Hay v Dubbeld

Hay v Dubbeld - [2005] VCAT 642 - VCAT 2005 case summary — Zoe

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The prospect of a tattooist requiring drugs to deal with exposure to HIV or Hepatitis C is not an enticing one, as Dr Wright explained that up to 70% of persons having such treatment experience some side effects from the treatment.

12 Although Dr Wright was not particularly familiar with the tattooing industry, she thought that it would be wise for tattooists to take universal precautions in the same way as the medical profession. She acknowledged that the more skilled the person, the more likely that they would be able to safely carry out a particular procedure. Further she said that in the hospital setting new professionals experienced considerable training in the taking of precautions.

13 Mr Dubbeld, now aged 32 years, has only worked as a tattooist since 2001. He left school during year 9 and has had no further education. He has had various jobs: he worked as a labourer, he operated a fish and chip shop and has worked as a furniture removalist. Since a teenager, he has been interested in drawing and artwork. This led him to seek work as a tattooist, notwithstanding having had no previous experience in the health or personal services fields. When he started as a tattooist in 2001 he was provided with on-the-job training.

14 Mr Dubbeld gave evidence about the process usually used in tattooing. This evidence was based upon the practices of some 25 to 30 tattooists that he had observed. He said that a customer would first choose a design. The tattooist would then apply stick deodorant to the customer's skin, apply an outline of the design to the skin, smear the skin with Vaseline, and then use a mechanical needle to inject ink. Subsequently shading needles (up to 11 needles bunched together) would be used to apply shading to fill out the design. The tattooist would spread the client's skin to keep it taut; and the tattoo would be applied within a centimetre or so of the tattooist's fingers. During this process the tattooist would wear normal street clothes, with no face or eye protection; but he would wear latex gloves taken from a non-sterile container. Mr Dubbeld said that it was quite unusual for tattooists to use gowns, masks or safety glasses. During the process of applying a tattoo the customer's skin bleeds profusely and blood, usually mixed with ink, would be frequently wiped from the skin with a tissue in order to maintain a clear working surface. Mr Dubbeld said that in applying a routine tattoo he might use up to half a box of tissues in cleaning away blood and ink.

15 Mr Dubbeld told the tribunal that since being a tattooist he has had two needle stick injuries. The first injury occurred when a customer accidentally stepped on the foot pedal of the needle machine; and the second injury occurred when Mr Dubbeld was rinsing the needles prior to a colour change. It is apparent that the risk of a needle stick injury occurring in tattooing is a real one.

16 There appears to be no tertiary training course for tattooists. Rather tattooists learn their trade on the job. No doubt this can result in the development of practical skills; but it can also give rise to bad habits. For example, Mr Dubbeld said that sometimes he would have a beer whilst applying a tattoo. When challenged on this practice, he said: "well, no-one's died".

17 The tattooing industry in Victoria is subject to regulation, but this might be described as "light handed" regulation. To say this is not to be critical. No doubt there is a concern that if regulation is onerous, tattooing might be driven underground and would then occur in a completely unregulated environment.

18 Section 366C of the Health Act 1958 requires a person conducting the business of tattooing (along with hairdressing, a beauty parlour, ear piercing and acupuncture) to register the premises upon which the business is conducted. Further, the Health (Infectious Diseases) Regulations 2001 requires the proprietor of such a business to keep the premises in a clean and hygienic state. The regulations provide that the proprietor must ensure that an article intended to be used for penetrating the skin of a person is sterile at the time of use and an article which has penetrated the skin of a person, or is contaminated with blood, is destroyed or disposed of immediately in a manner as to prevent the infection of any other person.[6] The regulations also require the proprietor to ensure that each person in the business who is engaged in carrying out any tattooing is clean and has no exposed cuts, abrasions or wounds before carrying out the process. Further, the proprietor must ensure that before tattooing any person written information is provided to the person about the transmission of infectious diseases associated with the process.[7] Although it was once the case that a person who knows, or suspects, that he is suffering from any infectious or contagious disease could not enter a tattoo parlour,[8] this is no longer the law.

19 The Department of Human Services has published a client health information sheet directed at persons considering having a tattoo.[9] The client health information sheet states:

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22 It is inevitable that a person engaged in tattooing will be at risk of being infected with infectious diseases. It follows, I think, that a tattooist ought take reasonable precautions to avoid being infected with such diseases. Although a person with an infectious disease ought take necessary measures to ensure that others are not unknowingly placed at risk of becoming infected (including disclosing his or her condition to a tattooist), a tattooist cannot reasonably expect that this obligation will always be met. Hence it is wise for a tattooist to adopt a policy of universal precautions.

23 Based upon my primary findings, I make the following specific secondary findings. If Mr Dubbeld had tattooed Mr Hay the probability of some adverse event occurring, such as a needle stick injury or a splash of blood, is low. However if such an adverse event did occur it is highly probable that this would have a substantial impact upon Mr Dubbeld's health. Hence the combined probability of an adverse event occurring and it also having a substantial impact upon Mr Dubbeld's health is low; but it is not so low that a reasonable person would safely ignore it.

24 Medical practitioners, nurses and other highly trained health professionals take universal precautions in relation to infection. But a tattooist is quite unlikely to have the same training as a health professional; and is unlikely to have the same understanding of infectious diseases. Hence the analogy with health professions, whilst relevant, is not decisive when it comes to the circumstances that might make it reasonably necessary for a tattooist to refuse to provide a tattooing service.

25 I find that the circumstances where it is "reasonably necessary" to refuse a service in order to protect the health of the service provider will depend upon the training, skill and experience of the person providing the service. This is because a person with a high level of training and skill, or with considerable experience, will be less likely to experience an adverse health impact as a result of providing the service. But when it comes to tattooing in Victoria in 2004, I find that the standards adopted in practice are, if not a world away, substantially lower to those applied in the provision of health services.

26 As I have mentioned earlier, another factor which is relevant is the utility of the event which is accompanied by risk. Some procedures are vitally important to public health: examples are immunisation, the giving of blood and the resuscitation of accident victims. By contrast, although a tattoo might be important to the individual concerned, it cannot generally be said that there is a strong public interest in the tattoo being provided. Hence circumstances which might make it "reasonably necessary" to refuse to provide a tattoo will not necessarily justify a refusal to provide medical treatment.

27 No doubt there will be tattooists who are willing to provides tattoos to persons who are infected with HIV or Hepatitis C. Possibly these persons will have considerable experience as a tattooist or a high degree of training, not only in their craft, but in relevant health consequences. But the fact that some tattooists would be willing to undertake the task does not mean that it is unlawful for other tattooists to refuse. Part of the balancing process requires consideration to be given to the risk averse tattooist, including those of limited education and experience.

28 Having considered these factors, I conclude that Mr Dubbeld has established that it was reasonably necessary for him to refuse to provide his tattooing services to Mr Hay in order to protect his health. This is because the provision of the service would have carried a real, albeit low, risk of Mr Dubbeld becoming infected with Hepatitis C; Mr Dubbeld was not highly trained and had an incomplete understanding of the transmission of infectious diseases; although the service was no doubt important to the complainant, there was no substantial public interest in the tattoo being provided; and a judgment as to what is "reasonably necessary" must take account of the varying risk-taking profiles of tattooists.

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Hay v Dubbeld (Anti-Discrimination) [2005] VCAT 642 (15 April 2005)

Parties

Cases Cited (2)