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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-08 Daily Xml
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SOUTH AUSTRALIAN PUBLIC HEALTH BILL

Committee Stage

In committee.

(Continued from 22 February 2010.)

Clauses 7 to 13 passed.

Clause 14.

The Hon. A. BRESSINGTON: I move:

Page 12, after line 8 [clause 14(5)]—After paragraph (d) insert:

(e) that the least restrictive means necessary to prevent the spread of disease be adopted when isolating or quarantining a person at the person's home or on other premises under this Act; and

(f) that his or her needs, including, but not limited to the provision of—

(i) adequate food, clothing, shelter and medical care; and

(ii) a telephone or other appropriate method by which the person may communicate with others,

will be addressed in a reasonable and competent manner to the extent that the person is unable or restricted in his or her own capacity to meet such needs; and

(g) that any premises at which the person must reside as a result of an order, direction or requirement (other than the person's home), are—

(i) maintained according to safe and hygienic standards; and

(ii) to the extent possible, maintained in a way that is respectful to the person's cultural and religious beliefs; and

(iii) designed or managed to minimise the likelihood that—

(A) infection may be transmitted; and

(B) the person may be subjected to harm or further harm.

This amendment seeks to insert in clause 14(5) the paragraphs (e), (f) and (g), which deal with people's rights when being detained.

Paragraph (e) requires health authorities, after having made a decision that it is necessary to detain or isolate a person, to then give effect to that decision in the least restrictive manner possible. This would obviously include detaining an individual or family in their own home, rather than in a designated facility.

The concept of the least restrictive approach is by no means unfamiliar in our law, with it appearing in both the Mental Health Act 2009 and in the Guardian and Administration Act 1993. It also appears in Victoria's equivalent of this legislation, the Public Health and Wellbeing Act 2008.

Paragraph (f) deals with the minimum expectations people can expect when being detained, including that their basic needs such as food, clothing, shelter and medical care will be met in a reasonable manner. It also requires health authorities to provide those detained with access to a telephone or other means of contacting those outside detention where possible.

At the last briefings provided by the government, it was suggested by the minister's representatives that, to ensure that my amendment was practical in their eyes, the wording 'to the extent that a person is unable or restricted in his or her own capacity to meet such needs' be added. It was, of course, my intention to capture those being detained in a facility for that purpose and the government's suggested wording, which I have incorporated into the amendment before the committee, does effectively narrow the scope of the clause to that intention.

Paragraph (g) deals with the minimum expectations that people can expect of the facilities in which they are detained. These include that facilities be maintained to safe and hygienic standards and that they be designed to minimise infection. Additionally, the facility is to be managed in a manner that is respectful to people's cultural or religious beliefs. Obviously, this subclause does not apply to a person being detained in their own home.

The Hon. G.E. GAGO: The government supports this amendment, because it provides somewhat greater clarity about what must be considered and provided to a person or persons who are subject to an order, direction or requirement under part 10 or part 11 of the bill. In relation to subclause (f) of this amendment, it makes it a particular requirement to ensure needs such as food and medical treatment, among other things, are provided, especially where a person is unable or restricted in his or her capacity to meet such needs, and I note that people in this circumstance may include the elderly, children, persons with disability or other vulnerable groups.

The Hon. D.G.E. HOOD: I would like to place on the record that Family First also supports the amendments. I think it is essentially common sense to put these things in the legislation, for example, statements that infection transmission be minimised, that no further harm come to the person, that their personal beliefs be respected and that they have adequate food, clothing, shelter etc. These are things that you hope would happen anyway, but it certainly does not hurt to put them in the bill, and for that reason we support the amendment.

The Hon. S.G. WADE: I briefly indicate the opposition supports these sensible amendments.

Amendment carried.

The Hon. A. BRESSINGTON: I move:

Page 12, after line 11—insert:

(7) Without limiting subsection (6), if a power is to be exercised under Part 10 or Part 11, so far as is reasonably practicable, the power that least infringes on the rights of individuals must be the power that is exercised, unless to do so would involve the use of measures that are likely to be less effective in protecting or minimising risk to public health.

(8) Any requirement restricting the liberty of two or more members of the one family should ensure, so far as is desirable and reasonably practicable and so far as is appropriate to the requirements for the protection of public health, that the family members reside at the same place.

(9) If a requirement restricting the liberty of a person is imposed, all reasonably practicable steps must be taken to ensure that the person's next of kin, or a nominated person, is informed (unless the person to whom the requirement relates instructs otherwise).

This amendment seeks to insert three new subclauses into clause 14. The first is similar to my earlier amendment in that it restricts the exercise of the power under part 10 or part 11 to that which least infringes the rights of individuals while still achieving the objectives of the bill.

The amendment does not impact on the ability of authorities to manage the emergency but, rather, simply requires them to restrict their impact on an individual's liberty to that which is minimally required for the protection of public health. Again, this bill asks us to extend what are extreme powers to health authorities. It is only right that we as legislators seek to ensure that these powers are moderated and used only as necessary.

The second proposed subclause requires members of a family unit who are being detained to be detained together. This is of particular importance in scenarios in which children are being detained outside the family home. While it is likely this would occur regardless of this amendment, there is nothing in the bill presently that gives such a right, and I believe there should be. This right is subject to significant wriggle room to ensure that it is desirable and reasonable in the circumstances and, following government input, is also subject to the requirement that it is appropriate to the protection of public health.

Thirdly, where it is practicable to do so, I am seeking to require authorities to notify a person's next of kin or other nominated person of any requirement imposed that restricts the liberty of that person. Next of kin would subsequently be alerted as early as possible to their loved one's detention and would know where they were being held and hence where they could be contacted.

The Hon. G.E. GAGO: The government also supports this amendment. The subclauses add to the set of principles that guide decision-making in the exercise of powers under part 10, which deals with controlled notifiable conditions and under part 11, which deals with management of significant emergencies. I thank the honourable member for moving the amendment, which fits very well and appropriately within clause 14, and consequently parts 10 and 11, which contain the powers to which it refers.

Clause 14 reflects a requirement to provide an appropriate balance between the protection of individual rights and the rights of the public to the protection of public health under the World Health Organisation's international health regulations 2005. This amendment restates these requirements in a different but, we believe, useful way.

The Hon. D.G.E. HOOD: I would like to put on the record that Family First will also be supporting these amendments. They do not change the intent of the bill, but what they do is provide a little extra protection for people in difficult circumstances, and we support them.

Amendment carried; clause as amended passed.

Clauses 15 to 89 passed.

Clause 90.

The Hon. A. BRESSINGTON: I move:

Page 55, after line 41 [clause90(2)]—Insert:

(ia) section 25(2)(fc) is to be read as if it did not include the words 'or treatment (including preventative treatment)';

This amendment seeks to remove from health authorities acting under the South Australian Public Health Bill the power to compel people to undertake treatment, including preventative treatment. A person's right to consent or refuse consent to medical treatment is a fundamental principle of medical ethics. It is also a principle enshrined in our law; namely, through common law but refined by the Consent to Medical Treatment and Palliative Care Act 1995, which provides that a person over the age of 16 may consent to, and in turn refuse, medical treatment.

It is only in the most limited circumstances, such as when a person is incapacitated or held to be not of sound mind, that medical treatment may be administered without consent or against a patient's wishes respectively. In all other scenarios, a person's individual autonomy is held to prevail and they are free to decide for themselves. Similarly and arguably, as a result of this right a person is additionally afforded the right to make an informed decision about the medical treatment being proposed.

This is specifically provided for by section 15 of the Consent to Medical Treatment and Palliative Care Act 1995, which compels a treating practitioner to explain the nature, consequences or risks of proposed treatment, the consequences for not taking the treatment and any reasonable alternatives available. However, the advice I have received is that, by taking away a person's right to consent or refuse treatment, then the right to have proposed treatment explained to you will become redundant and, hence, will not be required by law.

The government will no doubt put to members that the power to compel treatment is necessary or, as was argued in the briefings provided, crucial to the operation of the bill. However, when in the first briefing I questioned why, I did not receive a direct response but, rather, a statement that the ability to compel treatment needs to be part of the powers available, and I dispute this.

While I fully appreciate that, in a state of emergency, time is of the essence, it is my position that, where alternatives to forcing treatment are available, such as detaining and isolating an individual, compelling treatment should not be an option. It needs to be understood that this amendment will not remove the power to compel treatment under the Emergency Management Act 2004. As was conveyed in the briefings provided by the government, if systems are collapsing and the crisis becomes unmanageable, then a declaration will likely be made under the Emergency Management Act 2004 and many of the limitations on the powers of authorities provided for by this bill will no longer apply.

It is my argument that, prior to this status being reached—that is, while it is still possible to effectively exercise the power to detain and quarantine an individual who refuses medical treatment—then this should be the power exercised and, indeed, the only power available. This is, as far as I can tell, the position of the equivalent Queensland act which, while extending health authorities the same extensive powers to detain and isolate individuals, does not permit its officers to force treatment upon those who refuse. In fact, the Queensland Public Health Act seemingly empowers people not only to refuse treatment but also request to be treated by their preferred practitioner.

Many of the other state jurisdictions public health acts are unfortunately not so clear and instead provide that a person must comply with the direction given by the relevant authority. Given that these jurisdictions, either through common law or statute, impart a legal right to consent or refuse medical treatment, I am unsure whether such a direction could compel medical treatment without consent. My understanding has always been that in order to override an existing legal right, the act must expressly state this as the intention; that is, it cannot be implied. I have been unable to seek legal advice on this question and I ask the minister whether the public health acts of Tasmania, Victoria and the Australian Capital Territory do or do not permit forced treatment?

The Hon. G.E. GAGO: The government will not be supporting this amendment. The effect of this amendment would be to remove a vital public health power to deal with a genuine public health emergency where there is a material risk to community health. It will prevent public health authorities from acting assertively to treat affected persons, or to provide preventative treatment, for instance, antibiotics, where this treatment may be directed towards preventing the spread of an illness to others.

It is noted that the provisions of the Emergency Management Act would still allow these powers to be applied in the case of any other generally declared emergency, but should this amendment succeed it would restrict a definite health response to a clear public health threat. This is not logical or consistent with the intention of part 11, and we will be opposing the measure.

The provision to require treatment would apply only to emergency situations where the lives of others are at risk. It is not just the individual with the disease, or the contaminant, whose life might be at risk, but it is when their contamination of others is at risk. We are talking about those situations that can involve groups of people: a plane load of people landing who have been contaminated, or similar types of events. So, it is not just one or two people, it could involve, potentially, hundreds of people who are at risk of infecting hundreds of others in the community. It is only when that risk has been assessed that these powers would be triggered.

The honourable member talks about waiting for a triggering of the Emergency Management Act. She is saying that the powers to require treatment apply to the Emergency Management Act, so wait until that is triggered. However, by the time it is triggered, it would allow, possibly, for the contamination of hundreds of other people. It is a much less timely instrument.

What this provision would allow us to do is to act at an early intervention stage to require treatment, for instance, antibiotics, or whatever treatment is assessed as being adequate, to reduce the risk of contamination to others and to the community. I stress that this is not about protecting the individual's right, the focus here is about protecting the community. This is a public health bill and it is about preventing the contamination of others.

This provision is particularly targeting the potential to contaminate hundreds of other people. It could be a bus load of people who have been faced with a contaminant, a boat load of people who come into our harbour or a plane load of people who come. That is the scale that this bill is particularly targeted at. The principles that we have all agreed to clearly outline that requiring treatment would only be utilised as a very last resort that we would explore. So, we have already passed that.

We have already said that we will commit to exploring all other avenues before resorting to this: to work through a minimalist, or least interventionist approach, before landing at requiring people to be treated. So, we think the principles clearly protect the rights of individuals, but ultimately this is about protecting community health.

The Hon. S.G. WADE: Could the minister further expand on why the Emergency Management Act is likely to be much later coming than the application of the South Australian Public Health Act?

The Hon. G.E. GAGO: I have been advised that the bill before us, this public health bill, is to do with the level of power. So, the bill before us allows us powers that focus on a much smaller scale specific health emergency, whereas I have been advised that the Emergency Management Act provides much broader, if you like, umbrella provisions.

So, it would mean that a small contamination would have to escalate into a much larger emergency before it could actually trigger the Emergency Management Act, whereas this provision gives us specific powers to focus on health issues that are of a specific emergency. So, it gives us the powers to operate when the problem is much smaller.

The Hon. S.G. WADE: Could the minister name the provision in the Emergency Management Act that she is referring to there?

The Hon. G.E. GAGO: I would have to take that on notice.

The Hon. D.G.E. HOOD: This is obviously a very substantive issue, and I think that, when you are talking about giving people medication, potentially against their will, it is something that I am sure every member in this chamber takes very seriously. My inclination, when I first saw the amendment, was of support, because I think all of us have a dislike for people being forced to do almost anything against their will, but I want to give the government a chance to make its case.

At this particular time, I would say I am not persuaded to oppose the amendment. For that reason, I ask the following questions of the minister: what other states or jurisdictions have similar provisions in Australia; that is, what other states require these measures to be carried out against people's will specifically? Secondly, can the minister outline a circumstance in our state where such legislation would have been valuable or would have been to the benefit of the public had it been in place at that time?

The Hon. G.E. GAGO: I will take both of those questions on notice.

The Hon. S.G. WADE: I share the position of the Hon. Dennis Hood in that, whilst initially attracted to this amendment, we are very concerned as an opposition that we do nothing to undermine the capacity of public health authorities to deal with emergencies. In that context, as the Hon. Mr Hood has put in questions on notice, can I add to those in terms of questions that would obviously help the opposition to clarify its position. In providing the answers to the Hon. Mr Hood's questions, I wonder if the minister could also advise: what is the definition of preventative treatment in this context? In the same ilk as the Hon. Dennis Hood's questions in terms of scenarios (and I am not asking he government to engage in hypotheticals), can the government explain why—

The Hon. D.G.E. Hood interjecting:

The Hon. S.G. WADE: That's true—in past instances or if the government chooses to or, for that matter, in examples from other jurisdictions, where treatment would need to be mandated because isolation, segregation, detention were not possible. My reaction to the Hon. Ann Bressington's amendment was to say that it is appropriate not to mandate treatment because, as the minister has highlighted, our health principles say that people should not be required to undergo medical treatment against their will.

My presumption would be that in a situation where somebody was refusing treatment, it may well lead to the public health authorities reacting to that refusal to take medical treatment by escalating the segregation, isolation or detention, which would foreseeably be a very responsible response. In other words, the choice to refuse treatment is not without consequences. I hope that that is not too convoluted to be a question, but the key point in my mind is: is the maintenance of a person's right to refuse treatment likely to actually inhibit the response to a public health emergency?

The Hon. A. BRESSINGTON: Just to be clear on this, when we are talking about preventative treatment or medical treatment, the minister uses the example of antibiotics, that they would not be able to force people to take antibiotics. The bigger issue here is that the government, the health department or health officials could be in a position where they could force people to be vaccinated against their will for, say, what was building up last year—the swine flu.

Many people decided that they did not want to have the swine flu vaccination because it was their actual right to do so. In a situation of a plane-load of people and a person is infected with a particular virus or bacterial infection or whatever, the first step would be to notify those people who were on that plane in order to have them come in and be checked and diagnosed with an illness and, if they had that illness, I guarantee you that if they were offered treatment they would accept it. Who wouldn't?

None of this is laid out clearly in this bill, and this is what concerns me: we do not have trigger points, we do not have examples. We are making a decision about people's choice to refuse medical treatment based on theory, if you like, when there is a gradual process in place to get to the point where mandatory treatment would be necessary; instead of going from zero to a hundred, we take incremental steps to that.

I certainly do not believe that there is any scenario where, if people know they have a deadly infection and there is medication available for them that will help prevent that spread through the community, they would refuse it. It is the mandatory part of it that I do not like, and neither do many other people out in the community. They are not comfortable with giving health officials this level of power to force treatment.

The Hon. G.E. GAGO: I am happy to take those questions on notice. In relation to the Hon. Ann Bressington's last comments, as law makers we are faced with really difficult situations. It is not easy to make good laws. We often have to balance a whole range of interests and get that balance right, and that is a very difficult and challenging thing to do. These are dilemmas for us. However, I do believe that people have the right to make decisions about their treatment, but I also believe that people do not have the right to go out and infect other people.

The Hon. A. Bressington: But they can be detained.

The Hon. G.E. GAGO: You might not be able to detain a person, though, forever. We have had the situation with the HIV chap who had a very strong personal view about his rights to have unprotected sex. How long does the state have the right and the responsibility to detain, feed and care for, etc. someone who is personally asserting their rights? That is just one person. As I have said, this legislation is not necessarily dealing with a singular situation but with a group. Again, I do not believe that people have the right to go out and deliberately infect and contaminate and put at risk other people's health. These are last resort measures. We have agreed to a set of principles—

The Hon. A. Bressington interjecting:

The Hon. G.E. GAGO: We have agreed to that. We have agreed to a set of principles, the Hon. Ann Bressington, which outline a commitment that we would use the least interventionist approach and that we would exhaust other means before progressing to the more highly interventionist approaches. We have a suite of powers that are necessary to be available to deal with unforeseeable emergencies, and that is what these provisions provide us with; it is not just one provision.

As I have said, I suffer the same dilemmas in relation to individual and community rights but, being a former healthcare professional, I feel very strongly about this. People have a wide range of different personal views; they do not necessarily share the same responsible views as members share in this chamber. As I have said, we have seen the example of the HIV-infected gentleman who felt that he had the right to have unprotected sex.

This legislation is to deal with those very, very difficult situations, which are often extreme situations. Wherever possible, we should uphold the rights of individuals. Nevertheless, I do not think that should never be the expense of people deliberately being able to go out and infect and contaminate other people, and possibly end up with the death of many other people on their hands.

The Hon. S.G. WADE: On the point about the principles under clause 14, protecting a person in relation to treatment, can the minister point out where that is available? The Hon. Ann Bressington's amendment talks about the least restrictive means, and 'restrictive' in that sense to me refers to isolation, segregation and detention; it does not relate to the issue of treatment.

The Hon. G.E. GAGO: Under clause 14—Specific principles, subclause (2) states:

(2) The overriding principle is that members of the community have a right to be protected from a person whose infectious state or whose behaviour may present a risk, or increased risk, of the transmission of a controlled notifiable condition.

Under subclause 5(a), it states:

(a) to have his or her privacy respected and to have the benefit of patient confidentiality;

That is another provision, and paragraph (b) states:

(b) to be afforded appropriate care and treatment to have his or her dignity respected, without any discrimination other than reasonably necessary to protect public health;

Paragraph (c) states:

(c) insofar as is reasonably practicable and appropriate, to be given a reasonable opportunity to participate in decision-making processes that relate to the person on an individual basis, and to be given reasons for any decisions made on that basis;

Paragraph (d) states:

(d) to be subject to restrictions (if any) that are proportionate to any risks presented to others (taking into account the nature of the disease or medical condition, the person's state of health, the person's behaviour or prepared or threatened behaviours, and any other relevant factor).

Subclause (6) states:

(6) Any requirement restricting the liberty of a person should not be imposed unless it is the only effective way remaining to ensure that the health of the public is not endangered or likely to be endangered.

The Hon. S.G. WADE: The clause that seemed relevant to the question, in my view, was 14(5)(b), which is the right for the patient (for want of a better word) 'to be afforded appropriate care and treatment to have his or her dignity respected, without any discrimination other than that reasonably necessary to protect public health'. I understand that puts a positive duty on the public health authority to make care and treatment available, but it does not address the issue of whether or not the person has the right to refuse.

Subclause (5)(c) gives a person the opportunity to participate in the decision-making process, but it gives no suggestion as to whose decision it is. The Hon. Ann Bressington's concern is that it is not the patient's decision. This bill is saying that the public health authority will tell you what treatment you require.

The Hon. G.E. Gago interjecting:

The Hon. S.G. WADE: I am sorry, minister, let me reiterate my concern. The minister told us that the principles would protect the application of the treatment provisions, so I am looking at those principles to look for protection and I cannot see any. The third element, subclause (6), another element the minister referred to:

(6) Any requirement restricting the liberty of a person...

Again to me that is an isolation, segregation, detention issue—it does not go to treatment. Giving somebody antibiotics or vaccinations does not restrict your liberty. Again I, too, look to the principles for protection for people and I cannot see them.

The Hon. A. BRESSINGTON: I remind members who attended the briefing with the health department emergency services that, when this issue was raised, it was asked: in what scenario would we been be talking about forced treatment? The response from the spokesperson for that group was that it is a resource issue, that we may not have enough resources from the government in the case of an emergency or a public health situation to be able to detain people. In short, we will put the resources a government is prepared to provide to the health department in a public health situation.

It is going to be resources outweighing the cheapest way to get this done, and that will be forced treatment, trust me. How many bills do we have to pass in this place that infringe on the rights of people—WorkCover for one and I could name a few others—in order to learn that when the government says, 'It is all good; it is all in the best interests of the public; it is all for the injured workers,' that in actual fact it is all about the bottom line, what this is going to cost? Those public health people verbalise it themselves. This will be a resource issue and decisions will be made on resources. That is it, bottom line.

The Hon. D.G.E. HOOD: I just want to be clear for the minister on our position. If we were to vote right now, we would support the amendments. What would change our position would be a clear example of a case in the past, something that has actually happened where this bill minus the amendment would have been beneficial for the safety of ordinary South Australians. Can we be provided with such an example—and I accept that maybe the minister does not want to provide that in the chamber; there may be some confidentiality issues perhaps, I am not sure, or whatever—because that question needs to be addressed in order for us to oppose this amendment.

The Hon. S.G. WADE: If it would assist the government, I would reiterate that the opposition's position is very similar to that of Mr Hood. I would also indicate that we are interested in the response to Mr Hood's earlier question about what other jurisdictions find necessary, because the Hon. Ann Bressington highlighted, as I understand it, that a number of jurisdictions are getting by without mandatory treatment. So, the answer to the Hon. Dennis Hood's question would also be of interest to the opposition.

The Hon. G.E. GAGO: I am happy to provide those answers. I do not have the answers here today. I am happy to take them on notice.

Progress reported; committee to sit again.

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