Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chief Health Officer, NSW Health v FRC (application for confirmation of public health order) [2023] NSWCATAD 75 Hearing dates: 27 January 2023 Date of orders: 27 January 2023 Decision date: 27 March 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: Cole DCJ, Deputy President Decision: Pursuant to s 64 of the Public Health Act 2010 (NSW), the order made under s 62 of the Act, on 4 January 2023, with respect to the respondent, is hereby varied by the omission of the requirement set out in paragraph (vii) of the order, and the order, so varied, is confirmed. Catchwords: HEALTH — Public health — Infectious disease —Public health order — Category 5 condition — whether public health order should be confirmed, varied or removed Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Migration Act 1958 (Cth) Public Health Act 2010 (NSW) Public Health Regulation 2022 Cases Cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 Texts Cited: David J Carter, "The Use of Coercive Public Health and Human Biosecurity Law in Australia: An Empirical Analysis" (2020) 43(1) University of New South Wales Law Journal 117-154 Category: Principal judgment Parties: Chief Health Officer, NSW Health (Applicant) FRC (Respondent) Representation: Counsel: J Davidson (Applicant) A Strik (Respondent) Solicitors: Crown Solicitor (Applicant) Velasquez Legal (Respondent) File Number(s): 2023/00004327 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal prohibits: (a) the disclosure of the name or any identifying details of the respondent; and (b) the publication of evidence given before the Tribunal in this matter, or of matters contained in documents lodged with the Tribunal or received in evidence, insofar as such evidence contains the name or identifying details of the respondent. REASONS FOR DECISION 1. By application filed on 5 January 2023, the Chief Health Officer, NSW Health, sought an order from the Tribunal, under s 64 of the Public Health Act 2010 (NSW) ('the Act'), confirming a public health order ('the public health order') made on 4 January 2023 under s 62 of the Act by Dr Fizzell, the Acting Chief Health Officer of NSW and an authorised medical practitioner within the meaning of s 60 of the Act. 2. The subject of the public health order was FRC, a man suffering from Human Immunodeficiency Virus (HIV) infection, which is a Category 5 medical condition under the Act. 3. The public health order required FRC to take specified steps, which are set out below. 4. On 27 January 2023, the Tribunal conducted a hearing in relation to the application. 5. The Act provides, in s 64(5): 64 NCAT may confirm certain public health orders … (5) For the purposes of an inquiry under this section, the Civil and Administrative Tribunal— (a) may obtain the assistance of any person having medical or other qualifications relevant to the subject-matter of the inquiry, and (b) may take into account any advice given by such a person. 1. Senior Member McPhee, a registered medical practitioner, sat in on the hearing in this matter as a person assisting under s 64(5) of the Act. The parties agreed to this course, and further agreed that it would be appropriate for Dr McPhee to sit as a member of the Tribunal on a panel in the event that there were future proceedings under the Act between the parties to this matter. 2. Both parties provided documentary evidence at the hearing. Evidence was given at the hearing, in the applicant's case, by Dr Weatherall and Dr Keller. Detailed submissions were made, both orally and in writing, on behalf of both parties. 3. At the conclusion of the hearing, I made the following order: 1. Pursuant to s 64 of the Public Health Act 2010 ('the Act'), the order made under s 62 of the Act, on 4 January 2023, with respect to the respondent, is hereby varied by the omission of the requirement set out in paragraph (vii) of the order, and the order, so varied, is confirmed. 1. I now set out my reasons for varying and confirming the public health order. Relevant sections of the Act 1. The Act provides, in s 62: 62 Making of public health orders relating to person with Category 4 or 5 condition or contact order condition (1) An authorised medical practitioner may make a public health order in respect of a person if satisfied, on reasonable grounds, that— (a) the person has a Category 4 or 5 condition and because of the way the person behaves may, as a consequence of that condition, be a risk to public health, or (b) the person— (i) has been exposed to a contact order condition, and (ii) is at risk of developing the contact order condition, and (iii) because of the way the person behaves, may be a risk to public health. (2) A public health order— (a) must be in writing, and (b) must name the person subject to the order, and (c) must state the grounds on which it is made, and (d) must state that, unless sooner revoked, it expires— (i) if the public health order is made in respect of a person referred to in subsection (1)(b)—at the end of the period specified opposite the relevant condition in Schedule 1A, or (ii) in any other case—at the end of a specified period (not exceeding 28 days), after it is served on the person subject to the order. Note— An order based on a Category 5 condition expires after 3 days unless an application is made for its confirmation (see section 63(2)). (3) A public health order may require the person subject to the order to do any one or more of the following— (a) to refrain from specified conduct, (b) to undergo specified treatment (whether at a specified place or otherwise), (c) to undergo counselling by one or more specified persons or by one or more persons belonging to a specified class of persons, (d) to submit to the supervision of one or more specified persons or of one or more persons belonging to a specified class of persons, (e) to notify the Secretary of other persons with whom the person has been in contact within a specified period, (f) to notify the Secretary if the person displays any specified signs or symptoms, (g) to undergo a specified kind of medical examination or test relating to the condition for which the order was made. (4) A public health order may authorise the person subject to the order— (a) to be detained at a specified place for the duration of the order, or (b) in relation to an order that requires the person to undergo specified treatment at a specified place—to be detained at that place while undergoing the treatment. (5) (Repealed) (6) In deciding whether or not to make a public health order, the authorised medical practitioner must take into account— (a) the principle that any restriction on the liberty of a person should be imposed only if it is the most effective way to prevent any risk to public health, and (b) any matters prescribed by the regulations for the purposes of this section. (7) A public health order may include provisions ancillary to, or consequential on, the matters included in the order. (8) A public health order does not take effect until it is served personally on the person subject to the order. (9) The authorised medical practitioner making the public health order must give the person subject to the order— (a) information about the duration of the order, and (b) information about the person's rights of review in relation to the order, and (c) any other information prescribed by the regulations. (10) Failure to give the information specified in subsection (9) does not invalidate the order. 1. Schedule 1 to the Act provides that Human Immunodeficiency Virus (HIV) infection is a Category 5 medical condition under the Act. It is presently the sole Category 5 medical condition. No matters have been prescribed by regulation for the purposes of s 63(6)(b) of the Act. 2. The Act provides, in s 64: 64 NCAT may confirm certain public health orders (1) An application may be made to the Civil and Administrative Tribunal for confirmation of a public health order based on a Category 5 condition or made in relation to a person referred to in section 62(1)(b). Note— The confirmation of any such order is a decision for the purposes of the Civil and Administrative Tribunal Act 2013. (2) As soon as practicable after such an application is made, the Civil and Administrative Tribunal is to inquire into the circumstances surrounding the making of the public health order. (3) Following its inquiry, the Civil and Administrative Tribunal— (a) may confirm the public health order, or (b) may vary the order and confirm it as varied, or (c) may revoke the order. (4) An inquiry under this section may not be adjourned for more than 7 days at a time. (5) For the purposes of an inquiry under this section, the Civil and Administrative Tribunal— (a) may obtain the assistance of any person having medical or other qualifications relevant to the subject-matter of the inquiry, and (b) may take into account any advice given by such a person. (6) The Civil and Administrative Tribunal's power to vary a public health order under this section is a power— (a) to omit a requirement from the order, or (b) to include in the order a requirement that could have been included in the order when it was made, or (c) to substitute a requirement that could have been included in the order when it was made for any one or more of the requirements already included in the order. 1. The Act provides, in s 63: 63 Duration of public health order (1) Unless sooner revoked, a public health order based on a Category 4 or 5 condition expires at the end of the period specified in the order. (2) Despite subsection (1), a public health order based on a Category 5 condition or made in relation to a person referred to in section 62(1)(b) expires at the end of 3 business days after the person subject to the order is served with the order unless, before it expires, the person is served with a copy of an application for its confirmation under section 64. (2A)–(2C) (Repealed) (3) In this section, business day means any day that is not a Saturday, Sunday or public holiday. 1. The application for the confirmation of the public health order was made on the day after the day on which the public health order was issued. The public health order 1. The public health order was issued by Dr Fizzell in the following terms: PUBLIC HEALTH ACT 2010 SECTION 62 PUBLIC HEALTH ORDER I, Dr Jan Fizzell, A/Chief Health Officer of NSW and an authorised medical practitioner within the meaning of section 60 of the Public Health Act 2010 (the Act), am satisfied on reasonable grounds that [FRC] is a person: • who is suffering from human immunodeficiency virus (HIV) infection, a Category 5 Medical Condition; and • because of the way [FRC] behaves he may, as a consequence of the above condition, be a risk to public health. Therefore, in accordance with section 62 of the Act, I make this public health order requiring [FRC] to: (i) refrain from condomless anal or vaginal intercourse; and (ii) not share injecting equipment with anyone; and (iii) submit to the supervision of a medical practitioner at the Waratah Clinic, by attending the Waratah Clinic at St George Hospital, 2 South St, Kogarah NSW 2217: a. if this Order is served on or before 8 January 2023, on 9 January 2023; or b. if this Order is served on or after 9 January 2023, within 24 hours of service; or c. if agreed by Waratah Clinic, at another time; and then attend appointments as arranged at least every 7 days; and (iv) undergo HIV viral load testing and HIV genomic sequencing testing at the Waratah Clinic at St George Hospital, 2 South St, Kogarah NSW 2217 on the first occasion on which [FRC] attends that Clinic in accordance with order (iii) above; (v) undergo HIV viral load testing at the Waratah Clinic, St George Hospital, 2 South St, Kogarah NSW 2217 on: a. 18 January 2023; and b. 25 January 2023; and c. then as directed by a medical practitioner at Waratah Clinic; and (vi) take BIKTARVY® (Bictegravir/emtricitabine/tenofovir alafenamide) or another antiretroviral medication as prescribed by a medical practitioner from the Waratah Clinic and in accordance with the prescription; and (vii) notify the Secretary of NSW Health within one week of this order being served, of the names and contact details, that [FRC] is aware or is able to provide, of all persons with whom he has had condomless intercourse since 14 October 2019. Notification is to be made via email to NSWH-HIV@health.nsw.qov.au. The grounds justifying the making of this order are as follows: 1. [FRC] has HIV infection, a disease transmissible via condomless anal or vaginal sexual intercourse and contaminated injection equipment in the presence of an HIV viral load that is greater than 200 copies/ml. 2. [FRC] has not complied with the advice provided to him in a letter from the Chief Health Officer delivered to him at home on 2 December 2021. He was strongly advised to attend the Waratah Clinic and to commence and continue taking HIV antiretroviral medication as prescribed by a doctor. His refusal to take antiretroviral medication means that he is very likely to have an HIV viral load that is greater than 200 copies/ml. His latest known viral load, on 08 September 2022, was 237,000 copies/ml. 3. There is evidence that [FRC] has condomless sexual intercourse. He was diagnosed with 5 different STls between 14 October 2019 and 20 April 2021 and he has disclosed to treating professionals the fact that he has had condomless sexual intercourse and/or failed to inform his sexual partners of his HIV status. 4. There is evidence that [FRC] does not believe he has HIV and therefore will not take reasonable protections against the spread of HIV. 5. As a consequence of grounds 1-4 above, [FRC] poses a risk to public health, namely, a risk of transmitting HIV infection. 6. There is no other effective way to ensure that the health of the public is not endangered or likely to be endangered. In deciding to make this order, I have taken into account the matters listed in section 62(6) of the Act and clause 59 of the Public Health Regulation 2022. Unless this order is earlier varied as to its duration or is earlier revoked, it expires 28 days from the date of service of this order. Dated this Fourth day of January 2023 Signature...... Dr Jan Fizzell A/Chief Health Officer The task of the Tribunal under s 64 of the Act 1. On 5 January 2023, the Tribunal received, under s 64(1) of the Act, an application for the confirmation of the public health order. The Tribunal's task, under s 64(2) of the Act, upon receipt of that application, is to 'inquire into the circumstances surrounding the making of the public health order' and that task has to be undertaken 'as soon as practicable' after the application was made. The Tribunal must then decide, based upon its findings in that inquiry, whether to confirm the public health order, to vary it and confirm it as varied, or to revoke it. 2. The Tribunal has jurisdiction, under numerous statutes, to undertake, on application, the administrative review of specified administrative decisions, using the mechanisms of the Administrative Decisions Review Act 1997 (NSW). When undertaking the review of an administrative decision, typically the Tribunal stands in the shoes of the original decision maker and arrives at the 'correct and preferable decision' on the basis of the material before it. Pursuant to s 66 of the Act, a person who is the subject of a public health order under the Act, based upon a Category 4 condition, may apply to the Tribunal for the administrative review of that public health order. No right to seek administrative review from the Tribunal with respect to a Category 5 condition is provided for by the Act. Clearly, the task conferred upon the Tribunal by s 64(2) of the Act is not the undertaking of a review of the administrative decision to make a public health order. 3. The Act, in s 64(2), gives the Tribunal a task which has no exact counterpart in any other legislation. There are no previous decisions dealing with the question as to what an inquiry into the circumstances surrounding the making of a public health order should entail (see The Use of Coercive Public Health and Human Biosecurity Law in Australia: An Empirical Analysis, David J Carter (2020) 43(1) University of New South Wales Law Journal 117-154). 4. The objects of the Act are set out in s 3 of the Act. They are: 3 Objects (1) The objects of this Act are as follows— (a) to promote, protect and improve public health, (b) to control the risks to public health, (c) to promote the control of infectious diseases, (d) to prevent the spread of infectious diseases, (e) to recognise the role of local government in protecting public health. (f) to monitor diseases and conditions affecting public health. (2) The protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act. 1. After conducting its inquiry, the Tribunal may make any of orders set out in s 64(3) of the Act (as clarified in s 64(6)) of the Act: (3) Following its inquiry, the Civil and Administrative Tribunal— (a) may confirm the public health order, or (b) may vary the order and confirm it as varied, or (c) may revoke the order. … (6) The Civil and Administrative Tribunal's power to vary a public health order under this section is a power— (a) to omit a requirement from the order, or (b) to include in the order a requirement that could have been included in the order when it was made, or (c) to substitute a requirement that could have been included in the order when it was made for any one or more of the requirements already included in the order. 1. Having regard to the objects of the Act, the principle in s 62(6)(a) of the Act and the powers of the Tribunal following an inquiry, the primary purpose of the Tribunal's inquiry into the circumstances of the making of a public health order is to ensure that all of the requirements and pre-requisites necessary for the making of the public health order, whether they be of a procedural or a substantive character, have been fulfilled, and that no irrelevant considerations have been taken into account. The existence of the power to vary the public health order implies that the Tribunal may remove any unnecessary requirement in the public health order, or include a requirement which may have been overlooked when the order was made, but which is desirable bearing in mind the objects of the Act and the principle in s 62(6)(a) of the Act, if to do so would cure some defect in the public health order which has become apparent in the course of the inquiry. The power to vary the public health order may also become desirable by reason of changes in the relevant circumstances which have come about in the interval between the making of the public health order and the conduct of the inquiry. The objects of the Act must be borne in mind; the identification of an infectious disease in the community usually occurs in the context of a dynamic situation, to which the exercise of the regulatory powers conferred by the Act must be intended to be able to respond. Requirements and Prerequisites to the making of the public health order Formal requirements 1. The Act provides, in s 62(1), that a public health order may be made by an authorised medical practitioner, and that term is defined in s 60 to mean the Chief Health Officer or a registered medical practitioner authorised by the Secretary to exercise the functions of an authorised medical practitioner under Division 4 of Part 4 of the Act. 2. The public health order was made by Dr Fizzell, the Acting Chief Health Officer and an authorised medical practitioner ('AMP') within the meaning of the Act. 3. The Act provides, in s 62(2), for a series of requirements of form and content for the public health order (see [10], above). 4. The public health order complies with all of the requirements of s 62(2) of the Act. 5. Information concerning the duration of the order and the subject person's rights of review was given to FRC under s 62(9) of the Act. 6. The Act provides, in s 62(3), for the requirements which may be included in a public health order. All of the requirements imposed on FRC by the public health order are capable of being imposed under s 62(3) of the Act. Matters of which the AMP must be satisfied 1. Prior to making a public health order, the AMP must be satisfied, on reasonable grounds, that the person who is to be the subject of the public health order has a Category 4 or Category 5 condition (see s 62(1)(a)). On the basis of the evidence of Dr Weatherall and the clinical notes of the Waratah Clinic, it is clear that FRC is infected with HIV, which is a Category 5 condition, and that he was first diagnosed with that infection in about 2002. 2. The AMP must also be satisfied, on reasonable grounds, that the person who is to be the subject of the public health order may be a risk to public health because of the way that person behaves (see s 62(1)(a)). 3. The grounds upon which Dr Fizzell made the public health order are set out in the public health order (see [15], above). I will deal with them one by one. Ground 1. [FRC] has HIV infection, a disease transmissible via condomless anal or vaginal sexual intercourse and contaminated injection equipment in the presence of an HIV viral load that is greater than 200 copies/mL. 1. As to Ground 1, the records of the Waratah Clinic annexed to the affidavit of Dr Weatherall of 4 January 2023, record that a blood test taken in September 2022 revealed that FRC's HIV viral load was then 237000 copies/mL. 2. Dr Weatherall said, in his affidavit of 4 January 2023: HIV transmission 31. HIV is transmitted through certain bodily fluids. These include blood, semen, pre-seminal fluid, rectal fluids, vaginal fluids and breast milk. These fluids must come into contact with a mucous membrane or damaged tissue or be directly injected into the bloodstream (from a needle or syringe) for transmission to occur. Mucous membranes are found inside the rectum, vagina, penis and mouth. Behaviour that carry the greatest risk of transmission include: a. Anal sexual intercourse, if the person has a viral load of ˃200 copies/mL and the person and/or their sexual partner(s) are not wearing a condom. b. Vaginal sexual intercourse, if the person has a viral load of ˃200 copies/mL and the person and/or their sexual partner(s) are not wearing a condom. The risk of transmission from vaginal sexual intercourse is lower than the risk from anal sexual intercourse. c. Sharing injecting equipment. 32. Oral sexual intercourse presents negligible risk for HIV transmission relative to anal or vaginal sexual intercourse. 33. The risk of transmission of HIV from sexual intercourse in which a condom is used is very low. HIV viral loads and the effect of antiretrovirals 34. The risk of transmission of HIV from sexual intercourse lies on a continuum. The risk of transmission of HIV is greatly reduced when a person's viral load is reduced. A person's viral load is measured by the number of copies of the virus detected per millilitre of blood; the higher a person's viral load, the greater the risk of transmission. 35. At the Waratah Clinic, the standard messaging to patients is U=U – undetectable means untransmissible" in line with national and international guidelines. It is virtually impossible for a person with a stably suppressed viral load to transmit HIV. This has been established in a number of increasingly large cohort and studies and randomised clinical trials, both internationally and in Australia and in populations including heterosexual couples and men who have sex with men [sic]. The definition of an undetectable viral load varies slightly in these studies but is generally accepted to be less than 200 copies/mL of blood, and durable viral suppression is regarded as a six month period has no appreciable transmission risk [sic]. 36. A 2019 study to the effect described in the preceding paragraph concluded that: …the risk of HIV transmission in gay couples through condomless sex when HIV viral load is suppressed is effectively zero. Our findings support the message of the U=U (undetectable equals untransmissible) campaign, and the benefits of early testing and treatment for HIV. Rodger et al, 'Risk of HIV transmission through condomless sex is serodifferent gay couples with the HIV-positive partner taking suppressive antiretroviral therapy (PARTNER): final results of a multicentre, prospective, observational study' (2019), The Lancet 2019; 393, 2428 ('Rodger et al', pages 554-564, CW-1). 37. A patient with a consistently high viral load of more than 200,000 copies/mL would carry a high transmission risk if he or she engaged in the behaviours identified at [31] above without taking adequate precautions to prevent transmission. 1. The facts and opinions set out in Dr Weatherall's evidence, including the evidence that FRC had an HIV viral load of 237,000 copies/mL in September 2022, were available to Dr Fizzell when she made the public health order. Dr Weatherall said, in his affidavit of 12 January 2023, that FRC's blood test, taken on 9 January 2023, showed that his viral load was then 175,000 copies/mL. I accept that evidence. There was ample evidence to support Ground 1 of the public health order, and no evidence to contradict it. Ground 2. [FRC] has not complied with the advice provided to him in a letter from the Chief Health Officer delivered to him at home on 2 December 2021. He was strongly advised to attend the Waratah Clinic and to commence and continue taking HIV antiretroviral medication as prescribed by a doctor. His refusal to take antiretroviral medication means that he is very likely to have an HIV viral load that is greater than 200 copies/mL. His latest known viral load, on 8 September 2022, was 237,000 copies/mL. 1. As to Ground 2 of the public health order, the facts there stated are supported by the evidence of Dr Weatherall in his affidavit of 4 January 2023. The medical records show that, between early 2020 and 4 January 2023, FRC repeatedly refused to take antiretroviral medication. Ground 3. There is evidence that [FRC] has condomless sexual intercourse. He was diagnosed with 5 different STIs between 14 October 2019 and 20 April 2021 and he has disclosed to treating professionals the fact that he has had condomless sexual intercourse and/or failed to inform his sexual partners of his HIV status. 1. As to Ground 3 of the public health order, again, the evidence of Dr Weatherall in his affidavit of 4 January 2023, together with the health records annexed to that affidavit, establish that FRC was diagnosed with 5 different kinds of sexually transmitted infections between 14 October 2019 and 20 April 2021. It was argued in the Respondent's case that one of the types of infection, namely Shigellosis, could have been acquired by FRC by means other than sexual activity. Shigellosis is caused by Shigella bacteria, which may be found in human faeces. Given FRC's lifestyle at the time of his infection with Shigellosis, and the fact that he lives in Australia, which generally has good water sanitation, I accept the submission of the Applicant that it was reasonable for Dr Fizzell to infer that FRC's Shigellosis was acquired in the course of sexual activity, rather than from befouled water or food. I further accept that it can be inferred from the fact that he acquired the sexually transmitted infections that FRC was having condomless sex during that period, probably with at least several men. In addition, FRC conceded, to his treating health practitioners, that he was having condomless sex and, further, that he was not informing his sexual partners of his HIV status during this period of time. 2. The records of the Waratah Clinic exhibited to Dr Weatherall's affidavit of 4 January 2023, show that, during the period from October 2019 to 14 September 2022, FRC was inconsistent in his statements to his health practitioners as to his sexual behaviour. From time to time, FRC said that he had had sex with men without condoms. Periodically, he promised that he would use condoms in the future. He also said, on numerous occasions, including 14 September 2022, that he never used condoms. 3. Counsel for the Respondent argued that the evidence of FRC's behaviour in having condomless sex whilst his viral load exceeded 200 copies/mL was not sufficiently proximate in time to the making of the public health order to constitute reasonable grounds for that order. I reject that argument. The health records before me show that FRC's behaviour over years consistently put his sexual partners at risk, and the health records further show that his behaviour in this respect persisted until at least 14 September 2022. FRC's past patterns of behaviour, over years, form a reasonable basis upon which to predict that he is not likely to abstain from high risk sexual behaviour on even a medium term basis. 4. In relation to FRC's inconsistent statements to his health practitioners about his sexual behaviours, his counsel argued that the Tribunal was being asked to believe the statements made by FRC and recorded in the health records when they supported the grounds for the public health order, but to disbelieve the statements made by FRC when those statements indicated that he had, or would, change his behaviour. Given the results of FRC's blood tests, and the clear evidence of FRC's sexual preferences, it is not surprising that statements made by him, in his own perceived interests, have been treated with scepticism. It is clear that, up until the public health order was made, FRC's objective was to avoid taking antiretroviral medication. Ground 4. There is evidence that [FRC] does not believe that he has HIV and therefore will not take reasonable precautions against the spread of HIV. 1. As to Ground 4 of the public health order, the health records exhibited to Dr Weatherall's affidavit of 4 January 2023 show that, in conversations with health practitioners at the Waratah Clinic, FRC has vacillated between accepting that he is infected with HIV and denying that he is infected. From time to time he has questioned the existence of HIV, saying that he does not believe in it. 2. The report of Dr Keller, psychiatrist, dated 24 June 2022, which concerned a mental health team assessment of FRC, said that FRC: … demonstrates clinical features sufficient to meet criteria for an antisocial personality disorder. These include the following: - a pervasive pattern of disregard for the rights of others, as evidenced by his reported history of performing acts that are grounds for arrest, - reckless disregard for the safety of others, - consistent irresponsibility with failure to sustain consistent work behaviour, - lack of remorse with rationalization of having hurt others and - impulsivity or failure to plan ahead - deceitfulness - irritability or aggressiveness - evidence of conduct disorder from an early age. In our opinion, the construct of a personality disorder is sufficient to explain [FRC's] pervasive pattern of behaviour, spanning childhood through adolescence and into adulthood. However, one needs to consider the additional impact of longstanding HIV disease and possible associated cognitive impairment, including changes to frontal executive functioning. … In our opinion, [FRC's] level of intellectual functioning does not impair his capacity to understand his circumstances. In other words, we believe that he understands broadly the concept of HIV, the concept of treatment and what this entails, and the public health measures required to prevent the spread of the disease and how they apply to him specifically. We are of the opinion that [FRC] is choosing to deny, and ignore, these concepts and ideas out of self-interest. … [FRC] has a pattern of superficially engaging with services and attending organised reviews, but does not adhere to recommendations from services regarding treatment. He appears intransigent with respect to accepting advice about recommended treatment for HIV, or his drug use or safe sexual behaviours. The prospect of [FRC] engaging and participating in therapy seems remote and it is likely he will continue with his current pattern of behaviours. 1. Dr Keller's evidence was available to Dr Fizzell when she made the public health order. It supports Ground 4 of the public health order. Ground 5. As a consequence of grounds 1-4 above, [FRC] poses a risk to public health, namely a risk of transmitting HIV infection. 1. Ground 5 of the public health order represents the conclusion reached by Dr Fizzell with respect to s 62(1)(a) of the Act, which required her to be "satisfied, on reasonable grounds, that the person has a Category … 5 condition and, because of the way the person behaves may, as a consequence of that condition, be a risk to public health". 2. There is no doubt that FRC has a Category 5 condition and that he has had that conditions since at least 2002. 3. Counsel for the Applicant referred to the decision of the Full Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3. In that decision, the Court said, at [36], that the phrases "or may be" and "or might be", which were introduced into s 116(1)(e)(i) of the Migration Act 1958 (Cth) by an Amendment Act: … clearly lowered the requisite level or threshold of satisfaction to that of a possibility … 1. In written submissions, the Applicant argued as follows: 55. In other statutory contexts requiring consideration of whether or not a risk is 'unacceptable', the Supreme Court has held that unacceptability of risk involved consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: Attorney-General of NSW v Williams (by his tutor Ainsworth (Preliminary) [2023] NSWSC 1 at [25] (considering the Mental Health and Cognitive Impairment Forensic Provisions Act 2020; State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]; State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (both considering the Crimes (High Risk Offenders) Act 2006). A risk may be unacceptable, even when the likelihood of the risk eventuating is low, where the consequences of the risk eventuating are grave: see eg State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]-[43]; State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73]. The present proceedings do not require the Tribunal to assess the acceptability of any risk to public health; it was sufficient for the making of the Order that the authorised medical officer was satisfied that the Respondent "may" be a risk to public health. It is nevertheless notable that the consequences of the risk posed by the Respondent's behaviour are grave, in that they involve transmission of HIV infection. 1. In order to make a public health order, the AMP must, under s 62(1)(a) of the Act, be satisfied, on reasonable grounds, that the person with the Category 4 or 5 condition may, as a consequence of that condition, and because of the way they behave, be a risk to public health in the sense that their behaviour, in the circumstance of the presence of the condition, creates a possibility that a risk to public health will arise. The AMP is not required to feel certain that the risk will arise. The risk need not be a grave risk. It is not necessary, in this matter, to further discuss the required level of likelihood of the risk, or the required degree of seriousness of the risk, because it is clear, in this matter, that there is abundant evidence of a high risk to public health of a serious nature if FRC does not get his viral load down to less than 200 copies/mL and keep it there on an ongoing basis. 2. Dr Fizzell says, in the order, that she is satisfied on reasonable grounds of the matters set out in s 62(1) of the Act. The evidence available to her clearly constitutes reasonable grounds for her state of satisfaction. There was abundant evidence, by 4 January 2023, that FRC has been infected with HIV since at least 2002, that he had not taken antiretroviral medication apart from a brief period from mid October 2019 until January 2020, that his viral load was well above 200 copies/mL in the months prior to the public health order and that his behaviour in having casual sex with men without a condom continued until at least 14 September 2022 and posed a risk of the transmission of HIV to his sexual partners. These facts constitute a serious public health risk arising from the way FRC behaves. Ground 6. There is no other effective way to ensure that the health of the public is not endangered or likely to be endangered. In deciding to make this order, I have taken into account the matters listed in section 62(6) of the Act and clause 59 of the Public Health Regulations 2022. 1. Ground 6 reflects Dr Fizzell's consideration of the principle set out in s 62(6)(a) of the Act. 2. The Public Health Regulation 2022 provides, in reg 59, in so far as is relevant to a Category 5 condition: 59 Matters for consideration for public health orders—the Act, s 62(6)(b) (1) The following matters must be taken into account by an authorised medical practitioner in deciding whether or not to make a public health order in relation to a person— (a) whether reasonable attempts have been made to provide the person with information about the effects of the Category 4 or 5 condition or contact order condition the person has or may have and the risks to public health of the condition, (b) the options other than a public health order that are available to deal with the risk to public health posed by the person, (c) if the proposed public health order will require the person to undergo treatment—the availability and effectiveness of the proposed treatment and the likely side effects of the proposed treatment on the person, (d) if the proposed public health order will require the person to be detained—the likely social, economic, physical and psychological effects of the detention on the person, (e) … (f) if the proposed public health order relates to a person with HIV—the policy directive entitled Management of People with HIV Who Risk Infecting Others published by the Ministry of Health. (2) The matters do not need to be taken into account in an emergency or if it is otherwise not reasonably practicable. 1. In his affidavit of 4 January 2023, Dr Weatherall sets out, in detail, the steps taken by him and other members of the team of health professionals dealing with FRC from 2020 (paragraphs 68 – 89). The steps leading up to the making of the public health order were taken with regard to, and in conformity with, the policy directive Management of People with HIV Who Risk Infecting Others dated 17 January 2019, including consultation with a Panel under that policy. The steps included the provision to FRC of a letter containing advice and recommendations in relation to the treatment of HIV and the protection of FRC's sexual partners on 13 July 2020. A further letter informing FRC of his public health obligations and addressing the measures of taking antiretrovirals and using condoms to prevent the spread of HIV was delivered to FRC on 3 December 2020. On 4 June 2021, two members of the team of health professionals visited FRC at his home and further discussed the concerns about HIV transmission. A further letter dated 19 November 2021 from the Chief Health Officer was hand delivered to FRC at his home on 2 December 2021, informing him of his obligation under the Act to take reasonable steps to prevent the transmission of HIV and warning that a public health order could be issued if he did not take those steps. 2. FRC did not begin to take antiretroviral medication in response to the letters. Some of the records of FRC's statements to members of the team of health practitioners treating him suggest that he was engaging in sex without condoms subsequent to the receipt of those letters (see Dr Weatherall's affidavit of 4 January 2023, paragraph 63h). 3. FRC has been made aware of the availability and effectiveness of the treatment of HIV with antiretroviral drugs on many occasions, both during his visits to the Waratah Clinic and in the course of telephone calls with members of the team of health professionals. He took antiretroviral drugs from mid-October 2019 until January 2020 and successfully reduced his viral load. He has repeatedly been offered antiretroviral tablets and he has also been offered injectable antiretroviral therapy as an alternative to daily oral tablets. 4. It was the oral evidence of Dr Weatherall that the recommended antiretroviral tablet, BIKTARVY, would be given to FRC at no expense to FRC. Further, FRC took BIKTARVY between October 2019 and mid-January 2020, with no apparent side effects. 5. Numerous efforts have been made by the health practitioners at the Waratah Clinic in 2020, 2021 and 2022 to engage FRC in treatment for his HIV infection. He has been made aware of the risk to public health. 6. Dr Fizzell had regard to the matters set out in s 62(6) of the Act and reg 59 of the Public Health Regulation 2022 when she issued the public health order in relation to FRC. There was abundant information available at the time to satisfy the requirements of reg 59 of the Public Health Regulation 2022. The information was also capable of forming the basis for a conclusion that a public health order was the most effective way to prevent any risk to public health. 7. The requirements of s 62(6)(a) of the Act and regulation 59 of the Public Health Regulation 2022 for the making of the public health order were met. Further issues raised by the Respondent 1. The Respondent complained about the timing of the public health order. It was submitted that the making of the public health order on 4 January 2023, during a period when many of the legal practitioners in New South Wales could be expected to be on holiday, disadvantaged FRC. I reject that submission. The Tribunal was open and accessible by 4 January 2023, and FRC, clearly, was able to obtain legal advice and representation. 2. Counsel for the Respondent suggested that the purpose for the making of the public health order was to create the potential for criminal penalties to be imposed upon FRC in the event of a breach of the public health order. There was no evidence to support this argument. The Tribunal was, however, provided with a large volume of evidence which establishes that the public health order was made to prevent a real and serious risk to public health. I therefore reject the suggestion made by counsel for the Respondent. 3. Prior to the making of the public health order, FRC was found guilty of sexually touching another person without consent, contrary to s 61 KC(a) of the Crimes Act 1900 (NSW). The incident which gave rise to the charge occurred at a train station, when FRC approached a 17 year old boy and touched the boy's upper buttock, under his pants. It was FRC's intention to apply to the Local Court for an order under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in relation to that charge. It had apparently been suggested to the Waratah health professionals, by counsel for the Respondent, that one or more of them might play a role in the orders to be sought in the Local Court. After discussion, the Waratah team declined to play the role suggested because the terms for their future engagement with FRC in the context of that role could not be agreed. Counsel for the Respondent implied that the decision to issue a public health order was somehow linked to the discussions in relation to the proposed s 14 order. There was no evidence to support this suggestion, and I reject it. The evidence that the intended purpose for the public health order was entirely consistent with the objects and the provisions of the Act is voluminous and compelling. Orders 1. On 24 January 2023, FRC's solicitors wrote to the Crown Solicitor indicating that FRC gave his consent to the following requirements of the public health order: (i) Refrain from condomless anal or vaginal intercourse; CONSENT (ii) Not share injecting equipment with anyone; CONSENT (iii) Submit to supervision of a medical practitioner at the Waratah Clinic, by attending the Waratah Clinic at St George Hospital, 2 South St, Kogarah NSW 2217. a. If the order is served on or before 8 January 2023, on 9 January 2023; b. If the order is served on or after 9 January 2023, within 24 hours of service; or c. If agreed by Waratah Clinic, at another time; And then attend appointments as arranged at least every 7 days. FRC has complied with this condition and consents to attend the clinic no more than once per fortnight or as otherwise agreed between the parties. (iv) Undergo HIV viral load testing and HIV genomic sequencing testing at the Waratah Clinic at St George Hospital, 2 South St, Kogarah NSW 2217 on the first occasion on which [FRC] attends that Clinic in accordance with order (iii) above. FRC has complied with the viral load testing component of this order and consents to attend the clinic no more than once per fortnight or as otherwise agreed between the parties. FRC does not consent to HIV genomic sequencing testing. (v) Undergo HIV viral load testing at the Waratah Clinic, St George Hospital, 2 South St, Kogarah NSW 2217 on: a. 18 January 2023; and b. 25 January 2023; and c. Then as directed by a medical practitioner at Waratah Clinic; and FRC has complied with this condition and consents to attend the clinic in the future no more than once per fortnight or as otherwise agreed between the parties. (vi) Take BIKTARVY (Bictegravir/emtricitabine/tenofovir alafenamide) or another antiretroviral medication as prescribed by a medical practitioner form the Waratah Clinic and in accordance with the prescription; and FRC has complied with this condition and consents to take Biktarvy in future. (vii) Notify the Secretary of NSW Health within one week of this order being served, of the names and contact details, that FRC is aware or is able to provide, of all persons with whom he has had condomless intercourse since 14 October 2019. Notification is to be made via email to NSWH-HIV@health.nsw.gov.au. FRC does not consent to this condition. 1. I take this "consent" to be consent to the confirmation of those parts of the public health order beside which the word "consent" appears in the letter. 2. Although counsel for the Respondent said, near the beginning of the hearing, that FRC's instructions remained consistent with that letter, in the course of submissions, arguments were advanced with the purpose of seeking to have the public health order revoked. 3. The Applicant agreed not to seek to have requirement (vii) confirmed. It is apparent that compliance would not be possible, because FRC is not in possession of much of the information the subject of requirement (vii). For that reason, the public health order was varied by the omission of requirement (vii). 4. The public health order was otherwise confirmed. Nothing in the circumstances of the making of the order which was in evidence before me suggested that the balance of the order should not be confirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2023