Thursday, 20 February 2020

Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Bill 2020

Statement of compatibility

Mr FOLEY (Albert Park—Minister for Mental Health, Minister for Equality, Minister for Creative Industries) (10:09): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Bill 2020.

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Bill 2020 (Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Health Services Act 1988 and the Ambulance Services Act 1986 to enable the Secretary to direct public hospitals, health service establishments and ambulance services to require persons they employ or engage to be vaccinated against, or prove immunity to, specified diseases. Compliance with a direction of the Secretary is mandatory and the Bill provides that a direction may specify the consequences of non-compliance for those persons as employees or persons engaged by the hospital or ambulance service.

The purpose of the Bill is to protect the health and safety of patients by mitigating the risk of transmission of vaccine preventable diseases. The Bill will also improve occupational health and safety for Victoria’s frontline healthcare workers providing vital services in hospitals by reducing their risk of infection by vaccine preventable diseases.

Human Rights Issues

Power of direction subject to s 38 of the Charter

As a preliminary point, the Secretary is a public authority subject to section 38 of the Charter and must give proper consideration to relevant rights (including the right to equality) and act compatibly with human rights when making a decision, which would include a direction made under these amendments. Undertaking proper consideration involves a reasoning process that includes the Secretary seriously turning his or her mind to the possible impact of the direction on a person’s human rights, and balancing competing private and public interests as part of the exercise of justification. The obligation to act compatibly includes making a direction that is substantively compatible with Charter rights.

Any direction made under these amendments will be relevant to the rights to equality (s 8), freedom of thought, conscience, religion and belief (s 14), expression (s 15), not receive medical treatment without consent (s 10) and privacy (s 13), which I will now discuss in turn. As the justification for any resulting limit is generally the same for each of these rights, I propose to first outline the underlying purpose and justification for this amendment, and then discuss the compatibility with each of the above rights.

The importance of the limitation

Reducing morbidity and mortality from many infectious diseases by means of vaccination is considered the most significant public health achievement of the past century. The weight of scientific evidence demonstrates that vaccines are safe and effective, and provide a wide-ranging public health benefit. Despite the huge gains made in this area, infectious diseases remain a significant cause of death worldwide, threatening public health and contributing significantly to the escalating costs of health care.

Healthcare workers are at an increased risk of vaccine-preventable diseases and may pose a risk of transmission to other staff and patients, particularly those who are at risk because of age, chronic disease, immunosuppression or pregnancy. Additionally, there is a heightened importance of promoting ‘herd immunity’ (the rate of immunisation that can prevent the spread of disease) in acute healthcare settings in relation to protecting those who cannot receive vaccines or for whom vaccinations do not work. These risks to health can have serious consequences, including death.

Mandatory vaccination of healthcare workers will improve the protection of both healthcare workers and their vulnerable patients from vaccine preventable diseases, leading to clear public health benefits. A poorly vaccinated workforce present risks to occupational health and safety, patient safety and health services’ operations. Strong and irrefutable medical and scientific evidence demonstrates that there is no less restrictive alternative except to require mandatory vaccination, and that exemptions to compulsory vaccination laws threaten to undermine the public health benefit made possible by widespread immunisation and ‘herd immunity’. Victoria is currently one of the few Australian jurisdictions that does not have a mandatory vaccination requirement for healthcare workers.

Right to equality (s 8)

Section 8(3) of the Charter provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. ‘Discrimination’ under the Charter means discrimination within the meaning of the Equal Opportunity Act 2010. Under section 8 of that Act, direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons on the basis of a protected attribute, and that is not reasonable.

A direction of the Secretary requiring specified healthcare workers to be vaccinated may result in unvaccinated workers being treated less favourably than vaccinated workers. This may engage the right to equality where the treatment or disadvantage results from a protected attribute, such as the person’s religious or political belief, physical features or disability (such as a medical condition or the presence (or potential future presence) in the body of organisms that may cause disease).

Section 86 of the Equal Opportunity Act 2010 permits discrimination on the basis of disability or physical features if reasonably necessary to protect the health of individuals or the public generally, which is the underlying purpose of a direction made under these amendments. Accordingly, any discrimination on the basis of these protected attributes will not limit the right to equality in the Charter.

In relation to discrimination on the basis of religious or political belief, the Bill deems any such direction made under these amendments to not constitute discrimination on the basis of political belief or activity or religious belief or activity for the purposes of the Equal Opportunity Act 2010. I accept that such a deeming provision which reduces the scope of the definition of discrimination has a limiting effect on the right to equality. However, in my view such a limit is reasonably justified with regard to the importance of the limitation I outlined above, and the fact that any unfavourable treatment that results will be on the basis of that person’s failure to take a step which may prevent or minimise the impact of a disease, rather than as a targeted result of their religious or political belief.

In relation to the case of a person with a medical contraindication to vaccination, the Secretary will be required under their s 38 Charter obligation to consider the implications of any direction for such an affected person and balance it against the public interest, including considering whether any less restrictive means are available such as granting the affected person an exemption from a direction if to do so would not compromise the overall efficacy of the direction.

Accordingly, in my opinion the Bill is compatible with the right to equality in the Charter.

Freedom of thought, conscience, religion and belief (s 14) and freedom of expression (s 15)

Section 14 provides that every person has the right to freedom of thought, conscience, religion and belief, including the freedom to demonstrate one’s religion or belief individually or as part of a community, whether in public or private, through worship, observance, practice and teaching. A person must not be restrained or coerced in a way that limits their freedom to have a belief. Section 15 of the Charter provides that every person has the right to hold an opinion without interference.

Requiring healthcare workers to be vaccinated may be seen to limit these rights where non compliance has consequences for an individual with a religious, political or other ‘conscientious objection’ to vaccination (for example, if a worker is dismissed or prevented from having patient contact because they are not vaccinated). However, I consider that any limitations imposed by the Bill are justifiable having regard to the factors set out in section 7(2) of the Charter. Firstly, the limitation does not primarily affect the right, as the Bill does not purport to prevent a worker from holding a belief that they should not be vaccinated. Secondly, the purpose of the limitation, as I outlined above, is of high importance and is both rationally connected to, and capable by way of the scientific evidence, to achieving the purpose. In my view, there is no less restrictive method of effectively mitigating the risk of patients and staff contracting a vaccine preventable disease. Accordingly, I am satisfied that the Bill is compatible with the freedom of conscience and belief under the Charter.

In relation to the right to freedom of expression, special duties and responsibilities attach to this right which permit lawful restrictions to be applied where reasonably necessary to achieve certain purposes specified in s 15(3) of the Charter, which include the protection of public health. Accordingly, I consider any limit on this right effected by a direction of the Secretary will be compatible with the Charter.

Medical treatment without full, free and informed consent (s 10(c))

Section 10(c) of the Charter provides that a person must not be subjected to medical or scientific treatment without their full, free and informed consent.

In my view, the right in section 10(c) of the Charter is not engaged by the Bill. A direction given by the Secretary under the new provisions will not mandate vaccinations, nor will it provide for the administration of vaccinations without consent. While refusal of consent may have consequences for the worker’s employment, it does not negate the voluntariness of the consent itself if given. Even if the right is engaged, I consider that any limitation is reasonable and demonstrably justified for the reasons set out above.

Right to privacy and reputation (s 13)

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) provides that a person has the right not to have their reputation unlawfully attacked. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

The effect of a direction may require a healthcare worker to provide medical information regarding their vaccination history, which would constitute the provision of personal information and thus be an interference with privacy. However, in my view any such interference would be lawful and not arbitrary, with reference to the importance of the aim and the lack of any less restrictive means available to establish whether a person is complying with the direction.

Martin Foley MP

Minister for Mental Health

Minister for Equality

Minister for Creative Industries

Second reading

Mr FOLEY (Albert Park—Minister for Mental Health, Minister for Equality, Minister for Creative Industries) (10:10): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The amendments proposed by this Bill will improve the health and wellbeing of Victorians in a number of ways. Firstly, they will improve occupational health and safety for Victoria’s frontline healthcare workers who provide vital services in hospitals by reducing their risk of infection by vaccine-preventable diseases. Secondly, they will protect vulnerable Victorians who are in hospital from the risk of transmission of vaccine-preventable diseases. In essence, these amendments will maximise compliance with existing recommended vaccination policy and will improve the effectiveness of the program in protecting Victorian healthcare workers and patients.

As an occupational group, healthcare workers are at increased risk of vaccine preventable diseases. If not immune, they pose a risk of transmission to patients, particularly those who are vulnerable because of age, pregnancy or chronic diseases. A poorly-vaccinated workforce creates both an occupational health and safety risk and a patient safety risk. Health services are also at increased risk of disruption due to staff absences either from illness or due to exclusion as a quarantine measure.

Currently in Victoria, the Department of Health and Human Services has guidelines for healthcare worker vaccination, however, there is no legislative mandate to enforce these guidelines. Victoria is one of the few Australian jurisdictions that does not have a mandatory immunisation requirement for healthcare workers. The amendments proposed by this Bill will ensure Victoria is in line with other jurisdictions on the mandatory vaccination of healthcare workers.

This Bill makes amendments to the Health Services Act 1988 and the Ambulance Services Act 1986, which will allow the Secretary of the Department of Health and Human Services to direct employers of healthcare workers across a range of healthcare settings in Victoria to require employees who are healthcare workers to be vaccinated against specified vaccine-preventable diseases. These settings include public hospitals, denominational hospitals, private hospitals and ambulance services. The Secretary’s direction will specify the settings and class of healthcare workers to be vaccinated and also specify the vaccinations that are to be required.

In developing the policies to support these amendments the Chief Health Officer has sought to review policies and evidence from other jurisdictions and has consulted with key stakeholders. In doing so it has become clear that a wide-ranging policy maximising the coverage of healthcare workers is optimal. It is intended, therefore, that all healthcare workers with patient contact in public, denominational and private hospitals, ambulance services, and public sector aged care services operated by public hospitals will be covered by the Secretary’s direction.

Vaccinations are safe and save lives. Currently influenza vaccination is funded for staff working in health services and the introduction of targets has seen a rise in healthcare worker influenza vaccination rates in recent years, peaking at 84% in 2019. By mandating influenza vaccination for healthcare workers, along with vaccines for other important diseases such as pertussis, measles and chickenpox, healthcare workers and patients can be protected from these preventable diseases.

These amendments are intended to take effect the day after the Bill receives royal assent. Vaccination will not be mandated, however, until the Secretary of the Department of Health and Human Services makes a declaration under the Bill to health services. It is intended that mandatory vaccination will not be implemented until early 2021. This will allow time to consult appropriately with all stakeholders on the implementation process and to enable the development of appropriate supporting resources, including appropriate methods to monitor vaccination uptake.

I commend the Bill to the house.

Mr WELLS (Rowville) (10:10): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday, 5 March.