Why the AVN won against the HCCC #StopAVN

Read the judgment in AVN v HCCC at NSW Caselaw.

This is the first of a couple of posts following up on my posts on the final day of argument in AVN v HCCC and the delivery of the decision. The judgment is very clearly written, and I encourage you to read it in full. However, there are a few very interesting points to be drawn out.

Why the AVN won

As I have discussed before, the matter of the HCCC’s jurisdiction in this case came down to the interpretation of section 7 of the Health Care Complaints Act 1993, and particularly the following excerpt:

(1) A complaint may be made under this Act concerning:

[...]

(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.

At issue was whether it was necessary for the AVN to fall under 7 (1) (b). While everyone agreed the AVN was a health service provider, the judge found that 7 (2) alone was not sufficient to establish that the HCCC had jurisdiction to investigate the two complaints that lead to the public warning.

Justice Adamson decided, based on the act as a whole, that it would be necessary to fulfil the specific wording used in 7 (1) (b).

It followed then, that it needed to be established that the AVN affected the clinical management or care of an individual client. In other words, among the evidence submitted, there would have to be a demonstrable case of a specific person’s healthcare to be affected. The HCCC argued for a broad net to be cast: if it could be reasonably inferred that someone had taken the AVN’s information into account, then the AVN had ‘affected’ their ‘care’. However, based on the evidence submitted, there was little in the way of specifics at hand. Ken McLeod’s allegation of appalling vaccination rates in the Northern Rivers area of NSW was offered, for example.

And this was to prove fatal. As the judge hits home hard in paragraphs 59 and 60:

59. Although I find that both complaints concern the health service that theplaintiff provides, the health service has not beenshown to “affect theclinical management or care of an individual client”. Although it might havethat tendency, andalthough the plaintiff hopes to have that effect, I do notconsider this to be sufficient to establish that it has had that effect.

60. I do not consider the evidence to be relied upon by the HCCC to besufficient that there was such a causal link, or that any link could beestablished in respect of “an individual client”. Had the HCCCapprehended that such would be required to found jurisdiction, itpresumably could have readily obtained such evidence from one of thecomplainants. However, the ease with which it might have done so is notthe test. It did not do so. As I have found, the evidence adduced before meis not sufficient to bring the complaints within s 7(1)(b) of the Act.

Ouch. Sadly, because the HCCC had not anticipated the need to prove that Meryl is not totally unsuccessful in achieving her goals, they could not prove with the evidence at hand that she had affected indviduals’ healthcare, and therefore fell within the HCCC’s decision.

It’s a tortuous route to get there, but that’s the way it crumbles, cookie-wise. We’re better served by a judiciary that adheres to the letter of the law that one that does not.

As if to rub salt in our wounds, here’s a splendid screenshot demonstrating exactly why the HCCC could have been found to have jurisdiction, in a different set of specific circumstances (this is from 2012 and clearly not relevant to the case itself):

An individual client

An individual client (thanks to Hank)

Oh, well.

I hope the HCCC appeals the decision (the likelihood of this evades me).

And as Jason notes, the AVN should not be celebrating too hard

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3 Trackbacks

  1. [...] for leading me to the decision itself so that I could read it.  The decision itself was posted by Dave the Happy Singer before the court posted it.  Both of their posts are definitely worth [...]

  2. [...] course, AVN v HCCC has meant the removal of that page. The Supreme Court of NSW held that the HCCC didn’t technically have the jurisdiction to [...]

  3. [...] Judy did not even bother to read the judgement in AVN v HCCC: [10] Vaccination is a matter about health. The provision of information about vaccination is a [...]

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