Chief Health Officer, NSW Health v FRC (application for continuation of public health order) (No 2)

[2023] NSWCATAD 332

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Chief Health Officer, NSW Health v FRC (application for continuation of public health order) (No 2) [2023] NSWCATAD 332

Hearing dates:

On the papers

Date of orders:

7 August 2023

Decision date:

20 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Cole DCJ, Deputy President
T Simon, Principal Member
Dr B McPhee, Senior Member

Decision:

(1)   The Public Health Order continued by the Tribunal on 7 February 2023 in File number 2023/00036541 is further continued for six months from the date of this order, subject to the variation in order 2.

(2)   Paragraph (v) of the order is varied so that it reads as follows (with amendments underlined):

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

Note:

The Public Health order, as varied and continued for six months from the date of this order, requires 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, and/or receive antiretroviral injectable therapy, as prescribed by a medical practitioner from the Waratah Clinic and in accordance with the prescription and/or direction of the medical practitioner.

The Public Health Order will continue in operation until 7 February 2024.

(3) 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.

Catchwords:

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

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Migration Act 1958

Public Health Act 2010 (NSW)

Cases Cited:

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

Chief Health Officer, NSW Health v FRC (application for continuation of public health order) [2023] NSWCATAD 76

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 289 FRC 21; [2022] FCAFC 3

Category:

Principal judgment

Parties:

Chief Health Officer, NSW Health (Applicant)
FRC (Respondent)

Representation:

Counsel:
J Davidson (Applicant)

Solicitors:
Crown Solicitor (Applicant)
V Parwani (Respondent)

File Number(s):

2023/00220638

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. On 4 January 2023, a public health order was made in relation to FRC under the Public Health Act 2010 (NSW) (‘the Act’) by Dr Fizzell, who was then the Acting Chief Health Officer of NSW and was, and remains, an authorised medical practitioner under s 62 of the Act.

2. The public health order required FRC, a man who has Human Immunodeficiency Virus (HIV) infection, to take specified steps, which were set out in the public health order.

3. On 5 January 2023, an application was made to the Tribunal by the Chief Health Officer for an order confirming the public health order under s 64 of the Act.

4. On 27 January 2023, following a hearing, the Tribunal varied the public health order and confirmed the varied public health order under s 64(3)(b) of the Act (see Chief Health Officer, NSW Health v FRC (application for confirmation of public health order) [2023] NSWCATAD 75 (‘the confirmation decision’)).

5. 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.

6. On 7 February 2023, the Tribunal further varied the public health order and continued it until 7 August 2023, under s 64 of the Act (see Chief Health Officer, NSW Health v FRC (application for continuation of public health order) [2023] NSWCATAD 76 (‘the continuation decision’))

7. On 11 July 2023, the Chief Health Officer applied for the public health order to be further varied and continued for a further six months under s 65 of the Act (‘the Application’).

8. The Application was supported by an affidavit of Dr Adrian Keller sworn on 23 December 2022 and an affidavit of Dr Christopher Weatherall sworn on 11 July 2023.

9. On 14 July 2023, an order was made under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) dispensing with a hearing in relation to the application filed in the Tribunal on 11 July 2023.

10. On 7 August 2023, the Tribunal made the following orders with respect to the application of 11 July 2023:

1. The Public Health Order continued by the Tribunal on 7 February 2023 in File number 2023/00036541 is further continued for six months from the date of this order, subject to the variation in order 2.

Paragraph (v) of the order is varied so that it reads as follows (with amendments underlined):

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

Note:

The Public Health order, as varied and continued for six months from the date of this order, requires 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, and/or receive antiretroviral injectable therapy, as prescribed by a medical practitioner from the Waratah Clinic and in accordance with the prescription and/or direction of the medical practitioner.

The Public Health Order will continue in operation until 7 February 2024.

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.

11. The reasons for the making of the orders of 7 August 2023 are set out in this decision.

Non-publication order

12. We set out the reasons for our approach to the question of whether it is appropriate for a non-publication order to be made under s 64 of the CAT Act in relation to the Respondent in the continuation decision at [7]-[14]. We have taken the same approach in this matter to the issue of non-publication orders as the approach we took in the continuation decision, for the same reasons.

13. As in the continuation decision, the consideration of the current application for the continuation of the public health order involves the consideration of the Respondent’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 of his mental health and personality characteristics. In our assessment there is real and significant potential for physical and psychological harm to come to the Respondent, in the event that his name were published.

14. We have weighed the potential for harm to come to the Respondent against the object of the CAT Act, set out in s 3(f), that the Tribunal have processes which are open and transparent. The risk to the Respondent readily justifies the making of a non-publication order with respect to the Respondent’s identity in the context of this matter. In addition, the public interest in having persons who have the symptoms of an infectious disease (particularly a Category 4 or 5 condition (see s 51 of the Act)) seek medical advice and treatment at an early stage supports the making of a non-publication order. We note that the objects of the Act, set out in s 3, include the promotion of the control of infectious diseases and the prevention of the spread of infectious diseases.

The Application to vary the public health order

15. The public health order currently in force is the public health order as varied and continued on 7 August 2023, which provides that FRC is to:

1. refrain from condomless anal or vaginal intercourse unless he has had 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

2. not share injecting equipment with anyone; and

3. 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

4. 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

5. take BIKTARVY® (Bictegravir/emtricitabine/tenofovir alafenamide) or another antiretroviral medication, and/or receive antiretroviral injectable therapy, as prescribed by a medical practitioner from the Waratah Clinic and in accordance with the prescription and/or direction of the medical practitioner.

16. The Applicant sought the variation of paragraph (v) of the current public health order so that it would provide as follows:

1. (v)   take BIKTARVY® (Bictegravir/emtricitabine/tenofovir alafenamide) or another antiretroviral medication, and/or receive antiretroviral injectable therapy, as prescribed by a medical practitioner from the Waratah Clinic and in accordance with the prescription and/or direction of the medical practitioner.

17. The Respondent did not oppose the variation.

18. In his affidavit, Dr Weatherall said, at [52]-[53]:

52.   The risk of transmission of HIV from sexual intercourse lies on a continuum. The risk of transmission of HIV is greatly reduced when a person’s viral load is reduced. A person’s viral load is measured by the number of copies of the virus detected per millilitre of blood; the higher a person’s viral load, the greater the risk of transmission.

53.   …It is virtually impossible for a person with a stably suppressed viral load to transmit HIV. This has been established in a number of increasingly large cohort studies and randomised clinical trials, both internationally and in Australia and in populations including heterosexual couples and men who have sex with men. The definition of an undetectable viral load varies slightly in these studies but it is generally accepted that a person who has less than 200 copies/mL of blood, and durable viral suppression (which is regarded as a six month period) has no appreciable transmission risk.

19. One of the objectives of antiretroviral therapy is to reduce the affected person’s viral load to less than 200 copies/mL of blood and to keep it suppressed to that level. Dr Weatherall said, in his affidavit, that Biktarvy is the gold standard therapy for a person with HIV. Biktarvy is an oral antiretroviral medication and is taken daily.

20. We acknowledge the submission on behalf of FRC pointing to the findings of a research paper which referred to a study which apparently found that transmission had not occurred in a sample of 1763 cases where there was a stable viral load of 400 copies/mL, and to other studies which suggested that the safe level may even be higher.

21. We accept and rely on the evidence of Dr Weatherall. We accept Dr Weatherall’s evidence that the generally accepted view, and, implicitly, the view Dr Weatherall accepts, is that a stable viral load below 200 copies/mL is the appropriate objective of treatment.

22. An advantage of injectable antiretroviral therapy is that it is required to be administered less frequently than oral medication.

23. Dr Weatherall indicates, in his affidavit, that FRC was initially substantially compliant with the public health order of 4 January 2023, and his viral load diminished to a level below 200 copies/mL of blood by 7 February 2023. His viral load then stayed below 200 copies/mL of blood until the blood test on 20 April 2023, at which time it was 683 copies/mL of blood. FRC initially explained this result by saying that he did not take medication over Easter. However, the blood test results climbed dramatically to 753,000 copies/mL of blood on 25 May 2023 and 758,000 copies/mL of blood on 22 June 2023. FRC then admitted to Dr Weatherall that he had stopped taking Biktarvy at Easter. FRC told Dr Weatherall that he believed that the medication was affecting his eyes. Dr Weatherall said, in his affidavit, that there is no know side effect of Biktarvy which affects eyes. However, on 22 June 2023, Dr Weatherall prescribed a different oral medication, Triumeq to address FRC’s concerns. On 6 July 2023, FRC’s viral load had fallen to 3,400 copies/mL, which, Dr Weatherall said, indicated that FRC had resumed taking the antiretroviral medication.

24. In his affidavit, Dr Weatherall said that one option, should an alternative to oral medication be required, is injectable antiretroviral therapy. Dr Weatherall said that Cabenuva (comprised of the drugs cabotegravir and rilpivirine) is one option. Cabenuva is administered as two injections, one month apart, and then one injection every two months. It requires fairly strict adherence to the injections schedule, because administering the therapy more than a few days late compromises its effectiveness.

25. The purpose of the proposed variation to the public health order was to give the treating medical practitioner the flexibility to assess and determine, from time to time, whether switching from oral antiretroviral therapy to injectable antiretroviral therapy (and vice versa, should a switch occur) would be preferable in FRC’s case.

26. We considered that it would be desirable, in all the circumstances, for the medical practitioner treating FRC to have the flexibility in prescribing which the variation allows for. FRC did not opposed the variation. We therefore varied the public health order as requested.

The application to continue the public health order as varied

27. FRC did not oppose the continuation of the public health order, as varied, for a further six months.

28. The application to vary and continue the public health order is made under s 65 of the Act, which provides:

65   NCAT may continue public health order

(cf 1991 Act, s 26)

(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.

29. In continuing the public health order, we relied upon s 65(4) of the Act, rather than s 65(3). Although FRC consented to the continuation of the order, there was an application to vary the public health order, and the power to vary is conferred expressly in s 65(4) of the Act. Our enquiry was carried out on the papers, being the affidavits mentioned above (including the exhibits to those affidavits) and the written submissions from both parties.

30. In the present context, in order to make an application under s 65 of the Act, the applicant must be satisfied that FRC, as the person the subject of the public health order, would continue to be a risk to public health as a consequence of his Category 5 condition if he were not subject to a public health order (see s 65(2) of the Act).

31. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 289 FRC 21; [2022] FCAFC 3, the Full Federal Court considered the task of assessing risk under s 116(1)(e)(i) of the Migration Act 1958 (C’th) and said, at [38]-[39]:

38    The notion of “risk” involves possibility in the future: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133 at [81] and [82]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 at [63]. Thus, consideration of what may or might happen in the future by reference to the presence of the visa holder in Australia is what is called for. The satisfaction is that the presence of Mr Djokovic in Australia may be a risk to health, safety or good order.

39    The task is the consideration of future possibilities which “proceeds by drawing inferences from known facts”: Lewis v Australian Capital Territory [2020] HCA 26; 381 ALR 375 at 384 [35] (Gageler J) and is based on “reasonable conjecture within the parameters set by the historical facts”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17;390 ALR 590 at 599 [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ). To these considerations should be added as legitimate bases for the assessment process: common sense, a reasonable appreciation of human experience, and personal knowledge or specialised knowledge of the Minister or his or her Department: see generally Viane 395 ALR at 408–409 [17]–[21].

32. FRC submitted that he posed negligible risk to the public at the point at which his viral load was at 452 copies/mL. FRC further submitted that, since his oral medication was changed to Truimeq, he had been taking the tablets as prescribed. FRC further submitted that there was very little evidence before the Tribunal that FRC has been engaging in unprotected sexual intercourse whilst he has had a detectable viral load since April 2021.

33. The Applicant relies upon FRC’s past conduct with respect to the treatment of his HIV. Some of this is set out in the Confirmation Decision and the Continuation Decision, and we will not repeat it in detail. Suffice it to say that FRC has previously indicated a preference for condomless sex, has expressed doubt about whether he actually has HIV, has periodically failed to engage with treatment and was found guilty of sexually touching a minor without consent. Dr Weatherall’s affidavit discloses that for some of the last 6 months, FRC has chosen not to take his oral antiretroviral medication and thus has not been entirely compliant with the public health order. Dr Weatherall, in his affidavit, says that FRC is currently unwilling to discuss his sexual activity frankly.

34. We are satisfied that the Applicant reasonably formed the view that FRC would continue to be a risk to public health in the event that he were not subject to a public health order. We share that view.

35. For these reasons, on 7 August 2023, we made the following order:

1. The Public Health Order continued by the Tribunal on 7 February 2023 in File number 2023/00036541 is further continued for six months from the date of this order, subject to the variation in order 2.

2. Paragraph (v) of the order is varied so that it reads as follows (with amendments underlined):

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

Note:

The Public Health order, as varied and continued for six months from the date of this order, requires 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, and/or receive antiretroviral injectable therapy, as prescribed by a medical practitioner from the Waratah Clinic and in accordance with the prescription and/or direction of the medical practitioner.

The Public Health Order will continue in operation until 7 February 2024.

3. 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.

**********

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: 20 December 2023