UZX [2020] NSWCATGD 3

Parties' submissions

NSW Health, represented by the Crown Solicitor, filed written submissions on 3 April 2020. The relevant content is set out in its entirety. THE PUBLIC HEALTH ACT 5. The long title of the Act is "An Act with respect to public health". The Act is intended "to provide a sound basis to enable public health authorities to effectively protect and promote public health in New South Wales": New South Wales, Legislative Assembly 2010, Agreement in Principle, 24 November 2010, p. 28127. 6. The objects the Act are contained in s. 3, as follows: "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." 7. The term "public health" is not defined in the Act. However, it is clear that the Act is not concerned with the general health of individuals. Rather, as reflected in s. 3, the Act is concerned with the management and control of diseases and other circumstances which pose a risk to the health of the broader community. 8. Part 4 of the Act is titled "Scheduled medical conditions". Division 4 of Pt 4 regulates the making of public health orders for Category 4 and 5 conditions and contact order conditions. Category 4 and 5 conditions are those conditions listed under the headings "Category 4" and "Category 5" in Sch. 1 to the Act: s. 51(1). Those categories are as follows: "Category 4 Avian influenza in humans COVID-19 (also known as Novel Coronavirus 2019) Middle East respiratory syndrome coronavirus Severe Acute Respiratory Syndrome Tuberculosis Typhoid Viral haemorrhagic fevers Category 5 Human Immunodeficiency Virus (HIV) infection". 9. Contact order conditions are those conditions listed in Sch. 1A to the Act: s. 51(1). Schedule 1A lists the following conditions: "Contact order conditions Avian influenza in humans COVID-19 (also known as Novel Coronavirus 2019) Middle East respiratory syndrome coronavirus Severe Acute Respiratory Syndrome Typhoid Viral haemorrhagic fevers". 10. Section 62(1) of the Act authorises the making of public health orders. It provides: "(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." 11. For present purposes, it is sufficient to observe that the power to make an order under s. 62(1)(a) is only engaged if an authorised medical practitioner is satisfied, on reasonable grounds, that a person has a Category 4 or 5 condition. Similarly, the power to make an order under s. 62(1)(b) is only engaged if an authorised medical practitioner is satisfied, on reasonable grounds, that a person has been exposed to a contact order condition: see s. 62(1)(b)(i). 12. In this case, the material before the Tribunal indicates that [UZX] has been diagnosed with schizophrenia, which is currently well controlled, and that she struggles with incontinence, self-care, food preparation and cleaning of herself and her unit. There is nothing in the material before the Tribunal which indicates that [UZX] has been exposed to COVID-19 or that she has contracted COVID-19. These are necessary pre-conditions to the making of an order under s. 62(1) of the Act. Accordingly, the power to make an order under s. 62(1) does not appear to be engaged in this case. 13. Rather, the basis for the guardianship application is that care services have ceased being provided to [UZX] at her home, on the basis that home visits could pose a risk to the health of her carers. That is said to be because [UZX] does not understand the need for self-isolation during the COVID-19 pandemic. Should she contract the disease, a number of risk factors (age, Aboriginal heritage, history of smoking and Asthma) mean that she has a greater chance of becoming acutely unwell. In this way, the present application is brought on the basis of a concern about the health of [UZX], not about the health of the public more broadly. 14. There are a number of aspects of the regime for the making of public health orders which indicate that such an order should be reserved for exceptional circumstances in which a threat is posed to the public health, and would not be appropriate in the present circumstances. 15. First, only an authorised medical practitioner may make a public health order. An authorised medical practitioner 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 Div. 4 of Pt 4 of the Act. 16. Secondly, the permissible terms of a public health order reflect the fact that the underlying concern is to prevent the spread of the relevant condition. For example, an order may require the subject to "notify the Secretary of other persons with whom the person has been in contact within a specified period", to "notify the Secretary if the person displays any specified signs or symptoms" and to "undergo specified testing for the relevant condition": s. 62(3). An order may also authorise the subject to be detained at a specified place for the duration of the order: s. 62(4)(a). 17. Thirdly, it appears that a public health order made under s. 62(1) is intended only to operate for such time as the person poses a risk to the broader community. Unless said to expire sooner, an order under s. 62(1)(a) would expire after 28 days and an order under s. 62(1)(b) (made on the basis that the person has been exposed to COVID-19) would expire after 14 days: see s. 62(2)(d) and Sch. 1A. While this is subject to extension by the Tribunal, an application must be made by the authorised medical practitioner before the expiration of the order: see s. 65. 18. Fourthly, s. 62(6)(a) provides that, in deciding whether to make a public health order, the authorised medical practitioner must take into account "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". 19. Finally, breach of a public health order is an offence carrying with it a penalty of 100 penalty units or imprisonment for six months or both: s. 70(1). In addition to the procedures for arresting a person contravening a public health order in s. 71, a police officer may arrest a person if the officer suspects on reasonable grounds that a person is contravening a public health order relating to the COVID-19 pandemic: s. 71A. CONCLUSION 20. The power under s. 62(1) is not available because there is no evidence to suggest that [UZX] has contracted COVID-19 or that she has been exposed to COVID-19. 21. In any event, the features of the statutory scheme outlined above indicate that a public health order would only be made in extreme circumstances where the person poses a risk to public health. It is not the appropriate order where the concern is protection of the health and wellbeing of a particular individual. The variation to the guardianship order is sought on the basis that [UZX] is vulnerable and there is a particular risk posed to her health as a result of the COVID-19 pandemic and the consequent cessation of at-home care. She has particular care needs that are appropriately the subject of a guardianship order, and not a public health order.
Written submissions were filed by the Public Guardian on the same date. The relevant content is set out in its entirety. 2. Recommendation The Public Guardian believes [UZX] remains in need of a guardian. The Public Guardian recommends the Order be renewed with the functions of services, accommodation, and the addition of the authorise others function for a period of 12 months reviewable. 3. Reason for recommendation Accommodation and authorise others The current COVID-19 pandemic and associated risks related to [UZX]'s failure to comply with Public Health Directives has led to a decision by [the service provider] to withdraw support to [UZX]. [UZX] has been assessed as being at high risk of contracting COVID-19 due to a range of factors related to both her health and her behaviours. These include the fact that she is 69 years of age, a heavy smoker, suffers from respiratory related health issues, and continues to wander the streets in contravention of current COVID-19 related health directives. The issue to be decided in regard to the application before the Tribunal for the addition of a coercive accommodation function to the current guardianship order is whether concerns related to [UZX]'s failure to comply with social distancing regulations are best addressed in relation to the Guardianship Act or whether, alternatively, it is a matter that would more appropriately be addressed under Section 62 of the Public Health Act. Section 62 of the Public Health Act 2010 states: (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. [UZX]'s circumstance does not, prima facie, meet the criteria to be considered under the Public Health Act due to the fact that she has not been diagnosed as having a Category 4 condition (which includes COVID-19) nor is there any direct evidence that she has been exposed to a 'contact order' condition other than what might be inferred in her non-compliance with public health directives in relation to social isolation. The question arises as to whether this non-compliance constitutes 'exposure' under the Act. This is a matter for the Tribunal to determine. It should be noted however that although a concern for [UZX]'s health is the primary focus of the applicant's submission, the context for this application is the public health risk concern of support workers that they could be exposed to the virus due to [UZX]'s failure to comply with social distancing regulations. Should the Public Guardian be appointed with an accommodation function, the onus of decision making, in accordance with the guardianship principles, would be on the promotion of the welfare and interests of [UZX] rather than the risk to public health. Any decision made by the Public Guardian would therefore need to take into account the health risks to [UZX] associated with her unchecked access to the community. A concern for the health of [UZX] was the primary focus of the applicants request for the additional guardianship function. The applicant has recommended that this concern be addressed through a decision involving [UZX]'s potential forced removal from her current independent living arrangement into an aged care facility. Any decision made by the Public Guardian would need to consider the merits of this proposal with a focus on [UZX]'s welfare and interests, in part balanced by the need to promote her will and preferences and her capacity to live a normal life in the community. It should be noted that [UZX] has expressed a strong view that she does not wish to be placed in an aged care facility. As the Public Guardian is already appointed as [UZX]'s guardian we are of the view that, on balance, there may be utility in the addition of a coercive accommodation function to the current order should the Tribunal assess [UZX]'s current circumstance as, first and foremost, constituting a significant risk to herself (rather than the public). We are of the view that our prior guardianship of [UZX] is a significant factor in making this recommendation. We wish to emphasise that future cases of this kind need to be assessed on a case-by-case basis and that cases involving circumstances where there is a concern for health implications to the wider public should continue to be viewed within the purview of the Public Health Act.
Mr Sean Hosking, Regional Manager, Southern Office of the Public Guardian, also made oral submissions in response to the written submissions made by NSW Health. We understood these to be as follows:

The Public Guardian does not agree with NSW Health's position (at [14] and [21]) of the written submissions) that an order under the Public Health Act should be reserved for "exceptional circumstances"
The Restrictions and Gathering and Movement Order provisions requiring social isolation were enacted for a reason and by their very content deem that there is a risk of exposure in the community to COVID-19
The Order makes clear that people who do not comply with the provisions and wander around the community constitute a risk to the community
In UZX's case, the prospect of needing residential care has been on the horizon before this application. Given the pre-existing relationship between the Public Guardian and UZX, on balance looking at the individual merits of the case the Public Guardian recommends that the order is varied as requested
However there will be other matters in which the Public Guardian may take a different view and in which the Public Health Act "should be in play"
The making, or variation, of a guardianship order should not be seen as a less significant infringement on someone's rights compared to the making of a public health order under s 62 of the Public Health Act. A guardianship order is a more comprehensive infringement in certain ways than a public health order given the time limited nature of a public health order (28 days if the order is made under s 62(1)(a) and 14 days if made under s 62(1)(b) (subject to extension) of that Act). The terms of a guardianship order are usually longer. A public health order is also limited to one aspect of the person's behaviour unlike a guardianship order which can address a number of aspects of a person's life

The separate representative made oral submissions summarised as follows:

On balance, the variation sought is warranted in the circumstances
The separate representative agreed with the Public Guardian's submission that there is no need to establish that exceptional circumstances exist before an order under s 62 of the Public Health Act may be made
Clause 39(1) of the Public Health Regulation sets out the matters that must be taken into account when an authorised medical officer is deciding whether or not to make a public health order in respect of a person. These are, relevantly: (a) whether reasonable attempts have been made to provide the person with information about the effects of the Category 4 or 5 condition the person has and the risks to public health of that 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, and…
The provisions in s 62 of the Public Health Act and cl 39 of the Public Health Regulation make clear that that the making of a public health order is not restricted to exceptional cases. The authorised medical officer is however required to consider "the options other than a public health order that are available to deal with the risk to public health posed by the person": Public Health Regulation, cl 39(1)(b).

Tribunal's reasoning

We concluded that the application for review was concerned primarily with UZX's safety and welfare as a result of COVID-19 and her inability, due to her cognitive difficulties, to understand the need to self-isolate and implement that course of action in line with the Restrictions on Gathering and Movement Order made pursuant to s 7 of the Public Health Act.
We also concluded on the evidence available to us that the risk to UZX's health, should she contract the virus, is heightened due to her underlying health issues. UZX's health and safety has been placed in further jeopardy following the cessation of personal care services by the service provider due to concerns that UZX is not self-isolating and therefore is placing staff at risk of contracting the virus. The evidence is that without a considerable degree of personal care support on a daily basis, UZX's general health, hygiene and well-being will deteriorate further.
Whilst we note the evidence that the service provider withdrew services to UZX also out of concern for the possible transmission of the disease to other vulnerable clients of that organisation if care staff continued to provide services to UZX, this did not in our view alter the focus of the application being primarily and predominantly being UZX's welfare and interests.
We also accepted that UZX's incapacity to observe the requirements of the Gathering and Movement Order places her at risk of coming to the attention of police and the penalties that might apply.
The objects of the Public Health Act make clear its focus on managing risk to the community and that the "protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act": s 3(2).
We were satisfied that the current issues concerning UZX do not appear to have public health concerns as their focus that might lead to an order being made under s 62(1)(b) of the Public Health Act.
Having noted this, and not a matter we needed to determine on this occasion, it does not appear that "exceptional" or "extreme" circumstances in which a threat is posed to the public health need to exist before a public health order is made under s 62(1)(b) of the Public Health Act. There is no requirement in the legislation or regulations that such circumstances exist. We also note the submission made on behalf of the applicant that without evidence that UZX has in fact been exposed to COVID-19, the power to make an order under s 62(1)(b) of that Act is not engaged. The making of the Gathering and Movement Order that acknowledges the potentially fatal and highly contagious nature of the disease and that community transmission has occurred leaves open, in our view, an argument for another day that there may be reasonable grounds to satisfy an authorised medical practitioner that exposure to COVID-19 has occurred: Public Health Act, s 62(1)(b)(i).
In this matter the Public Guardian supported the variation of the existing guardianship order as requested by the applicant.
In doing so, the Public Guardian emphasised that its pre-existing role as the appointed guardian for UZX was a significant factor in making this recommendation and commented that: future cases of this kind need to be assessed on a case by case basis and that cases involving circumstances where there is a concern for health implications to the wider public should continue to be viewed within the purview of the Public Health Act.
We accepted that there did not appear to be any other avenue by which UZX's welfare and interests could be promoted in light of her inability to understand the need to self-isolate as a result of her cognitive impairment. There is no other practicable way for services to be provided to UZX without the requested authority being included in the order: Guardianship Act, s 14(2)(d).
We were satisfied that UZX's decision-making impairment is such that it results in her making decisions and engaging in activity which exposes her to self-neglect: NIQ [2014] NSWCATGD 28, [51]. We gave greater weight to the need for UZX to be protected from neglect (s 4(g) of the Guardianship Act) than the principles that require the Tribunal to: restrict as little as possible UZX's freedom of action and freedom of decision (s 4(b) of the Guardianship Act); take account of UZX's views as consistently expressed to others (s 4 (d) of the Guardianship Act); and to encourage, as far as possible, UZX to be self-reliant in her personal affairs (s 4(f) of the Guardianship Act).
As a result, we varied the order as requested. It was a matter of consensus between the parties that the term of the varied order should remain as it was when the guardianship order was first made on 2 August 2019, that is, for a period of 12 months from that date. We determined this was the correct approach.
If anyone with a genuine concern for UZX's welfare subsequently forms the view that the additional authority is no longer required, or that the guardianship order should be reviewed more generally, then an application for review may be made to the Tribunal.

At a glance

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Judgment (8 paragraphs)

Legislation Cited (3)

Cases Cited (3)

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