NSW legislation may clamp down on alt med claims

A new Bill has been proposed in the New South Wales parliament which, if passed, will enable consumers to complain to the government not only about health information that has adversely affected their health but also about information that they deem is likely to cause harm.

Proposed by NSW Health Minister Jillian Skinner, the Health Legislation Amendment Bill 2013 also allows the NSW Health Care Complaints Commissioner to instigate its own complaint proceedings against health information providers rather than relying on health practitioners or members of the public to make complaints.
If introduced, this amendment will mean that any medical claims that are not evidence-based and are deemed likely to cause harm to a member of the public will be liable to sanction.

The proposal comes off the back of the Australian Vaccination Network’s legal action with the NSW Health Care Complaints Commission in the Supreme Court in 2011. That action challenged a public warning issued by the HCCC in response to a complaint made by a member of the public about misleading health information distributed by the AVN.

The HCCC deemed the AVN’s website “provided information that is solely anti-vaccination, contains information that is incorrect and misleading and quotes selectively from research to suggest that vaccination may be dangerous” and, as a result, directed them to publish a disclaimer indicating their information is purely anti-vaccination and should not be construed as medical advice. When the AVN refused, the HCCC issued a public warning.

But, in fact, the HCCC legislation does not currently have the scope to accept complaints from a “member of the public” – it only covers complaints from those whose health has been adversely affected as a direct result of advice from an unregistered health practitioner. Consequently the AVN challenged the HCCC public warning and won.

Essentially what the court required was evidence in the form of a statutory declaration or similar from someone who had taken medical advice from the AVN to the effect, say, of not vaccinating themselves and then contracting a vaccine-preventable disease. In reality, this information is hard to come by, largely because people are too embarrassed to admit to being tricked (or perhaps even that they are dead). As the HCCC was unable to produce such evidence, the loophole was jumped and the public warning quashed. If the recent proposed changes are enacted, however, this loophole will be closed.

In parliament, Skinner cited the AVN versus HCCC case and said that under the current law “There must be a specific case where an individual client is affected, thereby limiting the capacity of the Health Care Complaints Commission to act in the public interest.”

She went on to say that “The [proposed] bill therefore amends Section 7 of the Health Care Complaints Act to make clear that a complaint can be made against a health service if the health service affects, or is likely to affect, the clinical management or care of an individual client.”

Ironically, the AVN’s action against the HCCC may very well have triggered this legislative change. Perhaps it is not surprising, therefore, that the AVN’s ex-president Meryl Dorey has recently started copy/pasting a disclaimer into every piece of correspondence she sends (including Facebook comments), similar to the one the HCCC originally directed her to adopt.

The disclaimer says: “This is not intended to be considered medical or legal advice. It does not necessarily represent the opinions of either Meryl Dorey or the Australian Vaccination Network, Inc. (AVN)”.

It is understood that the amendment is likely to pass as it is reported that both sides of the NSW parliament support it.