Chief Health Officer, NSW Department of Health v A

[2001] NSWADT 69

CITATION:	Chief Health Officer, NSW Department of Health -v- A [2001] NSWADT 69
DIVISION:	General Division
PARTIES:	APPLICANT Chief Health Officer, NSW Department of Health RESPONDENT A
FILE NUMBER:	013056; 013048
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:
DATE OF DECISION:	04/05/2001
BEFORE:	O'Connor K - DCJ (President) at 1
APPLICATION:	Public Health Act - confirmation of public health order - Public Health Order - confirmation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Public Health Act 1991
CASES CITED:
REPRESENTATION:	APPLICANT K Leah, solicitor RESPONDENT J Boulos, solicitor
ORDERS:	1 The public health order issued on 2 April 2001 and served on 3 April 2001 is confirmed The Tribunal notes that the 28 day period for the operation of the order commenced on 3 April 2001

1 This is an application for confirmation of a public health order issued under s 23 of Public Health Act 1991 (the Act) in respect of a named person by the Chief Health Officer, Department of Health. The Chief Medical Officer is authorised to issue public health orders of the various kinds provided for in Part 3 (Scheduled Medical Conditions) Div 6 of the Act.

2 The public health order in issue in this case is one that may be issued where the Chief Medical Officer is ‘satisfied on reasonable grounds that the person: (a) is suffering from a Category 4 or Category 5 medical condition; and (b) is behaving in a way that is endangering, or is likely to endanger, the health of the public because the person is suffering from that medical condition’: s 23(1).

3 The order must include directions as to the future conduct of the named person: see generally s 23(3). Unless the order is earlier varied as to its duration or is revoked, it expires not later than 28 days after service on the named person. The order does not take effect until it is served on the named person: s 23(5). Following service of the public health order, the Chief Health Officer (or other authorised medical practitioner) must take steps to have an order that relates to a Category 5 medical condition confirmed by the Tribunal: see generally s 25.

4 The order the subject of the present application was issued on 2 April 2001 and served on 3 April 2001. It relates to a Category 5 medical condition. Category 5 of Schedule 1 to the Act lists ‘Acquired Immune Deficiency Syndrome’ and ‘Human Immunodeficiency Virus infection’. The order states that the named person has ‘HIV/AIDS’ and gives as the grounds for issuance that the named person is ‘suffering from HIV/AIDS, a disease transmissible through sexual intercourse, and that she has been ‘placing other persons at risk of contracting HIV/AIDS by: (i) engaging in unprotected sexual intercourse with other persons; (ii) failing to warn persons with whom she is engaging in sexual intercourse that she suffers from HIV/AIDS.’ The requirement imposed on her by the order is that she ‘refrain from sex work for a period of 28 days from the date of this order, unless this order is earlier varied as to its duration or is earlier revoked.’

5 This is the second public health order to be issued in these terms against the named person. The first order was issued and served on 5 March 2001. The Tribunal sat to consider whether to confirm the order under s 25 on 7 and 13 March 2001. Substantial material was placed before the Tribunal relating to the behaviour that had led to the order being issued, in particular material from persons who had sought to given professional assistance to the named person. (Those persons’ names were the subject of a suppression order.)

6 At the two hearings the named person appeared and was represented. She did not oppose confirmation of the order. After considering the material the Tribunal proceeded to confirm the order. The effect of confirmation is that the order continues to run for the full 28 day period calculated from the date of service.

7 There is a separate procedure provided for in the Act for an order to be continued beyond the 28 day period. Applications for continuation of the order beyond that initial period are governed by s 26 of the Act.

8 The Administrative Decisions Tribunal Act 1997 (the Tribunal Act) permits the Tribunal to be constituted by one judicial member from the General Division for s 25 applications, but requires s 26 continuation applications to be dealt with by a three member panel. That panel is to be constituted by a presidential judicial member of the General Division, another judicial member of the Tribunal and ‘one non-judicial member who is a Division member and who is a medical practitioner with experience in public health matters.’ See cl 6 of Schedule 2 of the Tribunal Act.

9 In relation to the earlier order, the Chief Health Officer applied for its continuation for the maximum period allowed by s 26, six months. At the hearing on 13 March the named person indicated, through counsel, that she was not opposed to such a continuation. The Tribunal on that occasion was constituted as it is now by the President sitting alone. After discussion with counsel for both parties it was felt that it was not safe to proceed to make a s 26 order without a full panel as required by cl 6 of Sched 2 of the Tribunal Act being empanelled. The President had indicated that as at that date the Tribunal did not have a member of the General Division who satisfied the requirement of being a medical practitioner experienced in public health matters. He indicated that he had made representations to the Attorney General for steps to be taken urgently to have such a person appointed.

10 Those attempts have been taking place but have not as yet led to an appointment. Consequently the original order has now lapsed, and with it the s 26 application in relation to that order.

11 So as to maintain continuity of the restrictions imposed by the Chief Health Officer, the second order was issued and served. That order is now the subject of applications by the Chief Health Officer under s 25.

12 The solicitor for the named person has advised that their client is not opposed to the Tribunal dealing with the application for confirmation on the basis of the evidence already produced in the earlier matter; and that she was agreeable to there not being an oral hearing and for the present application to be dealt with on the papers under s 76 of the Tribunal Act. That provision allows the Tribunal to dispose of a matter by considering the material lodged with the Tribunal without holding a hearing ‘if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.’

13 I am satisfied that this is a case where the issues for determination can be adequately determined in the absence of the parties. Accordingly, I have proceeded to deal with the confirmation application by way of the s 76 procedure.

14 Substantial material in support of the application was placed before the Tribunal on 7 and 13 March. I will not detail its contents here. The material identifies significant at-risk sexual behaviour on the part of the named person involving continued occasional activity as a sex worker involving unprotected sex. There is no contest that she is affected by HIV/AIDS. The material indicates that despite her failure after counselling in the past to desist from the at-risk behaviour, she has continued to remain in touch with the many professional advisers who are seeking to assist her to alter her behaviour. It has been necessary consequently to take the step of issuance of a public health order which exposes her to sanctions such as arrest and detention for suspected breach and prosecution for the offence of breaching the order (see ss 27-34 of the Act).

15 I am satisfied that the order should be confirmed.

Order

The public health order issued 2 April 2001 and served on 3 April 2001 is confirmed. The Tribunal notes that the 28 day period for operation of the order commenced on 3 April 2001.