Those people who think that they can drive without a licence and that somehow the traffic legislation does not apply to them will find that the Courts do not agree.

Case extract from The Supreme Court of New South Wales – Losalini Rainima v Magistrate Freund & Ors (2008/11084)12 September 2008

“It seems that the group holds strong views about the legitimacy of aspects of this State’s traffic legislation. Certainly, the plaintiff does. Whatever the views of the group might be, this appeal turns upon the attitude of the plaintiff as it was articulated by her in the Local Court and, through her representatives, in this Court. Put shortly, as it relates to the present case, it is that the State is under a duty not to impose upon her its driver licensing regime.

The strength of her belief has cost her dearly, leading to her remaining in custody for the period from her arrest for disqualified driving on 15 December 2007 to 14 September 2008, just two days hence. She was granted conditional bail, but refused to enter it.

On 3 March 2008, after a defended hearing, she was convicted of the offence, fined, disqualified from holding a license for a further period, and placed on a five year good behaviour bond. She refused to enter the bond.

Later that day, pursuant to s97 of the Crimes (Sentencing Procedure) Act 1999, she was sentenced to imprisonment for nine months, with a non-parole period of three months, to date from 15 December 2007.


When the non-parole period expired she could not be released because she refused to accept the conditions of parole. Accordingly, she can be released only on the expiry of the nine month sentence.

On an earlier occasion, when the matter was in for mention in the Local Court, the plaintiff foreshadowed that she would be raising a constitutional defence and a challenge to the jurisdiction of the court. She subsequently arranged for the service of a notice, pursuant to s78B of the Judiciary Act 1903 (Cth), that the case involved matters arising under the Commonwealth Constitution or involving its interpretation.

As I understand it, a distinction is sought to be made between a challenge to the validity of the relevant legislation, on the one hand, and an assertion that the State does not have the power to deny an inalienable right, on the other.

 

For the purpose of this case, however, the distinction is illusory. Either the driver licensing legislation is valid or it is not.  If it is, all of us, including the plaintiff, are bound by it and no inalienable right resides within any of us to free us from the obligations which it imposes. Driver licensing is governed entirely by statute, and there is no such thing as a licence “pursuant to common law”. No credible challenge has been mounted to the legislation and there the matter must end.


Leave to appeal against the magistrate’s interlocutory order is refused. The appeal against the conviction and sentence is dismissed. If necessary, I shall hear the parties on costs.

I would remind the plaintiff that, notwithstanding the fact that she has served her prison term rather than entering into the good behaviour bond, she remains subject to the period of disqualification of her licence pronounced by her Honour. That period now extends to 19 May 2023. She must be in no doubt that, if she drives a motor vehicle during that period, she could face a further significant term of imprisonment.”

Magistrate Hidden J.
The Supreme Court of New South Wales – Losalini Rainima v Magistrate Freund & Ors (2008/11084)12 September 2008

http://www.thenewspaper.com/rlc/docs/2008/au-nswrainma.asp

Discussion Points

The definition of a “Driver” in Bouvier’s Law Dictionary, (1914 ed., Pg. 940) is “One employed in conducting a coach, carriage, wagon, or other vehicle.”

The U.S. definition of “Motor Vehicle” (Title 18 USC 31) is “Every description or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, or passengers and property.”

“Used for commercial purposes” means the carriage of persons or property for any fare, fee, rate, charge or other considerations, or directly or indirectly in connection with any business, or other undertaking intended for profit.”

The definition of “Traffic” in Bouvier’s Law Dictionary, (1914 ed., Pg. 3307) is “Commerce, trade, sale or exchange of merchandise, bills, money, or the like. The passing of goods and commodities from one person to another for an equivalent in goods or money.”

Those indoctrinated by the OPCA movement are told to use the term “TRAVEL” or “SOJOURN” as opposed to “DRIVE”, and “AUTOMOBILE” as opposed to “VEHICLE” etc. They claim that “driving” is a business term, denoting “For Hire”, and for these reasons the activity doesn’t apply to those using their conveyance just for private use.

Unfortunately for them, these definitions from outdated foreign dictionaries make no difference at all in the eyes of police or magistrates, and they have no obligation to follow these terms at all. Roads and transport are a state matter, and each state has it’s own Roads and Traffic Act, with the glossary of terms included. This is called “Intrinsic evidence”, which is defined as information contained within the definition section of the Act. The use of the Interpretation Acts, and Hansard (a record of debates in parliament concerning that legislation) is called “Extrinsic evidence” which is defined as information which is obtained from outside of the Act.

This is NSW legislation, but you’ll find the other states are similar. This is the definitions NSW Police and the courts are obliged to follow…

LICENCE…

“driver licence” means: (a) a licence (including a conditional licence, a provisional licence and a learner licence) issued in accordance with the statutory rules authorising the holder to drive one or more classes of motor vehicle on a road or road related area, or (b) a driver licence receipt.

“driver licence receipt” means a receipt that: (a) is issued following an application for an Australian driver licence and after payment of any applicable fee, and (b) authorises the holder to drive one or more classes of motor vehicle on a road or road related area.

“learner licence” means a licence or permit issued to a person under a law in force in a State or internal Territory to authorise the person to drive a motor vehicle on a road or road related area for the purpose of learning to drive a motor vehicle.

“probationary licence” means a licence to drive a motor vehicle: (a) issued to a person who applies for a driver licence following a period of disqualification from driving: ordered by a court in Australia, or (b) issued to replace an equivalent licence issued under a corresponding driver law.

“provisional licence” means a licence (other than a learner licence) to drive a motor vehicle, issued under a law in force in a State or internal Territory, that is subject to conditions, restrictions or qualifications.

“provisional P1 licence” means a provisional P1 licence issued in accordance with the statutory rules.

“provisional P2 licence” means a provisional P2 licence issued in accordance with the statutory rules.

“relevant Australian driver licence” means: (a) an Australian driver licence, or (b) a learner licence issued under a law in force in a State or internal Territory authorising the holder to drive a motor vehicle on a road or road related area.

“restricted licence” means an authority to drive a motor vehicle issued at the direction of a court in Australia that authorises the holder to drive only in the course of the holder’s employment or in other specified restricted circumstances.

“unrestricted driver licence” means a driver licence other than a learner licence or provisional licence.

VEHICLE…

“motor vehicle” means a vehicle that is built to be propelled by a motor that forms part of the vehicle.

“vehicle” means: (a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or (b) any description of tracked vehicle (such as a bulldozer), or any description of vehicle that moves on revolving runners inside endless tracks, that is not used exclusively on a railway or tramway, or (c) any other description of vehicle prescribed by the statutory rules.

“registrable vehicle” means: (a) any motor vehicle, or (b) any trailer, or (c) any other vehicle prescribed by the statutory rules for the purposes of this definition.

“registered” and “registration” in relation to a vehicle-see section 7.

TRAFFIC…

“traffic” includes vehicular traffic and pedestrian traffic and all other forms of road traffic.

DRIVE/DRIVER…

“drive” includes: (a) be in control of the steering, movement or propulsion of a vehicle, and (b) in relation to a trailer, draw or tow the trailer, and (c) ride a vehicle.

“driver” means any person driving a vehicle, and includes any person riding a vehicle.

http://www.austlii.edu.au/…/n…/consol_act/rta2013187/s4.html

“THE RIGHT TO TRAVEL” IS NOT A RIGHT TO “MOTORISED TRANSPORTATION”…

[I will be researching the equivalent case law in Australia, (and adding it to this post) but the following rulings in U.S. case law are established precedents in that jurisdiction, so I’m quite sure that Australian common law would hold similar findings…]

The U.S. Supreme Court has recognized a protected right to interstate travel, (Saenz v. Roe) and the Sixth Circuit has recognized a protected right to intrastate travel, i.e., “a right to travel locally through public spaces and roadways,” (Johnson v. City of Cincinnati)

Yet, the district court held the protected right to travel does not embody a right to a driver license or a right to a particular mode of transportation, citing Duncan v. Cone, 2000 WL (holding “there is no fundamental right to drive a motor vehicle.”)

John Doe No. 1 v. Georgia Dep’t of Public Safety, observed that “the Circuit Courts have uniformly held that burdens on a single mode of transportation do not implicate the right to interstate travel”

Further, the district court held that the right to travel, whatever its contours, is not infringed by Chapter 778 because a person who receives a certificate for driving is able to operate a motor vehicle just like a person who receives a driver license. (LULAC, 2004) Potential difficulties that may be experienced by one who does not have a driver license to use for identification purposes, were held not to implicate the right to travel.

In Saenz, the Supreme Court identified three components of the right to travel: “It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens in that State.”

“A state law implicates the right to travel when it actually deters travel, when impeding travel is its primary objective, or when it uses a classification that serves to penalize the exercise of the right.” ~ Attorney General of New York v. Soto-Lopez

Tennessee’s issuance of certificates for driving, which confer all the same driving privileges as driver licenses, is clearly not designed primarily to impede travel and can hardly be said to deter or penalize travel. The state’s denial of state-issued photograph identification to temporary resident aliens may arguably result in inconvenience, requiring the bearer of a certificate for driving to carry other personal identification papers, but this inconvenience can hardly be said to deter or penalize travel. To the extent this inconvenience burdens exercise of the right to travel at all, the burden is incidental and negligible, insufficient to implicate denial of the right to travel.” ~ Town of Southold v. Town of East Hampton

U.S. case law recognises that “even citizens do not have a constitutional right to the most convenient form of travel. Something more than a negligible or minimal impact on the right to travel is required before strict scrutiny is applied.” ~ State of Kansas v. United States

Section 92 Freedom of travel…

Section 92 of the constitution has actually nothing to do with freedom of travel between the states, or some constitutional right to drive unregistered and unlicensed, as Australian Freeman like to imply, but rather, the concept of FREE TRADE between the states…

In the case of Cole v Whitfield, in a unanimous decision, the High Court identified the full extent of s. 92:

“The purpose of the section is clear enough: to create a free trade area throughout the Commonwealth and to deny to Commonwealth and States alike a power to prevent or obstruct the free movement of people, goods and communications across State boundaries. The expression “free trade” commonly signified in the nineteenth century, as it does today, an absence of protectionism, that is, the protection of domestic industries against foreign competition…”

Accordingly, s. 92 prohibits the Commonwealth and the States from imposing burdens on interstate trade and commerce which: 1. discriminate against it by conferring an advantage on intrastate trade or commerce of the same kind, and 2. are protectionist in character.

POLICE POWERS AND IDENTIFICATION

A common Freeman argument in Australia is that police have no power to ask for identification. The argument seems to be based around DPP v Hamilton [2011] VSC 598 (aka Hemingway v Hamilton or ‘Hemingway’) where the Supreme Court ruled that police have no unfettered right to stop a person arbitrarily.

In the case, Lieutenant Senior Constable Hemingway was on patrol in the Melbourne CBD, and was flagged down by an employee of Taco Bill. The employee informed Hemingway that two men had left the restaurant without paying, and indicated one of them was Hamilton. When Hemingway approached Hamilton, he fled on foot. Hemingway pursued Hamilton in his police car and finally arrested and charged him with resisting arrest.

The court was asked if police had a right to stop a person on a mare suspicion. The case circulated around the common law powers of arrest. A common law arrest requires a belief an offense had been committed, informing the person they are under arrest, why they are under arrest, physical contact and the person understanding why they are under arrest: (see eg George v Rockett (1990) 170 CLR 104; Collins v Wilcock [1984] 1 WLR 1172; ).

Even though Hemingway had been given indication that Hamilton may have committed an offense, only one element of the 5 needed to complete an arrest were fulfilled before the chase began.

The Magistrate struck the charge out for three reasons:

1. The arrest occurred after the chase had finished, not before it started. He cannot have been resisting arrest if the arrest had not been completed in the first place.
2. Police were relying on information from the Taco Bill employee and not their own investigation, this does not satisfy ‘belief’.
3. While a person 1)on foot2) has a moral obligation to stop when asked (and not under arrest), they do not have a legal obligationtooltip({ tip: "#footnote_plugin_tooltip_text_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

Freemen argue this case provides a blanket immunity from being stopped by police for identification, even when driving, but miss two crucial elements:

– Hamilton was on foot, not in a car.
– Police didn’t have sufficient grounds for ‘belief’.

CAN POLICE ‘STOP’ A PERSON AND ASK FOR ID AT ANY TIME?

Generally speaking no. Unless you are driving a car, in a designated search area, believed to have committed an offense or know something about a serious offense police have no legal grounds to ask for ID.

However, this is not a blanket protection and does not prevent police from pulling you over. Driving a car is a potentially dangerous task. This is why it is regulated; cars are big metal things full of explosive liquid traveling at speed, it’s a good idea to check if the person is allowed to do it.

A similar argument in centres around Kaba v DPP, in which the magistrate ruled that police do not have an unfettered right to stop a vehicle. While this is true to a certain extent, OPCA theorists seem to disregard the fact that Kaba was not the driver, and also that the decision was overturned on appeal regarding s 59(1) of the Road Safety Act.

http://www.austlii.edu.au/…/…/consol_act/rsa1986125/s59.html

as affirmed in the Victorian Supreme Court decision of DPP v Kaba [2014] VSC 52 (18 December 2014)

at 486 “For the reasons given in this judgment, the ruling of the magistrate will be quashed because his Honour committed an error of law upon the face of the record in relation to the interpretation of s 59(1) of the Road Safety Act. Contrary to his Honour’s interpretation, police do have a power of random stop and check under that provision.

Credit to author : The contents of this Article are from the research of Robert Sudy and published on his Facebook Freeman Delusion Page.



References   [ + ]

1. on foot* has a moral obligation to stop when asked (and not under arrest), they do not have a legal obligation
2. has a moral obligation to stop when asked (and not under arrest), they do not have a legal obligation


The Australian Paralegal Foundation has made a submission to the Parliamentary inquiry into a better family law system to support and protect those affected by family violence.

Parliamentary inquiry into a better family law system to support and protect those affected by family violence

Parliamentary inquiry into a better family law system to support and protect those affected by family violence

Here is the link to the Government Website where the our submission was published, if you scroll down  it is number 8 on the list of submissions.

Its also an opportunity to examine the other submissions.

 

 





This paper examines the contemporary challenges with the doctrine of informed consent ‘Doctrine’ and its application in the vaccination program of the Australian Government[1].  In order to understand the challenges, we must first understand the background of the development of the Doctrine.

The Doctrine commenced with the seminal Schloendorff[2]decision, where it was held the need for Informed Consent is a prerequisite to the Doctor-Patient Relationship.

With Justice Cordozo stating “In the case at hand, the wrong complained of is not merely negligence. It is trespass….and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.[3]

In determining what information should be given to clients doctors traditionally used the “Physician-Based Standard”[4], this was the idea that a physician isn’t liable for negligence or malpractice if they followed the consensus of opinion in medical practice.  It was accepted by the English Courts in Bolam v Friern Hospital Management Committee[5] this became known in law as the Bolam Principle[6]

The Australian Experience

In F v. R[7] a woman who wasn’t warned of a 1% failure rate in a medical procedure sued for negligence.  The Doctors argued that the consensus of medical opinion was it wasn’t necessary to warn when failure rate was so low, the Court refused to apply the Bolam principle.

King C.J. said: The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.

King C.J. agreed with the Supreme Court of Canada in Reibl v. Hughes (1980): The issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by applicable professional standards. What is under consideration here is the patient’s right to know what risks are involved in undergoing or foregoing certain surgery or other treatment[8].

Since F v R, the High Court of Australia ‘HCA’ was called upon to answer once and for all whether the Bolam principal applies in Australia in the case of Rogers v Whitaker[9].  In reference to the standard of care the HCA stated it is “not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade”[10].

The HCA in rejecting the Bolam principle provided new guidelines:

“while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to ‘the paramount consideration that a person is entitled to make his own decisions about his life’ “[11].

In Rogers v Whitaker there was a consensus of opinion in the medical profession that held disclosure to the patient of the possibility of rare but known risks would only be disclosed to the patient if there was a specific inquiry, since the patient did not ask, the risk was not disclosed.

The HCA Held :

“While the opinion that the respondent should have been told of the dangers of sympathetic ophthalmia only if she had been sufficiently learned to ask the precise question seems curious, it is unnecessary for us to examine it further, save to say that it demonstrates vividly the dangers of applying the Bolam principle in the area of advice and information.

The respondent may not have asked the right question, yet she made clear her great concern that no injury should befall her one good eye. The trial judge was not satisfied that, if the respondent had expressed no desire for information, proper practice required that the respondent be warned of the relevant risk.

But it could be argued, within the terms of the relevant principle as we have stated it, that the risk was material, in the sense that a reasonable person in the patient’s position would be likely to attach significance to the risk, and thus required a warning. It would be reasonable for a person with one good eye to be concerned about the possibility of injury to it from a procedure which was elective.[12]

The Rogers v Whitaker decision saw a move in Australia away from the physician based standard towards a Patient-Oriented Standard: set by what a reasonable patient would want to know.

With this the Medical Board of Australia has developed a code of conduct for medical practitioners to follow Good medical practice: a code of conduct for doctors in Australia[13]
The code covers working with patients[14], treating each patient as an individual[15], encouraging patients to be well informed and to use this information wisely when they are making decisions[16] and ensuring patients are informed of the material risks associated with the vaccine[17].

The Australian Immunisation Handbook ‘AIH’[18] is more than a mere guideline that medical practitioners use when providing vaccination services.  According to the operative section of the No Jab, No Pay policy in A New Tax System (Family Assistance) Act 1999, S.6
Medical contraindication, natural immunity

(3)  The child meets the immunisation requirements if:

(a)  a general practitioner has certified in writing that the immunisation of the child would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook;

The AIH defines valid consent as:

the voluntary agreement by an individual to a proposed procedure, given after sufficient, appropriate and reliable information about the procedure, including the potential risks and benefits, has been conveyed to that individual.

Persons should be given sufficient information (preferably written) on the risks and benefits of each vaccine, including what adverse events are possible, how common they are and what they should do about them (the table inside the front cover of this Handbook, Side effects following immunisation for vaccines used in the National Immunisation Program (NIP) schedule, can be used for this purpose). [19]

It continues with, “For consent to be legally valid, the following elements must be present:

It must be given voluntarily in the absence of undue pressure, coercion or manipulation.

It can only be given after the potential risks and benefits of the relevant vaccine, risks of not having it and any alternative options have been explained to the individual.

The individual must have sufficient opportunity to seek further details or explanations about the vaccine(s).

Consent should be obtained before each vaccination, once it has been established that there are no medical condition(s) that contraindicate vaccination.”

We see that the doctrine of informed consent is well developed in Australia, to the point it is codified in codes of conduct of the medical profession and even in the AIH, so why all the controversy around vaccines?

It is beyond the scope of this paper to go into the efficacies and the Government stance that vaccines are “safe and effective[20]”, instead the issues are examined from a health law perspective.  In contrast to the Australian Government position, the United States Supreme Court case of Bruesewitz Et al. v Wyeth LLC, FKA Wyeth, Inc., Et al[21] stated :

“Indeed, Congress’ principal aim in enacting §22(b)(1) was not to preserve manufacturing and labeling claims (those, too, were already preserved by §22(a)), but rather, to federalize comment k-type protection for “unavoidably unsafe” vaccines.”[22]

Another distinguishing factor they have the The National Childhood Vaccine Injury Act of 1986 [which] created a no-fault compensation program to stabilize a vaccine market adversely affected by increased vaccine-related tort litigation and to facilitate compensation to claimants who found pursuing legitimate vaccine-inflicted injuries too costly and difficult[23].

When examining the Australian policy and legislation in the search for answers as to why Australia has no such system here. The first question is if a Doctor follows the procedure in the AIH, is consent “valid”? Secondly if a patient after considering all available information, isn’t sufficiently satisfied that vaccines are “safe and effective” as claimed by the Government, can they get an exemption for a medical contraindication?

The search for answers starts with the Victorian No-Jab No-Play legislation PHW[24] (which leads back to and relies upon Commonwealth Legislation for its implementation[25]) before a child can be confirmed as enrolled in “early childhood service” ‘care’, an “immunisation status certificate” is required showing the child is up-to-date.

Interestingly S.147 of PHW points to sections 46A and 46B of the Health Insurance Act (Cth) 1973, however, there are no such section(s) in that Act, which can be confusing, that said, assuming a child hasn’t been fully vaccinated according to the Victorian Immunisation Schedule[26] then the only way a child can enter care is either be vaccinated or obtain an exemption.

There is only one provision to obtain a permanent exemption before entering care to one or more vaccines, that is section 143B(1)(b) of the PHW[27], which states :

(b)     immunisation of the child with one or more vaccines so that the child is age appropriately immunised would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook within the meaning of section 3(1) of the A New Tax (Family Assistance) Act 1999 of the Commonwealth.

The difficulty with this provision is that the AIH, insofar as contraindications go, provides a narrower scope than the manufacturers provide as contraindications and gives the AIH force of law, suddenly what the manufacturer warns of is no longer relevant. The AIH Section 2.1.4[28] on pre-vaccination screening titled “Contraindications to vaccination” provides a child only one possible contraindication, that is an adverse event to a previous vaccination of anaphylaxis.

Short of a parent already vaccinating a child, who then had an immediate life threatening reaction, as far as the AIH is concerned there is no valid exemption.  This is in stark contrast to the manufacturers own recommendations that are included with the vaccines. The information leaflets have far broader guidelines regarding contraindications, it appears that the AIH over-rides vaccine manufacturers own advice.

For instance, MMR[29] contraindications include hypersensitivity to any component of the vaccine, including gelatin, Anaphylactoid reactions to neomycin[30] and individuals with a family history of congenital or hereditary immunodeficiency, a doctor relying on the AIH would not even need to consider these.

Merck continues with additional warnings that persons with history of cerebral injury, convulsions, live vaccine risks and persons with hypersensitivity to chick embryo cultures may see adverse reactions, they go on to say:

The potential risk to benefit ratio should be carefully evaluated before considering vaccination in such cases. Such individuals may be vaccinated with extreme caution…

Persons who have experienced anaphylactic reactions to neomycin should not receive measles vaccine. Neomycin allergy often manifests as a contact dermatitis, which is a delayed-type immune response rather than anaphylaxis, this is a perfect example of where there may be long term side effects that parents are not warned of.

There are many more warnings listed but it’s beyond the scope of this paper to examine all the contradictions, the above demonstrates clearly the dangers of a Doctor merely following the AIH as commanded by Legislation.

Not only does the AIH not cover issues Merck covers, it goes one step further and dictates to doctors what is or is not a valid contraindication[31].  The contraindications excluded include family history of adverse events following immunisation, history of convulsions, asthma, eczema, atopy, previous infection with the same pathogen (natural immunity) and neurological conditions among other things are not considered valid contraindications.

What is significant about this is the very things that Merck lists as contraindications and warnings are the things that Doctors are told to ignore in the AIH.

What should a doctor follow?  The AIH or Merck’s own contraindications?

The additional warnings and precautions in the Merck document could lead to a medical practitioner making in their own judgment a valid contraindication based on an individual patient’s needs.

This would be in line with the Australian Medical Boards Code of Conduct[32] for doctors in Australia. Examining content of Section 3[33], includes issues of treating the patient as an individual and the requirement of valid informed consent, it appears the legislation and AIH are inconsistent at best and incompatible at worst with the requirements for valid informed consent.

The Government would be asking the doctor to breach their own code of conduct if they are to ignore the manufacturers product information leaflets in lieu of the narrow guidelines in the AIH.

Most significantly looking at the Medical Board of Australia’s Code of Conduct, specifically Section 41.3.6 Children and young people

  1. Caring for children and young people brings additional responsibilities for doctors. Good medical practice involves:
  2. Placing the interests and wellbeing of the child or young person first.

In the case of actions and decisions affecting an individual child, it is the best interests of that individual child which must be taken into account[34].  Parents have primary decision-making responsibility on behalf of their children (articles 5 and 18.1).

To satisfy the question of what is in the best interests of the child, what first must be examined is what is the risk involved that the vaccine seeks to prevent, take Infanrix hexa[35], a vaccine used to prevent six diseases: diphtheria, tetanus, whooping cough, hepatitis B, polio and Haemophilus influenzae type b.

According to the World Health Organisation[36] there have been 9 Cases of Diptheria in Australia since 2007, there have been Zero cases of Tetanus (Neonatal) and Zero cases of Polio.  Hepatitis B is a blood-borne virus. There’s an insignificant statistical risk of Hep B transmission in a community setting, especially among children who are unlikely to engage in high-risk behaviours, such as needle sharing or sex[37], so is not a relevant or foreseeable risk to an infant unless one of the parents have Hep B themselves as held in Re H [2011] QSC 42711 and Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193 (2 September 2008), Hib does not cover the prevalent strains so can’t be considered a significant benefit and finally pertussis is an interesting anomaly in that the more we have vaccinated against it the more it occurs[38] with cases peaking last year at 22,508.

Against this back drop of seemingly little statistical basis to arouse a parent to fear that their child is at risk, the adverse events associated with Infanrix ought to be considered.

Infanrix Hexa according to the product leaflet published by the TGA[39] states it should not be administered to subjects with known hypersensitivity to the active substances or to any of the excipients or residues[40], this is in conflict with the AIH guidelines.

In examining data reports of adverse events released by the TGA[41], since January 1st 2014 there have been 2,575 adverse reactions associated with Infanrix, which include death in two reported cases.

The TGA admits there’s no data or studies comparing vaccinated vs unvaccinated children to see if there are any trends in health outcomes of those vaccinated against children who are not[42].

CONCLUSION.

A risk at common law is one that’s real and foreseeable, but not “far-fetched or fanciful”[43], here it’s clear there are real and foreseeable risks that an adverse reaction to a vaccine may occur, it is neither farfetched nor fanciful and a parent ought to consider the manufacturers warnings and the potential risk to benefit ratio should be carefully evaluated before considering vaccination in cases where a child is suspected to be hypersensitive to  adjuvants in the vaccines or potentially affected by one or more of the contraindications and warnings.

If a Doctor merely follows the AIH guidelines it is questionable whether there is sufficient information provided to constitute valid informed consent.  On the other hand, if according to guidelines a parent sought an exemption, the legislative provisions are not reasonable for the patient to seek what is defined as a valid exemption.  It would appear vaccination policy places a parent seeking an exemption into a position where they, even if uncomfortable with the decision are coerced to vaccinate to get child care, which may invalidate informed consent.

Whether the consent is granted under the AIH guidelines or coerced under Government policy, unfortunately it falls under the normal rules of negligence, which means no harm no foul, even with invalid informed consent there is no medical malpractice unless there is harm done, short of anaphylaxis, where the adverse reaction is severe and immediate, a parent will not know for some time if there are any long term negative impacts on the child’s health.

This gives Doctors confidence in vaccines even if they know that it’s not really valid informed consent, if the adverse reaction is minor (not permanent or long lasting) then there is no claim for malpractice[44] if the adverse event sets on gradually over time, then causation is impossible to prove, it would appear the Government along with the Medical Profession is sidestepping informed consent in favour of the Bolam Principle that the High Court Rejected.

 

 

References

[1] Immunise Australia Program, Department of Health, accessed here 5/02/2017 at 11.18am http://immunise.health.gov.au/internet/immunise/publishing.nsf/Content/about-the-program.

[2] Mary E. Schloendorff v The Society of the New York Hospital, 05 N.E. 92, 211 N.Y. 125, New York Court of Appeals.

[3] Ibid.

[4] Barry Furrow et al., ed., Health Law, 2015, p. 123

[5] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

[6] Ibid.

[7] F v. R.(1983) 33 S.A.S.R. 189.

[8] Ibid.

[9] Rogers v Whitaker (1993) 67 ALJR 47.

[10] Rogers v Whitaker (1993) 67 ALJR 47 at 48-49.

[11] Ibid at 51.

[12] Ibid at 53.

[13] Good medical practice: a code of conduct for doctors in Australia, accessed 03/02/2017 at 5.05pm   http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx

[14] Ibid at S.3.

[15] Ibid at S.3.2.2.

[16] Ibid at S.3.2.5.

[17] Ibid at S.3.3.6.

[18] The Australian Immunisation Handbook 10th Edition,  accessed 03/02/2017 at 7.58pm http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/Handbook10-home

[19] Ibid at S.2.1.3

[20] Immunise Australia Program, Department of Health, accessed here 5/02/2017 at 11.18am http://immunise.health.gov.au/internet/immunise/publishing.nsf/Content/about-the-program.

[21] BRUESEWITZ ET AL. v. WYETH LLC, FKA WYETH, INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

[22] Ibid at pg.18.

[23] Ibid at pg.1 para 1.

[24] Public Health and Wellbeing Act 2008 (Vic).

[25] A New Tax System (Family Assistance) Act 1999, S.6.

[26] Immunisation schedule Victoria 2016, accessed here on 3/2/2017 at 9.29pm https://www2.health.vic.gov.au/public-health/immunisation/immunisation-schedule-vaccine-eligibility-criteria/immunisation-schedule-victoria

[27] Public Health and Wellbeing Act 2008 (Vic), S.143B(1)(b).

[28] The Australian Immunisation Handbook, accessed here on 3/2/2017 at 10.09pm  http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/Handbook10-home~handbook10part2~handbook10-2-1#2-1-4

[29] M-M-R® II (MEASLES, MUMPS, and RUBELLA VIRUS VACCINE LIVE), Manufactured by Merck, Product leaflet accessed here on 3/2/2017 http://www.merck.com/product/usa/pi_circulars/m/mmr_ii/mmr_ii_pi.pdf

[30] Wikipedia, Neomycin is an aminoglycoside antibiotic found in many topical medications such as creams, ointments, and eyedrops. https://en.wikipedia.org/wiki/Neomycin

[31] The Australian Immunisation Handbook, Table 2.1.4: False contraindications to vaccination.

[32] Australian Medical Boards Code of Conduct, accessed here on 3/2/2017 at 11.01pm http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx .

[33] Ibid.

[34] Australian Human Rights Commission, Human Rights Brief No. 1, The Best Interests of Child http://www.humanrights.gov.au/publications/human-rights-brief-no-1 accessed 29.11.2016 at [4.54pm]

[35] Department of Health, Therapeutic Goods Administration, Infanrix Hexa, https://www.tga.gov.au/alert/infanrix-hexa-vaccine accessed 29/11/2016 at [4.55pm].

[36] World Health Organisation, Global Summary, Australia http://apps.who.int/immunization_monitoring/globalsummary/incidences?c=AUS accessed 29.11.2016 at [4.56pm].

[37] Tetyana Obukhanych, An open letter to legislators http://thinkingmomsrevolution.com/an-open-letter-to-legislators-currently-considering-vaccine-legislation-from-tetyana-obukhanych-phd-in-immunology/ accessed 29.11.2016 at [4.57pm]

[38] World Health Organisation, Global Summary, Australia, http://apps.who.int/immunization_monitoring/globalsummary/incidences?c=AUS accessed 29.11.2016 at [4.58pm].

[39] Infanrix Hexa Product leaflet, Therapeutic Goods Administration accessed at 05/02/2017 https://www.ebs.tga.gov.au/ebs/picmi/picmirepository.nsf/pdf?OpenAgent&id=CP-2010-PI-06624-3&d=2016112916114622483&d=2017020516114622483

[40] Childrens Medical Saftety Research Institute, Dirty Vaccines: New Study Reveals Prevalence of Contaminants,  http://info.cmsri.org/the-driven-researcher-blog/dirty-vaccines-new-study-reveals-prevalence-of-contaminants accessed 10/02/2017 at 12.04am.

[41] Department of Health, Therapeutic Goods Administration, INFANRIX Database search from 1/1/2014 to 17.8.2016 accessed at [5.04pm] here http://apps.tga.gov.au/PROD/DAEN/daen-report.aspx

[42] Email from TGA – Marked as Annex “A”

[43] Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40, per Mason J. at p 47. See also Gala v. Preston [1991] HCA 18; (1991) 172 CLR 243, at p 253)

[44] Wrongs Act 1958 (Vic) s.48(l).

NOTHING IN THIS WEBSITE IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING, WHICH WE STRONGLY RECOMMEND YOU BRING TO A LAWYER AND URGE YOU TO SEEK INDEPENDENT LEGAL ADVICE.

 





It is clear already there is a legal requirement to advise patients of all material risks associated with vaccines[1] and to obtain valid informed consent[2]. However, there is an equally a legal duty to disclose a suspected adverse event which has occurred in the course of treatment.  If a parent brings a child in for a vaccine, and afterwards the child develops symptoms of problems, the Doctor has a duty of care to investigate. One Australian case has directly dealt with this issue.

Failing to disclose potential adverse event

In Wighton v Arnot [2005] NSWSC 637[3], the patient had an adverse event during a procedure which caused nerve damage but the doctor did not advise the patient of his suspicion that this had occurred.  Moreover, the doctor didn’t test for it and did not initiate an investigation into the adverse event.  In that case by the time the patient saw a neurosurgeon for ongoing pain and by the time the nerve injury was diagnosed, it was too late for remedial medical treatment.

The adverse event in itself was not negligence.  The question was whether the doctor breached a duty of care to inform the patient, investigate the suspected injury and provide an opportunity for any remedial treatment.  The court held that there had been a breach.

Duty to disclose potential adverse event

The Court in holding that a duty to disclose existed, considered the relevance of that failure to disclose to the medical outcome, meaning, if the Doctor had informed the patient and investigated the matter, that there was potential to treat the condition and/or mitigate the damage caused.

The Court held that the exercise of due care required of the defendant was that he take reasonable steps to determine whether an adverse event had occurred and moreover that the patient had a right to know about the adverse event.

This decision recognised that there is a duty to disclose adverse event injuries and investigate them.  The key issue here is that the Court will consider is whether as a result of the failure to disclose and/or investigate the adverse event in a timely manner had a negative impact on the health outcome of the patient.

Most significantly the decision means that a doctor’s duty of care when administering vaccines to a legal requirement that a doctor, most especially if a parent is alarmed or raises concerns about a potential adverse reaction, not only to attend a post-procedure consultation, but that the doctor take reasonable measures to investigate and inform the patient of the adverse event.

This means it is vital that a doctor not only examine a parents concerns with a sufficient level of care, they must also inform a patient of any suspected adverse reaction from the vaccine and take reasonable measures to investigate and confirm diagnosis of the suspicions, once more the key issue is that if diagnosed early, remedial medical treatment can be undertaken in a timely manner to avoid further damage.

 

[1] Wrongs Act 1958 (Vic) s.50 (even where obvious – S.54).

[2] The Australian Immunisation Handbook 10th Edition,  accessed 03/02/2017 at 7.58pm http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/Handbook10-home

[3] Wighton v Arnot [2005] NSWSC 637.

 

NOTHING IN THIS WEBSITE IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING, WHICH WE STRONGLY RECOMMEND YOU BRING TO A LAWYER AND URGE YOU TO SEEK INDEPENDENT LEGAL ADVICE.





The Family Court Act1 provides that the Court must consider the best interests of the Child at all times, when exercising this legislative authority, s.60CA2 the Act states: In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. How a court determines what is in a child’s best interests is outlined in Section 60(CC)3, this paper will examine the position of the Court when it acts as a parent, therefore 60(CC) Sub Section 2(b)4 is not invoked, meaning that there is no suggestion in this scenario of the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, just an ordinary loving home, perhaps with parents who can not agree on this issue and need the Court to decide.

best_interests

Examining the Courts role in exercising parental responsibilities.

The United Nations Convention on the Rights of a Child does not explicitly define a child’s best interests. The term is ‘imprecise, but no more so than the “welfare of the child” and many other concepts with which the courts must grapple’, said the High Court majority in Marion’s Case5.

In the case of actions and decisions affecting an individual child, it is the best interests of that individual child which must be taken into account6. Parents have primary decision-making responsibility on behalf of their children (articles 5 and 18.1) but, if they fail to make the child’s best interests a basic concern, the State may intervene to protect those interests (see article 9.1 for example)7.

In common law the process the Court follows when answering such questions is not subjective but objective. The Court in effect invokes jurisdiction by Parens patriae, taking on the role of the parent.

When it comes to decisions that involve the Doctor-Patient relationship, at Common law this relationship does not exist without informed consent.

In the case of the Family Court of Australia exercising Parens patriae jurisdiction over the child, to ensure the child’s best interests are met, the Court must take the position of the reasonable man, or as the case may be the reasonable parent, it should take the role as a parent exercising and granting informed consent.

As such the Court must consider the question whether it is in the best interests of the Child to be vaccinated.

On one hand there is a preponderance of evidence produced by the Big Pharmaceutical Companies that demonstrate the safety and efficacy of Vaccines generally to the satisfaction of the Government authorities that regulate this area. It is widely acknowledged the benefits vaccines have brought to society over the decades we have been using them and the Governments objectives of increasing vaccination rates, for alleged herd immunity and the greater good of society as a whole.  These are really irrelevant considerations, when considering the individual, and their best interests, the greater good may not be what is best for the child.

In the first instance, the Doctor-Patient relationship can only exist with informed consent, this in turn involves full disclosure, especially when sought by a parent. Secondly the Doctor must consider each patient as an Individual when assessing whether or not the medical treatment proposed is in the best interests of the Child.

To answer this question the Court needs to examine firstly what is the risk involved that the vaccine seeks to prevent.

INFANRIX

Infanrix hexa is a vaccine used to prevent six diseases: diphtheria, tetanus, pertussis (whooping cough), hepatitis B, poliomyelitis (polio) and Haemophilus influenzae type b (Hib)8.

According to the World Health Organisation9 there have been 9 Cases of Diptheria in Australia since 2007, there have been Zero cases of Tetanus (Neonatal), there have been Zero cases of Polio.  Hepatitis B is a blood-borne virus. It does not spread in a community setting, especially among children who are unlikely to engage in high-risk behaviors, such as needle sharing or sex10, so is not a relevant or foreseeable risk to an infant unless one of the parents have Hep B themselves as held in Re H [2011] QSC 42711 and Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193 (2 September 2008), Hib does not cover the prevalent strains so can not be considered a significant benefit and finally pertussis is an interesting anomaly in that the more we have vaccinated against it the more it occurs12 with cases peaking last year at 22,508.

It is worthy to note that acellular pertussis (aP) vaccine (the final element of the DTaP combined vaccine), replaced the whole cell pertussis vaccine in the late 1990s, which was followed by an unprecedented resurgence of whooping cough [similar to what we see in Australia].

An experiment with deliberate pertussis infection in primates revealed that the aP vaccine is not capable of preventing colonization and transmission of B. pertussis13. The FDA has issued a warning regarding this crucial finding14.

Against this back drop of seemingly little scientific basis to arouse a reasonable parent to fear that their child is at risk, we must now examine the adverse events associated with Infanrix.

In Duke-Randall & Randall15 the Family Court ordered a child be vaccinated, however in that case there was no evidence before the Court of risk of harm to the children in being immunised.

One in Ten children given Infanrix Hexa will experience appetite loss, irritability, abnormal crying and restlessness with very common pain, redness, local swelling at the injection site, fever 38°C, and fatigue16.

One in a Hundred will experience upper respiratory tract infection, Respiratory, thoracic and mediastinal disorders such as Bronchitis and rhinitis, vomiting, diarrhoea, enteritis and gastroenteritis17 along with Pruritus and local swelling at the injection site over 5cm in size on an infant with fevers reaching 39.5°C, injection site reactions, including induration.

Less common reactions include somnolence, convulsions, bronchospasm, laryngitis, stridor, cough, abdominal pain, constipation, dermatitis, urticaria, conjunctivitis and diffuse swelling of the injected limb, sometimes involving the adjacent joint18.

Additionally in somewhere between 1/1000 and 1/10,000 cases it is associated with blood and lymphatic system disorders, lymphadenopathy, thrombocytopenia Immune system disorders and allergic reactions (including anaphylactic and anaphylactoid reactions) and nervous system disorders including convulsions, collapse or shock-like state (hypotonic hyporesponsive episode) with Respiratory, thoracic and mediastinal disorders apnoea1)[see Warnings and Precautions for apnoea in very preterm infants (≤ 28 weeks of gestation)]

Skin and subcutaneous tissue disorders like angioneurotic oedema and general disorders and administration site conditions including extensive swelling reactions, swelling of the entire injected limb and vesicles at the injection site19

The list of adjuvants and residues in Infanrix Hexa include aluminium hydroxide, aluminium phosphate, lactose, sodium chloride (salt), Medium 199, potassium chloride, formaldehyde, glycine, sodium phosphate, dibasic dehydrate, potassium phosphate, monobasic, neomycin sulphate, polymyxin B sulfate, polysorbate 20 and 80.

There is no conclusive science to support a position that the above adjuvants and residues have no long term lasting negative effect on humans, in particular the Court ought to consider studies that have linked things like Aluminum to degenerative brain conditions. In a study of Aluminum Neurotoxicity in pre-term infants receiving intravenous-feeding solutions containing aluminum it was associated with impaired neurologic development, brain damage in infants20.

In this case Infarix Hexa contains 0.5mg of aluminium hydroxide 0.32 mg of aluminium phosphate and where in the above study the dosage of 5ug/per kg of body weight was the maximum before noticeable impaired neurologic development, brain damage in infants occurred. The dosage being administered intra-muscularly in vaccines exceeds this limit by 500 times.

There is a Positive Association found between Autism Prevalence and Childhood Vaccination uptake across the U.S. Population21

Moreover there is no conclusive science provided to the TGA in regards to testing on the long term effects of using combinations of vaccines in one dose for convenience.

However we do have reports of adverse events to consider which are released by the TGA22, since January 1st 2014 to now (less than 2 years) there have been 2,575 adverse reactions associated with Infanrix, which include death in two reported cases.

With the TGA Performance statistics report: July 2015 to June 2016 citing some 36,290 adverse events being recorded against vaccines, which when considered against the latest available data of some 3,937,876 vaccines administered in Australia, it represents a 0.93% chance of you or your child experiencing an adverse reaction due to a vaccine.

The TGA also admits there is no data or studies done comparing vaccinated vs unvaccinated children to see if there are any trends in ill-effects of those that are vaccinated against children who are not23.  

The above data and information is all sourced from Government reports, the Manufacturers disclosures and Scientific Journals, there can be no suggestion of bias or cherry picking data, as the entire data-sets are used.

The Court is now in the position to examine the question having invoked its common law jurisdiction of Parens patriae to weigh the information before it, and answer the question from the perspective of the reasonable parent whether on the balance of probabilities that it is in the best interests of the Child to be immunized.

Given the special relationship that exists in the Doctor-Patient relationship which is only created by informed consent (absent consent, it is assault and/or medical malpractice) and the vital public importance of public confidence in the Health System and the maintenance of existing standards of consent as required by law, the Court in light of this needs to consider the individual interest of the child in question.

From the available evidence, there is no reasonably foreseeable risk in the first instance for the diseases being vaccinated against, since 2007 to now there is a statistically insignificant amount of people contracting the diseases, moreover if we do a comparison of the numbers contracting the disease versus the numbers experiencing adverse reactions, we have more adverse reactions than the disease itself.

Against the backdrop of the chances of the child contracting the disease against the adverse reactions reported, is the rights of the child here. The Court exercising its Parens patriae responsibilities weighing the interest of the child, when the child is with a loving, caring and responsible parent to monitor the child’s health and protect it from harm, the Court cannot now order on the balance of probabilities that the child would be better off than not being vaccinated.

The Court can not exercise its responsibilities of the reasonable parent and now order the parents right to informed consent be over-ridden and that any damage done to the child is an acceptable risk. This under no circumstances can be argued as being in the best interests of the Child.

In Rogers v Whitaker25 the High Court considered the position of informed consent, in that case there was less than a 1% chance of an adverse reaction, just as we have here statistically with the vaccines.

In the judgement text of GAUDRON J we can seek guidance in what the Court must consider when weighing the medical risks of a procedure in the best interests of the Child.

Duty of Care

  1. There is no difficulty in analysing the duty of care of medical practitioners on the basis of a “single comprehensive duty covering diagnosis, treatment and the provision of information and advice, provided that it is stated in terms of sufficient generality26.

  2. The duty involved in diagnosis and treatment is to exercise the ordinary skill of a doctor practicing in the area concerned. To ascertain the precise content of this duty in any particular case it is necessary to determine, amongst other issues, what, in the circumstances, constitutes reasonable care and what constitutes ordinary skill in the relevant area of medical practice. These are issues which necessarily direct attention to the practice or practices of medical practitioners. And, of course, the current state of medical knowledge will often be relevant in determining the nature of the risk which is said to attract the precise duty in question, including the foreseeability of that risk27.

Accepted Practice is not a Consideration at law

  1. Accordingly, even in the area of diagnosis and treatment there is, in my view, no legal basis for limiting liability in terms of the rule known as “the Bolam test”. This test derives from the charge to the jury by McNair J. in Bolam v. Friern Hospital Management Committee (1957) 1 WLR, at p 587) which is to the effect that a doctor is not guilty of negligence if he or she acts in accordance with a practice accepted as proper by a responsible body of doctors skilled in the relevant field of practice. That is not to deny that, having regard to the onus of proof, “the Bolam test” may be a convenient statement of the approach dictated by the state of the evidence in some cases. As such, it may have some utility as a rule-of-thumb in some jury cases, but it can serve no other useful function28.

Duty to provide all information when asked

  1. Diagnosis and treatment are but particular duties which arise in the doctor-patient relationship. That relationship also gives rise to a duty to provide information and advice. That duty takes its precise content, in terms of the nature and detail of the information to be provided, from the needs, concerns and circumstances of the patient. A patient may have special needs or concerns which, if known to the doctor, will indicate that special or additional information is required. In a case of that kind, the information to be provided will depend on the individual patient concerned. In other cases, where, for example, no specific enquiry is made, the duty is to provide the information that would reasonably be required by a person in the position of the patient29.

The Individual Patient Perspective

  1. Whether the position is considered from the perspective of the individual patient or from that of the hypothetical prudent patient and unless there is some medical emergency or something special about the circumstances of the patient, there is simply no occasion to consider the practice or practices of medical practitioners in determining what information should be supplied. However, there is some scope for a consideration of those practices where the question is whether, by reason of emergency or the special circumstances of the patient, there is no immediate duty or its content is different from that which would ordinarily be the case.

There is no EMERGENCY

  1. Leaving aside cases involving an emergency or circumstances which are special to the patient, the duty of disclosure which arises out of the doctor-patient relationship extends, at the very least, other matters identified as being within the duty of disclosure were the duty to alert the patient to bodily abnormality, the failure of the patient’s ailment to respond to the doctor’s ministrations, limitations to be observed for his or her welfare, precautionary therapy for the future and the need for or desirability of alternative treatment promising greater benefit.), to information that is relevant to a decision or course of action which, if taken or pursued, entails a risk of the kind that would, in other cases, found a duty to warn.

A RISK IS REAL AND FORESEEABLE BUT NOT FAR FETCHED AND FANCIFUL THAT AN ADVERSE REACTION TO A VACCINE WILL OCCUR.

A risk is one of that kind if it is real and foreseeable, but not if it is “far-fetched or fanciful”30. Certainly, the duty to warn extends to risks of that kind involved in the treatment or procedures proposed.

  1. And as at present advised, I see no basis for any exception or “therapeutic privilege” which is not based in medical emergency or in considerations of the patient’s ability to receive, understand or properly evaluate the significance of the information that would ordinarily be required with respect to his or her condition or the treatment proposed.

Finally as there is no Medical Emergency to justify the Court intervening in the Parent-Child and Doctor-Patient relationships, there is no basis for the Court to order a Child be vaccinated against the express wishes of a parent, when the Court exercises its Parens patriae jurisdiction and acts as a Parent would in the best interests of the Child, the data is in, and no matter what the science says that the benefits may outweigh the risks to the community and society as a whole, in this case the onus is on the Court to consider the Child’s best interests individually and here there is no reasonably foreseeable risk that we are protecting the child from and there is an appreciable risk of harm.

SPECIAL NOTE : This post is not to be considered legal advice, Family Law matters are particularly sensitive and we urge any parent reading this and interested to consult your lawyer for legal advice on whether this argument could assist your case.

Edits :
The following paragraph has been removed from the above text as the paper has been pulled by the Journal.

“, however there is a recent study of 415 mothers who provided data on 666 children, of which 261 (39%) were unvaccinated. Vaccinated children were significantly less likely than the unvaccinated to have been diagnosed with chickenpox and pertussis, but significantly more likely to have been diagnosed with pneumonia, otitis media, allergies and neurodevelopmental disorders24.”


Footnotes

1 FAMILY LAW ACT 1975 (Cth).

2 Ibid at S.60(CA).

3 Ibid at S.60(CC).

4 Ibid at S.60(CC), 2(b).

5 Marion’s Case: Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218.

6 Australian Human Rights Commission, Human Rights Brief No. 1, The Best Interests of Child http://www.humanrights.gov.au/publications/human-rights-brief-no-1 accessed 29.11.2016 at [4.54pm]

7 Ibid.

8 Department of Health, Therapeutic Goods Administration, Infanrix Hexa, https://www.tga.gov.au/alert/infanrix-hexa-vaccine accessed 29/11/2016 at [4.55pm].

9 World Health Organisation, Global Summary, Australia http://apps.who.int/immunization_monitoring/globalsummary/incidences?c=AUS accessed 29.11.2016 at [4.56pm].

11 Re H [2011] QSC 427.

12 World Health Organisation, Global Summary, Australia, http://apps.who.int/immunization_monitoring/globalsummary/incidences?c=AUS accessed 29.11.2016 at [4.58pm]

13 Warfel et al. (2014) Acellular pertussis vaccines protect against disease but fail to prevent infection and transmission in a nonhuman primate model. Proc Natl Acad Sci USA 111:787-92http://www.ncbi.nlm.nih.gov/pubmed/24277828 accessed 29/11/2016 at 10.57am.

Baboons vaccinated with aP were protected from severe pertussis-associated symptoms but not from colonization, did not clear the infection faster than naïve [unvaccinated] animals, and readily transmitted B. pertussis to unvaccinated contacts. By comparison, previously infected [naturally-immune] animals were not colonized upon secondary infection.”

14 U.S. Food and Drug Administration, FDA study helps provide an understanding of rising rates of whooping cough and response to vaccination http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm376937.htm accessed 29/11/2016 at 10.58am.

15 Duke-Randall & Randall [2014] FamCA 126 (12 March 2014)

17 Ibid.

18 Ibid.

19 Ibid.

20 New England Journal of Medicine, Aluminum Neurotoxicity in Preterm Infants Receiving Intravenous-Feeding SolutionsNicholas J. Bishop, M.D., Ruth Morley, M.B., B.Chir., J. Philip Day, Ph.D., and Alan Lucas, M.D.

N Engl J Med 1997; 336:1557-1562May 29, 1997DOI: 10.1056/NEJM199705293362203 http://www.nejm.org/doi/full/10.1056/NEJM199705293362203 accessed 29.11.2016 at [5.02pm]

22 Department of Health, Therapeutic Goods Administration, INFANRIX Database search from 1/1/2014 to 17.8.2016 accessed at [5.04pm] here http://apps.tga.gov.au/PROD/DAEN/daen-report.aspx

23 Email from TGA – Marked as Annex “A”

24 Vaccination and Health Outcomes: A Survey of 6- to 12-year-old Vaccinated and Unvaccinated Children based on Mothers’ Reports http://journal.frontiersin.org/article/10.3389/fpubh.2016.00270/abstract accessed 28/11/2016 at [4.47pm].

25 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992)

26 Rogers v Whitaker [1992] HCA 58 at [2]of Guadron J

27 Ibid at [3].

28 Ibid at [4].

29 Ibid at [5]

30 Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40, per Mason J. at p 47. See also Gala v. Preston [1991] HCA 18; (1991) 172 CLR 243, at p 253)

NOTHING IN THIS WEBSITE IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING, WHICH WE STRONGLY RECOMMEND YOU BRING TO A LAWYER AND URGE YOU TO SEEK INDEPENDENT LEGAL ADVICE.



References   [ + ]

1. [see Warnings and Precautions for apnoea in very preterm infants (≤ 28 weeks of gestation)]

Skin and subcutaneous tissue disorders like angioneurotic oedema and general disorders and administration site conditions including extensive swelling reactions, swelling of the entire injected limb and vesicles at the injection site19



A beautiful summary of how the Court views evidence that you submit.

evidence

I often hear people complaining how the Police did not act on their complaints or some other authority did not act or did not accept their complaint.

The problem often comes down to the quality of your evidence…will your evidence pass this test?

“The defendant’s case imputed serious dishonesty to the plaintiff and it was required to prove its case on the balance of probabilities in accordance with s 140 of the Evidence Act (NSW). The court noted that in order to satisfy the onus,…

the defendant must adduce proofs that raise a “more probable than not” inference in favour of what it urges; there must be a reasonable and definite inference available on the whole of the evidence; there must be something more than conflicting inferences of equal degrees of probability. And in assessing whether the defendant has satisfied its obligation, the Court must take into account the gravity of the matters alleged….

This case above was an Insurance case where the person had to prove that it was not a fire that was deliberately lit.

The plaintiff claimed on the policy. The defendant refused to pay on the basis that the claim was fraudulent. It alleged that the fire was lit deliberately; the plaintiff had a financial motive for setting the fire; and the plaintiff made false statements to the defendant and its agents in connection with, and to induce payment of, the claim.

The issues for determination were whether the plaintiff caused or connived at the setting of the fire and whether the plaintiff knowingly made false misrepresentations to the defendant to induce it to pay the claim, therefore excluding the plaintiff from cover under the policy.

The court inferred that the fire was set deliberately, by someone other than the plaintiff, who had knowledge of the alarm code and who may have had a key to the property. However, the court could not conclude that access to the property was obtained by someone whom the plaintiff had entrusted a copy of the key for the purpose of setting the fire. To the contrary, the court observed that the plaintiff’s financial interests would have been best served by prompt completion of the building works and sale of the property thereafter. Although the court acknowledged that the plaintiff’s statements to the defendant were inconsistent from time to time, it did not accept that the statements made by the plaintiff were with knowledge that they were false and with the intention of misleading the defendant into accepting and paying the claim.

Considering and weighing the evidence as a whole, and bearing in mind the gravity of the finding for which the defendant contended, the court was not satisfied, on the balance of probabilities, that it was the plaintiff who caused the fire to be set (or that the plaintiff connived at its being set). The court therefore concluded that the defendant failed to discharge its onus of proving that the plaintiff was relevantly responsible for setting the fire.

A Verdict was entered for the plaintiff for $991,946 plus interest.

Implications for you

For an insurer to successfully deny an insurance claim for fraud, the standard of proof that the insurer must meet is the standard of balance of probabilities, requiring thorough investigation and consideration of all of the evidence.

Rolleston v Insurance Australia Ltd [2016] NSWSC 1561

Source : Barry Nillson Law

NOTHING IN THIS WEBSITE IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING, WHICH WE STRONGLY RECOMMEND YOU BRING TO A LAWYER AND URGE YOU TO SEEK INDEPENDENT LEGAL ADVICE.





Case : Cheng v Farjudi [2016] NSWCA 316

canvictims

The Crime

The appellant and the respondent were involved in an altercation in the gaming room at the Parramatta Leagues Club. The respondent suffered a fracture to the right orbit and psychiatric injury in the form of post-traumatic stress disorder. The appellant was the subject of criminal charges in relation to the assault on the respondent. He entered a guilty plea and had a good behavior bond imposed pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The Civil Case for Damages

After admitting guilt in the Criminal trial, the victim now initiated a Civil Claim for damages.

This time he denied that he had struck the respondent and pleaded, in the alternative, that he had acted in self-defence within the meaning of s52 of the Civil Liability Act 2002 (NSW). He claimed he had been acting in defence of his wife. The appellant further pleaded that any award of damages ought to be limited by the operation of s 53 of the Civil Liability Act.

The issues for determination on appeal were:

(i) Whether the respondent was entitled to damages at all and whether, if that were the case, they should have been limited pursuant to s 53 of the Civil Liability Act 2002 (NSW);

(ii)   Whether the award of exemplary damages was properly made; and

(iii)   Whether the award for future out-of-pocket expenses was justified on the evidence.

HELD : Awarded damages in the following amounts:

(1) General damages: $100,000

(2) Past out of pocket expenses: $2,500

(3) Future out of pocket expenses: $28,009 (corrected to $18,181)

(4) Past domestic assistance: $40,824

(5) Future domestic assistance: $20,594

 

NOTHING IN THIS WEBSITE IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING, WHICH WE STRONGLY RECOMMEND YOU BRING TO A LAWYER AND URGE YOU TO SEEK INDEPENDENT LEGAL ADVICE.





Without consent there is no “Doctor-Patient” relationship in law.

doctor

The Informed Consent Doctrine is the cornerstone of the Doctor-Patient relationship.   It has altering the attitudes of a new generation of Doctors towards their patients, and its requirements are now reflected in consent forms that heath care institutions require patients to sign upon admission and before various procedures are performed.

Setting the Boundaries for the Doctor-Patient Relationship.

You can only give valid permission  if you are provided with all the information that is necessary to make a decision about the proposed medical treatment.
It is not acceptable if the Doctor just asked if he has your permission to perform the procedure.
You must be able to understand the reasonable and foreseeable consequences of giving permission for consent or not giving permission for the procedure.
It is generally accepted in order to provide proper permission for medical treatment your doctor must explain :
1) The Nature of the Proposed Medical Procedure.
2) The Reasonable Alternatives to the medical procedure.
3) The Risks, Benefits, and uncertainties.
Your permission may be expressed in words or actions, but for your protection you ought to insist on it being in writing.
For example when undergoing a procedure your doctor will usually get you to sign a consent form to confirm your permission,  but he may want to avoid it, to create uncertainty and make it difficult for you to prove you did not give consent.
Any medical procedure that is performed without proper informed consent is deemed to be an assault, the Doctor who performed the procedure will be responsible for any injury as a result of that medical procedure.
It is critical for you to insist on the consent to be in written form and the process by which it was granted (if at all) recorded.
Particularly you should have written notes of the above three points using them as respective headlines.
Source : http://www.mckigganhebert.com

NOTHING IN THIS WEBSITE IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING, WHICH WE STRONGLY RECOMMEND YOU BRING TO A LAWYER AND URGE YOU TO SEEK INDEPENDENT LEGAL ADVICE.





There is an interesting matter that I have been confronted with.

lawyer

A patient goes to see a Medical Practitioner (who is a Doctor registered with the Australian Medical Board) about obtaining the Doctors written recommendation as to the start date for a treatment program to begin for her son.

In this case there were multiple injections involving 11 different types of medication that would be injected into the body of the 18 month old child.  The mother was concerned about a scientific report she read in the The New England Journal of Medicine (NEJM) which is a weekly medical journal published by the Massachusetts Medical Society.  It is among the most prestigious peer-reviewed medical journals[1] as well as the oldest continuously published one.[1]

The Doctor would not give her opportunity to discuss science and shut her down saying “we are not obliged to provide scientific evidence as per legal advice (Citing name of Insurer).   So now that science was off the table in things to discuss, the Doctor then discussed the risk versus benefit of the treatment, saying things can go wrong, allergic and other reactions can occur however these risks are accepted by the Australian Government who approved the treatment through the Therapeutic Goods Administration and “mainstream medical literature” says the risks are “vastly outweighed by the potential benefits.”

The discussion shifted now to a Family Court Consent Order.  For those unfamiliar with that, a consent order is an order of the Court that ratifies what the parties have agreed to do, it is not on a contested matter in trial that the Court had to make a ruling on and decide the matter.

The Court Order contained the express words that a “written recommendation as to the start date for a program to begin for their son” was to be obtained from this Doctor.  The decision that had to be made was when the treatment would start (as recommended by the Doctor) and what combination of treatments would be involved for the child with a treatment plan so the child is at a standard of care that the Government approves of in a schedule.

The Mothers concern was the report she had read in the medical journal had indicated that the treatment contained a chemical in the injection which when given to an infant in excess of 5ug per Kilogram of body weight would cause neurological developmental problems. The neurological development of the 182 surviving infants (in the study) who could be tested was assessed by using the Bayley Scales of Infant Development at 18 months of age, the very age of the infant in this case.

The conclusion in the study was in preterm infants, prolonged intravenous feeding with solutions containing the chemical is associated with impaired neurological development.  Brain Damage in Infants.

The treatment the Doctor is recommending has 650ug in a single dose way more than the 5ug/Kg that was found in the study that concluded it caused brain damage in infants.

The mother raised the question of consent and the Doctor told her the law over-rides consent and her further consent was no longer needed!

The Doctor “emphasised the rules will be that” and continued that “any obstruction to the treatment schedule will be seen as a breach in the Court Order and be referred to the police, The Police  were aware that this court order was in effect and will be enacted in this practice and were notified in person already.”

The mother “must [bring the child to] attend on the due date, even if [the child is] unwell and the decision whether to proceed or not with the treatment will be decided solely by the Doctor [without need of consent of the mother].

Keep in mind the Courts have held this treatment once administered because you consented you have no recourse to sue or complain, you were aware of the risks.  If something goes wrong, too bad, you are expected to take one for the team.

 


So now I ask you do you need to see a Lawyer before you see your Doctor? Going by the above, it sounds like it is almost a pre-requisite that you have one there with you or on call to answer the myriad of legal questions that have just emerged.

Here you have a Doctor erroneously interpreting a consent order as being one that stripped the mother of her right to obtain free and prior informed consent about the treatment to be administered, she is told that the Doctor upon receiving legal advice need not answer any scientific questions about the safety of the treatment, and despite your fears with the scientific report, the treatment would still be administered, without your consent as the Government and the Medical literature say that the treatment is worth the risk.

Whoa there are multiple errors in law already occurring here with the Doctor exerting undue influence upon the mother supposedly acting on legal advice.   Imagine what is going through the mothers head?  The Doctor is telling her the Doctor, Medical profession, Government all think this treatment is worth the risk and that the Court is saying she has no choice and her consent is not required and if she delays or interferes with the treatment police would be called and they are already notified.

It seems that you do need to have a lawyer to even see a Doctor today.  Not to mention this Doctor may need to now see a lawyer about the breaches to the

Good medical practice: a code of conduct for doctors in Australia.

I won’t go into breaking it down into the boring details of exactly what sections are breached but suffice to say that the mother ought to file a complaint with the Health Commissioner in her state and seek an order of clarification from the Court on the interpretation of the Court Order by the Doctor and how he could manage to get it so wrong as to think it took away a mothers right to informed consent.

On how he could get it so wrong that he would think that a Family Court Consent Order (Commonwealth Jurisdiction for newbies) is enforced by the State Police Force?   The consent order is not enforced by the police at all unless it is expressly stated in the Court Order, which in this case it is not.

On how could he get it so wrong that his duties to his patient as outlined in the code of conduct could not be disregarded to the point that he refuses to consider relevant scientific medical evidence from one of the most respected medical journals in the world nor even offer an explanation.

Can you imagine the stress and anxiety this Doctor is causing to the mother with his Dictatorship authoritarian approach?

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NOTHING IN THIS WEBSITE IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING, WHICH WE STRONGLY RECOMMEND YOU BRING TO A LAWYER AND URGE YOU TO SEEK INDEPENDENT LEGAL ADVICE.

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OPCA theorists often insist that THE UNIFORM COMMERCIAL CODE is some sort of “international law” that applies to every nation that trades with the United States, but this is completely false.
ucc
The U.C.C. operates mainly in the U.S. where it is used to harmonise the law of sales and other commercial transactions across the nation through its adoption by all states. The Uniform Commercial Code has no jurisdiction in Australia, nor any other sovereign nation, although some countries have included certain parts of it into their own provisions to govern commercial transactions with U.S. companies and institutions.For these reasons we have adopted Article 9 and Article 3 in Australia, which are of course superceded by our own nations state and federal laws. Article 9 is “Secured Transactions”, covering transactions secured by security interests between banks, and Article 3 is “Negotiable Instruments” covering promissory notes, bills of exchange, banknotes, demand draft and cheques, for the purposes of trade with U.S. companies and institutions.

http://www.metrocorpcounsel.com/articles/13084/international-ucc-equivalents

Article 9 does not even govern real property security interests, only certain fixtures to real property. Mortgages, deeds of trust, and installment land contracts, which are the principal forms of real property security interests, remain governed by state laws. The closest thing we have to the U.C.C. in Australia is the Personal Property Securities Register but its not the same thing.

http://www.ppsr.gov.au/

In the Personal Property Securities Act it also clarifies the exclusion of current laws…

PERSONAL PROPERTY SECURITIES ACT 2009 – SECT 254(1)

“This Act is not intended to exclude or limit the operation of any of the following laws (a concurrent law), to the extent that the law is capable of operating concurrently with this Act:
(a) a law of the Commonwealth (other than this Act);
(b) a law of a State or Territory;
(c) the general law.”

http://www.austlii.edu.au/au/legis/cth/consol_act/ppsa2009356/s254.html

This exclusion of current laws is also clarified in the Corporations Act that all foreign companies are subject to…

CORPORATIONS ACT 2001 – SECT 5E(1)

“The Corporations legislation is not intended to exclude or limit the concurrent operation of any law of a State or Territory.”

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s5e.html

Source : Rob Sudy’s – The Organized Pseudo Commercial Argument

 

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NOTHING IN THIS WEBSITE IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING, WHICH WE STRONGLY RECOMMEND YOU BRING TO A LAWYER AND URGE YOU TO SEEK INDEPENDENT LEGAL ADVICE.

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