Sasha Borissenko: Drawing the legal line on infectious diseases and vaccination

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1 Sep, 2019 03:00 AM6 mins to read

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Measles is of public health concern and therefore "notifiable". 123rf

COMMENT:

The year was 2009, I was living in the coldest house in Dunedin - rent was $115 a week, and there was a strict $1 clothes dryer policy. We would open the door of the oven to heat the house, so it is of little surprise that I caught

In contrast to my unreported mystery illness of ten years ago, we are well aware of some surprising details of people who have been recently infected with measles - a virus that some consider just a childhood illness, but is actually more contagious than Ebola.

We know that people who were infectious, but not yet unwell with measles were on a flight to Wellington, another at a birthday party, a Les Mills class, at a movie theatre for the premier of the last Avengers movie, and my personal favourite, in a Comlaw 101
lecture on a Monday. The reason is that measles is of public health concern and therefore "notifiable".

Meningococcal disease, Hepatitis A, measles, whooping cough, mumps, rubella, tuberculosis, and quite a list of diarrhoeal illnesses fall under notifiable infectious diseases, but interestingly head lice, school sores, strep throat, and pink eye also make the infectious disease list, but they're not notifiable under the Health Act 1956.

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What makes the list appears to be whether or not a disease is potentially dangerous to the individual and infectious, or might be prevented at the time or in the future. It may not seem reasonable for a doctor to report Ds and Vs, but the public health people might be able to find the dodgy salami or contaminated spa pool.

Interestingly, sexually transmitted diseases - gonorrhoeal infection, and syphilis - are now notifiable infectious diseases, on a non-identifying basis.

Information is certainly collected, but on an anonymous basis. The thinking is that due to discrimination and prejudice, notification might deter people from being tested.

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Unlike other health records, notifiable diseases must be reported to the Medical Officer of Health (MOH) - by a registered health professional. As I didn't go to the doctor with my suspected Swine Flu, I may have been a 'typhoid Mary', but would not be prosecuted.

On the other hand, a health professional who fails to notify would be in breach of the Act.

A MOH could direct me - if it was suspected or confirmed that I had Swine - to stay home for the infectious period of the disease. [Side note: in the event there's an outbreak (of a notifiable infectious disease), MOH rule the roost. Under the Health Act, they have peculiar powers, not just for directing isolation and quarantine, they can also take your car, or possess your house in an emergency.]

Nurse makes vaccination in the shoulder of patient in a clinic.

For the unimmunised, a MOH has the power to direct people to stay at home - the basis being that they're susceptible to the disease and pose a public health risk. If I had failed to comply with a direction from a MOH, I could've been convicted before a District Court Judge and ordered to pay a fine not exceeding $1000.

The rules are stricter around high schools.

Under the Education Act 1989, principals can preclude children from coming to school if they believe on reasonable grounds they've the disease. In practice, just last week 300 students were sent home from Manurewa High School. The Board of Trustees have demanded each student provide proof of their measles, mumps and rubella (MMR) immunisation status.

Is this an infringement of our privacy laws? And where do we draw the line? The issue of vaccinations is always a point of contention. Might the anti-immunisation brigade feel stigmatised if they have to declare their vaccination status?

These questions are constantly highlighted in academic circles. It comes down to whether sharing health information should take precedence over an individual's right to privacy. Under domestic and international law, it seems society doesn't consider that a person has an absolute right to control personal information.

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Why? According to a 2003 notifiable diseases discussion document, the process of obtaining informed consent could result in delays, which would delay any public health action required to prevent the spread of the disease.

Specifically, the Biosecurity Act 1992, the Education Act 1989, the Hazardous Substances and New Organisms Act 1996, the Health and Disability Services (Safety) Act 2001, the Health and Safety in Employment Act 1992, the New Zealand Bill of Rights Act 1990, the Venereal Disease Regulations 1982, and most importantly, the Privacy Act 1993 all have clauses that require or provide information to be gathered for public health purposes.

According to a Privacy Commission spokesperson, section 7 of the Privacy Act provides an exclusion clause. In other legislation that speaks to the issue of personal information automatically trumps the Privacy Act.

The Privacy Act outlines the limits agencies have with holding information, unless it believes on reasonable grounds that the disclosure of the information is necessary to prevent or lessen a serious threat to public health, for example.

Health agencies do have to comply with the Health Information Privacy Code, but arguably it's a codified form of the Privacy Act specific to health information, so the same rules apply, the spokesperson said.

Which is to say, in the wise words of Joan Didion, "to believe in 'the greater good' is to operate, necessarily, in a certain ethical suspension".

Who's who in the zoo

Former Governor-General, ombudsman, Prison Board Chairman, and District Court Judge Rt Hon Sir Anand Satyanand has been inducted into the Kiwi-Indian Hall of Fame. The former Chair of the State Abuse Inquiry has since taken up a position as Chancellor of Waikato University.