CITATION: Chief Health Officer, New South Wales Department of Health v TC [2010] NSWADT 88 DIVISION: General Division APPLICANT Chief Health Officer, New South Wales Department of Health PARTIES: RESPONDENT TC FILE NUMBER: 103030 HEARING DATES: 23 February 2010 SUBMISSIONS CLOSED: 23 February 2010 EXTEMPORE DECISION DATE: 23 February 2010 DATE OF DECISION: 23 February 2010 BEFORE: O'Connor K - DCJ (President); Goode P - Judicial Member; Matthews R - Non-Judicial Member CATCHWORDS: Public Health – Application for Continuation of Public Health Order – Category 4 (Tuberculosis) – Detention under Medical Supervision – Endangerment to Public – Application granted – Public Health Act, 1991, s 26 LEGISLATION CITED : Public Health Act 1991 APPLICANT K Thomas, legal officer REPRESENTATION: RESPONDENT No appearance ORDERS: The public health order is continued until 24 June 2010. DELIVERED EX TEMPORE REASONS FOR DECISION (EDITED) 1 HIS HONOUR: The Tribunal has before it an application under s 26(4)(a) of the Public Health Act 1991 (the Act) filed 12 February 2010 for the continuation of a public health order in relation to TC. The public health order was made on 27 January 2010. The Tribunal's jurisdiction is given by s 26 of the Act. The public health order is Exhibit 6 in the proceedings. Under the order the Chief Health Officer of New South Wales, Dr Kerry Chant, has certified that TC is suffering from tuberculosis, a category 4 medical condition and his behaviour, while suffering from this condition, is endangering or is likely to endanger the health of the public. He has been required to submit to the supervision of Dr Paul Torzillo, physician at The Royal Prince Alfred Hospital. There are further conditions including to detain him subject to such security as may be considered necessary in hospital. There are circumstances set out in the public health order that have given rise to that decision. 2 Today we have received evidence in support of the application to continue the public health order. The Tribunal is empowered to continue the order if it is satisfied, on reasonable grounds, that the person to whom the order relates would, if not subject to such an order, continue to endanger the health of the public as a consequence of suffering from a category 4 or category 5 medical condition. The respondent, TC, has, we are satisfied, been served with notice of these proceedings and has indicated on more than one occasion to people dealing with him that he did not wish to attend today. So these proceedings have been conducted in his absence. We have had detailed affidavit material from Professor Seale, Dr Conaty and Ms Van Der Heide, Registered Nurse, all of whom are familiar with TC's circumstances and in the case of Dr Conaty and Nurse Van Der Heide have been in an immediate treating and care relationship to him. 3 The requirement of the legislation essentially, is to be satisfied, first, that there is a possibility that the person might continue to endanger the health of the public if he were to be released from the order and secondly, on reasonable grounds that the order should be continued. There has been substantial material put before us as to the general risk that having a person circulating in the community with TB might present to other members of the public. The situation today in Australia, of course, is that TB is treated within a community framework in normal circumstances. It is no longer the case that people are brought into detention for the purpose of treatment, whereas I think that was once the case. 4 This is a rare and unusual case in terms of the way in which these matters are treated today. Obviously we are involved in exercising a power which restricts the civil liberties of an individual. Before action of that kind is taken, alternative measures that are reasonable and are less restrictive, should be employed. There is substantial material before us today to indicate that numerous attempts, especially on the part of Nurse Van Der Heide, have been taken to have TC participate in an effective program of treatment within a community framework. He has proved to be a very difficult and unco-operative patient. It seems that his ability to co-operate is affected by the other conditions from which he suffers. The Tribunal is satisfied that to the extent that is a relevant matter to consider, appropriate attempts have been made along those lines. 5 The evidence is substantial as to the endangerment to public health that might be presented by TC continuing to circulate in the community. The Tribunal, as it has indicated in its questions today, has had particular regard to the fact that he is a homeless person circulating actively within the community of homeless people; and that overseas' research indicates that there is a significantly higher risk of people in the homeless community contracting TB as compared to the general population because they may be malnourished and due to other circumstances that often affect them, such as HIV and alcoholism and drug abuse. So the nature of the population within which TC circulates is clearly relevant to these matters. I will not set out today the expert evidence that was given. We accept the expert evidence which is essentially to be found at paragraph 50 and following of Dr Conaty's affidavit: '50. In my opinion the Public Health Unit and the Royal Prince Alfred Hospital staff have exhausted all reasonable attempts to treat TC for his TB in the community. 51. In my opinion there is no reasonable way to ensure TC receives regular treatment for his TB other than by detaining him in hospital for the remaining duration of therapy required. 52. If TC is not treated or only treated intermittently there is a very high risk that his TB will recur. 53. If TC's TB recurs he will infect other homeless people with drug and alcohol problems with whom he will come into contact. 54. Once infected, individuals in the homeless community have a high risk of developing active tuberculosis. Their high risk of infection can be attributed to the fact that because they may be malnourished, have a high incidence of HIV infection and high alcohol consumption their immune response is less than adequate. 55. Once infected, individuals in the homeless community, especially those who have a high alcohol intake, have poorer outcomes and have a higher risk of dying from the tuberculosis. 56. An additional risk with intermittent therapy, such as TC has experienced, is that some of the tuberculosis mycobacteria will develop resistance to the drugs he is being treated with. TC will then need to be treated with other less-effective drugs that will prolong his therapy, make it more difficult for him to achieve cure, and place others at risk of infection with a drug resistant organism that is more difficult to treat.' and at paragraphs 10 to 12 of Professor Seale's affidavit: '10. It is my opinion, that once released from RPA Hospital, TC will not complete his tuberculosis treatment voluntarily. This opinion is based on our previous attempts to provide him with medications in the community. Despite extensive endeavours and repeated attempts it has not been possible to meet with him to give him his medication in accordance with a DOTS program. 11. It is my opinion that if TC is released from hospital, he will not receive any more TB medication. This will result in reactivation of his pulmonary TB, which means that he will become unwell and he will become an infection risk to members of the public. 12. It is my opinion, given the sensitivity of the TB bacteria infecting TC and the intermittent treatment that he has received to date, that he will require a further 4-months of uninterrupted treatment under supervision in order to render him safe from relapse of TB.' 6 We grant the application in the terms proposed. We order that the order issued 27 January 2010 remain in force for a further four months from the date of expiry of the existing order. Order The public health order is continued until 24 June 2010. 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.