Lunch with the Chief Health Officer of Victoria, Part 2

After lunching with Brett, I had many questions left unanswered, particularly the niggling feeling that we, as citizens, have very little control over our destinies if the Chief Health Officer decides to issue a public health order to spray an area of the state.
 
I rang him about a week later and asked the following questions. Please note that his answers have been distilled into their essence to minimise any repetition and keep things moving…
 
In the event of an emergency intervention, where spraying is needed, how much time do we have to mobilise a community to get out of there if they feel they don’t want to hang around for a heavy spraying? There seems to be nothing in the regulations that offers us the space to act with clear heads?
 
Brett said that there are no definitive, absolute, rock-solid guarantees that in every circumstance local populations can be given time to reduce their exposure to whatever is being sprayed. There are, he explained, just these fundamental principles in the Act which hold the CHO to account: evidence based decision-making, accountability, proportionality, collaboration…
 
Principle of evidence based decision-making
Decisions as to—
(a) the most effective use of resources to
promote and protect public health and
wellbeing; and
(b) the most effective and efficient public health
and wellbeing interventions—
should be based on evidence available in the
circumstances that is relevant and reliable.
 
Principle of accountability
(1) Persons who are engaged in the administration of
this Act should as far as is practicable ensure that
decisions are transparent, systematic and
appropriate.
(2) Members of the public should therefore be
given—
(a) access to reliable information in appropriate
forms to facilitate a good understanding of
public health issues; and
(b) opportunities to participate in policy and
program development
 
Principle of proportionality
Decisions made and actions taken in the
administration of this Act—
(a) should be proportionate to the public health
risk sought to be prevented, minimised or
controlled; and
(b) should not be made or taken in an arbitrary
manner.
 
Principle of collaboration
Public health and wellbeing, in Victoria and at a
national and international level, can be enhanced
through collaboration between all levels of
Government and industry, business, communities
and individuals.
 
What you are saying sounds reasonable, and you cerainly come across as a reasonable man, but it doesn’t mean that in all situations somebody is going to be reasonable?
 
Brett said that the position of CHO is one of considerable power, but he feels that the checks and balances as written above keep everything within reasonable guidelines. If the public still feels that the CHO is overreaching with a public health order, or that it is based on poor evidence, or that it is going to cause harm that hasn’t been considered, then they can take it to VCAT...
 
Last week, I asked you to clarify a statement for me and you wrote: “If formal impact assessments are not initiated or possible, any emergency intervention would still need community awareness and engagement. The Chief Health Officer is committed to ensuring that it would always occur”… and in that clarification you made it clear that there would be times when no environmental and health impact assessments would occur…So when are those times that environmental and health impact assessments would NOT occur?
 
Brett said that the Environmental Effects Act legislation and the Public Health and Wellbeing Act legislation, which call for formal detailed impact assessments, are largely for major projects, i.e. construction of a new railway or highway, demolition of an old industrial site to build a new community centre etc…largely focused on big constructions where there is a lot of earth being turned up, or where there is the possibility of groundwater disturbance, or where a lot of long undisturbed chemicals might be stirred up etc…and these formal impact assessments are at the Minister’s calling as to whether they are undertaken or not…
 
So from that we can assume that if the government needed to spray a certain area, there would be no need for either of the above impact assessments?
 
Brett agreed, but said that this is where the above four principles come into play, especially the principles of accountability and collaboration.
 
Where does that leave the vulnerable in those communities?
 
Brett said that the obligation of collaboration covered this…
 
So, I find it disturbing that any time spraying might be decided upon as an option, there actually is no need for an environmental or health study?
 
Yes, that’s right, the impact assessments in legislation are really focused on significant projects. But the principle of the CHO having responsibility for the health and wellbeing of Victorians means that the consideration of any potential downsides needs to be taken into account to try and protect public health.
 
Ok, so let’s say you decide a certain area needs spraying, and the residents say, ‘Well, no, we want to take you to VCAT’ – if it is a dire emergency surely you must be able to override that?
 
No…Brett said that VCAT would hear it as a matter of urgency and make a decision with the evidence that is available in the most timely way possible, depending on how serious the circumstances were…
 
So VCAT is always an option...it can never be said, ‘NO you cannot take that to VCAT’…it can always happen?
 
Brett said that he would have to go back to the Act, but he thinks that it is always an option for the public to go to VCAT over any “public health order” that the CHO authorises.
 
However…this is where it gets interesting (for want of a better word)…
 
The Emergency Management Commissioner, who administers the Emergency Management Act, has the authority to call an emergency and nobody can stop him/her…
 
There are also emergency provisions in the Public Health Act, a declaration of emergency, which is a call by the Minister in consultation with the CHO and the Emergency Management Commissioner. And where a Public Health Emergency is declared, no one can contest it…
 
A Public Health Emergency being small pox or viral haemorrhagic fevers (Ebola, Marburg, Lassa fever) or a bio-terrorist event etc…
 
Brett stressed that he could NOT envisage a mosquito-borne epidemic or exotic mosquito incursion that would constitute a state of emergency…it just won’t get to the threshold whereby you need immediate powers that don’t have to get written down, that can just be spoken etc…He cannot see any way that a Public Health Emergency would arise from a mosquito-borne illness…He can imagine it being serious, and needing fast action, but not reaching a point where a state of emergency would need to be instituted…
 
Therefore, mosquito spraying would always fall under “public health order” and so could always be contested at VCAT.
 
From here we talked about a number of things…
 
Brett thinks that many of our concerns are legitimate concerns…especially when it comes to community consultation and looking after the elderly, the vulnerable and immune compromised etc…
 
I asked whether he could have any influence over the way the regulations are written, whether he could, in fact, strengthen the regulations to make sure that community consultation and looking after the vulnerable could be made perfectly clear…Brett said that he would be happy to go back and look at the exact wording and see if things could be made more explicit, see if there’s wording that could be incorporated to get those ideas through parliament.
 
We discussed the idea of the DHHS coming up with an educational program around mosquitoes and climate change, to build awareness across the state that there are natural things people can do to limit their contact with mosquitoes over the longer, more sustainable term. Brett is currently working with the Chief Environmental Scientist and Parks Victoria to build awareness about things people can do in a changing climate to not lose biodiversity in their environment, and he is happy to have conversations about a piece more specific to natural, more sustainable mosquito controls by working with counterparts from DELWP (Department of Environment, Land, Water and Planning) along with the Deputy Chief Health Officer for the Environment and other government environmental departments.
 
I finish by telling Brett I don’t think he’s totally assuaged my concerns…
 
Brett says that he is not sure that he can do that because the proof – pudding-wise – is in what a government does, how it behaves, not what it says.
 
                                    *
 
I have serious misgivings about much of this…
 
– Serious misgivings about the fact of environmental and health impact studies NOT being a part of the process whenever a state government decides a certain area of the state needs broad scale spraying…as though the environment and its complex web of ecosystems doesn’t really amount to anything on its own, as though humans and their communities don’t really count for anything either.
 
Obviously, the assessments would not have to be as detailed as those required for extremely large-scale public and private works, but something with teeth and legislatively binding would be required all the same.
 
– Serious misgivings about the so-called relief factor we might feel knowing that if there is spraying and we think that the CHO is overreaching or that the evidence is poor we can simply take the matter to VCAT. Because the reality is that any group of people who decided to challenge a public health order at VCAT about broad scale spraying (or any other public health order for that matter) would need to be wealthy enough to afford the legal costs.
 
– Serious misgivings about the four principles above, the way they can be interpreted to suit a decision-maker’s needs, but more importantly, the way these laws are written with the same understanding that our general laws are written as guidelines for judges, i.e. that anyone who deals with these laws in a real position of power is impartial and has integrity.
 
– Serious misgivings about one of the principles NOT mentioned by Brett – 

Precautionary principle
If a public health risk poses a serious threat, lack of full scientific certainty should not be used as a reason for postponing measures to prevent or control the public health risk.
 
Possibly, it was this principle that enabled the research collaboration to organise the spraying of those 3 streets in Rye, in March earlier this year. Even if this weren’t the case, such words governing our future can easily be taken to mean whatever a decision-maker wants…
 
And surely it is the heart of this Precautionary principle that enabled the ongoing spraying of Barwon Heads for three decades since the early 1980s.
 
                                    *
 
I should finish by stating that my serious misgivings do not extend to the present CHO’s capacity to do his job with integrity and his feel for the people he represents, but are about the way these mechanisms can so easily be abused. About how history has shown us over and over that when decision-makers and vested interests cross paths with non-binding environmental legislation, every life form from micro-organism to human in the environment under challenge can suffer through complexly destructive and inhibitive ways.
 
A good example of how this type of abuse might work is the failed Buruli experiment. Brett stated clearly in our discussions that the community was not at risk of serious harm from Buruli, yet the research collaboration, under the DHHS umbrella, had plans to fog large areas of the Mornington Peninsula, having conveniently decided, long before Brett had even taken on the role of CHO, that the community WAS at risk. Plans which (it turned out under greater scrutiny) were totally unnecessary to get the reduction in mosquito numbers they required.
 
We need to push for environmental and health impact assessments to be made mandatory every time the state wants to broad scale spray in the state of Victoria.
 
French, Dawn and Goyarra Streets should be a warning to us all !