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That was revoked in October, 2010.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.”