The anti-vaxxers and the court decision that will shock you

The Health Care Complaints Commission acted outside its jurisdiction to investigate, report on and then issue a public health warning against the Australian Vaccination Network (AVN) which is widely known anti-vaccine organisation, a court has heard.

The warning was issued after two complaints were received in 2009. One from Ken Mcleod and one from Toni and David McCaffrey, whose daughter Dana died as a result of whooping cough before she was old enough to be vaccinated. The complaints claimed the AVN engaged in misleading and deceptive practices in order to dissuade people from vaccinating their children.

The matter was decided on a point of the legislation and not the veracity of the AVN’s claims about the ‘dangers’ of vaccinations in public health. Nor did the judgment reveal the HCCC had made an error of fact in its public warning; simply that it was not allowed to make it. It has no immediate effect on the AVN’s other dispute with the Office of Liquor, Gaming and Racing in which it is attempting to have its charity status restored.

That was revoked in October, 2010.

The case before the Supreme Court of New South Wales and Justice Adamson was broken down like so:

1. Whether the Health Care Complaints Commission acted within its power to issue a public warning based on the information it had to hand regarding the AVN.

2. Whether, as per the Health Care Complaints Act 1993, the AVN was deemed to be a ‘health service or provider’ and whether the information it dispensed affected the health or care of the community.

The AVN’s barrister Mr Abadee said his client accepted it was a health care provider – in that it was an education service – but said it could not be held to account because it was never aware of the personal medical circumstances of its readers.

“Let me put it to you this way, then. If a person is giving a university lecture on the benefits and disadvantages of vaccination but says those disadvantages outweigh the benefits and that measles and mumps are fine and needles will give your child autism, and somebody takes that information and then chooses not to vaccinate … would that constitute ‘directly affecting’ someone’s health,” Justice Adamson asked.

“There’s no dispute. That would be a causal connection,” Mr Abadee said.

“Well, say I have a child of vaccination age and I’m deciding whether to vaccinate and I read this statement on your client’s website and as a result I choose not to vaccinate,” Justice Adamson pressed.

“That is just information. It is not intended to be directed at people who need clinical management,” Mr Abadee said.

“But it doesn’t matter whether it was directed toward them. It just had to affect them. Why wouldn’t that affect a child’s care? It would, wouldn’t it?”

“Well, a mother’s decision is based on what she knows about her child…” Mr Abadee said.

“Isn’t that just a cop-out?” Justice Adamson said. “I don’t read any [AVN] disclaimer saying ‘don’t take any notice of what we are saying because we are not qualified doctors’. It doesn’t go as high as that.”

The AVN’s representation argued the HCCC couldn’t prove his client’s website had provided any information that had affected the ‘clinical management or care’ of any of its readers.

Mr Abadee first tried to rule out evidence from his client Meryl Dorey (who heads the AVN) in which she claimed the express intent of the movement was to influence and educate her subscribers and the general public into making decisions about vaccination.

As Justice Adamson put it: “It seems slightly coy that your client is so shy about admitting what it is on about.”

When discussing the significantly lower vaccination rates in the Northern Rivers of NSW [some 30-33% are unvaccinated, compared with national average of 10%], where the AVN is based, Justice Adamson asked whether that was due to the influence of the vaccination network.

“Isn’t that at least in part because of your client and her website,” she said.

“There is some geographical correlation in the inference the HCCC draws. But it is not clear how many of those made a decision to not vaccinate on the nature of the information from my client,” Mr Abadee said. “It could be word-of-mouth. The HCCC tends to draw a causal connection when there is none. In any case, we are not talking about demonstrable proof, your Honour. We’re talking about jurisdictional facts [whether the HCCC acted within its power to issue a public warning].”

“What if one person read your client’s website and decided not to immunise, would that be enough to satisfy [that a person’s clinical management or care was affected]?” Justice Adamson asked.

“Yes, that would be enough,” said Mr Abadee.

Mr Abadee argued his client, the AVN, was worried about its reputation in light of the public health warning.

“Yes, well I can see how the public warning would cause some people to take a dim view of your client’s activities,” Justice Adamson said.

Arguing for the Health Care Complaints Commission, Ms Sharpe said it would be unbelievable if the HCCC did not take complaints made to it in good faith.

“If the stated objective of the AVN is to provide information to make people make decisions about vaccinations, it would be an extraordinary position for the HCCC to assume they had been wholly unsuccessful,” she said.

Ultimately, Justice Adamson concluded there was no evidence of specific harm done through the actions of the Australian Vaccination Network. Not that there wasn’t any at all, just that it hadn’t been brought to the attention of the court itself.

In her judgment, Justice Adamson wrote:

“In my view, the use of the words “the clinical management or care of an individual client” evince an intention that only a complaint concerning a health service that has a concrete (even if indirect) effect on a particular person or persons is within jurisdiction. Complaints about health services that have a tendency to affect a person or group, but which cannot be shown to have had an effect, would appear to be excluded,” she said.

“Although I find that both complaints concern the health service that the plaintiff provides, the health service has not been shown to “affect the clinical management or care of an individual client”. Although it might have that tendency, and although the plaintiff hopes to have that effect, I do not consider this to be sufficient to establish that it has had that effect.

“I do not consider the evidence to be relied upon by the HCCC to be sufficient that there was such a causal link, or that any link could be established in respect of “an individual client”. Had the HCCC apprehended that such would be required to found jurisdiction, it presumably could have readily obtained such evidence from one of the complainants. However, the ease with which it might have done so is not the test. It did not do so.”

The HCCC will likely appeal the decision.

If you are looking for a cheat sheet that dispels some common myths around vaccination, this is the only place you need to be.