Health (Protection) Amendment Bill - Submission to the Health Select Committee [2015] NZHRCSub 1 (13 February 2015)

Last Updated: 28 June 2015

^{Submission on the Health (Protection)}

Amendment Bill

13 February 2015

NEW ZEALAND HUMAN RIGHTS COMMISSION SUBMISSION ON THE HEALTH (PROTECTION) AMENDMENT BILL

Introduction

1. The Human Rights Commission welcomes the opportunity to submit on the Health (Protection) Amendment Bill (the “Bill’)¹. The Bill introduces significant new public health measures designed to protect the public from harm associated with designated infectious diseases and with artificial UV tanning.

2. The Commission has focused its submission on clause 7 of the Bill which introduces a new statutory framework under Part 3A. This contains measures to manage infectious diseases. A number of these measures have important human rights implications. In particular:

• The introduction of a contract tracing regime (subpart 5 of the Bill)

• The introduction of directions and public health orders under which requirements can be imposed on those who have, or are suspected of having, an infectious disease. These requirements include detention, supervision, surveillance and restriction of activities (subparts 2 and 3).

Summary of the Commission’s position

3. The Commission recognises and supports the need for a statutory framework that permits public health authorities to take appropriate action to protect members of the community from potentially preventable harm caused by infectious diseases. The human right to life and the human right to health are both important rights. Difficult issues can arise when balancing these rights with other rights such as the right to freedom of association and the right to privacy.

4. The Commission welcomes the safeguards set out in subpart 1², which sets out overarching principles that must be applied by any person exercising a function under Part 3A. These principles include encouraging voluntary compliance, ensuring individuals subject to the regime are adequately informed, ensuring the measures

¹ The Commission provided the Ministry of Health with general comments during the policy development process prior to the Bill’s release.

^{2 Sections 92A‐92F}

undertaken are the least restrictive available and that they apply no longer than is necessary.

5. However, despite these safeguards, the Commission is concerned by the following aspects of the Bill:

• The breadth and nature of the contact tracing regime risks, in some cases, unreasonable interference with an individual’s rights to privacy and may have the unintended consequence of deterring people from seeking testing or treatment for infectious diseases, particularly sexually transmitted infections (STIs).

• The definition of “contact tracer” under s92ZT(c) and the ability for contact tracers to further delegate their powers under s92ZZA(1) is too broad. Contact tracing activities should only be undertaken by registered health professionals subject to a high degree of professional oversight, or people under their direct supervision.

• The criteria under which a Medical Officer of Health (MOH) may issue a direction under subpart 2 are also too broad, particularly in respect of persons suspected of (but not diagnosed with) having an infectious disease, given that directions can significantly impact on the rights of persons to move around, associate with others and attend places of education and employment.

• The absence of a requirement for appeals from directions given by a MOH

to be dealt with by the Court urgently or within a prescribed timeframe.

6. The Commission also believes that the overarching principles in Subpart 1 could be enhanced through the addition of a specific requirement that people or courts exercising functions or powers under the provisions of the legislation take into account:

• The inherent dignity of the individual concerned; and

• In the case of children and young people under the age of 18, that primary consideration be given to that individual’s welfare and best interests.

7. The Commission emphasises that close monitoring and ongoing oversight will be required to ensure that the framework is applied in a manner consistent with human rights principles in individual cases. It is essential that the principles set out in subpart 1 are properly understood by those exercising powers under the legislation and that these principles are consistently and appropriately applied at all times.

Summary of the Commission’s Recommendations

8. In order to address the above matter, the Commission recommends the following:

• Insertion of a new provision under subpart 1, requiring that any decision‐ making process under Part 3A be exercised in accordance with the inherent dignity of the individual concerned and that any decision made in respect of a child aged under 18, takes into account their best interests as a primary consideration.

• That subpart 5 of the Bill is amended to insert a provision requiring contact tracers to specifically consider the existence of “special circumstances” that might be relevant to the application of the contact tracing regime, in order to minimise the risk of persons being unduly deterred from seeking or obtaining routine medical treatment.

• That the Bill is amended to ensure that only appropriately qualified registered health practitioners may undertake contact tracing activities, or where that is not practicable, that any person undertaking contacting tracing activities under delegation does so under the direct responsibility, and supervision of, a registered health practitioner.

• That the Bill is amended to enable a more targeted and graduated set of criteria under which a MOH may issue a direction. This is to ensure that directions are proportionate and reasonable in the circumstances, particularly in cases where the subject person is suspected, but not confirmed, of having an infectious disease.

• Section 92 ZE of the Bill is amended to require appeals against a direction of a MOH to be heard as a matter of urgency by the Court, preferably within 48 hours. Consideration should also be given to a requirement for assistance to be provided to an individual subject to a direction so that he or she is aware of the appeal rights and effectively able to access the Court if required.

9. The Commission’s position on the Bill and recommendations are set out in more detail below.

Safeguards

10. The Commission welcomes the application of the safeguards provisions set out in subpart 1 to the performance of all decision‐making functions under Part 3A. This provides an important protective mechanism to mitigate against the potential abuse of the coercive powers contained in part 3A.

11. The Commission also notes that the Ministry of Justice’s report on the Bill’s consistency with the New Zealand Bill of Rights Act 1990 (NZBOAR), particularly in respect of the whether detention under the Bill constitutes “arbitrary detention” for the purposes of s22 NZBORA. We note that the Ministry refers to the European Court of Human Rights ruling in Enhorn v Sweden³ in support of its finding that detention powers under the Bill are not inconsistent with s22 NZBORA.

12. We largely concur with the Ministry of Justice’s analysis in this regard. In Enborn the EHCR considered that, for the purposes of Article 5(1)(e) of the European Convention on Human Rights, the following essential criteria must exist in order for the detention of a person for the purposes of preventing the spread of infectious disease to be lawful (that is, proportionate and free from arbitrariness):

• The spreading of the disease is dangerous to public health or safety

• Detention is a last resort measure

• Less severe measures must have been considered and found to be insufficient to safeguard the public interest

• When these above criteria are no longer fulfilled (ie. Through the emergence of a less severe non‐custodial alternative or where risk of the disease spreading has lessened and no longer endangers public health and safety) then the lawful basis for detention ceases to exist

³ Application No 56529/00 (January 2005) NOTE: The statutory regime proposed by the Health (Protection) Bill is more nuanced than the Swedish 1988 Act under scrutiny in Enborn. Notwithstanding that, the facts in Enborn are an interesting example of the consequences that can arise from a person’s non‐compliance with statutory requirements regarding compulsory care, treatment or detention.

13. The safeguards set out in subpart 1 largely reflect these criteria. However, the Commission considers that the safeguards could be further amended to explicitly reflect New Zealand’s human rights obligations. In particular, we consider that express reference, without qualification, ought to be given to:

• The right to persons deprived of their liberty to respect for their inherent dignity (Article 10.1 International Covenant on Civil and Political Rights)

• The requirement that administrative decision‐makers ensure that the best interests of any child aged under 18 are accorded primary consideration (Article 3.1 UN Convention on the Rights of the Child)

14. We consider that potential application of the Bill to children, young people and vulnerable adults justifies such an amendment. We accordingly recommend that s92D of the Bill is amended as follows:

92D Respect for individuals

An individual in respect of whom a power is exercised under this Part must be treated as follows:

(a) With respect and consideration of the inherent dignity of the individual. (b) Where that individual is aged below 18 years, that primary consideration

is given to the welfare and best interests

15. The Commission also emphasises the need to ensure that all the principles in Subpart 1 are properly understood and applied in individual cases by those exercising the powers and functions established under this legislation. If not, there is a real risk that individual rights and freedoms could be wrongfully impinged.

Contact Tracing

16. Tracing the contacts of people with infectious diseases, or at risk of an infectious disease, currently relies on the voluntary cooperation of affected individuals. This provides the public health system with limited intervention options in cases where information about an individual’s contacts is not provided voluntarily or is not readily available. Subpart 5 of the Bill addresses this by providing the public health system with the legal means to initiate and undertake contact tracing for the purposes of:

• identifying the source of an infectious disease;

• making the contacts aware that they may be infected (to encourage them to seek testing and treatment if necessary); and
• limiting the transmission of the disease (through the medical treatment, or where necessary, the imposition of other interventions available under Part

3A)

17. A contact tracing regime thereby increases the coercive powers of public health authorities by requiring the provision of information from persons with an infectious disease where that information might be of assistance in preventing the further transmission of infectious diseases⁴.

18. The information that can be required includes not just details of people an individual has had contact with, but the contact details of employers, educational establishments and businesses⁵, who in turn can be required to provide contact tracers with information about persons the infected individual may have come into contact with. This requirement overrides the counter‐veiling requirements of the Privacy Act 1993 which may prevent disclosure of personal information.⁶

19. This raises a question as to whether the potential degree of personal intrusion that can arise as a result of contact tracing is warranted and whether the risk of such intrusion may deter persons who may be suffering from an infectious disease from seeking medical attention.

20. The prescribed diseases defined as an “infectious disease” under Schedule 1 of the Health Act 1956 are notifiable and of varying degrees of seriousness. Many of these diseases have pandemic potential. It stands to reason that cases may arise in which intrusions into the private lives of infected individuals will be justified, particularly where potential harm to others is demonstrable and substantial. Indeed, the Bill requires that contact tracers consider the seriousness of the public health risk before determining whether to proceed.⁷

21. However, the Commission is concerned that the contact tracing regime under subpart 5 is not adequately calibrated to respond to the complexities associated with situations where information of a more sensitive nature is concerned – in particular, cases involving infectious diseases transmitted through sexual contact.

⁴ Health (Protection) Amendment Bill s92ZV(3)

⁵ Ibid s92ZY

⁶ Ibid s92ZY(3)

⁷ Ibid s 92ZW(1)(b)

22. Inappropriate or overzealous administration of contact tracing in such cases has the potential to result in an increased public health risk through deterring people who may have an STI from seeking clinical testing or treatment through fear of the consequences of being subject to coercive information gathering powers. Information about sexual partners is, by its nature, highly personal and, depending on the individual’s circumstances, discussion or disclosure about such matters could be potentially stigmatising or traumatic.

23. Further to this point, the Commission is particularly concerned at the impact that coercive administration of the contact tracing regime may have upon young people, particularly given the ability of a contact tracer to contact a young person’s employer or school and ask for information regarding their contacts⁸ and the potential for individuals to be convicted and fined for non‐disclosure.⁹

24. This may lead to young people, and in particular vulnerable young people, becoming reluctant to present for STI screening or treatment as a result of the potential implications. Alternatively, it could result in those that do seek treatment being deliberately evasive about potential transmission details – for example denying all knowledge of potential sexual contacts in circumstances when a less coercive approach may have encouraged a higher degree of voluntary disclosure.

25. In order to mitigate these risks, the Commission recommends that the Bill is amended to insert a provision requiring contact tracers to specifically consider the existence of “special circumstances” that might be relevant to the application of the contact tracing regime, in order to minimise the risk of young people and vulnerable persons being unduly deterred from seeking or obtaining routine medical treatment.

26. Such an amendment could be through the insertion of a new sS92 ZW (1)(A‐B) as follows (or other similar amendment):

(1A) Before requiring information from an individual under Section 92ZV the contact tracer must consider whether there are special circumstances that mean that contact tracing should only be undertaken to an extent appropriate to the situation and with the cooperation of the individual concerned. Such “special circumstances” might include (but not be limited to):

(a) The age of the individual concerned

(b) The nature of the infectious disease and particularly whether it is of a sexually transmitted nature

⁸ Section 92ZY(2)

⁹ Section 92ZZC

(c) Whether the individual has been a victim of non‐consensual sexual activity

(d) Whether the individual is vulnerable due to reasons of mental or physical health

(1B) If the contact tracer forms the view that “special circumstances” exist then the provisions of 92 ZV – 92Zy shall only be applied by the contact tracer in such a manner that is appropriate given the nature and extent of the special circumstances concerned and the potential public health risk.

Subpart 5 ‐ Definition of contact tracer and delegation of powers

27. In its current form, the Bill permits contact tracing activities to be carried out by a MOH, a health protection officer or a suitably qualified person nominated to undertake contact tracing by a district health board or medical officer of health¹⁰. Furthermore, a contact tracer may further delegate any of his or her functions to a person who is suitably qualified to exercise those powers or perform those duties or functions¹¹. These functions include:

• the ability to determine if contact tracing is appropriate¹²

• the power to direct an individual to disclose detailed information about their contacts¹³

• the ability to approach known contacts and provide information to them¹⁴;

and

• The ability to approach people, including employers, who may be able to provide information about an individual’s contacts¹⁵

28. Given the intrusive and potentially sensitive nature of contact tracing activities, and the importance of the decisions made by contact tracers under Part 3A, it is surprising that the contact tracing tasks are not confined to registered health practitioners only.

29. The Commission considers that a high degree of formal professional accountability is required if the contact tracing regime is to be implemented appropriately. Health

¹⁰ Section 92ZT

¹¹ Section 92ZZA

¹² Section 92ZU

¹³ Section 92ZV

¹⁴ Section 92ZS

¹⁵ Section 92ZY

practitioners such as doctors and nurses are subject to specific professional requirements, oversight and regulation through an independent body. However, the Bill’s definition of a contact tracer under s92ZT(c) does not require such a person to be a registered health professional. Nor do the delegation provisions require that a contact tracer actively supervise the performance of contact tracing functions by their delegate¹⁶.

30. The Commission accordingly recommends that consideration be given to amending sections 92ZZA and 92ZZB of the Bill so that only registered health practitioners can be designated as contact tracers.

31. The Commission further recommends that the Bill should be amended to provide that delegation of contact tracing functions should only be permitted where it is not practicable for a designated contact tracer to carry out the functions. In that event, any person undertaking contacting tracing activities under delegation should be subject to the direct supervision of a registered health practitioner.

Definition of who has an infectious disease and scope/nature of directions

32. The Commission notes that the directive powers of MOHs proposed in the Bill, apply to persons who “may” have an infectious disease¹⁷ or who are considered to pose a public health risk, as well as those who have confirmed diagnoses. The Bill even extends the directive powers of MOHs in respect of (presumably) less serious infectious diseases that are not notifiable for the purposes of Schedule 1 of the Health Act, if the prior approval of the Director General of Health is obtained.

33. Clause 92 H (1), in particular, allows the imposition of extensive restrictions on an individual who may merely have had contact with someone else who also “may” have had the disease. These restrictions can significantly curtail an individual’s ability to associate with others and to undertake ordinary daily activities such as attending schools and places of work.

34. The Commission is concerned that the qualifying criteria under which a direction can be issued is too broad and considers that some reasonable evidential basis pointing to possible contraction of an infectious disease ought to be required before any restrictive directions can be considered.

¹⁶ See ss92ZZA and 92ZZB

¹⁷ S92H(1)(a)

35. The Commission recommends that the Bill should be amended to provide a targeted and graduated set of criteria that ensures that the issuing of directions is proportionate and reasonable in each case.

Urgency – Appeals from Directions Given By Medical Officer of Health

36. One of the most important procedural safeguards contained in the Bill is the ability of a person subject to a direction under Part 3A, to appeal to the District Court¹⁸. Given that Part 3A enables non‐judicial officers to impose very extensive restrictions on the liberty of individual citizens, access to effective and timely judicial redress is essential.

37. However, the Commission is concerned that the Bill currently has no provision requiring such appeals to be heard urgently. Given the nature and extent of the curtailment of individual freedoms for an individual subject to a direction issued by a Medical Officer of Health, it is essential that appeals be heard and disposed of urgently. If such appeals were to be subsumed into the usual Family Court/District Court processes and timeframes, the accountability of Medical Officers of Health who issue directions would effectively be relatively low.

38. The Commission accordingly recommends that Clause 92 ZE be amended to ensure that appeals to the District Court against directions given under the Act are required to be dealt with urgently, within 48 hours.

39. There are also impediments to accessing the judicial system that should be considered. Although the Bill provides for the potential appointment of a lawyer to act for individuals under the age of 16, there is no general provision to provide for the appointment of counsel to assist the applicant and no other independent oversight mechanism.

40. By comparison, those individuals subject to compulsory treatment orders under the Mental Health (Compulsory Assessment and Treatment) Act 1992 can access mental health roster lawyers to represent them in review proceedings.

41. It is unlikely that an unrepresented applicant could effectively lodge an appeal against a Part 3A direction. An applicant subject to significant restrictions in terms of travel and contact with others as a result of directions that are in place is likely to face significant, perhaps insurmountable, hurdles in obtaining legal representation.

¹⁸ S92Q

42. The Commission recommends that consideration is given to ensuring that persons subject to Part 3A directions have appropriate access to legal assistance, or other independent advice and advocacy services, to ensure that they can appropriately and effectively exercise their right to appeal.

43. In the Commission’s view, effective and timely access to an independent appeal body is an essential safeguard to help ensure that the extensive powers in the proposed legislation are exercised in a manner consistent with human rights principles.

Human Rights Commission Contact Person

Janet Anderson‐Bidois

Legal, Research and Monitoring Manager

E‐mail: [e-mail]

Tel: [phone]