government action on diet-related health is also typically overlooked in thinking and decision making on nutrition policy. However, Australian local governments possess a range of functions and powers that could be used to leverage access to healthy food, particularly within a framework of supportive state legislation, and many already have in place initiatives that have an impact on nutrition, for instance, policies on community gardens and urban agriculture.
Australia is a world leader in the use of law to regulate the manufacture, sale and marketing of tobacco products, and won significant victories against tobacco manufacturers in domestic and international courts. Australia now has some of the lowest smoking rates in the world, but we lag behind in using law to improve diet-related health.
Alexandra Jones is a public health lawyer leading the George Institute for Global Health Food Policy Division’s program on regulatory strategies to prevent diet-related disease. Her current research interests include Australia’s front-of-pack Health Star Rating system, fiscal policies to improve diets (e.g. taxes on sugar-sweetened beverages), product reformulation, restrictions on unhealthy marketing, and the interaction of international trade law and health.
Dr Belinda Reeve is a Senior Lecturer at the University of Sydney Law School and is co-founder of the Food Governance Node at the Charles Perkins Centre. Her research interests lie in public health law, with a particular focus on the intersections between law, regulation, and non-communicable disease prevention.
There are troubling disparities between the medical treatment that children receive, depending on whether they live onshore – in Australia, or offshore – in immigration detention in places like Nauru. But do these disparities have a legal basis?
Medical treatment and the best interests of the child: onshore
Exercising their parens patriae jurisdiction, Australian Supreme Courts will intervene – paternalistically, and unapologetically – to ensure that children receive the medical treatment that is in their best interests.
In many circumstances this means granting orders to authorise medical treatment so that Australian children don’t die.
Although the context is very different, recent cases in NSW and Victoria involving the administration of blood products to Jehovah’s Witnesses illustrate the point.
People may disagree about the merits of compelling a Jehovah’s Witness teenager to accept a blood transfusion, but the point is that courts have jealously guarded the scope of the parens patriae jurisdiction, and it survives intact to ensure that children in Australia receive medical treatment when it is in their best interests to do so.
Medical treatment and the best interests of the child: offshore
A consensus seems to have arisen among many Australians that treating children poorly and neglecting their physical and psychological needs is the price to be paid for “stopping the boats” and preventing asylum seekers from “jumping the queue”.
This issue has become highly politicised.
Politicians flash border protection pectorals, and many Australians respond positively.
But do Australians really want children to be neglected, and denied medical treatment?
Before considering this legislation, let’s pick a case study, but take our facts – not from the Minister’s office, but from an institution in our democracy that should and must remain apolitical: the courts.
“Rowena” (a pseudonym) is a young girl; we don’t know her age but we know she is not yet a teenager.
Her parents fled their country of origin, and travelled to Christmas Island by boat. They arrived in 2013, thereby becoming “unauthorised maritime arrivals” under Australia’s Migration Act 1958.
Under section 198AD, they were transferred to Nauru, a country of 21 sq km that assesses asylum seekers who wish to settle in Australia, pursuant to a Memorandum of Understanding between both governments.
The Australian Government pays all the costs of assessing and housing asylum seekers.
These accommodation precincts (whatever you want to call them) would not exist if they were not a manifestation of Australian government policy.
In 2014, Rowena’s parents were assessed as refugees under the Refugee Convention and granted temporary settlement visas in Nauru.
However, Rowena and her parents were not permitted to settle in Australia. Unless they chose to return to their home country, they were obliged to remain indefinitely on Nauru, or until a third country agreed to settle them.
Around March 2017, Rowena’s parents separated, and her father went to live with his new girlfriend.
Rowena’s mental health began to deteriorate around April that year.
In October 2017, Rowena told a child psychologist employed by International Health and Medical Services (IHMS, a health services contractor), that a voice tells her that “dying is better than living, you’ll be free”.
Rowena told the child psychologist that “she wants to die and she wants to kill herself and that if she was going to kill herself she could ‘make myself lost in the jungle and put a knife in my stomach’”.
In December 2017, Rowena attempted suicide by taking 14 tablets of her mother’s medication. She was admitted to hospital with respiratory distress, chest and abdominal pain.
Three days later, a counsellor employed by IHMS wrote in the clinical notes that Rowena said: “The medication didn’t kill me, I will try something else”. “I will kill myself with a knife or jump off the rocks”.
Rowena told the counsellor that she knew how to kill herself because she “has seen in the movies people stabbing themselves with knives”.
She told the counsellor that “attempting suicide made her feel good”.
A psychiatrist employed by IHMS wrote:
“It was clear that this bright child was a little confused on what it meant to be dead. She was persistent in her thought of wanting to die and leave this world but it was not quite synonymous with her intent to kill herself. She interspersed the theme of wanting to die with hopes of leaving Nauru and starting a new life elsewhere”.
Rowena’s mother began sleeping in the same room as Rowena for fear she might commit suicide.
However, on 18 December 2017, Rowena ran away from her mother and according to an affidavit by Professor Louise Newman, a child psychiatrist and Professor of Psychiatry at the University of Melbourne, “was found in a position to jump from a height and said that a voice was telling her to jump, jump, jump”.
Professor Newman concluded that there was “clearly an immediate risk” that Rowena would engage in further suicidal behaviour.
Rowena required, in her opinion, treatment by specialists qualified in child psychiatry “in an inpatient child mental health facility with appropriate supervision”.
On 20 December, Rowena and her mother were transferred to the Restricted Accommodation Area within the Regional Processing Centre on Nauru.
According to Professor Newman, this was not an adequate response.
Professor Newman wrote: “Supervision is essential as this child has now run away on two separate occasions and is experiencing command hallucinations urging her to suicide”.
In Professor Newman’s opinion, Rowena needed a safe environment where she could live with her mother and sister, “supported by trained child and adolescent mental health staff on a 24 hour basis”.
Nauru does not provide such facilities.
Rowena v Minister for Immigration and Border Protection
Rowena’s circumstances came before Justice Murphy in the Federal Court in February 2018.
According to evidence in that case, a panel called the “Overseas Medical Referral” Committee, based in Nauru, was required to approve all medical transfers, in conjunction with Australian Border Force officials.
According to evidence given by a GP who had previously worked for IHMS on Nauru, the Overseas Medical Committee was erratic and poorly administered, and the medical transfer system “inefficient and driven by political and not medical concerns”.
After multiple attempts to obtain authorisation from the Commonwealth, IHMS, and others to transfer Rowena from Nauru, Rowena, through her litigation representative, sought an injunction requiring the Minister for Immigration and Border Protection to transfer her to a specialist child mental health facility that could provide the comprehensive psychiatric care recommended by specialists.
The basis for her case was that the Australian Government (the Commonwealth) owed her a duty of care which it had breached, and continued to breach, by “failing to provide her with access to safe and appropriate medical facilities and treatment”.
As Murphy J stated, “The application essentially alleges a continuing tort”.
The Court considered whether there was an arguable case that the Commonwealth owed Rowena a duty of care, applying well-known “salient features” identified in Caltex Refinieries (Qld) Pty Ltd v Stavar  NSWCA 258, -.
The Commonwealth conceded that there was a serious question to be tried, but argued that Rowena’s psychiatric problems could be adequately treated on Nauru, despite there being no child psychiatrist stationed in Nauru, and no specialist child mental health facility there.
[As an aside, the Commonwealth’s concession followed a judgment by Bromberg J in the Federal Court in a well-known 2016 case involving an African woman who, while on Nauru, was raped while she was unconscious and suffering a seizure (likely caused by epilepsy). The Minister for Immigration, Peter Dutton, refused to transfer the woman from Nauru to Australia for the purposes of having an abortion. He was, however, willing to fly her to Papua New Guinea, where abortion was illegal and could expose her to criminal liability.
In that case, the Minister denied any duty of care to the pregnant woman. The Federal Court decided that the Minister did owe her a duty of care which required him to “procure for her a safe and lawful abortion”. The discharge of the Minister’s duty of care did not require the woman to be brought to Australia. However, the duty was not discharged by arranging for the abortion in PNG.]
Does the Australian Government owe children and adolescents in immigration detention a duty of care?
In Rowena’s case, Murphy J concluded that:
“I am disinclined to accept that outpatient treatment coupled with a child psychiatrist visiting every few months (or even every month) will provide the mental health care treatment the applicant needs and adequately protect her in relation to the risk of suicide. I do not consider that the OMR [Overseas Medical Referral] process is adequate or likely to be sufficiently swift to adequately protect against the risk of suicide”.
Murphy J found that the balance of convenience favoured the injunction, and ordered the Commonwealth to “remove [Rowena] from Nauru and place her in a specialist child mental health facility with the capacity to perform a comprehensive tertiary level child psychiatric assessment, in accordance with Professor Newman’s recommendations”.
Rowena’s story is not unique
Similar cases involving sick and suicidal children are reported:
here (adolescent girl who had cut herself, refused food and water and would soon require nasogastric feeding).
In another case, the Commonwealth sought to exclude entry of a two year-old girl with herpes encephalitis, a “serious and life-threatening neurological condition”, arguing (against the evidence of IHMS and consultant specialists) that she could be appropriately treated at the Pacific International Hospital in Papua New Guinea.
What a joy it must be to act for the Minister in these cases: seeking to use the law to deny children urgently needed medical and psychiatric treatment.
In each of these cases, it was Australian courts that provided a measure of decency, compelling the Minister to do what he would otherwise refuse to do: provide a reasonable level of care to children suffering (mostly) psychiatric trauma caused or aggravated by the circumstances of their detention offshore.
Another shared feature of these cases is that the Commonwealth has been forced to concede that there is an arguable case that they owe each of these children a duty of care.
This makes sense. After all, these children’s daily lives are framed – if not dominated – by Australian government policy.
They depend on the Minister for Home Affairs (previously called the Minister for Immigration and Border Protection) for food, shelter, security and health care.
As Ben Doherty writes, it’s only when these cases get to court that humanity prevails. Until that time, officials from the Department of Home Affairs delay as long as they can, apparently to please their political masters.
The “Medevac Bill”
In February 2019, against the wishes of the Morrison government, the Commonwealth Parliament passed the “Medevac Bill”.
The Act required the Secretary to identify so-called “legacy minors” (persons aged under 18 years held in a regional processing country as at 1 March 2019), and required the Minister to either approve or refuse the transfer of each legacy minor to Australia within 72 hours after being notified.
Under the legislation, the transfer of minors to Australia is [was] automatic unless the Minister reasonably suspected (on advice from ASIO) that the transfer would be prejudicial to security or that the person has a substantial criminal record (s 198D).
The Act also provides for the transfer to Australia of “relevant transitory persons” where two or more treating doctors form the opinion that the person requires medical or psychiatric treatment that cannot be provided by the regional processing country.
Again, the Minister is taken to have approved their transfer unless, within 72 hours, the Minister intervenes on the basis that [he] reasonably believes that appropriate medical or psychiatric treatment can be provided without their transfer, or that the transfer would be prejudicial to security, or that the person has a substantial criminal record (s 198E).
The Minister’s decision can be appealed to the Independent Health Advice Panel, comprised of independent and Australian government doctors (see s 199B), who can over-rule the Minister about whether the person’s transfer to Australia is necessary in order to provide them with appropriate medical or psychiatric treatment (s 198F).
The legislation also provides that family members of a legacy minor, family members of a transitory person, and other persons recommended by the treating doctor to accompany a transitory person – may be transferred to Australia, unless the Minister intervenes within 72 hours on the grounds above (ss 198C, 198G).
Where the Minister does intervene, [he] must table a statement before Parliament explaining [his] reasons (s 198J).
Asylum seeker policy will continue to be controversial.
Children, however, are not responsible for the fact of their detention, and should not be conscripted into the endless – and merciless – politics of Australia’s immigration debate.
Denying children – or for that matter, adults – appropriate medical and psychiatric care is miserably cruel.
Politicians who have supported and enabled the denial of medical treatment to children do not represent the values of Australia. You do not speak for us.
I cannot help thinking that we can learn something here from the common law method.
As every law student learns, courts – conventionally, at least – seek to apply existing principles and to develop them modestly, where necessary, but to avoid making sweeping pronouncements that extend too far beyond what is necessary to reach an appropriate decision.
Perhaps Australian politicians, too, whatever their beliefs about offshore detention, should take an incremental step towards compassion, and do the right thing in the case at hand, granting the children of asylum seekers medical and psychiatric care of the same standard they would want their own children to receive, instead of visiting the sins of the parents upon them.
The Conference is a collaboration between Sydney Law School, the University’s Charles Perkins Centre and The George Institute for Global Health. The 2019 Conference will explore how law, policy, and regulation address (or contribute to) food system challenges such as sustainability, equity and social justice in global food systems, and malnutrition, obesity, and diet-related diseases.
The Conference will open on the 3rd of July with a public oration by the UN Special Rapporteur on the Right to Food, Professor Hilal Elver. Also speaking will be Ronni Kahn, the founder of Ozharvest, and Mellissa Wood, General Manager, Global Programs at the Australian Centre for International Agricultural Research. You can register for this free event here.
The main days of the Conference will take place at Sydney Law School on the 4th and 5th of July. Keynote speakers at the Conference include Professor Amandine Garde, Director of the Law and Non-Communicable Diseases Unit at the University of Liverpool, and Dr Juan Rivera, Director of Mexico’s National Institute of Public Health.
Further information about the Conference, including the draft program, can be found here.
The International Health Regulations (IHR) (2005) are the primary global instrument for responding to, and seeking to prevent and limit the impact of public health emergencies of international concern, including communicable diseases with pandemic potential. The International Health Regulations are legally binding on all World Health Organization (WHO) Member States, including Australia. The IHR were revised following the SARS outbreak in 2003.
Over the past decade, the world has faced a number of significant health events, including H1N1 pandemic influenza in 2009, the 2014–2016 Ebola outbreak in West Africa, and the 2018 Ebola outbreaks in the Democratic Republic of Congo. Each of these events has tested the utility and function of the revised IHR.
In this seminar, a panel of leading experts in public health law and global health security will examine whether the International Health Regulations are meeting their goal of protecting public health, international trade, and human rights, and whether the obligations in the IHR are sufficiently robust to respond to ever more complex public health emergencies.
The speakers are:
Dr Mark Eccleston-Turner, Lecturer in Law, Keele University
Title: The WHO response to Ebola in the DRC: a critical analysis of the legal application of the International Health Regulations
Dr. Alexandra Phelan, Centre for Global Health Science and Security, Georgetown University; Adjunct Professor, Georgetown University Law Center
Title: Human Rights under the International Health Regulations in an era of nationalism: laws in Australia and the United States
Dr. Sara Davies, A/Professor in International Relations, School of Government and International Relations, Griffith University
Title: The Politics of Implementing the International Health Regulations
Venue: Sydney Law School, Monday 17 June, 6.00-7.30pm.
This free event is a side-event to the first Global Health Security Conference in Sydney, Australia held from 18 – 21 June 2019.
You’ll want to sit down for this, it urges in billboard advertising.
Clearly something momentous. A new chocolate bar. With Maltesers. Call a press conference or something.
Sharing the billboard with and cleverly undermining a taxpayer-funded marketing campaign from the Australian Sports Commission which encourages Australian children to “find your 30” minutes of physical activity each day.
I originally wrote this post in 2017, but I’m reposting it this week to share with my new students. Good luck with law school!
OK, that title was complete clickbait. And usually this is a blog about health law. But we run a Master of Health Law program, as well as doing research, so I thought I’d try something different.
The first year of Law School is tough. I didn’t enjoy it very much and I spent a lot of time flailing around, not entirely sure what I was doing.
I feel like I have a slightly better idea now that I’ve completed two undergraduate degrees and a PhD, and started working as a lecturer.
Me, but not really.
So, having lived to tell the tale, here are my top ten tips for surviving law school.
Come to class
I get it. All the lectures are recorded these days, so why bother getting out of your pajamas and coming to class? First, research shows that attending lectures can improve students’ academic performance. Second (and just as important), university can be a lonely place. Lectures are a reason to get out of bed, put on real clothes, and interact with other human beings. Who knows? You may even make a new friend. Lectures give your day a sense of structure, and they could even help us learn to listen without checking Facebook or doing a spot of online shopping.
Read the cases
Every semester I get this question:
Do I really need to read the cases?
The answer is yes. Emphatically, and unequivocally.
Along with statutes, cases are our source of law – not your lecturer, and not the textbook. Lecturers may explain the principle deriving from a case, but if you don’t know the facts or the reasoning behind the decision, how will you know if that principle can be applied to the facts in a problem question? Further down the track, when you’re a practicing lawyer, your client’s case may turn on the meaning of the word “reasonable.” And he or she will expect you to have read and understood all of the relevant cases on what “reasonable” means. There’s a lot of reading, I know, but cases become easier to read with practice, and your writing will improve as your reading does.
Judgments are the foundation of our discipline and our practice, and it makes me feel like this when students seem to think that reading cases isn’t necessary.
Learn how to learn
Law School’s simple, right? Come to class, read cases, take notes, done.
Not so much.
You need to learn a number of new skills along with cramming your head full of content. These include: writing a concise case summary, learning how to answer a problem question, and conveying information effectively in oral and written form. It took me a long time to learn that just taking screeds of notes was not the path to effective study. Learn from my mistakes and think critically about what you’re doing. The Law School has a number of resources for learning the skills required to be a successful law student, and a book like this one may also help.
Get to know how special consideration and appeal processes work – right now
The University of Sydney has a central process for dealing with (most) special consideration requests, and for disability services. It’s a good idea to know about these services before you need to use them. Don’t be the person panicking on the day of the exam because you’re sick and can’t sit the exam, and don’t know what to do next. The same goes for appealing your marks. Hopefully you won’t need to use these processes, but it’s good to have at least a passing familiarity with how they work, just in case you do.
Get help when you need it
There are often a lot of things happening in your life during your time at university: break-ups, moving out of home, an all-you-can-eat seafood buffet that really was too good to be true. It may feel like there’s no one there to help if you if you’re struggling. But the University has a range of services, including counselling, and the Law School offers various forms of support. Please talk to your tutor or lecturer if you have issues that are affecting your study. They may not be able to solve every problem, but they can offer strategies for catching up on work, for example. There is help available if you reach out, and it’s better to do so sooner rather than later when everything’s falling apart.
Check your email
You’ve emailed me (your lecturer) about an important, life-changing event. I’ve emailed you back. You don’t check your email for a week. There’s not much I can do in the meantime, and it’s frustrating. Check your university email regularly. If you don’t think you’ll remember to do it, set up a redirect so it goes to another account that you do check on a regular basis.
One thing that I found invaluable during my time as a student (and in life more generally), is learning techniques for managing stress. This could mean mindfulness, exercise, catching up with friends – whatever works for you, so long as it’s sustainable and beneficial in the long run. Sitting exams and submitting assignments are stressful, and we’ve got to learn how to deal. Remember that prevention is better than cure, and regularly engaging in activities like exercise may help to avoid a death spiral of depression and anxiety.
It’s often difficult for students to find time for anything but study or work. But one thing I sincerely regret not doing when I was an undergraduate is participating in the life of my faulty more. This could be performing in the Law Revue, it could be mooting, it could be only the occasional social event. I understand that students may feel like they don’t fit in, or that those sorts of things are not for them. But I can tell you from talking to my students that it’s not uncommon to feel that way. Maybe this is something faculties need to think about. But please don’t let feelings of not-fitting-in (or just plain shyness) stop you from attending events.
Make the most of your degree
There’s a lot of talk about how competitive it is to get a job in law these days, particularly with the increasing number of graduates coming out of law schools. Students don’t need any more pressure to hustle to get a good job when they finish their degree. But you will get out of university what you put in. This means using your time at university to look for opportunities that will help you move towards the career you want to be in when you graduate. I’m not necessarily talking about creating a start-up to help you get a job in a law firm. I put in an application for an obscure summer scholarship that was advertised on a notice board, and that move changed the trajectory of my whole career. There are a variety of opportunities available at University, and it’s important to be proactive in searching out the ones that suit you best.
Have… fun (?)
This blog post could end with a picture of happy smiling students strolling across the law school lawn, and with me saying something like, “Enjoy yourself! University is the best experience of your life, blah blah.” But law school is often demanding, and it’s not necessarily a rewarding experience being broke and living in a share house with people who may or may not have fleas.
So my final suggestion is not “have fun,” but “persist.” You will not like every course. In some, making it through the end of the lecture may be a triumph, and in those courses, survival may be the name of the game.
But you will find courses that you enjoy, and moments where you feel like you have conquered the subject. This is what makes it all worthwhile, as well as finally getting your degree at the end. And what makes it worth it for me is seeing my students getting to graduation, and then moving on to even greater things. Good luck.
Ps. University is a great time to experiment with your style, and if you feel like dying your hair blue, then go for it. It becomes harder to do things like that once you have a serious job, like being a law lecturer. Just don’t do it right before your clerkship interview.
Parker was prepared to donate the embryos, but with conditions attached: she wanted ongoing contact between the genetic siblings.
Usually a recipient of a donor egg or embryo will have no reason to hide the fact of pregnancy from their ART (assisted reproductive technology) provider. Pregnancy will be a shared goal of both parties.
In this case, however, the recipient evidently wished to sever contact with Parker, or to be free of the conditions that had been imposed. The recipient apparently lied to IVF Australia in order to conceal the fact of pregnancy.
Legal and regulatory changes have now been introduced into NSW that are intended to reduce the likelihood of incidents like this occurring in future. This post briefly reviews them.
Changes to the Code of Practice for Assisted Reproductive Technology Units
The Code of Practice for Assisted Reproductive Technology Units, which is overseen by the Reproductive Technology Accreditation Committee of the Fertility Society of Australia now requires the ART provider to obtain a written declaration from the recipient, prior to the treatment cycle, that the patient/couple will “provide information about the treatment cycle outcome”.
In this case, the recipient of Mrs Parker’s embryo declined to attend for an IVF test to confirm pregnancy, and may have told IVF Australia that she had miscarried in order to convey the impression that she was not pregnant.
Changes to the Assisted Reproductive Technology Act 2007 (NSW)
Amendments to the Assisted Reproductive Technology Act 2007 (NSW) beef up the counselling requirements that apply to IVF providers, requiring them – in cases where the woman receiving treatment involved the use of donated gametes – to receive information about the “extended list of matters” set out in s 13(3). These matters include the obligation that the ART provider has to obtain information about the recipient and any offspring born as a result of the procedure: see s 13(3)(c).
Secondly, the legislation imposes an obligation on ART providers to take reasonable steps to find out, between 1 month and no later than 4 months following treatment, whether the recipient of the gamete or embryo became pregnant as a result of the treatment: s 30(5).
The legislation refers to a woman using a “donated gamete”, but this term includes a reference to a gamete used to create a donated embryo”: s 4B.
Section 30(7) requires the ART provider to take reasonable steps to find out, between 10 months and no later than 15 months after the ART treatment whether the pregnancy resulted in a live birth, and the full name, sex, and date of birth of the offspring.
Thirdly, record-keeping obligations have also been strengthened. Section 31 of the Act requires ART providers to keep records of the matters in respect of which they are required to take reasonable steps to verify.
For a woman who has received treatment using a donated gamete, the ART provider must keep records that indicate whether the recipient became pregnant within a month of receiving the treatment, unless the ART provider does not know this (s 31(1)(b1)).
Where a child has been born as a result of an ART procedure, the ART provider must keep details of the full name, sex and date of birth of the offspring, as well as details of the birth mother and gamete donor: s 31(1)(c).
The ART provider must also record, within 15 months following the provision of ART treatment, whether the recipient gave birth as a result: s 31(1)(c1).
Under s 33, where an ART provider becomes aware that a child was born following treatment involving a donated gamete, they must provide (to the Secretary of the Health Department) full particulars of the records that they are required to keep under s 31.
Where an ART provider does not know – 16 months following treatment involving a donated gamete – whether a child was born as a result, the Secretary must also be informed.
Fourthly, under s 34, the Secretary is authorized to issue directions to a health service provider requiring them to provide information for the purposes of determining whether a child was born as a result of ART treatment involving a donated gamete.
Fifthly, the Assisted Reproductive Technology Act 2007 provides for the establishment of a “central register” to allow access to “identifying information…about a donor by an adult offspring of the donor” who was born as a result of a procedure involving the donor’s donated gamete (ss32A, 32C).
This offence provision would apply to the recipient of a donated egg or embryo who gave false information to the effect that they did not fall pregnant as a result of the ART procedure involving the donated embryo.
This offence has a maximum penalty of 200 penalty units for an individual, which is 200 X $110 = $22,000, a substantial monetary penalty.
In summary, the focus of the amending legislation is to require the ART provider to obtain information about whether or not a recipient of donor eggs or embryos falls pregnant, and the details of any child who is subsequently born.
The legislation also seeks to ensure that there is no repeat of a situation where a recipient lies to the ART provider about whether or not they became pregnant or have given birth to a child involving donated eggs or embryos.
“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.
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“Young ones were taking up smoking and all going for Winfield. It was a staggering success but I was a drug dealer. But who knew then?”
This is not to suggest that Hogan is not sincere in wanting to help. I’m sure he is.
But why does an organisation raising funds to support cancer research ask one of the most effective promoters of tobacco in Australian history, someone who is still, apparently, a smoker – to front the campaign?
Curing cancer…a tale of two strategies
Cure Cancer’s Barbeque concept seems to be about raising money for what we might call “techy” solutions to treating cancer – funding research towards a new drug or therapy.
Cancer research is, of course, worthy and deserving of funding. Who knows, many of us may one day benefit from such research and the therapies that result.
But there’s another way to cure cancer as well…it’s called reducing the risk that Australians will get cancer in future.
Using smart public policies, we can prevent the risk that Australians will get heart disease, and diabetes too.
Unfortunately, preventive health enjoys a fraction of the profile – and almost none of the money – that techy solutions like research towards new drugs or therapies attract.
This could be because one important dimension of prevention at the population level is regulation, and that makes prevention a political matter.
Australia has a pretty shabby record in using law and regulation to reduce modifiable risk factors for the non-communicable diseases that are responsible for the overwhelming share of death and disability in this country.
How many lifetimes till these are implemented, I wonder?
A decade ago, the National Preventative Health Taskforce released a blueprint for improving the health of Australians.
I can no longer find that report on the Australian Government’s website.
Although the government has raised the excise on tobacco and implemented plain tobacco packaging, no formal targets have been set for reductions in obesity or dietary risk factors, and prevention policy has been described as “flapping in the wind” (Swannell 2016).
Preventing cancer is “curing” cancer too
The Australian Preventive Health Agency, which was established to spearhead preventive efforts, and to fund preventive research, was de-funded and is extinct.
This move damaged momentum on preventive health in Australia, as Leeder, Wutzke, and many others have pointed out.
Which is a shame, because preventing cancer is “curing” cancer too.
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