Chief Health Officer, NSW Health v FRC (application for continuation of public health order)

Case •

[2023] NSWCATAD 76

•

29 March 2023

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Chief Health Officer, NSW Health v FRC (application for continuation of public health order) [2023] NSWCATAD 76
Hearing dates: 7 February 2023
Date of orders: 7 February 2023
Decision date: 29 March 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: Cole DCJ, Deputy President
T Simon, Principal Member
Dr B McPhee, Senior Member
Decision:

Reasons were given for the following orders made on 7 February 2023:

1.   The Public Health Order confirmed by the Tribunal on 27 January 2023 is varied and continued for six months from the date of this order, to require [FRC] to:

(i)   refrain from condomless anal or vaginal intercourse unless he has an HIV viral load of less than 200 copies/mL of blood, as confirmed by the result of the most recent HIV viral load testing in accordance with paragraph (iv); and

(ii)   not share injecting equipment with anyone; and

(iii)   submit to the supervision of a medical practitioner at the Waratah Clinic, by attending the Waratah Clinic at St George Hospital, 2 South Street, Kogarah NSW 2217, every 14 days, or less frequently if and as directed by a medical practitioner at the Waratah Clinic; and

(iv)   undergo HIV viral load testing at the Waratah Clinic at St George Hospital, 2 South Street Kogarah NSW 2217, every 14 days, or less frequently if and as directed by a medical practitioner at the Waratah Clinic; and

(v)   take BIKTARVY (Bictegravir/emtricitabine/tenofovir alafenamide) or another antiretroviral medication as prescribed by a medical practitioner from the Waratah Clinic and in accordance with the prescription.

2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal prohibits:

a.   the disclosure of the name or any identifying details of the Respondent; and

b.   publication of evidence given before the Tribunal in this matter, or of matters contained in documents lodged with the Tribunal or received in evidence, insofar as such evidence or documents contain the name or identifying details of the Respondent.

Note: Order 1 will continue in operation until 7 August 2023.

Catchwords:

HEALTH — Public health — Infectious disease — Public health order – Category 5 condition – whether public health order should be continued

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW)

Public Health Act 2010 (NSW)

Cases Cited:

Chief Health Officer, NSW Health v FRC (application for confirmation of public health order) [2023] NSWCATAD 75

Corlett v Moubarak (no 2) [2023] NSWCATAP 54

Council of the New South Wales Bar Association v EFA [2021] NSWCA 339

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

Misrachi v Public Guardian [2019] NSWCA 67

Category:Principal judgment
Parties: Chief Health Officer, NSW Health (Applicant)
FRC (Respondent)
Representation:

Counsel:
J Davidson (Applicant)

Solicitors:
Crown Solicitor (Applicant)
Velasquez Legal (Respondent)
File Number(s): 2023/00036541
Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the Tribunal prohibits:
a. the disclosure of the name or any identifying details of the Respondent; and
b. publication of evidence given before the Tribunal on this matter, or of matters contained in documents lodged with the Tribunal or received in evidence, insofar as such evidence or documents contain the name or identifying details of the Respondent.

REASONS FOR DECISION

  1. The Acting Chief Health Officer, Dr Fizzell, issued a public health order in relation to FRC on 4 January 2023 (‘the public health order’), pursuant to s 62 of the Public Health Act 2010 (NSW) (‘the Act’).

  2. An application was made to the Tribunal, on 5 January 2023, seeking the confirmation of the public health order under s 64 of the Act.

  3. An order was made by the Tribunal on 27 January 2023, varying the public health order and confirming the public health order as varied.

  4. On 2 February 2023, the Chief Health Officer filed, in the Tribunal, an application for the further variation of the public health order, and the continuation of the public health order, as further varied, for a six month period, under s 65 of the Act (‘the continuation application’). The Chief Health Officer also sought a non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW).

  5. We heard the continuation application on 7 February 2023 and made the following orders:

1.   The Public Health Order confirmed by the Tribunal on 27 January 2023 is varied and continued for six months from the date of this order, to require [FRC] to:

(i)   refrain from condomless anal or vaginal intercourse unless he has an HIV viral load of less than 200 copies/mL of blood, as confirmed by the result of the most recent HIV viral load testing in accordance with paragraph (iv); and

(ii)   not share injecting equipment with anyone; and

(iii)   submit to the supervision of a medical practitioner at the Waratah Clinic, by attending the Waratah Clinic at St George Hospital, 2 South Street, Kogarah NSW 2217, every 14 days, or less frequently if and as directed by a medical practitioner at the Waratah Clinic; and

(iv)   undergo HIV viral load testing at the Waratah Clinic at St George Hospital, 2 South Street Kogarah NSW 2217, every 14 days, or less frequently if and as directed by a medical practitioner at the Waratah Clinic; and

(v)   take BIKTARVY (Bictegravir/emtricitabine/tenofovir alafenamide) or another antiretroviral medication as prescribed by a medical practitioner from the Waratah Clinic and in accordance with the prescription.

2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the Tribunal prohibits:

a.   the disclosure of the name or any identifying details of the Respondent; and

b.   publication of evidence given before the Tribunal in this matter, or of matters contained in documents lodged with the Tribunal or received in evidence, insofar as such evidence or documents contain the name or identifying details of the Respondent.

Note: Order 1 will continue in operation until 7 August 2023.

  1. In this decision, we set out our reasons for making those orders.

Non-publication order

  1. The Civil and Administrative Tribunal Act 2013 provides, in s 64(1)(a):

64   Tribunal may restrict disclosures concerning proceedings

(1)     If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a)     an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

…

  1. The objects of the Civil and Administrative Tribunal Act 2013 are set out in s 3 of that Act, and include:

3   Objects of Act

The objects of this Act are—

…

(f)     to ensure that the Tribunal is accountable and has processes that are open and transparent, …

  1. The respondent sought a non-publication order with respect to his name. The applicant consented to that order.

  2. Before we can make a non-publication order, s 64 of the Civil and Administrative Tribunal Act requires us to be “satisfied that it is desirable to do so” [our emphasis]. This is a less onerous requirement than the requirement which appears in s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW), which requires a finding that the non-publication order is “necessary” to achieve the outcomes listed. Those outcomes include “to prevent prejudice to the proper administration of justice”, “to protect the safety of any person” and “or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature” or that the order is “otherwise necessary in the public interest … and that public interest significantly outweighs the public interest in open justice” (see DRJ v Commissioner of Victims Rights [2020] NSWCA 136; Misrachi v Public Guardian [2019] NSWCA 67 at [13]).

  3. Although the requirement for the Tribunal is less onerous than the requirement which applies in the Courts when considering an application for a non-publication order, the process for considering the application is similar. The process, in so far as the impact upon the party seeking the non-publication order is concerned, was described succinctly in Council of the New South Wales Bar Association v EFA [2021] NSWCA 339 at 228:

228.   …The “calculus of risk” approach requires a more nuanced consideration, taking into account the nature, imminence and degree of likelihood of harm to occur to the relevant person. The “calculus of risk” approach appears, in the decided cases, to have gained ascendency as the preferred approach: see AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2019] HCA 6; AB (No 3) (NSWCCA); Wilson v Basson [2020] NSWSC 512 at [18].

  1. The potential impact of publication upon the person whose name is sought to be the subject of the non-publication order, together with the public interest, must be weighed against the object set out in s 3(f) of the Civil and Administrative Tribunal Act 2013, which is that the Tribunal have processes which are open and transparent (see Corlett v Moubarak (no 2) [2023] NSWCATAP 54).

  2. The consideration of the application for continuation of the public health order necessarily involves the consideration of evidence concerning FRC’s medical history, diagnoses and prognoses, particularly with reference to his sexual health, together with his sexual behaviour and preferences. It also involves the consideration of evidence concerning his mental health and personality characteristics. The potential for physical and psychological harm to come to FRC, in the event that his name is published, is obvious.

  3. It is in the public interest that a person who has the symptoms of an infectious disease seeks medical advice and treatment at an early stage. A risk of having their personal, medical and, possibly, sexual history published in a decision of the Tribunal may well deter infected people from seeking medical advice and treatment. For that reason, a non-publication order is in the public interest in this matter. The publication of the name of the infected person in a Tribunal decision would not be an appropriate way to bring the matter to the attention of people who may have come into contact with the infected person and thus be at risk of infection. In the context of an HIV infection, the tracing of other people who may be infected can be achieved in other, more appropriate, ways involving contact tracing and genomic sequencing.

  4. For these reasons, we made the non-publication order set out in [5].

The task for the Tribunal under the Public Health Act 2010

  1. The Act provides, in s 65:

65   NCAT may continue public health order

(1)     At any time before the expiration of—

(a)     a public health order based on a Category 4 condition, or

(b)     a public health order based on a Category 5 condition and confirmed under section 64,

an authorised medical practitioner may apply to the Civil and Administrative Tribunal for continuation of the order.

(2)     An application may be made only if the applicant is satisfied that the person subject to the order would continue to be a risk to public health, as a consequence of a Category 4 or 5 condition, if not subject to a public health order.

(3)     If such an application is made and the person subject to the order notifies the Civil and Administrative Tribunal that continuation of the order is not opposed, the Tribunal may, without inquiry, continue the order for a period not exceeding 6 months.

(4)     Unless the order is continued under subsection (3), the Civil and Administrative Tribunal is to make such inquiries as it thinks fit in relation to the application and—

(a)     may continue the order, with or without variation, for a period not exceeding 6 months from the date of the Tribunal’s decision, or

(b)     may refuse to continue the order, or

(c)  may revoke the order.

Note—

If the Civil and Administrative Tribunal refuses to continue the order, it will continue to have effect for the period specified in the order. If the Tribunal revokes the order, it will cease to have effect on revocation.

(5)     For the purposes of an inquiry under this section, the Civil and Administrative Tribunal—

(a)     may obtain the assistance of any person having medical or other qualifications relevant to the subject-matter of the inquiry, and

(b)     may take into account any advice given by such a person.

(6)     More than one application may be made under this section in respect of the same order.

  1. The continuation application was filed in the Tribunal on 2 February 2023, before the expiration of the public health order in relation to FRC. The continuation application was made by the Chief Health Officer. The procedural pre-requisites in s 65(1) for the making of a continuation application have been met.

  2. The orders we made on 7 February 2023 under the Act, at the conclusion of the hearing, were the orders sought in the continuation application.

  3. The orders sought in the continuation application are consistent with the orders that FRC’s solicitor indicated, in a letter to the Crown Solicitor’s Office dated 24 January 2023, that FRC consents to.

  4. Prior to the hearing of the continuation application, FRC’s solicitor sent an email to the Tribunal, saying that FRC had given instructions to consent to the orders sought, and did not intend to appear at the hearing.

  5. In these circumstances, it was open to us to make orders varying the confirmed order and continuing the order, as varied, under s 65(3) of the Act.

  6. The Chief Health Officer provided us with a bundle of materials, which included the brief to her in relation to the continuation application. In addition, much of the material which had been provided with respect to the confirmation application was before us.

  7. The grounds which justified the making and confirmation of the public health order are set out in Chief Health Officer, NSW Health v FRC (application for confirmation of public health order) [2023] NSWCATAD 75. We rely on those grounds, the evidentiary basis for which is set out in that decision, as support for the continuation of the public health orders under s 65 of the Act. Those grounds are as follows:

  1. FRC has HIV infection, a disease transmissible via condomless anal or vaginal sexual intercourse and contaminated injection equipment in the presence of an HIV viral load that is greater than 200 copies/mL.

  2. FRC has not complied with the advice provided to him in a letter from the Chief Health Officer delivered to him at home on 2 December 2021. He was strongly advised to attend the Waratah Clinic and to commence and continue taking HIV antiretroviral medication as prescribed by a doctor. His refusal to take antiretroviral medication means that he is very likely to have an HIV viral load that is greater than 200 copies/mL. His latest known viral load, on 8 September 2022, was 237,000 copies/mL.

  3. There is evidence that FRC has condomless sexual intercourse. He was diagnosed with 5 different STIs between 14 October 2019 and 20 April 2021 and he has disclosed to treating professionals the fact that he has had condomless sexual intercourse and/or failed to inform his sexual partners of his HIV status.

  4. There is evidence that [FRC] does not believe that he has HIV and therefore will not take reasonable precautions against the spread of HIV.

  5. As a consequence of grounds 1-4 above, [FRC] poses a risk to public health, namely a risk of transmitting HIV infection.

  6. There is no other, effective, less restrictive, way to ensure that the health of the public is not endangered or likely to be endangered.

  1. The significance of an HIV viral load which is greater than 200 copies/mL is that a viral load greater than 200 copies/mL poses a risk of infection, particularly to the sexual partners of the infected person. A viral load of less than 200 copies/mL does not pose that risk.

  2. We were provided with two affidavits of Dr Weatherall which post-date the confirmation of the public health order. One is dated 2 February 2023 and the other is dated 6 February 2023. Dr Weatherall is a medical doctor employed by the South Eastern Sydney Local Health District as a staff specialist in infectious diseases and HIV at the Waratah Clinic, at St George Hospital in Kogarah.

  3. FRC was served with the public health order on 4 January 2023. Dr Weatherall says that FRC attended at the Waratah Clinic for testing on 9, 18, 23 and 31 January 2023. On 9 January 2023, FRC’s viral load was 175,000 copies/mL. On 18 January 2023, his viral load was 1,950 copies/mL. FRC’s HIV viral load on 23 January 2023 was 391 copies/mL, but his viral load on 31 January 2023 was 782 copies/mL. Dr Weatherall says that FRC was not taking an antiretroviral in the period prior to 9 January 2023. The drop in his viral load between 9 and 18 January 2023, however, occurred because he began to take BIKTARVY in compliance with the public health order. Dr Weatherall explains that there are three possible explanations for the increase in FRC’s viral load from 23 January 2023 to 31 January 2023. It may indicate that FRC had missed a dose of BIKTARVY, or perhaps more than one dose, although Dr Weatherall acknowledged that FRC denies missing a dose. It may be a normal variation, because the path towards an undetectable viral load does not always travel downwards in a uniform way, and the measurement is on a log scale, so that the variation is small. The third possibility, which Dr Weatherall considered to be the least likely, is that the virus may have developed a resistance to BIKTARVY. Repeat testing was being arranged. Dr Weatherall said that it was inadvisable for a patient to miss doses of BIKTARVY, because doing so can bring about resistance to that antiretroviral medication on the part of the virus, and, if resistance to BIKTARVY were to develop, a more onerous treatment regime would need to be devised for FRC.

  4. The public health order has been in place for a very short period of time. FRC’s viral load reduced and then increased, slightly, within that time. It is likely that it will take some further time to establish a regime which can reliably achieve a reduction in FRC’s viral load to a level below 200 copies/mL These factors weigh in favour of the continuation of the public health order.

  5. The affidavit of Dr Keller, a psychiatrist, dated 23 December 2022, was provided in the applicant’s bundle of materials. In his report, Dr Keller said that FRC meets the relevant criteria for a diagnosis of anti-social personality disorder. One of the criteria identified by Dr Keller as applying to FRC is “reckless disregard for the safety of others”.

  6. Given FRC’s historical resistance to the use of condoms, his periodic refusal to accept that he has HIV, or that HIV exists, and his apparent indifference to the possible consequences of his sexual behaviour for his partners, it is important that he continue to take antiretroviral medication on an on-going basis, at least for as long as he is sexually active. Should he cease taking antiretroviral medication, his viral load will increase rapidly.

  7. The public health order confirmed on 27 January 2023 required FRC to undergo HIV genomic sequencing testing on 9 January 2023. That testing was undertaken. There is no need to repeat that testing, and, for that reason, we varied the public health order to remove that requirement.

  8. On the basis of all of the material before us, it is evident that FRC would continue to be a risk to public health in the event that he were to cease complying with the public order. We therefore made orders continuing the public health order, as varied, for the maximum period allowed under s 65(4)(a) of the Act, on 7 February 2023.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 29 March 2023

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