Submission of the Bioethics Council on the Public Health Bill

March 2008

Introduction

1. This submission is from Toi te Taiao: the Bioethics Council, PO Box 10362, Wellington. The contact person is John Pennington, Executive Officer, the Bioethics Council Secretariat, (04) 916-7673, PO Box 10362, Wellington.
2. Dr Marie Bismark wishes to appear before the Committee. Dr Bismark is a member of the Bioethics Council (the Council), phone (04) 462 0401.
3. Toi te Taiao: the Bioethics Council was established by the New Zealand Government in 2002 as a ministerial advisory committee. The Council consists of 10 members and is chaired by Dr Martin Wilkinson. The Council’s Terms of Reference are based on recommendations made by the Royal Commission on Genetic Modification in 2001. The key responsibilities of the Council are to:
   1. Provide independent advice to Government on biotechnological issues involving significant cultural, ethical and spiritual dimensions;
   2. Promote and participate in public dialogue on cultural, ethical and spiritual aspects of biotechnology, and enable public participation in the Council’s activities; and
   3. Provide information on the cultural, ethical and spiritual aspects of biotechnology.
4. This submission has the support of the Council and its secretariat.

General Points

5. The Council believes that the improvement, promotion, and protection of public health raises cultural, ethical and spiritual questions, which are of significant interest to the public.
6. The Council recognises the need for robust and comprehensive public health laws with the objective of improving, promoting and protecting public health.
7. The Council commends the inclusion of non-communicable diseases within the ambit of the Bill. The Council recognises that some of the greatest threats to the health of New Zealanders come from diseases such as heart disease, cancer and the rising rates of obesity and diabetes, and supports efforts to reduce risk factors for these conditions.
8. The Council has focused its comments on those aspects of the Bill with direct relevance to the Council’s terms of reference.

Purpose

9. The Council recognises the tension in this Bill between the need to protect the well-being of the community and the individual right of self determination.  The Council supports the move in this Bill towards ensuring that the least restrictive alternatives are applied when addressing a public health risk. However, the Council is concerned that a number of principles are currently scattered in an uncoordinated manner through the Bill, and that some Parts of the Bill have no statement of Principles at all.
10. The Council recommends that Part 1 of the Bill should include an overarching statement of Principles which would guide the interpretation of the entire Bill.
11. The Council recommends that the statement of Principles should include provisions relating to:
    1. The importance of collective action in order to achieve common goods;
    2. Respect for individuals;
    3. Protection of vulnerable populations, and in particular, children;
    4. Use of the least restrictive alternative, so that public health powers intrude into personal autonomy to no greater extent than is necessary to achieve the aims of the Bill;
    5. Proportionality between the restrictions on individual autonomy and the magnitude of the risk;
    6. Consultation and dialogue with communities; and
    7. Recognition of the needs, values, and beliefs of different cultural, religious, social, and ethnic groups, including the needs, values, and beliefs of Māori.

Condition

12. Clause 4 defines “condition” as including diseases, whether communicable or not, and physical harm caused by chemical, radiation or other toxic exposure.
13. It is not clear whether this definition includes latent conditions which have not yet manifested themselves, such as genetic conditions. So, for example, would a person carrying the gene for Huntington’s Disease be viewed as having a “condition” within the meaning of the Bill? And if so, would he or she be viewed as posing a “health risk” to any relatives or future offspring who are at risk of developing the same condition?
14. As the Bill currently stands, it is possible that persons with genetic conditions could be viewed as having a “condition” within the meaning of Part 4 and, as such, may in some circumstances be subject to medical examination (clause 97), contact tracing (clause 114), and health risk orders (clause 113). The Council believes that such a significant change in the law relating to genetic conditions should only occur following a careful process of public dialogue and deliberation. The Council is concerned that appropriate dialogue and deliberation does not appear to have occurred in relation to this aspect of the Bill.
15. The Council is also unclear whether “condition” includes injuries, and suggests that this should be clarified.
16. The Bioethics Council recommends that the definition of “condition” should be more clearly defined, taking into account the potential consequences for a person with a genetic condition under subsequent clauses of the Bill.

Codes, guidelines, and regulations

17. The Bill contains provisions for the Director General to make non-binding codes and guidelines (clause 81) and provides that regulations may be made (clause 374(x)) in order to reduce risk factors for non-communicable disease. As stated above, the Council commends the inclusion of non-communicable disease within the ambit of the Bill, as these diseases are a leading cause of morbidity and mortality in New Zealand.
18. However, given the importance of non-communicable disease to public health in New Zealand, the Council is concerned by the Bill’s reliance on the use of “soft law” to address non-communicable disease risk factors. In particular, the Council notes that the Bill largely relies on the exercise of discretionary powers by the Director-General in order to address these risk factors. These discretionary powers:
    1. delegate decisions to the executive branch of government which are of such national importance that Council believes they deserve the protections of the full Parliamentary process;
    2. create significant uncertainty regarding the ambit and implications of the Bill, which makes it difficult for either industries or the public to understand what they are “signing up for” in supporting the Bill; and
    3. do not impose a clear legal duty on the Director-General to take reasonable steps to address risk factors for non-communicable disease.

The Council accepts that public health legislation needs to be sufficiently flexible and responsive to deal with unanticipated risks to public health. However, in relation to well-established and clearly recognised risk factors, such as poor nutrition, physical inactivity, and smoking, the Council considers that public health powers and duties should be set out in primary law, rather than relegated to codes, guidelines, and regulations.

Health Impact Assessments

19. The Council supports Health Impact Assessments because they:
    • improve the quality of information available to decision-makers in relation to the broader consequences of their decisions, including social and cultural determinants of health;
    • strengthen the links between research and policy;
    • encourage intersectoral collaboration, where appropriate;
    • promote a participatory, consultative approach to policy-making;
    •  assist in reducing inequalities in health, particularly between Māori and non- Māori.
20. The Council commends the inclusion of provisions relating to Health Impact Assessments in the Bill (clause 324). However, the Council is concerned that the Bill does not establish any legal duty for government departments or other specified entities to perform a health impact assessment, even in situations where a policy, project, or consent poses a foreseeable risk of significant harm to public health.
21. The Council recommends that the provisions relating to health impact assessments should be strengthened in order to require the use of health impact assessments in situations where there is a foreseeable risk of significant harm to public health.

Recommendations

22. Therefore the Council recommends that:
    1. Part 1 of the Bill should include a clause which sets out the overarching principles of the Bill. The Council suggests that relevant principles may incorporate reference to common good, individual autonomy, least restrictive alternative, proportionality, protection of vulnerable populations, consultation with communities, and respect for cultural, religious, social, and ethnic values and beliefs.
    2. The term “condition” should be more clearly defined and, in particular, that the Bill should clarify whether conditions include genetic conditions and injuries.
    3. Significant provisions relating to non-communicable disease risk factors should be included in the Bill as primary legislation where possible, with the discretionary use of codes, guidelines, and regulations being reserved for operational details and situations of unanticipated risk.
    4. The provisions relating to health impact assessments should be strengthened in order to require the use of health impact assessments in situations where there is a foreseeable risk of significant harm to public health.