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No Jab, No Pay / No Play Laws an Australian Constitutional Law Perspective

This paper examines the legality and enforceability of the new Australian Government “No Jab, No Pay/Play” Legislation with the view of potential aspects to challenge the validity of this new law.

Starting with an examination of the legislation[1] and its intent, the Explanatory Memorandum states  "the Bill will ensure children fully meet immunisation requirements before their families can access child care benefit, child care rebate or the family tax benefit Part A supplement, [‘patient compulsion factor’]."

Brief Background

The Government expects the measure will result in savings of $508.3 million over five years. Exemptions will be granted only for medical reasons and Media reports suggest around 10,000 families will lose eligibility for payments in 2016–17[2].

The Budget measure is primarily targeted at conscientious objectorsthe target’ who allegedly make up 1.77% of the population who “should be” vaccinated, but will affect all those who receive child care subsidies or the FTB-A supplement and whose children’s vaccination records are not up-to-date.

To try and justify this the Government cites the overall rate of immunisation required to achieve herd immunity for measles at 95 per cent[3].

No Jab, No Pay but only a "Good Doctor" can certify?

In reading the explanatory memorandum of the new Social Services Legislation Amendment (No Jab, No Pay) Bill 2015, there is the following explanation for changing the definition of a doctor.

"The current definition of medical practitioner in subsection 3(1) of the Family Assistance Act would include a broader range of medical professionals than the definition of general practitioner in the Health Insurance Act 1973."

Looking at the original definition of "medical practitioner" in the Family Assistance Act it states:

"medical practitioner” means a person registered or licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners.

The Government now no longer accepts this "kind" of doctor but only one as defined in the Health Insurance Act of 1973, in which there is no real clear definition of a "general practitioner" but there is reference to "Recognised Fellows of the Royal Australian College of General Practitioners"

It would appear that your doctor needs to be recognized by this "Royal Australian College of General Practitioners” ‘ARCGP Factor’ to be able to get a medical certificate of exemption and even then only by using FORM : IM011.1512 ‘Form Coercion’[4].

Then in the Federal Budget paper on this issue the government states:

There is also $26.4 million over four years to improve immunisation coverage rates, particularly in children and adolescents. The Government intends to:

  • Make an incentive payment to doctors ‘economic compulsion factor’ and other immunisation providers when they identify a child who is overdue for vaccination and call them in for a catch up.

  • Fund an awareness campaign to promote the NIP and address parents’ concerns regarding immunisation.

The above appears to coincide with an unprecedented advertising campaign by the Royal Australian College of General Practitioners labelling themselves as the “Good Doctors” which by implication suggests if your Doctor is not a member they are “bad doctors”[5].

So when it comes time for you to obtain an exemption certificate it would appear only the “Good Doctors” of the ARCGP Factor are able to certify that your child is exempt. In pursuit of this the Government has gone to the lengths of tying the hands of the “Good Doctors” of the ARCGP Factor by only accepting certification on a Government prescribed form [Form Coercion Factor] and only on reasons provided for in the Australian Immunisation Handbook[6]AIH Coercion Factorproduced by the Executive.

Even when it comes to allowable “contraindications” the Government through AIH coercion factor controls the Doctors decision making process and for instance even if you had a family history of adverse reactions to vaccines, this would NOT be a valid reason for exemption.

Appeals to the Secretary are possible but these are also limited to compliance “with any decision making principles set out in a legislative instrument made by the Minister”[7].

The Government is also introducing the ‘Australian School Vaccination Register[8]’ to monitor vaccination of all school children up to the age of 20 years.  Through these efforts to improve coverage rates, coupled with financial penalties for non-compliance with immunisation schedules, the Government believes that it is taking a ‘balanced “carrot and stick” approach’ to encouraging vaccination.

Civil Conscription as a basis for a legal Challenge – It’s the Vibe

It must be remembered that Section 51(xxiiiA) was added to the Constitution by the people of Australia through a referendum.

It is clear from the referendum debates that Australians, while accepting that social, pharmaceutical, dental and medical benefits provided by the Government were important for the collective good, they also recognised the importance of both the right to professional independence held by medical and dental practitioners, and the right to personal autonomy in a doctor-patient relationship. Section 51 (xxiiiA) guarded against the possibility of the reduction of these rights by the Federal Government[9].

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 51

(xxiiiA)  the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;

"The reference to "Civil Conscription" ...at the very least, it means that the Commonwealth cannot force doctors to provide medical and dental services or, probably, to provide them in a particular way"[10]

The General Practitioners[11] case held that federal legislation involving the practical, economic compulsion of medical practitioners would offend the prohibition, but suggested that a compulsion which merely relates to the manner in which non-conscripted work should be done would not breach s 51(xxiiiA).

In other words, a doctor who freely volunteers to perform a medical service does not become a conscript simply because federal legislation requires her or him to perform that service in a way that is safe or complies with other widely accepted professional standards[12].

Here the No Jab, No Pay goes beyond requiring a doctor to “perform a service in a way that is safe or complies with widely accepted professional standards.  There is a practical compulsion [ARCGP Factor] along with Form Compulsion together with an economic compulsion factor.

The Federal Court had earlier held in Selim[13]:

To the extent that there is a practical compulsion for general practitioners to participate in the Medicare Scheme, what is compelled is not service of the Commonwealth. Rather, it is that they conduct their practices with the care and skill that would be acceptable to the general body of practitioners. Such a condition is “clearly necessary to the effective exercise of the power conferred by s 51(xxiiiA)”. The Act does not authorise civil conscription.

In contrast the No Jab, No Pay/Play legislation has a patient compulsion factor with the target forced to see a Doctor under the ARCGP Factor who is under an economic compulsion factor and forced form coercion under the AIH Factor, all of which distinguishes the current situation from Selim.

In determining the meaning of “any form of civil conscription”, French CJ and Gummow J endorsed remarks made by Aickin J in General Practitioners at 571:

“Civil conscription” is not a technical expression with a settled historical meaning. It is no doubt used by way of analogy to military conscription but the use of the words “any form of civil conscription” indicates to my mind an intention to give the term a wide rather than a narrow meaning, the precise extent of which cannot be determined in advance.

Yet, through their discussion of legislative history and the genesis of s 51(xxiiiA), French CJ and Gummow J ultimately support a construction which treats civil conscription as involving some form of legal or practical compulsion or coercion[14].

This construction extends to prohibiting any compulsion to carry out work or provide services for the Commonwealth itself, a statutory body which is created by the Parliament for the purposes of the Commonwealth, or a third party (whether private or governmental in nature) if at the direction of the Commonwealth (at [60]). In this case, the provisions of the Health Insurance Act challenged by Drs Wong and Selim were held only to condition the enjoyment of membership, rather than amounting to practical compulsion to perform a professional service (at [68]) and French CJ and Gummow J dismissed their appeal.

If we compare this to the No Jab, No Pay/Play Legislation, a significant difference is here the Doctors are in fact experiencing an economic compulsion factor and the form coercion along with AIH coercion factor to comply.

Kirby J used an interpretive approach in Wong[15] to hold that the words “medical and dental services” also include, of necessity, the patients who are the recipients of the provision of such services [patient compulsion factor].

Given this extended wider meaning (Stemming from French CJ, Gummow J and Kirby J above) it goes to reason that the prohibition on civil conscription extends to the patients as well,  adding to the AIH Coercion factor and economic compulsion factor we have the patient compulsion factor to consider in this equation.

Kirby continues (at [125], [126]-[127]):

The purpose of incorporating a prohibition on “civil conscription” in the provision of such services is thus to preserve such a contractual relationship between the provider and the patient, at least to the extent that each might wish their relationship to be governed by such a contract.

In this sense, the prohibition is expressed for purposes of protection, including a protection extending to the patient [prohibiting patient compulsion factor]. It is designed to ensure the continuance in Australia of the individual provision of such services, as against their provision, say, entirely by a government-employed (or government-controlled) healthcare profession.

... [T]he prohibition on “any form of civil conscription” is designed to protect patients from having the supply of “medical and dental services”, otherwise than by private contract, forced upon them without their consent.

[A] law pretending to be one to uphold the lawfulness and integrity of financial expenditures but which, instead, was properly to be characterised as one intruding into the individual relationship between providers of “medical and dental services” and recipient patients, might attract constitutional invalidation.

So might a law which was so detailed and intrusive as to impose coercive requirements and restrictions on the provider of such services, disproportionate to any legitimate federal interest, financial or otherwise.

Similarly, to enact laws imposing blanket rules affecting the individual relationship between providers of “medical and dental services” and their recipients, whether for reasons of cost minimisation or for the achievement of particular administrative outcomes in terms of medical or dental practice, could risk invalidation. They might do so either as falling outside the primary grant of legislative power or as falling within a prohibited “form” of “civil conscription”[16].

Here we have the government openly admitting that this no jab no play/pay legislation is “primarily targeted at conscientious objectors” [the target] despite their numbers being only 1.77% in order to save of $508.3 million over five years by bribing Doctors with $26.4 million over four years to improve immunisation coverage rates,  when the Government knows factors affecting vaccine immunisation coverage to achieve their 95% alleged herd immunity figure are more geographical and other factors[17].

The test for attracting the prohibition contained in s 51(xxiiiA) is whether the impugned regulation, by its details and burdens, intrudes impermissibly into the private consensual arrangements between the providers of “medical and dental services” and the individual recipients of such services. It is this consensual feature of those arrangements which the head of power postulates will be undisturbed.

Most obviously, any such disturbance would happen in the unlikely event of an attempt by the Parliament to revive the nationalisation of the healthcare professions or to force their members into full-time or part-time work for the federal government or its agencies. It would also occur where a conclusion was reached that the true purpose of the law was not the regulation of the legality and financial integrity of such benefits but an unjustifiable intrusion into the conduct of medical and dental practice (AIH Coercion Factor), inconsistent with, or travelling significantly beyond, the ordinary standards generally observed by such professions in Australia[18].

The guarantee [against civil conscription], they held, would be breached by federal legislation requiring doctors to treat a particular class of patients [the target] or to perform a particular service [AIH Coercion Factor, Economic Compulsion Factor] (whether or not on behalf of the Commonwealth)[19].

Heydon J agreed with the other members of the High Court that civil conscription “is not limited to ideas about compelling doctors to work for the Commonwealth[20]:

While the legislation does not make medical practitioners servants of the Commonwealth, medical practitioners are engaged in the compulsory provision of services for third parties as directed by the Commonwealth.

The expression “civil conscription” extends to the very extensive intrusions effected by the….scheme into the relationships between doctor and patient through which doctors supply their services in circumstances where it is not in a practical sense possible for doctors to decline to provide the services [Form Coercion, AIH Coercion Factor].

One of the most detailed descriptions of the types of federal legislation prevented by the guarantee in s 51(xxiiiA) was provided by Aickin J in General Practitioners Society v Commonwealth (1980) 145 (2009) 17 JLM 196 201

CLR 532 at 565-566:

No doubt a legal obligation to perform particular medical or dental services [AIH Coercion Factor]…..would be clear example of civil conscription.

An equally clear example would be the prohibition of the performance of medical or dental services by particular qualified practitioners [ARCGP Factor].

Other forms of “practical compulsion” are easy enough to imagine, particularly those which impose economic pressure [economic compulsion factor] such that it would be unreasonable to suppose that it could be resisted.

The imposition of such pressure by legislation would be just as effective as legal compulsion, and would, like legal compulsion, be a form of civil conscription.

To regard such practical compulsion as outside the restriction placed on this legislative power would be to turn what was obviously intended as a constitutional prohibition into an empty formula, a hollow mockery of its constitutional purpose.

The High Court decision in the PSR[21] case supports the view that the civil conscription prohibition over federal legislation on medical and dental services in s 51(xxiiiA) of the federal Constitution provides (as then Opposition leader RG Menzies intended, on inserting it and as basic principles of contemporary constitutional interpretation confirm), a very broad guarantee against federal legislation practically compelling professionals to perform medical or dental services either for it or a private employer.

The provision thus operates in practical terms, according to the reasoning of all judges in the PSR case, as a guarantee that providers of Australian medical and dental services (a class of persons necessarily broader than registered medical practitioners and dentists) must be protected from federal legislation that erodes their choice of employment [ARCGP Factor]. As Kirby J most specifically identified, it ensures that providers of medical and dental services are entitled, if they wish, to become independent business people forming their own direct contracts with patients[22].

In BMA[23] the requirement of using the government prescription form [Form Coercion was discussed], irrespective of whether the drugs were being prescribed from the Formulary or not, amounted to a form of civil conscription.

Williams J said that whenever medical or dental 'services are provided whether as services exclusively or in the course of providing some other benefit, the law must not authorize any form of civil conscription of such services.[24]'

SCOPE OF LEGISLATIVE POWER UNDER 51(xxiiiA)

 Latham CJ delivered the leading judgment. His Honour first discussed the issue of the nature and scope of the legislative power granted to the Federal Parliament under the amendment.

He stated that as a consequence of the introduction of the words 'the provision of' at the beginning of s 51 (xxiiiA), the new power given to the Commonwealth 'relates only to provision of medical services by the Commonwealth, and not by ... doctors in private practice.[25]'

While the Commonwealth Parliament can validly make laws with respect to the provision of the benefits and for medical and dental services, it is not authorised to make laws 'providing for the complete control of medical services rendered by any person to any other person. [AIH Coercion Factor][26].'

Noting that physicians earn their living by practising medicine, his Honour commented that in determining whether there is compulsion [economic compulsion factor], the court should consider 'not only the bare legal provision but also the effect of that provision in relation to the class of persons [the target] to whom it is applied in the actual economic and other circumstances of that class[27].'

Latham CJ stressed the importance of the words 'any form' in the prohibition, and said that '[t]hey show that the Parliament intended that any service to which the limitation applied should be completely voluntary and not procured by compulsion [economic compulsion factor] of law[28].'

His Honour discussed the 'broad purposive construction' approach to interpretation, noting that: The object of conferring power upon the Commonwealth Parliament to make laws …under a scheme which should involve no compulsion of service by any person, which would leave every person, according to his own will, and not by reason of the exercise of the will of Parliament or of any other person, at liberty to take part in the execution of the scheme or to stand outside the scheme altogether, whether as doctor, as chemist or as patient[29].

With regard to patients, the constitutional objective was to safeguard the right to be free from governmental interference in making choices about one's health care, which John Stuart Mill regarded as a fundamental civil right[30].

Consequently each adult person of sound mind 'is the proper guardian of his own health, whether bodily, or mental or spiritual[31].'  The majority's view that the central area of power under s 51(xxiiiA) concerns the provision of medical and other services by the Commonwealth, not private medical practice, would suggest that the prohibition would apply to Commonwealth laws regulating private practice enacted under other heads of power, not only the amendment[32].

A wide distinction exists between on the one hand a regulation of the manner in which an incident of medical practice is carried out, if and when it is done, and on the other hand the compulsion to serve medically or to render medical services[.] 49 The latter is within the prohibition, but the former is not[33].

When it comes to the “No Jab, No Play/Pay” Legislation the question of law now is whether this is a “compulsion to serve medicinally or render medical services” and as discussed the multiple factors of AIH Coercion, Economic Compulsion, Form Coercion, the Target and  ARCGP Factor all add up to the only possible conclusion that this Legislation is prohibited constitutionally.

“The regulated incident of practice that is financial and administrative, rather than medical or dental, falls outside the prohibition[34].”

Again with the No Jab No Pay/Play we can distinguish it in that the regulated incident is medical in nature not administrative or financial regulation.

Consequently, according to Dixon J, unlike the compulsion to serve medically or to render medical services[35], the regulation of the manner in which financial and administrative incidents of medical practice are carried out - such as using government forms for writing out prescriptions - does not infringe the prohibition[36].

Once more we can distinguish the BMA case in that the Form Coercion here with the No Jab, No Pay is not merely a prescription form that a Doctor completes,  but this Form attached here as ANNEX ‘A’ is clearly restrictive and coercive especially when considered together with the economic compulsion factor involved and the AIH Coercion factor.

In General Practitioners[37] Gibbs J delivered the leading judgment. His Honour reiterated the principle that there is no explicit head of power under which the Federal Parliament can regulate private medical practice, in the sense of the physician-patient relationship.

"The Commonwealth's powers are limited to regulation of those financial and administrative incidents of practice that pertain to provision by the Commonwealth of medical and pharmaceutical benefits."

Once more we can distinguish this judgment and compare with the No Jab, No Pay where the Government may have exceeded their authority in reaching into the physician-patient relationship with their coercive (AIH) and economic compulsion factors.

Even Gibbs J who had a very narrow interpretation of civil conscription,

In his judgment defined the phrase 'civil conscription' as denoting 'the calling up of persons for compulsory service other than military service.' He argued that the term civil conscription encompassed any compulsion of law requiring that physicians should engage in a particular occupation, or perform particular work[38].

We can distinguish this with No Jab, No Pay in that the Physician is in fact through the economic compulsion factor along with the ARCGP Factor, AIH coercion Factor and Form Coercion compelled into performing particular work.

Gibbs J continues and states ‘However, this term does not extend to the requirement by the Commonwealth that they perform work in a particular way [ARCGP Factor, AIH coercion Factor and Form Coercion], if that requirement is merely incidental to, and intends to regulate the manner in which administrative and financial incidents of their medical practice are carried out, and did not oblige the physicians to perform a medical service[39].

In retrospect, it appears that the concerns of the majority in BMA, criticised by Gibbs J in General Practitioners, were well-founded. Once restraints imposed by the Constitution upon the legislative powers of the Commonwealth are attenuated through wide judicial interpretation of incidental powers, it becomes difficult for the courts to confine these amorphous powers so as to restrain the Commonwealth from going too far in a coercive direction[40].

The question here it seems is when we have a new provision in our constitution that was ratified by a referendum of the people, we should consider the debates and discussions at the time to discover the intentions of the addition of the words ‘civil conscription’ and ask the Court whether it is too late to now constrain the Commonwealth from going too far in this coercive direction as to make the will of the people mute and academic.

 Aickin J confirmed that the words 'but not so as to authorize any form of civil conscription' were designed to impose an important limitation on legislative power, and that this limitation extends to practical as well as legal compulsion[41].

His Honour pointed out that imposition by legislation of economic pressure [economic compulsion factor] that is difficult or unreasonable to resist would be just as effective as legal compulsion, and would, like legal compulsion, be a form of civil conscription. To regard such practical compulsion as outside the restriction placed on this legislative power would be to turn what was obviously intended as a constitutional prohibition into an empty formula, a hollow mockery of its constitutional purpose[42].

Murphy J stated that practical compulsion, as distinct from legal compulsion, is enough to satisfy the concept of 'civil conscription' in s 5 1(xxiiiA)[43].

The No Jab, No Pay Legislation is a direct attack on the Ethical tradition going back to the Hippocratic Corpus[44].  With the ARCGP Factor, AIH coercion Factor and Form Coercion requirements it goes far beyond the regulation of merely administrative or financial aspects of medical private practice[45], and strikes at the core of the therapeutic relationship.

It has been recognised by law that the medical practitioner's ethical duty of confidentiality is pivotal to the patient-doctor relationship[46].

The interest in maintaining professional duties of medical confidence, originally embodied in the Hippocratic Oath[47], is today regarded as an important public interest based upon the principle that it is in the interest of public health to encourage patients to truthfully disclose personal information without fear of embarrassment, stigma or incrimination that such disclosure may otherwise generate[48].

Here we have a Government that is trying to impose its will on both Doctors and Patients alike and directly interfere with their relationship.  A Conscientious Objection is no longer sufficient from the Patient, the Doctors medical independent opinion no longer carries weight [ARCGP Factor] he must do as he is told and through Form Coercion and AIH Coercion Factors force disclosure from the patient.  The Hippocratic Oath and Hippocratic Corpus are all but dead and buried with the only hope left is the High Court draws a line in the sand and says enough is enough, this is civil conscription and goes against the very heart of the rule of law and rules of natural justice.

The professional duty of confidentiality can be enforced through the law of equity[49], the common law[50], professional codes of ethics[51] and statutory provisions in a number of Australian States and Territories such as the Australian Consumer Laws which prohibit, inter alia, exclusive dealing, the offence of exclusive dealing is broadly defined under the Act as involving one person who trades with or provides services to another imposing restrictions on the other's freedom to choose with whom, or in what, to deal.

In the medical context, the proscription of exclusive dealing and the absolute prohibition of third line forcing means that a private physician commits an offence under the Act if he or she carries on practice in accordance with the principles of medical ethics. The doctor's primary ethical obligation is to further the well-being of patients, as expressed in the Latin maxim primum (or saltem) non nocere (above all, at least do no harm)[52], which encapsulates the fundamental principle of the Hippocratic tradition in medicine[53].

The more precise original Greek formulation of the Latin maxim 'help, or at least not to do harm'[54], focuses on the doctor's engagement to the provision of benefit, rather than to the mere avoidance of harm.

A country general practitioner who directs a drug-addicted patient to obtain methadone from the sole accredited pharmacy in the town commits an offence of third line forcing[55].

This kind of indirect economic pressure imposed by the legislation might come within the Definition of 'civil conscription' prohibited by s 51(xxiiiA) of the Commonwealth Constitution, as defined by Latham CJ in BMA[56] and reaffirmed by Barwick CJ, Murphy and Aickin JJ in General Practitioners.

The question that must be answered by the High Court of Australia is whether it is legally valid for the States and the Commonwealth to sterilise a constitutional guarantee by indirect legislative means.

In Georgiadis v Australian & Overseas Telecommunications Corporation, Mason CJ, Deane and Gaudron JJ observed that: It is often said in relation to constitutional guarantees and prohibitions that 'you cannot do indirectly what you are forbidden to do directly' ... That maxim is, in fact, an important guide to construction, indicating that guarantees and prohibitions are concerned with substance not form[57].

If the Constitution is to be amended by removal of the guarantee, then this should be done not through complex covert arrangements, but by putting the question openly to the people in a referendum.

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Footnotes:

[1] Social Services Legislation Amendment (No Jab, No Pay) Act 2015

[2] Australian Government Budget 2015

[3] Hansard : Public+Health+and+Wellbeing+Amendment+No+Jab,+No+Play+Bill+2015

[4] FORM : IM011.1512 found here http://www.humanservices.gov.au/spw/health-professionals/forms/resources/im011-1512en.pdf accessed 22/12/2015 at [1.17pm].

[5] Youtube Video of Advertising Campaign https://m.youtube.com/watch?autoplay=1&v=VD_xh428Fq0 accessed 29/12/2015 at 10.11am.

[6] Australian Immunisation Handbook 10th Edition accessed here http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/Handbook10-home on 29/12/2015 at [10.14am].

[7] Social Services Legislation Amendment (No Jab, No Pay) Bill 2015 - C2015B00161, Under  A New Tax System (Family Assistance) Act 1999, Secretary’s decision (7); Accessed here https://www.comlaw.gov.au/Details/C2015B00161 on 29/12/2015 at [10.20am].

[8] Budget Review - ‘No Jab No Pay’ and other immunisation measures Para.9 accessed here http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/BudgetReview201516/Vaccination on 29/12/2015 at [10.24am]

[9] DEVALUATION OF A CONSTITUTIONAL GUARANTEE: THE HISTORY OF SECTION 51(xxiiiA) OF THE

COMMONWEALTH CONSTITUTION by DANUTA MENDELSON.

[10] The Australian Annotated Constitution, Constitutional Centenary Foundation, Third Edition 2000, Cheryl Saunders.

[11] General Practitioners Society v Commonwealth (1980) 145 CLR 532

[12] CONSTITUTIONAL LIMITS ON FEDERAL LEGISLATION PRACTICALLY COMPELLING MEDICAL EMPLOYMENT: WONG v COMMONWEALTH; SELIM v PROFESSIONAL SERVICES REVIEW COMMITTEE. (2009) 17 JLM 196 Pg. 197

[13] Selim v PSR Committee (2008) 167 FCR 61 at [50]

[14][14] CONSTITUTIONAL LIMITS ON FEDERAL LEGISLATION PRACTICALLY COMPELLING MEDICAL EMPLOYMENT: WONG v COMMONWEALTH; SELIM v PROFESSIONAL SERVICES REVIEW COMMITTEE. (2009) 17 JLM 196 Pg. 198

[15] Wong v Commonwealth of Australia [2009] HCA 3 at [124]

[16] CONSTITUTIONAL LIMITS ON FEDERAL LEGISLATION PRACTICALLY COMPELLING MEDICAL EMPLOYMENT: WONG v COMMONWEALTH; SELIM v PROFESSIONAL SERVICES REVIEW COMMITTEE. (2009) 17 JLM 196 Pg. 200

[17] Victorian Council for Civil Liberties - Policy on “No Jab, No Play” provisions in Victoria accessed here https://libertyvictoria.org.au/sites/default/files/No-jab-no-play-vic-bill-policy-final20151113_0.pdf on 22/12/2015 at [12.25pm].

[18] CONSTITUTIONAL LIMITS ON FEDERAL LEGISLATION PRACTICALLY COMPELLING MEDICAL EMPLOYMENT: WONG v COMMONWEALTH; SELIM v PROFESSIONAL SERVICES REVIEW COMMITTEE. (2009) 17 JLM 196 Pg. 200

[19] Wong v Commonwealth of Australia [2009] HCA 3 at [209]

[20] Ibid at [278]

[21] Selim v PSR Committee (2008) 167 FCR 61

[22] CONSTITUTIONAL LIMITS ON FEDERAL LEGISLATION PRACTICALLY COMPELLING MEDICAL EMPLOYMENT: WONG v COMMONWEALTH; SELIM v PROFESSIONAL SERVICES REVIEW COMMITTEE. (2009) 17 JLM 196 Pg. 203

[23] British Medical Association v Commonwealth [1949] HCA 44.

[24] Ibid at [287].

[25] Ibid at [247].

[26] Ibid at [242].

[27] Ibid at [253].

[28] Ibid at [250].

[29] Ibid at [253].

[30] In his influential essay On Liberty (1859) reproduced by Gerard Dworkin (ed.) Morality, Harm and the Law (1994) 9

[31] Ibid 11

[32] Cf McMillan, ‘The Constitutional Power of the Commonwealth in Public Health’ above n.9 120

[33] British Medical Association v Commonwealth [1949] HCA 44 at [278]

[34] Melbourne University Law Review Vol 23 Page 318 of Devaluation of a Constitutional Guarantee by Danuta Mendelson (1999).

[35] Ibid at [262]

[36] Ibid at [278]

[37] General Practitioners (1980) 145 CLR 532, 560 (Gibbs J).

[38] Gibbs J agreed with the majority view in BMA that the effect of the expression 'any form of civil conscription' is not limited to compulsory service which is performed full-time, or regularly, but is intended to prevent any form of compulsion to perform particular services: ibid 556.

[39] Gibbs J determined that the constitutional prohibition applied solely to a compulsory service of a medical or dental kind: ibid 557.

[40] Devaluation of a Constitutional Guarantee by Danuta Mendelson (1999) at Page 329.

[41] General Practitioners (1980) 145 CLR 532, 556.

[42] Ibid at [556].

[43] Ibid at [565]

[44] Corpus Hippocraticum refers to the collection of about 60 medical treatises, a set of aphorisms, and writings on ethics and professional etiquette included in the Oath, the Canon, On Decorum and the Precepts. Some of the treatises and aphorisms were written by Hippocrates himself (born c 460 BCE). However, the Corpus as a whole is the work of a large number of medical writers of ancient Greece compiled between 430 and 300 BCE, with later interpolations. The Corpus can be found in W H S Jones (trans), Hippocrates (4 vols, 1923-31), while selected works within it are available from the internet at <http://classics.mit.edu/cgi-bin/search.cgi>.

[45] In General Practitioners (1980) 145 CLR 532, 546, Gibbs J acknowledged that the Federal Parliament has no general power to regulate private medical practice, in the sense of the physician-patient relationship. The Commonwealth's powers are limited to regulation of those financial and administrative incidents of practice that pertain to provision of Commonwealth medical and pharmaceutical benefits; for instance, having to write prescriptions on appropriate forms, and sign undertakings promising compliance with the provisions of the Health Insurance Act 1973 (Cth) and of the regulations made thereunder.

[46] Within the doctor-patient relationship, the patient has an obligation to disclose all factors which may be relevant to the diagnosis, prognosis and treatment of his or her complaint or condition, and the medical practitioner has a concomitant responsibility to exercise professional skill. According to Dawson and Toohey JJ in Breen v Williams (1996) 186 CLR 71, 93: A doctor is bound to exercise reasonable skill and care in treating and advising a patient, but in doing so is acting, not as a representative of the patient, but simply in the exercise of his or her professional responsibilities. No doubt the patient places trust and confidence in the doctor, but it is not because the doctor acts on behalf of the patient; it is because the patient is entitled to expect the observance of professional standards by the doctor in matters of treatment and advice and is afforded remedies in contract and tort if those standards are not observed and the patient suffers damage.

[47] The penultimate clause of the Hippocratic Oath imposes upon each medical practitioner the following injunction: 'What I see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself holding such things shameful to be spoken about': Ludwig Edelstein, Ancient Medicine (1967) 6.

[48] Rose J explained the public interest principle of medical confidentiality in X v Y [1988] 2 All ER 648, 653 in the following way: In the long run preservation of confidentiality is the only way of securing public health. Otherwise doctors will be discredited as a source of education, for future individual patients 'will not come forward if doctors are going to squeal on them'. Consequently, confidentiality is vital to secure public as well as private health, for unless those infected come forward they cannot be counselled and self-treatment does not provide the best care. In this case, Rose J granted a permanent injunction restraining a reporter of a national newspaper from publishing any information which would disclose the identity of two medical practitioners who were treated in hospital for AIDS. The reporter obtained the confidential information from an employee of the hospital. For further discussion of the medical duty of confidentiality, see: Danuta Mendelson, "'Mr Cruel" and the Medical Duty of Confidentiality' (1993) I Journal of Law and Medicine 120; Alister Abadee, 'The Medical Duty of Confidentiality and Prospective Duty of Disclosure: Can They Co-Exist?' (1995) 3 Journal of Law and Medicine 75.

[49] Stephens v Avery [1988] 2 All ER 477, 482 (Lord Browne-Wilkinson V-C). In Breen v Williams(1996) 186 CLR 71, 107-8 Gaudron and McHugh JJ observed that: Patients ... invariably confide intimate personal details about themselves to their doctors. In some circumstances, the dependency of the patient or the provision of confidential information may make the relationship between a doctor and patient fiduciary in nature. But that does not mean that their relationship would be fiduciary for all purposes. As Mason J pointed out in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 98 a person may stand in a fiduciary relationship to another for one purpose but not for others.

[50] Furniss v Fitchett [1958] NZLR 396; Wv Egdell [199012 WLR 471, 488-9 (Bingham U).

[51] Medical boards throughout Australia have tended to interpret breach of confidentiality strictly, and regard it as misconduct in a professional respect: S Barnes, 'Breach of Confidentiality: A Case Study' (1989) 1 Australian Medicine 337.

[52] The Latin version probably comes from Claudius Galen, c 130-c 200 AD, a Greek physician

[53] Ruth Faden and Tom Beauchamp, A History and Theory of Informed Consent (1986) 10.

[54] Edelstein, above n 144, 14, citing Epidemiae I, [XI], which can be found in Jones (trans), above n 139, vol 1, 164, as well as from the intemet at <http://classics.mit.edu/Hippocrates/epidemics. 1.i.html>.

[55] DEVALUATION OF A CONSTITUTIONAL GUARANTEE: THE HISTORY OF SECTION 51(xxiiiA) OF THE COMMONWEALTH CONSTITUTION DANUTA MENDELSON

[56] (1949) 79 CLR 201, 249, 253.

[57] Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297, 305.

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