I am not a lawyer.
In my brown shirt.
A couple of hours ago, I got out of the NSW supreme court, where we heard the final day of argument in AVN v HCCC. The anti-vaccination group took the NSW Healthcare Complaints Commission to court, appealing the HCCC’s jurisdiction to issue its famous public warning against the Australian Vaccination Network.
We had a new judge who was well informed on previous sessions and written submissions to the court. Today, we had her interrogation of the barristers for both sides on specific points of law.
I’m not a lawyer and what follows is based on my impressions, scribbled notes, memory and inexpert interpretations. Don’t rely on it for anything.
The Healthcare Complaints Commission of New South Wales is governed by the Health Care Complaints Act of 1993. Most time today was spent on on section 7 (1) b) and 7 (2) of the act:
7 What can a complaint be made about?
(1) A complaint may be made under this Act concerning:
(a) the professional conduct of a health practitioner (including any alleged breach by the health practitioner of Division 3 of Part 2A of the Public Health Act 1991 or of a code of conduct prescribed under section 10AM of that Act), or
(b) a health service which affects the clinical management or care of an individual client.
(2) A complaint may be made against a health service provider.
(3) A complaint may be made against a health service provider even though, at the time the complaint is made, the health service provider is not qualified or entitled to provide the health service concerned.
In particular, the judge wanted to make clear what it would mean for a health service (such as Meryl Dorey’s website) to affect the clinical management or care of an individual client.
The AVN’s case
In particular, the AVN’s barrister wanted Her Honour to hold that evidence was needed of at least one specific individual case of a person whose healthcare was influenced by the AVN’s activities. The HCCC seemed to rely heavily on my friend Ken McLeod’s original complaint to the Commission. This noted the significantly lower rates of vaccination in Northern NSW, Dorey’s stomping ground. A reasonable to-and-fro on the issue of correlation vs. causation ensued, in which the actual effectiveness of the AVN was questioned, a theme to which HCCC’s barrister would later return. The AVN’s barrister rejected the idea that a general statistical correlation in vaccination rates was sufficient to establish that the clinical management or care of an individual client had been affected by the AVN’s activities.
The AVN’s barrister objected to the HCCC’s acting as a general consumer or public-health watchdog and took a strict line on the requirement for specific clinical effects of the AVN on individuals to be demonstrated.
One of the most humorous exchanges occurred when the HCCC’s barrister submitted that clinical management or care implied that the healthcare provider have some knowledge of the clinical situation of the client. The judge hypothesised a public lecture by an antivaxxer, based upon which a specifically nominated parent chose not to vaccinate. She asked whether that would constitute an effect, and the AVN barrister conceded that that would indeed trigger jurisdiction for the HCCC. When the judge pointed out that a public speaker could not know the medical history of each audience member, I double-underlined one word on my pad: ‘PWNED’. The barrister ceded the point.
There was the question of whether ‘information’ should be considered equivalent to ‘advice’, whether that mattered, and whether the disclaimer on the AVN’s website could reduce the latter to the former. The sentence ‘Isn’t that just a cop-out?’ was uttered by an incredulously laughing judge. She didn’t seem convinced by the suggestion that the AVN was ‘just putting stuff out there’, seemingly suggesting that it would be absurd to think the AVN did not actually want people to pay attention to them.
One particular passage from the AVN was called out, implying a link between vaccination and autism. The judge noted that while the AVN’s site is extensive, given the prevalence of concern about autism a parent might be expected to latch on to it.
All parties agreed soon enough that while the question of an effect on specific, named individual was unresolved, if an anonymous poll of non-vaccinators showed they had changed their mind on vaccination because of Dorey, then that would satisfy 7 (1) b).
Very amusingly, the AVN’s barrister argued that Meryl Dorey’s evidence should be ruled inadmissible for three reasons: Dorey’s opinion is not necessarily that of the actual plaintiff, the AVN and its committee (yeah, right); Dorey’s statement of her intentions is irrelevant to the facts of the matter; and her description of the AVN’s purpose in 2011 is temporally irrelevant to the AVN’s purpose in 2009. Whether the judge will consider it admissible was not revealed, but as it later transpired it seems Meryl Dorey did more harm than good to the AVN. Nothing new there, then. Cheers Meryl.
In case you missed that, here it is again. The AVN’s barrister requested that Meryl Dorey’s testimony be ruled inadmissible, so helpful was she to the HCCC.
In summary, the AVN’s barrister argued that Parliament drafted 7 (1) b) in a very specific way, incompatible with the interpretation that the HCCC has jurisdiction for broad public-health watchdoggery.
The HCCC’s case
The judge first questioned whether the allegation in My Friend Ken McLeod’s original complaint, that people make decisions based on the AVN’s info, is the same as an established fact. There was some discussion about the fact-checking by the HCCC. This was a reasonable question, rather disappointingly answered, in my opinion.
Even worse was the discussion of the particular statistic mentioned above: that 30-33% of kids are not fully vaccinated in the Northern Rivers, versus some presumably much lower national rate. This was very disappointing, with far too much reliance on Ken’s complaint. Regardless of the accuracy of Ken’s stats (which I do not seriously doubt), the assertion in his complaint was not an appropriate source for Court to rely on. I hope the judge does some background reading on this. Scarily, the HCCC’s barrister even came close to repeating Dorey’s own Pertussis Lie as she scrabbled for statistics.
The HCCC argued that specified ‘individual clients’ need not be identified (anonymously or otherwise). It is sufficient to establish that it’s likely that someone has been affected in a clinical sense by Dorey’s publications. That this was the intent all along was well established by evidence sourced from the AVN. For example, the AVN’s stated aims in its Articles of Association, and the ‘principle activities’ of the AVN stated in its 2008-09 financial reports to the Office of Fair Trading. Namely: the AVN intended to assist parents in making an ‘informed choice’.
Both barristers agreed in their own debates with the judge that other hypotheses could explain local drops in vaccination rates.
The HCCC then moved on to Meryl Dorey’s evidence, and it became apparent why the AVN’s barrister was keen to suppress it (I noted, with an ironic smile to myself, the echoes of Meryl’s own abuse of the DMCA to suppress records of her own idiocy). When asked if, in 2009, the AVN intended to help parents make the decision to vaccinate (or not), Dorey replied ‘yes’. Oops. There goes the temporal irrelevancy.
The HCCC made clear its belief that the case need not fall over if the judge was unconvinced that specific vaccination decisions were made on the basis of the AVN’s information. If AVN claims were ‘taken into account’ in the decision-making process, then it had affected the healthcare of the ‘client’, or the consumer of the AVN’s information.
The judge enquired as to the AVN’s web traffic, and the HCCC’s barrister was unable to respond. She did point out research that showed that people often turn to the Internet in the first instance for vaccination and other medical information. In my opinion, a better prepared barrister could have made a strong argument that the AVN’s high search-engine rankings for vaccination-related topics in Australia would be evidence of a likely influence on vaccination decisions.
It seemed the judge was thoroughly convinced of the AVN’s explicitly anti-vaccination stance. Mention was made several times of the notorious ‘Love them, Protect them, Never inject them’ t-shirt, which the AVN has sold for many years. The judge also wryly dismissed Dorey’s habitual denial of her anti-vaccination stance, stating:
It’s coy that your client is shy about admitting what it’s on about
There arose many more arcane legal points that I am afraid this blogger lost track of. Pharmacist sex popped up briefly but uninterestingly. Sorry I couldn’t follow everything.
In the end, it seems to me that the strongest argument presented by the AVN was that very specific wording was used by Parliament in 7 (1) b). This wording need not have been so specific, were the HCCC intended to have a broad remit. It is a principle of statutory interpretation that legislators use language advisedly.
However, it would be decisive if the judge were persuaded it is enough for anyone to be influenced in their decision-making by the AVN’s activities. And in that case, to win their case, the AVN and Meryl Dorey would have to be found wholly unsuccessful in their stated aims.
Oh, and did I mention that the AVN’s barrister wanted Meryl’s evidence ruled inadmissible?
I am not a lawyer.
