Dissection

'A common law power to dissect: a medico-legal history' by Joshua Shaw in (2025) 33(1) Medical Law Review states 

Comments on the legal history of anatomy and dissection in common law jurisdictions often cite three statutes. First, the Concerning Barbers and Chirurgians Act 1540, which entitled the Company of Barbers and Surgeons of London to the bodies of four executed convicts each year for the purpose of dissection. Secondly, the Murder Act 1751, which granted courts the power to sentence murderers to be dissected by members of the Company of Surgeons of London after their execution. And, finally, the Anatomy Act 1832, which repealed the Murder Act 1751 to the extent that it allowed dissection as punishment, empowered those in lawful possession of bodies to direct their use for anatomical examination, and introduced a regulatory scheme for schools where anatomical examinations took place. These statutes supplied bodies for dissection under certain conditions as exceptions to fundamental obligations at common law to effect and preserve a parishioner’s right to ‘Christian’ or ‘decent’ burial and, thus, to facilitate requirements of ecclesiastical or church law. 

The common law, in such comments, is associated with the traditional religious feeling of what ought to be done with the dead (namely, Christian or decent burial), a feeling popularly held in England at the time of the Anatomy Act 1832 and required by ecclesiastical law. Christian eschatology placed importance on burial so as to preserve the dignity of the body until resurrection at the Last Judgment, and whilst religious elites could tolerate other uses, such as dissection, burial of the body remained integral to ecclesiastical law as that was practised in England. Common law courts generally deferred to ecclesiastical administration and courts to handle disputes relating to the disposal of the dead, following the comment of Edward Coke that the dead body was of ‘ecclesiastical cognizance’. Indeed, Coke suggested that this was why no property could exist in a dead body at common law, which William Blackstone appeared to concur with whilst relying on Haynes’s Case (1614) as authority. But in the eighteenth and nineteenth centuries, common law courts increasingly clarified obligations they could enforce to facilitate ecclesiastical law. This included requiring the performance of burial from certain persons upon whom the duty to bury was placed, as well as establishing criminal offences for preventing the decent burial of the dead or disinterring the buried dead without lawful excuse. 

Legislation, in contrast, was responsible for deviations from the tradition held by the common law, deviations tolerated owing to the putative utility of modern medicine and surgery. Anatomy and dissection were thereby authorized only according to the provisions of these statutes; such acts were not otherwise lawful. That image of the law appears to have led some historians to refer to dissection outside the permissions of the Anatomy Act 1832 as illegal, for want of authority. Likewise, some jurists, relying on such histories, construct decent burial (and, more recently, cremation) as all the common law ordinarily permits; most other uses, like anatomy and dissection (outside coronial examinations), depend entirely upon legislation for their authority.  However, the historical record is more complicated than this image of the law. There were jurists who insisted that what could be done at common law was more than decent interment. Rather, the common law, by their argument, appeared to admit the existence of a power to dissect, claimed by physicians, surgeons, and apothecaries prior to and outside of legislation. 

As this article shows, to these jurists, such a power authorized and regulated dissection outside the contexts contemplated by anatomy legislation. This is important to show for at least two reasons. First, a common law power to dissect challenges the narratives ordinarily told about the history of anatomy law specifically, and the law of the dead generally, which is instructive for understanding medico-legal history in England and Wales and throughout the British Empire (where legislation could be scant, such as in the Province of Canada and Nova Scotia).  Secondly, a common law power to dissect may be extant where legislation has not displaced it, and thereby authorize certain uses of the human dead, such as dissection specifically, as well as wider uses if the power is understood to also support a more general principle that the common law did not require burial. The presumptive legality of the body’s use begins analysis at a different point, potentially allowing for a wider array of uses if not dependent on statute. That will be relevant to courts that must adjudicate ‘exceptional’ uses of the human dead or tissue and look to the historical record for guidance, such as when Justice Jackson of the High Court of Justice in England and Wales considered ‘the old authorities on the unlawful treatment of dead bodies’ with respect of the novel practice of cryonics.  Likewise, legislators and others interested in law reform affecting the disposal of the dead and the use of human bodily materials will benefit from a corrected historical record. 

As Margaret Brazier has said alone and with Jonathan Montgomery, medico-legal history assists the lawyer in examining the relationships of law and morality to medical practice, by tracing the conditions for their emergence.  Without history, ‘we waste time and effort and repeat the same mistakes’ and ‘[i]f we have only a vague notion of history, a notion unsupported by evidence, we may make bad laws today’.  I specifically engage in medico-legal history as that services doctrinal understandings of medical law, ‘us[ing] formal legal materials such as reports of decisions […] and evidence of lawyers’ argumentation and reflections, in order to reconstruct the mind of the professional legal collective as it understands its own activity in guiding conduct and resolving disputes’.  Re-examining old doctrines can disrupt the orthodoxy of current legal doctrine, suggesting alternative possibilities for law through its retelling.  Especially with the young discipline of medical law, in search of its history and the history of its subject matter,  histories of legal doctrine remain worthwhile. 

The article focuses on identifying the historical sources and elements of a common law power to dissect, as expressed by some jurists. Analysis of its broader significance, historically and to contemporary legal doctrine, merits more space than allowed here. But I do occasionally place the power to dissect in the context of bodysnatching, and the inadequate supply of bodies for dissection and anatomical examination, which precipitated the Anatomy Act 1832. Bodysnatching involved disinterring the buried dead or, more dangerously, murder, so to procure bodies for dissection and anatomical examinations. The practice emerged in response to the inadequate supply of bodies for anatomical examination, especially as private and university anatomy schools were increasingly opened in the late-eighteenth and early-nineteenth centuries, creating greater demand.  It is necessary for me to place the power in this context, as it will assist the reader of legal history in gaining a fuller understanding of the policies underlying the doctrine and its use. Furthermore, the context preceding the Anatomy Act 1832 also supplied at least two cases that led some from this period to conclude that anatomy and dissection were unlawful at common law.  These cases are important to analyse since they may be raised to negate the existence of a power to dissect. 

The article has three parts: first, I show where and how jurists in the common law described the power to dissect; secondly, I set out the power’s elements, particularly as it interacted with the ‘no property’ rule, criminal law, the law of tort, and any other municipal law; and thirdly, I observe how the power to dissect was threatened by concern for bodysnatching but ultimately persisted despite how certain cases were narrated.

Scams

The Scams Prevention Framework Bill has passed through the national legislature. The expectation is that it will set out consistent and enforceable obligations for businesses in key sectors, with overarching principles for compliance by all members of designated sectors. 

The ACCC has announced that the Commission will 'closely monitor regulated entities’ compliance with principles to prevent, detect, disrupt, respond to and report scams. The legislation empowers the ACCC to investigate potential breaches and take enforcement action where entities do not take reasonable steps to fulfill obligations under the principles, with fines of up to $50 million and scope for consumers to seek redress from regulated businesses. The ACCC will be involved in development of the formal designation of sectors, sector codes, and consumer and industry guidance. The initial sectors will be banks, certain digital platforms (including social media) and telecommunications providers. 

 Under the Framework, the ACCC will enforce the digital platforms sector scams code and take enforcement action where digital platforms breach obligations. The Australian Securities and Investments Commission will be the regulator for the banking sector code. The Australian Communications and Media Authority will be the regulator for the telecommunications sector code. There will be a single external dispute resolution body under the new Framework, involving the Australian Financial Complaints Authority (AFCA). 

A Treasury Minister may, by legislative instrument, designate one or more businesses or services to be a regulated sector for the purposes of the Framework. This designation instrument is subject to Parliamentary scrutiny through the disallowance process and sunsetting. The Treasury Minister may designate an individual business or service, or designate businesses or services by class, meaning that the Minister may in effect designate specific entities to be a 'regulated sector' within a designation instrument. 

 Without limiting the businesses or services that may be designated, a Treasury Minister may designate the following classes of businesses or services to be a regulated sector (or a subset of those business or services): 

 • banking businesses, other than State banking (within the meaning of paragraph 51(xiii) of the Constitution) not extending beyond the limits of the State concerned; 

• insurance businesses, other than State insurance (within the meaning of paragraph 51(xiv) of the Constitution) not extending beyond the limits of the State concerned; 

• postal, telegraphic, telephonic or other similar services (within the meaning of paragraph 51(v) of the Constitution), which can include, but is not limited to: - carriage services within the meaning of the Telecommunications Act; - electronic services within the meaning of the Online Safety Act 2021, such as social media services within the meaning of that Act; - broadcasting services within the meaning of the Broadcasting Services Act 1992. 

 The description of the businesses and services are based on the relevant constitutional heads of power and provide flexibility for the Framework to be expanded to a wide range of sectors over time. It is not intended to provide a roadmap of the exact sectors the Government is proposing to designate. The Government's intention is to initially designate telecommunications services, banking services and certain digital platform services. 

 Before designating a sector to be subject to the Framework, the Minister must consider all the following matters: 

 • Scam activity in the sector. For example, the Minister may identify that certain businesses or services experience high levels of scam activity.   

• The effectiveness of existing industry initiatives to address scams in the sector. For example, there may be existing initiatives in a sector seeking to protect against scams but do not appropriately address scam  activity in that sector.   

• The interests of persons who would be Framework consumers of regulated services for the sector if the Minister were to make the designation. For example, designation may be appropriate if the Minister considers that consumers would be better protected against scams arising out of activity in a sector if it is subject to the Framework, rather than relying on existing frameworks.   

• The likely consequences (including benefits and risks) to the public and to the businesses or services making up the sector if the Minister were to make the designation.   

• Any other matters the Minister considers relevant to the decision to designate a sector to be subject to the SPF. For example, this could include the compliance and regulatory costs of designating sectors, the privacy or confidentiality of consumers' information, the regulatory impact of designation, the outcomes of consultation with impacted entities and consumers, and scam activity in the relevant sector in another jurisdiction. 

 Before designating a sector, the Minister must also consult relevant consumer groups and the businesses or services making up the sector, or such associations or other bodies representing them as the Minister thinks appropriate. Given the nature and scope of the requirements under the Framework, this is 'appropriate to ensure consumers and affected entities are given notice of the Government's intention to designate the relevant sector. It will also provide these stakeholders with an opportunity to give feedback on the details of the designation instrument, including on any application provisions or transition period before the SPF comes into effect for the sector'.

What is a 'Scam'? The legislation seeks to provide certainty on the scope of harms intended to be captured by the Framework, with a scam being a direct or indirect attempt (whether or not successful) to engage an  Framework consumer of a regulated service where it would be reasonable to conclude that the attempt: 

 • involves deception; and 

• would, if successful, cause loss or harm including the obtaining of SPF personal information of, or a benefit (such as a financial benefit) from, the SPF consumer or the SPF consumer's associates. 

 The elements of the definition of 'scam' are objective in nature and do not require the scammer's state of mind to be established. This definition is deliberately broad to capture the wide range of activities scammers engage in and their ability to adapt and to adopt evolving behaviours over time. The Framework rules can also provide an appropriate safeguard to exclude conduct that is not intended to be captured under the Framework. 

 The definition of scam captures both successful scams which have caused loss or harm to a Framework consumer, and scam attempts which have not yet resulted in loss or harm to a Framework consumer. This reflects the obligations in the principles, which require regulated entities to take action against scams, regardless of whether the scam has resulted in loss or harm to a Framework consumer or an associate of the consumer. The use of 'attempt' in the definition of scam has its ordinary meaning, which is intended to cover efforts made to engage a Framework consumer. There may be an attempt to engage a Framework consumer even if the attempt is indirect, such as where it is directed at a cohort which includes the consumer or is directed at the public more generally. The attempt to engage an SPF consumer may be a single act or a course of conduct. 

 The legislation introduce the concept of an 'SPF consumer'. The obligations imposed on regulated entities are often in relation to a Framework consumer. This is intended to clearly set out the scope of obligations under the Framework and who they are designed to protect.  A Framework consumer of a regulated service is: • a natural person, or a small business operator, who is or may be provided or purportedly provided the service in Australia; or • a natural person who is ordinarily resident in Australia and is or may be provided or purportedly provided the service outside of Australia by a regulated entity that is either an Australian resident or is providing or purportedly providing the service through a permanent establishment in Australia.  The meaning of 'Australian resident' and 'permanent establishment' with respect to the regulated entity in this context leverages the existing established definitions in the ITAA 1997. 

A Framework consumer is intended to cover any natural person or small business operator who is in Australia when they are provided the regulated service, regardless of where that service is based (for example, the regulated service may be based overseas). This includes natural persons who are only temporarily in Australia. The definition also intends to cover any natural person who is ordinarily resident in Australia but is overseas when they are provided a regulated service that is based in Australia. A Framework consumer could be 

 • an Australian resident in Australia using either an Australian-based or overseas-based messaging service that is offered in Australia; 

• a person ordinarily resident in Australia who is overseas but using an Australian-based banking service; or 

• a tourist visiting Australia using an Australian-based or overseas-based telecommunication service that is offered in Australia. 

 It is not intended that a foreign entity will be regulated with respect to consumers in foreign markets. For example, where an Australian consumer is overseas and is impacted by a scam on a social media service offered by an entity based overseas, this is not intended to be within the scope of the Framework. 

 Small businesses are not excluded from being Framework consumers based on their corporate structure. The small business may be in the form of a sole trader, company, unincorporated association, partnership or trust. Whether a small business is a small business operator for the purposes of the Framework will differ slightly depending on whether the small business is a body corporate or not.  

If a small business is a body corporate, it is a small business operator if it meets all of the following conditions: • the sum of the business' employees and the employees of any body corporate related to the business, is less than 100 employees; • the annual turnover of the business during the last financial year is less than $10 million; and • the business has a principal place of business in Australia.   If a small business is not a body corporate, it is a small business operator if it meets all of the following conditions: • the business has less than 100 employees; • the annual turnover of the business, worked out as if the person were a body corporate, during the last financial year is less than $10 million; and • the business has a principal place of business in Australia.

Justice

'What if animals are moral agents?' by Taimie L. Bryant in (2024) 109 Cornell Law Review 1734 comments 

In an essay titled Should Animals Be Able to Sue People?, Professor Sherry Colb considers Justice v. Vercher, a lawsuit brought by Justice, a horse seeking damages for injuries resulting from his previous owner’s gross negligence. Gwendolyn Vercher had already been convicted of animal cruelty and paid the statutorily required restitution, but that restitution was limited to costs incurred for Justice’s care up to the time of the hearing. Justice will need specialized lifelong care. Represented by the Animal Legal Defense Fund, Justice brought suit in his own name for monetary damages sufficient to cover those costs. Vercher responded with a motion to dismiss on the ground that Justice lacked standing to sue her. 

Among other arguments in opposition to the idea of Justice having standing to sue, Colb considers the argument that Justice is not a “legal person” because he lacks the ability to fulfill legal duties, which is frequently viewed by courts as necessary for holding legal rights. As Colb puts it, there is an “idea that only those who can respect others’ rights are entitled to rights of their own.” Colb agrees that Justice does not have a legal obligation to respect the rights of humans or other animals, but she analogizes Justice’s situation to that of infants and cognitively incapacitated humans whose rights are recognized and protected without such a requirement of capacity to respect others’ rights or to bear duties in relation to them. Known as the “argument from marginal cases,” it is a claim that recognizing animals as holders of rights (even if limited) is required as a matter of justice arising from the requirement that like entities be treated alike. For Colb, animals’ likeness to humans lies in their sentience, not in their cognitive capacities or their ability to perform legal duties to others. Thus, they should be included in the moral community, and their membership in that community should be reflected in the law in the form of rights and standing to enforce those rights. 

Colb also argues that Justice is the logical plaintiff because he is the actual victim of wrongdoing. This critical point can be missed during abstract debate about whether or not a horse can or should be recognized as the plaintiff in a lawsuit. No one doubts that Vercher lacked the right as Justice’s owner to starve him, fail to provide shelter for him during severe weather conditions, or allow his skin to deteriorate for lack of cleaning and appropriate medical care. No one doubts that Justice is the intended beneficiary of the anticruelty statutes under which Vercher was convicted. What they doubt is that those statutes confer legal rights or that Justice himself should be able to sue her in his own name. Something gets in the way of accepting that the actual, direct victim of acts explicitly recognized under the law as wrongful should be able to sue in their own name, even if that victim is an animal. Yet, if not Justice, who would have standing to seek the restitution needed to address the harm inflicted on Justice? Legal standing to address harm to animals is notoriously difficult. Animals cannot yet sue in their own names, and humans cannot reliably redress wrongs to animals except in limited situations in which an owner of an injured or killed animal seeks redress for harm to their property. Animals are not yet understood by courts or legislatures as the sort of beings entitled to be “legal persons.” 

Whether an animal can be a legal person was raised also in the case of Happy, an elephant living a solitary life in a grossly insufficient enclosure at the Bronx Zoo. Unlike Justice’s case, Happy’s case was not grounded in tort law. Seeking Happy’s transfer to an appropriate sanctuary, the Nonhuman Rights Project filed a writ of habeas corpus petition on her behalf. Two lower courts rejected the petition on the ground that the writ could not be used for nonhumans because they are not legal persons, basing their decisions on the jurisdiction’s precedent established in a habeas case involving a chimpanzee. The Nonhuman Rights Project filed an appeal in the New York Court of Appeals, seeking to challenge that precedent and to secure for Happy a writ that would allow justice to be done in the form of moving her to a sanctuary where her needs could be met. However, the New York Court of Appeals ultimately adopted the reasoning and outcome of the lower courts. The courts’ reasoning was much the same as in Justice v. Vercher: Animals cannot be legal persons because they are not humans and cannot be holders of legal duties. It is not clear that social contract theory, with its apparently required linkage of rights and duties, is particularly helpful for understanding the recognition of rights and duties of humans, let alone animals. Nevertheless, as it is currently understood, social contract theory forecloses animals from the community of legal rights-holders, even if they are understood to hold moral rights. 

While the matter was pending, Professor Colb, Professor Emeritus Laurence Tribe, and Professor Michael Dorf submitted an amicus brief addressing the contention that Happy could not be a legal person because the ability to bear duties is necessary for having rights. They argued that Happy is a legal person for purposes of New York’s common law writ of habeas corpus, “which has a noble tradition of expanding the ranks of rights-holders,” and that it is a matter of justice that the Court recognize it in this case, as it had in previous habeas corpus cases involving enslaved individuals, women, children, and others not recognized at the time as having any type of autonomous legal status.  On a case-by-case basis, the courts had considered as a matter of justice—not rights—whether to provide relief through the “Great Writ.” The writ is designed to promote justice, not simply to validate or reject the status of a petitioner as a legal person. Whether or not Happy meets some standard of rights and duty-holding, it is unjust, the amicus brief authors wrote, for the court to deny the writ petition of Happy, a sentient, social being with complex cognitive capacities forcibly brought to this country and kept in isolation from others of her species in an enclosure with grossly insufficient space for her needs, simply because she is not a human. Noting that the request for relief was as modest as those that led to historical uses of the writ, the authors pointed out that granting the writ in Happy’s case would not result in a change in her legal status in all conceivable contexts; it would result only in her moving from a harmful environment to a sanctuary where she would suffer less and have greater ability to flourish. Nor would it result in a change of the legal status of other animals; a writ corrects injustice only in the limited ways and contexts spelled out in the writ. 

To animal protectionists, legal recognition of animals like Justice and Happy as legal persons is a matter of social justice, whether or not they have legal rights. The Nonhuman Rights Project’s legal representation of Happy resonates most strongly with that position since the writ of habeas corpus had been used previously to promote justice for those who lacked legal rights. But this just raises questions about the nature of “social justice” and the sort of being that can be the focus of social justice claims. Black’s Law Dictionary defines “social justice” as “[a] fair and proper administration of the laws that conform to the natural law that covers all people regardless of gender, origin, possessions or religion” and further points to the definition of “civil rights.” In short, it is a conception of justice that connects legal structures to “natural law,” with humans as its focus. Animals are not humans, and so animal protectionists must make three arguments to support the claim that animals should be protected as a matter of social justice. First, they must argue that animals are sufficiently like humans such that justice requires treating them alike. Second, they must argue that “like treatment” means bearing legal rights. Third, they must argue that justice also requires legal opportunity to enforce the rights they hold. No animal protectionist has ever argued that comparability to humans should result in the same rights that humans hold. For instance, no one has yet argued that animals should have legal voting rights, although Christopher Stone and Robin Wall Kimmerer have come close. 

As to the first matter (sufficient similarity to humans), animal protectionists have argued that animals are similar enough to humans because of sentience or cognitive capacity. Treating sentience (the capacity to suffer) as the standard of comparison results in the inclusion of the most animals in the moral community but limits the reach of legal rights to preventing the infliction of suffering. This is the standard basis of state anticruelty statutes, although any amount of human-inflicted suffering is allowed under those laws if there is “necessity.” “Necessity” sweeps broadly to include any treatment or use of animals that benefits humans. Thus, anticruelty statutes protect only against purely gratuitous, senseless infliction of severe suffering and death. Moreover, as the Vercher case shows, animals lack standing to use the law even in those situations. 

Advocacy for animals based on their similar cognitive capacity to humans covers fewer types of animals, although the types of animals demonstrated to have such capacity has grown to include animals as diverse as whales, elephants, dogs, and bees. As in the case of sentience as a basis, recognition of the human-like cognitive capacity of some animals has resulted in very few legal benefits specific to that ability. For instance, primates can still be used in experiments without restraints on research design that requires their enduring horrific suffering and elephants can still be kept in cramped enclosures, but their housing must include opportunities for intellectual stimulation. Unfortunately, the animals themselves and those who care about them lack standing to enforce even those limited protections. 

This Article identifies a specific capacity—animals’ capacity to make moral decisions and to act morally—to consider whether recognition of that capacity as similar to humans’ moral capacity justifies inclusion in the community of legal rights-holders with the legal opportunity to enforce those rights. At the heart of the argument that animals must be able to bear legal obligations in order to have rights is an argument about moral agency. As Matthew Kramer has written, “[t]o bear a legal obligation is simply to be placed under it,” and meaningful comprehension of the obligation is a “separate matter.” As it is now, billions of animals are placed under the obligation to serve the interests of humans in research, entertainment, and food production. What is meant by “holding duties” then is actually “voluntarily and knowingly holding duties as morally binding obligations.” Even as to humans, this is not particularly convincing, but where animals are concerned, a deeper problem is that animals are not believed to be capable of holding duties as a moral matter at all because they are not understood to have moral agency. Only humans capable of abstract reasoning about moral behavior and members of the archetypal class of humans (such as infants and cognitively impaired humans) are considered to have moral agency sufficient to hold duties and thus hold rights. 

Animal protectionists often accept the characterization of animals as lacking moral agency and use the argument from marginal cases to defend their view that animals should be protected despite their lack of moral agency, just as many humans (children and those with cognitive incapacity) lack moral agency. However, this view should be reconsidered in light of emerging scholarship revealing that the type of moral decision-making by at least some animals is comparable to that of humans. Instead of focusing narrowly on whether animals canhold obligations and duties towards humans who would bear reciprocal duties towards animals, it could prove fruitful and just to consider whether animals have moral consciousness that leads to morally-based behaviors and, if so, whether their ability to make and act on moral decisions makes our failure to protect them as legal persons unconscionable.

Performativity

In the matter of an application by Uncle Robbie Thorpe for special leave to appeal [2024] HCASL 315 Edelman and Jagot JJ refused Special Leave to Appeal, stating 

 The applicant requires an extension of time within which to seek special leave to appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria (McLeish JA), which refused the applicant's application for a direction to a Registrar to accept documents for filing. 

The applicant's proposed grounds of appeal have no prospects of success. It would therefore be futile to grant the extension of time that is sought.

In Re Thorpe [2024] VSCA 172 the Supreme Court stated

In October 2023, Uncle Robbie Thorpe (‘the applicant’) sought to file a charge sheet and summons in the Magistrates’ Court of Victoria naming King Charles III as the accused and alleging that he had committed ‘continuing acts of genocide ... against First Peoples’. 

The court refused to issue the summons and did not initiate a proceeding. By originating motion filed in the Trial Division on 7 March 2024, the applicant sought judicial review of that decision. A trial was conducted on 19 July 2024 and the matter stands reserved for judgment. After judgment was reserved, the applicant filed two further affidavits affirmed on 22 July 2024. He also sought to file a third affidavit. The judge refused leave in relation to that affidavit, but indicated that an outline of submissions, draft minutes of order and addendum to the authorities relied on which were exhibited to that affidavit would be considered by the judge in deciding the case. On 23 July 2024 the applicant was advised, through the judge’s associate, that the judge considered that the balance of the affidavit did not concern any issue for determination in the proceeding. The decision was not made the subject of any order. 

The applicant then sought to file documents in the Registry of the Court of Appeal via RedCrest, including an application for leave to appeal the judge’s decision not to accept the third affidavit. The Registrar rejected the documents for filing. The applicant was advised by email that the Registrar considered that the ruling that he sought to challenge was not a decision from which an appeal could lie to the Court of Appeal. As a result, the Court did not have jurisdiction to consider the proposed application for leave to appeal, and the documents that had been submitted were ‘substantially irregular’.

Disease Testing

The NSW Ombudsman report Mandatory disease testing in NSW: monitoring the operation and administration of the Mandatory Disease Testing Act 2021 - in part informed by a submission from myself - comments 

The Mandatory Disease Testing Act 2021 (the MDT Act, or the Act) came into effect in July 2022. It provides for the mandatory blood testing of a person whose bodily fluids have come into contact with a worker from certain government agencies in NSW, including law enforcement, corrective services, and health and emergency services workers. The NSW Ombudsman has a statutory role to monitor the administration of the Act. We are required to prepare a report to NSW Parliament after 12 months of commencement of the Act and every 3 years after the first report, including information about our monitoring of the scheme and the exercise of functions under the Act. 

This is our first report following commencement of the Act, covering the first 18 months of the Act’s operation, from 29 July 2022 to 31 December 2023 (the reporting period). The report comprises 3 parts: • Part A is an overview of the Act and its operation during the reporting period. • Part B provides our overarching comments and key recommendations. • Part C provides our detailed comments on specific legal and operational issues. 

Operation of the MDT scheme during the reporting period (Part A) 

A mandatory testing order (MTO) can be made only where contact with a person’s bodily fluids has occurred ‘as a result of a deliberate action’ by the person and where the making of an MTO for the testing of their blood is ‘justified in all the circumstances’. A worker can apply for an MTO only after consulting a ‘relevant medical practitioner’. 

An MTO can be made by a ‘senior officer’ from the worker’s agency. The senior officer must first seek the consent of the third party to voluntarily provide blood for testing, unless it appears to the senior officer that the third party is a vulnerable third party (defined as a person with a mental health impairment or cognitive impairment affecting their capacity, or a child aged 14 to 17 years) in which case the senior officer may apply to the court for an MTO. The senior officer’s determination (to make an MTO or refuse the application) is reviewable by the Chief Health Officer (CHO). 

Failing to comply with an MTO is a criminal offence. 

Use of the Act 

During the reporting period, staff from 3 agencies made MDT applications: (a) (b) (c) NSW Police Force (the NSWPF): 106 applications Corrective Services NSW (CSNSW): 32 applications NSW Ambulance Service: 1 application. 

Of the 139 MDT applications made during the reporting period: • 33% (46) proceeded by way of testing by consent • 22% (31) were refused by a senior officer. In approximately half (16) of these refusals, the senior officer recorded that they considered the person to be a vulnerable third party • 18% (25) were approved by a senior officer • 17% (24) were withdrawn or cancelled • 7% (10) were the subject of court applications. Of those, 7 MTOs were made by the court and 3 were refused. 

Key statistics 

• Most incidents that led to an MDT application being made involved either spitting or biting. Eighty- four per cent (117 of 139) of all agency applications recorded exposure to saliva. Of those, 26% (30 of 117) indicated a concern about potential exposure to blood in or with the saliva. • Relative to the general population, MDT applications disproportionately related to young people – people aged 14 to 17 comprise 4.8% of the general population but comprise 7.2% of third parties (10) subject to MDT applications. People aged 18 to 24 comprise 8.4% of the general population but comprised 33% of third parties (46) subject to MDT applications. • Males are overrepresented in total applications made by all agencies – over two-thirds (68% or 95 of 139) of third parties were male. • Females are significantly overrepresented in CSNSW MDT applications – 25% of third parties in CSNSW MDT applications were female, but females make up around 6.7% of the inmate population. This suggests that female inmates are just under 4 times more likely to be subject to an MDT application than male inmates. • In 24% (33 of 139) of MDT applications, senior officers recorded that the person to be tested appeared to them to be a vulnerable third party. Of those 33 applications, 10 proceeded to court. Seven of these resulted in the court making an MTO. • MDT applications have disproportionately related to Aboriginal and Torres Strait Islander people. Aboriginal and Torres Strait Islander people comprise 3.4% of the general population but were the subject of 28% of MDT applications. Third parties who are Aboriginal and Torres Strait Islander people had a higher rate of MDT applications dealt with by consent (41% compared with 29.7%) and were less likely to be assessed as vulnerable. • No worker whose MDT application was refused applied for a review of that decision by the CHO during the reporting period. One review application was made by a third party who was subject to an MTO – the CHO upheld the decision to make the MTO. • No judicial review proceedings were commenced in respect of a decision made under the MDT Act during the reporting period. • The NSWPF and CSNSW have not reported any use of force in connection with administering an MTO during the reporting period. • It is a criminal offence to fail to comply with an MTO without reasonable excuse. During the reporting period, one person was charged with ‘fail to comply’. 

Overarching comments and core recommendations (Part B) 

The Act is mostly being used in cases where there is no real risk of a worker contracting a blood-borne disease 

Most MDT applications (at least 87 of 139, or 62.6%) involved the exposure of a worker to saliva only. Of these, 52 (60%) resulted in a senior officer making an MTO, applying to the court for an MTO or testing by consent of the third party. 

Guidance from the CHO is that this type of exposure carries no real risk of transmission of any relevant blood-borne disease. Given that one of the objects of the Act is to encourage workers to seek medical advice and information about the risks of contracting blood-borne disease, as well as to protect and promote their health and wellbeing, the high proportion of applications being made with no risk of contracting a blood-borne disease suggests that the Act is not working as intended. 

We saw no evidence that the Act is improving the health and wellbeing of workers 

A survey of workers we conducted indicated that, of those who responded: • no worker had their treatment changed following the third party being tested • no worker felt that the scheme promoted their wellbeing • some workers felt that the process of applying for an MTO added to their stress and anxiety. 

We share the concerns of some stakeholders that the Act itself – for example, by including saliva as a relevant bodily fluid – may be contributing to misinformation and misunderstanding among workers of the risk of transmission of blood-borne diseases, and therefore contributing to their stress and fear. 

Protections for third parties are ineffective 

While the Act contains a range of provisions which aim to protect the rights of third parties and afford them procedural fairness, they are largely ineffective. • The test for vulnerability (ie whether the third party is under 18 or has a mental or cognitive impairment) is subjectively applied and conceptually confusing, providing no guidance as to indicators of vulnerability. • Blood test results of third parties are given to workers and there appears to be no legal restriction on the worker’s ability to disclose those results. • The third party’s right to make submissions before an MDT application is determined is ineffectual in practice due to the short timeframe involved and the fact that the third parties are generally not given a copy of the worker’s MDT application. • There are significant practical barriers to a third party seeking external review of decisions by the CHO (the only review mechanism in the Act). • Protections against the use of information in other proceedings against the third party are ambiguous, inadequate and poorly drafted. 

The Act is disproportionately impacting Aboriginal and Torres Strait Islander people 

The disproportionate impact of the scheme on Aboriginal and Torres Strait Islander people is even greater than can be explained by their disproportionate involvement in the justice system. For example, while Aboriginal and Torres Strait Islander people make up 3.4% of the general population and 31% of the inmate population, half of all CSNSW’s MDT applications concerned an Aboriginal or Torres Strait Islander person. 

There are legal complications with testing by consent 

Before determining an MDT application in respect of a non-vulnerable third party, the Act requires the senior officer to seek the consent of the person to voluntarily provide blood. Almost half of all MDT applications in respect of non-vulnerable people proceeded to testing by consent. 

If consent is obtained, the MDT application must be refused. If consent is obtained, testing proceeds entirely outside the framework of the MDT Act. This leaves gaps because: • there is no mechanism to deal with what happens if the person, having given consent, then fails or refuses to provide a blood sample • provisions within the Act which require testing to occur ‘subject to an MTO’ are not enlivened, including: − the authorisation (and restriction) on the pathology laboratory to send the results to relevant medical practitioners and the CHO (and to no one else) − the entitlement of the third party to cost reimbursement − the non-disclosure of information gathered under the Act − the requirement for the agency to notify the NSW Ombudsman when a determination is made on an MDT application. • the Act requires consent to be sought by the senior officer, and so this is occurring in a non-clinical context, and without the person having the opportunity to obtain medical, legal or other advice before making the decision to consent • in some cases involving the NSWPF, we observed pressure being applied when consent was sought • even when overt pressure is not applied, there is an inherent power imbalance between senior officers and third parties that may lead to doubts as to whether consent is being provided on a free and fully informed basis. 

Senior officers of agencies are ill-equipped to be making determinations about MTOs, and decision-making processes within the NSWPF seem particularly poor 

The Act confers decision-making power on senior officers, who are generally non-experts – either as administrative lawyers or as medical clinicians. This includes the decision as to whether a third party ‘appears’ to have a mental health or cognitive impairment which would qualify them as a vulnerable third party. 

The Act provides extremely broad discretion to these decision makers, who can make an MTO if they consider it to be ‘justified in all the circumstances’. Although reasons are required to be given, in practice documented reasons are perfunctory and, in the case of the NSWPF, are entered using a structured decision-making tool that functions largely as a check-a-box. 

Core recommendations 

In light of the observations above, we recommend that consideration be given to whether the Act should be continued at all (recommendation 1) and whether the administrative resources currently applied to the scheme would be better directed toward providing better avenues of advice and support directly to frontline workers exposed to bodily fluids in the workplace. 

There were, at most, only 47 MDT applications during the 18-month reporting period where there existed even a low risk of blood-borne disease transmission to a worker. In any case, the existence of a testing window (that is, a gap in time between when a person contracts a disease and when they develop the antibodies that show up in testing) applies to the third party as well as the worker. As such, when there may be a transmission risk, a negative result returned from the third party is no assurance against transmission. 

Given the lack of clear and measurable benefits to workers, it is questionable whether the significant and complex legislative and administrative burden of the MDT scheme is warranted for such a small number of exposures. 

The Act attempts to balance important competing policy priorities, including: • a scheme that will operate on a fast enough timeframe to make third party testing at least potentially relevant to a worker’s medical treatment • protections and procedural fairness rights for third parties. 

It may be that these competing policy concerns are irreconcilable. Workers who responded to our survey generally told us that the scheme did not support their wellbeing, and they found that the process added to their stress. On the other hand, as noted above, the legislative safeguards for third parties are also ineffective and often inadequate. 

If recommendation 1 is not accepted and the Act is continued, we suggest that the different pathways that currently exist based on whether a third party appears to the senior officer to be vulnerable or non-vulnerable be removed. 

Given the inadequacies in identifying vulnerability, the problems with decision making by senior officers alone and ineffective procedural fairness mechanisms, it is our view that all applications, if supported by the worker’s employer, should be determined by the court (recommendation 2). 

Detailed comments on legal and operational issues (Part C) 

Part C contains our observations and analysis on the legal and operational issues we identified during our monitoring of the operation and administration of the Act. In this part of the report we have made recommendations on how the Act should be amended, it if it is to remain in effect. Part C also contains recommendations to make changes to the CHO guidelines and to agency policies and procedures, and for the increased publication of MDT-related data. 

MDT applications 

Under the Act, a worker can only apply for an MTO where bodily fluid contact has been caused as ‘a result of a deliberate action’ – however, this phrase is undefined and ambiguous (see recommendation 3). Although the MDT Act requires ‘a detailed description of the contact, including the date, time, place and surrounding circumstances, and the nature of the worker’s contact with the third party’s bodily fluid’, applications often only included only brief or minor details. 

Consultation with a relevant medical practitioner 

The Act requires workers to consult a ‘relevant medical practitioner’ with specialist qualifications or experience in blood-borne diseases before an MDT application can be made. There is no mechanism that allows us to determine the extent to which workers have attempted to do this. From what we can ascertain, it does not appear that workers are obtaining advice from medical practitioners with specialist expertise in blood-borne diseases (see recommendation 4). It is also apparent that the medical advice that workers are obtaining is not comprehensively addressing the requirements prescribed in the Act (recommendations 5 and 6). 

Worker experience and wellbeing 

It has not been possible to assess the extent to which (if at all) the medical treatment of workers following an exposure incident has been affected by the testing of third party. The majority of workers who responded to a survey we conducted about their experience of the MDT process said they would have sought medical advice following exposure even if the MDT Act had not been in place. Survey results did not suggest that a worker’s decision to receive treatment (that is, post-exposure prophylaxis (PEP)) was affected by third party testing under the Act. Worker survey results also indicated that workers generally did not feel that the MDT scheme had promoted their health and wellbeing. 

Chief Health Officer reviews and court submissions 

Reviews of MTO decisions are undertaken by the Chief Health Officer (the CHO). The CHO advises that, as it lacks legal expertise, it considers that it cannot be expected to conduct an administrative ‘merits’ review. If senior officers are to remain the decision maker under the Act, a proper merits review mechanism should be integrated into the scheme (see recommendation 7). There is also a lack of clarity around what happens if the CHO’s review decision is to set aside the making of an MTO (see recommendation 8). 

We identified operational flaws in the Act’s review mechanism, including the following: • The Act requires workers and the third parties to make any application for review within 1 business day of ‘being notified’ of the senior officer’s decision – but it can be unclear when ‘notice’ of a senior officer’s determination decision has been given (see recommendation 9) – and notice to a third party about their review rights is typically given after the review application period has already expired (see recommendation 10). • The Mandatory Disease Testing Regulation 2022 (the Regulation) requires a third party’s application for review to include a copy of the MTO, but they typically do not have it at that time (see recommendation 11). • There is no clear power for the CHO to accept a late review application (see recommendation 12). • It is difficult and impractical for people to obtain advice (including legal or medical advice) within the 1 business day timeframe in which they may apply for review (see recommendation 13). • Third parties do not have a fair opportunity to make submissions to reviews of MTO decisions (see recommendation 14). • There is no reasonable justification for requiring testing to proceed pending the outcome of a review, as currently occurs under the Act. Stakeholders raised significant opposition to this aspect of the Act, one noting that it ‘wholly negates the purported safeguard against arbitrary bodily interference’. The Act’s prohibition on disseminating test results during review is also ineffectual (see recommendation 15). 

No worker applied for a review during the reporting period. Potential reasons for this include the limited timeframe for applying for a review (1 business day following notification of the senior officer’s determination), lack of awareness of review rights, and a perception that the review may be futile. The CHO may make submissions to the court in relation to an application for an MTO, and the court must take these submissions into account. However, it notes that it has historically faced barriers to doing so (see recommendation 16). Even when it is notified of a court application, the CHO is not given all the information needed to make an informed submission (see recommendation 17). 

 Vulnerable third parties 

Assessment of the vulnerability of a third party is subjective, and it appears that the senior officer is not required to make any inquiries to assess vulnerability. Unless the Act is amended to provide that all MTOs should be made by the court (recommendation 2), the test for vulnerability should be amended so that the presumption is that a person is vulnerable unless an assessment is made otherwise (see recommendations 18 and 19). 

Aboriginal and Torres Strait Islander third parties have been assessed as vulnerable at a lower rate than non-Indigenous third parties. The number of third parties recognised as vulnerable by the NSWPF generally appears surprisingly low. Twenty-three per cent (33 of 139) of all third parties were identified by a senior officer as appearing to be vulnerable. 

Senior officers also do not typically include a record of the enquiries made or reasons for their assessment of vulnerability (and such records are not currently required by the Act) (see recommendation 20). 

The current test of vulnerability is based on the incapacity of the third party to consent, which is a narrow concept. We suggest that the threshold of ‘significant impact on capacity to consent’ should be removed from the Act’s test of vulnerability, and instead the test should be extended to include an inability to understand the nature of the decision or to make proper submissions. Several submissions recommended widening the definition of vulnerable third party to include Aboriginal and Torres Strait Islander people. We agree that this would be appropriate. The timing of the application of the test of vulnerability is also ambiguous. In our view, if a person has a relevant impairment at any relevant time, that should result in the person being considered vulnerable. 

We recommend Government amend the Act’s definition of vulnerable third party to address these issues (recommendation 21). 

Chief Health Officer guidelines 

The Act requires the CHO to issue guidelines to assist senior officers, relevant medical practitioners and persons taking blood from third parties under an MTO. The MDT Act does not specify any mandatory content requirements for the CHO guidelines. Some of the information they contain could be made clearer for senior officers (see recommendation 22). The CHO guidelines will also need to be updated if other legislative amendments recommended in this report are implemented (see recommendation 23). Police-developed training materials do not reference the CHO guidance on transmissibility risk, nor do they include training on how to consider and apply the CHO guidelines more generally (see recommendations 24 and 25). 

Decision making and determinations by senior officers 

The MDT Act confers a wide discretion on senior officers to make an order if subjectively satisfied that it is ‘justified in all the circumstances’. The NSW Crown Solicitor's Office (the Crown Solicitor) has advised that a senior officer must take into consideration the worker’s MDT application (as well as the CHO guidelines and any submissions). Senior officers should be required to form a view that the worker is eligible to make an MDT application before it is determined (see recommendation 26). 

The Act is ambiguous as to whether it is necessary for there to be at least some transmission risk for an MTO to be made, even though a key object of the Act is to provide for blood testing where ‘the worker is at risk of contracting a blood-borne disease’ (see recommendation 27). Given there is no real risk of transmission, saliva should be omitted from the MDT Act (recommendation 28). The MDT Act defines bodily fluids to include those prescribed by regulation. Additional bodily fluids should not be able to be included unless they carry a real risk of transmission of a relevant blood-borne disease (recommendation 29). 

Senior officers appear to be making inconsistent decisions about similar incidents or risks. Unclear advice about the possibility of blood in saliva increases inconsistencies in decision making and heightens the likelihood that MTOs are being made where there is no real risk of transmission. 

Records of decisions by CSNSW senior officers do not suggest that the CHO guidelines are being routinely considered. 

It also appears that senior officers are not consulting workers’ medical practitioners before making determinations, even in cases where no written medical advice was provided (see recommendation 30). Senior officers may need to consult with medical practitioners and access records beyond what is contained in the written medical advice. Currently their ability to do so applies only in the case where no written medical advice has been obtained, and it is unclear why this is the case (see recommendations 31, 32 and 33). Although the NSWPF guidelines advise NSWPF workers to seek written medical advice and attach it to their application, written medical advice is not always obtained for the senior officer to consider. Thirty- nine per cent of NSWPF MDT applications (41 of 106) did not contain written medical advice. A high proportion of these applications resulted in blood testing, either by way of an MTO or by consent. Third parties are often not given sufficient opportunity to make a submission (see recommendation 34), and it appears that NSWPF senior officers use their consent form as the third party’s opportunity to provide a submission, effectively conflating the Act’s requirement to provide an opportunity to make a submission with the requirement to seek consent (see recommendation 35). 

Enforcement 

There is ambiguity in the Act around whether force can be used against a person who is arrested and detained for failing to comply with an MTO (see recommendation 36). 

Testing with consent 

As noted in part B, a high proportion of blood tests (47%) are being conducted by consent – and it is likely that these reported numbers are understated. There are inconsistent practices between and within agencies about how applications are to be finalised if consent is obtained – the Act does not specify what senior officers may or must do in relation to the MDT application when consent has been obtained, and senior officers from the NSWPF and CSNSW have demonstrated differing approaches. 

The Crown Solicitor has confirmed that, if consent is obtained, the senior officer must refuse the application (see recommendation 37). It may be necessary to amend the MDT Act to explicitly set out what is to occur if a third party consents, given the risk that they might later withdraw consent (recommendation 38). 

Some provisions of the MDT Act are predicated on testing being undertaken subject to an MTO – meaning they will not be enlivened if the testing occurs by consent (see recommendation 39). While there is no express prohibition in the Act, it is clearly not intended that senior officers would seek consent in respect of vulnerable third parties. However, in a small number of cases this has occurred, and in (at least) 2 cases with some pressure applied. We also have concerns that in some cases senior officers have already decided that they will make the MTO when they approach a third party to seek consent – meaning their decision would be contrary to law. 

In most cases, there is little or no documentation recording the contact made by senior officers with the third party during which consent was obtained. This has made it challenging for us to consider the extent to which consent is being obtained in accordance with the Act, and whether it has been provided on a free and informed basis. Although the CHO guidelines recommend that they do so, agencies rarely record any reasons as to why a third party has not consented. This information is important for purposes of transparency (see recommendation 40). It is also apparent that the obtaining of consent by the NSWPF is not routinely captured on body-worn video (BWV) (see recommendation 41). 

If consent is obtained before an MDT application is made, the MDT Act does not apply. 

Blood samples and test results 

Although the Act requires it, pathology laboratories are not always providing blood test results to the CHO when the third party has not nominated a medical practitioner. This may be due (at least in part) to a lack of knowledge on the part of pathology laboratories about this obligation (see recommendations 42 and 43). When undertaking a test under an MTO, pathology staff are made aware that testing is subject to an MTO but are not provided a copy of the MTO itself. This is in contravention of the Act. It also appears that the applicant worker can legally nominate more than one medical practitioner for dissemination of blood test results. The disclosure of a person’s health information to anyone without consent violates the person’s health privacy and should be permitted under the Act only where absolutely necessary (see recommendation 44). 

Neither the Act, the Regulation nor the CHO guidelines set out what information must be included with the test results when sent to medical practitioners (see recommendations 45 and 46). Further, it appears that workers may be under no legal obligation to maintain the confidentiality of the third party’s test results. The Act provides that the recipient medical practitioner may disclose the blood tests to the applicant worker, but it does not provide any guidance as to what the worker may (or may not) do with those results (see recommendation 47). 

The MDT Act appropriately does not authorise the senior officer to seek out, request or obtain the third party’s test results. The pathology laboratory should be required to notify the senior officer in writing as soon as practicable after blood has been taken from the third party, without notifying them of the actual results (see recommendations 48 and 49). One of the exceptions to non-disclosure of third party health information is ‘in other circumstances prescribed by the regulations’. Allowing additional exceptions to the disclosure of third party health information to be prescribed by regulation is justified (see recommendation 50). 

We have not identified any impermissible attempts to use blood test samples for other law enforcement purposes – however the statutory protections in this regard appear inadequate (see recommendations 51 and 52). The Act only authorises (but does not require) blood test samples to be destroyed when no longer required for MDT purposes (see recommendation 53). 

Ombudsman monitoring and reporting 

Limitations on the Ombudsman’s information gathering powers under the Act are problematic (see recommendation 54). Additionally, the Act does not expressly prevent agencies withholding information required by the Ombudsman on the grounds of public interest or other privilege (see recommendation 55). 4 There may also be a question as to whether, at that time, they had also considered the CHO guidelines (which are also mandatory considerations). 

The powers of the Ombudsman to compel agencies (and others if necessary) to produce information remain limited. We are currently unable to assess the number of third parties who, following a mandatory test, actually returned a positive result for blood-borne diseases. This information would be valuable in assessing whether the MDT Act may provide some benefit to workers (see recommendation 56). Agencies are required to notify the Ombudsman when senior officers make determinations of MDT applications. This does not encompass all MDT applications that are made to agencies, such as those that are withdrawn. To address this, mandatory notification requirements should be expanded (see recommendation 57). 

The NSWPF’s use of a structured decision-making tool through BluePortal to both make and record decisions by senior officers has led to the recording of inadequate ‘reasons’ for decision, that impede any such assessment. Senior officers should make and provide full and proper reasons for their determinations, including what was considered and relied upon in making the decision and a clear statement of the reasoning process (see recommendations 58 and 59). 

Detailed demographic data also cannot currently be reported as agencies do not routinely collect and retain it. Agencies need to be directed to make and keep a record of the demographic information that Parliament intends to be reported (see recommendation 60). 

The Act provides for the Ombudsman to report every 3 years on its monitoring of the MDT scheme. Going forward, we intend to publish (at least annually) a report on our monitoring, including non- identified, non-health, statistical data on the operation of the MDT scheme (recommendation 61). BOCSAR could also report MDT activity of the NSWPF on their public platform, including information about the number of applications and orders made (recommendation 62). 

Recommendation 1 That consideration be given to whether the Act should be continued at all, and whether the administrative resources currently applied to the scheme would be better directed toward providing improved avenues of advice and support directly to front-line workers who become exposed to bodily fluids in the workplace. That could include establishing and funding a panel of specialist blood-borne disease clinicians to be available for immediate consultations with workers (and their general practitioners) if required following a workplace incident of exposure to bodily fluids. 

Recommendation 2 If the Act is to be continued, the Act be amended to provide that, in all cases, MTOs may only be made by the court, on application by the worker’s senior officer. If this recommendation is implemented: a. Consideration should also be given to all of the recommendations set out in the next part of this report (other than those expressly stating that they do not apply if this recommendation is implemented). This includes that: i. A panel of relevant medical experts should be made available to workers (recommendation 4) and their written medical advice should be put before the decision maker. b. ii. The criteria for making an MTO should include that there must be a real risk of transmission of a blood-borne disease and that testing of the third party may affect the treatment of the worker (recommendation 27). In addition (and although the concept of ‘vulnerable third party’ can otherwise be omitted from the Act), consideration should be given to amending the Act to explicitly deal with how, prior to an MDT application being determined by the court, consent may (or may not) be obtained in the case of a minor or other person who lacks capacity to consent. 

Recommendation 3 If the Act is to continue, that the Act be amended to clarify whether the requirement that contact with bodily fluid be a ‘result of a deliberate action’ by the third party means that: a. b. as indicated in the second reading speech for the Bill, the third party engaged in the action with the intention of causing contact between their bodily fluid and the worker (the narrower view), or as per the Crown Solicitor’s preferred construction of the MDT Act currently, the third party need only have intended to engage in the action which caused the bodily fluid contact, without necessarily also intending to cause contact between their bodily fluid and the worker (the broader view). 

Recommendation 4 That agencies work with the CHO to put in place arrangements with a list of relevant expert medical practitioners for workers, including those in regional areas, to have rapid telehealth consultations (including outside normal business hours) following an exposure event. 

Recommendation 5 If the Act is to continue, that the Act be amended to provide that a worker’s medical practitioner must, both during the consultation and in written advice, inform the worker about all of the following: a. b. c. the medical practitioner’s assessment as to: i. whether there is any risk of the worker contracting each blood-borne disease ii. if so, the level of such risk. the appropriate action (if any) to be taken by the worker to mitigate that risk to the extent (if any) to which testing the third party’s blood: iii. will assist in assessing the risk to the worker of contracting each blood-borne disease iv. may affect the appropriate action (if any) to be taken by the worker to mitigate that risk v. may affect the worker’s mental health or wellbeing the risk that the third party test may return a false result. 

Recommendation 6 If the Act is to continue, that the CHO develop a form for workers to provide to their medical practitioner, addressing each of the matters referred to in recommendation 5, and which upon completion would constitute written medical advice for the purposes of the MDT Act. This proforma could be contained in the Regulation, or in the CHO guidelines and each agency’s MDT policy. 

Recommendation 7 If the Act is to continue and recommendation 2 is not adopted, that the Act be amended to provide that decisions of senior officers to make or refuse to make an MTO, are subject to a review: a. by NCAT, the Local Court, or other relevant court or tribunal with expertise in reviewing administrative decisions b. c. which permits the reviewing body to consider whether the senior officer’s determination was the correct and preferable decision which, if the senior officer’s decision is overturned, permits the reviewing body to make the correct and preferable decision. 

Recommendation 8 If the Act is to continue and recommendation 2 is not adopted, that the Act be amended to clarify that if, on review, the CHO [or other review body] sets aside a decision to make an MTO, they may then: a. b. c. decide to refuse the MDT application in the case of a person who is not a vulnerable person, make an MTO (in different terms to that made by the senior officer) in the case of a person who is a vulnerable person, apply to the court to make an MTO 

Recommendation 9 If the Act is to continue, that the Act be amended to make clear that ‘notice’ in s 23 means the written notice of determination required to be given under s 13. 

Recommendation 10 If the Act is to continue and recommendation 2 is not adopted, that the NSWPF, CSNSW and other relevant agencies include information in any notice of determination about workers’ and third parties’ review rights, and that the Act be amended to make this a requirement. 

Recommendation 11 If the Act is to continue and recommendation 2 is not adopted, that Government amend the Regulation to provide that an application for review from a third party must include either the MTO or a copy of the senior officer’s notice of determination and reasons for determination. 

Recommendation 12 If the Act is to continue and recommendation 2 is not adopted, that the Act be amended to provide that the CHO [or other review body] may accept an application for review out of time in exceptional circumstances. 

Recommendation 13 If the Act is to continue, that the Act be amended to provide that the period within which an application for review must be made is 3 business days from notification of the decision. 

Recommendation 14 If the Act is to continue, that the Act be amended to provide that both the third party and the worker are to be given an opportunity to make submissions on any review, and the CHO [or other review body] is to consider any submissions received. 

Recommendation 15 If the Act is to continue, that the Act be amended to provide that testing in respect of an MTO is not to take place until whichever is later of the following: a. b. the expiry of the time within which an application for review may be made the finalisation of any review. 

Recommendation 16 If the Act is to continue, that the CHO adopt the practice of always making submissions to assist the court in determining MDT applications. Recommendation 17 If the Act is to continue, that the Act be amended to require that a senior officer must provide the CHO with a complete copy of the court application, including all filed documents, at the same time as the application is made. 

Recommendation 18 If the Act is to continue and recommendation 2 is not adopted, that the Act be amended to provide that a third party is to be taken to be a vulnerable person unless the senior officer is satisfied, on reasonable grounds, that the person is not a vulnerable person. 

Recommendation 19 If the Act is to continue and recommendation 2 is not adopted, that the CHO revise the CHO guidelines to include advice to senior officers about assessing whether a third party is or is not a vulnerable person, and to provide that, if senior officers assess that a person is not a vulnerable person, they should record what enquiries were made and what factors were taken into consideration. 

Recommendation 20 If the Act is to continue and recommendation 2 is not adopted, that the NSWPF amend its guidelines to require that senior officers record what, if any, enquiries were made concerning vulnerability, and what factors were taken into consideration when assessing vulnerability – see recommendations 18 and 19.   

Recommendation 21 If the Act is to continue and recommendation 2 is not adopted, that the Act be amended to change the definition of vulnerable third party to include, in addition to children aged 14 to 17 years, any person: a. who has, or at the time of the contact incident had, a cognitive impairment or mental health b. c. impairment, or whose English language proficiency prohibits them from, or who is otherwise unable to, understand the nature of the decision to be made or to properly make submissions or otherwise represent themself in respect of that decision, or who is an Aboriginal or Torres Strait Islander person. 

Recommendation 22 If the Act is to continue, that the CHO review the CHO guidelines in consultation with agencies to consider whether advice on the transmission risk (or lack of risk) associated with contact types can be made clearer to non-expert readers. 

Recommendation 23 If the Act is to continue, that the CHO promptly review and update the CHO guidelines accordingly following the passage of any legislative amendments as recommended by this report. 

Recommendation 24 If the Act is to continue, that the Act be amended to provide that: a. b. a senior officer must complete a course of training, delivered or approved by the CHO, and determinations of MDT applications (including, if recommendation 2 is adopted, applications to the court) may only be made by a senior officer who has completed that training. 

Recommendation 25 If the Act is to continue, that all agencies ensure that the CHO guidelines are the primary reference source for any MDT-related policies and training material developed or used by agencies under the Act, including for the purpose of training senior officers on the risks (if any) of transmission. 

Recommendation 26 If the Act is to continue, that the Act be amended to make it clear that a senior officer may only make an MTO (or apply to the court for an MTO, including if recommendation 2 is adopted) if satisfied that the worker making the application was eligible to do so under s 8. This would mean that the senior officer must form a view on the following before making a decision on an MTO determination: a. b. c. d. e. f. g. the worker came into contact with bodily fluid of the third party the contact occurred in the execution of the worker’s duty the contact was the result of a deliberate action by the third party the contact was without the consent of the third party the third party is over the age of 14 the worker has consulted a relevant medical practitioner the application is made within 5 days of the contact. 

Recommendation 27 If the Act is to continue, that the Act be amended to provide that, to make an MTO the decision maker (including the court if recommendation 2 is adopted) must be satisfied, having regard to the CHO guidelines and medical advice, that there is a real risk that the worker has contracted a blood-borne disease from the contact incident. 

Recommendation 28 If the Act is to continue, that the Act be amended to omit saliva as a ‘bodily fluid’ (noting that, if contact is made with both saliva and blood, the Act could still apply in respect of that contact as blood is a bodily fluid). 

Recommendation 29 If the Act is to continue, that the Act be amended to omit from the definition of ‘bodily fluid’ the regulation-making power to prescribe any ‘other bodily fluid or substance’ as a bodily fluid, or alternatively to put in place a safeguard that a bodily fluid is only prescribed following certification by the CHO. 

Recommendation 30 If the Act is to continue, that the Act be amended to require that all MDT applications must include written advice from the worker’s medical practitioner. (See also recommendation 5 as to the required content of that advice). 

Recommendation 31 If the Act is to continue, that the Act be amended to provide that a worker’s statement(s) consenting to the senior officer consulting their medical practitioner and accessing their medical records extends to the case of an MDT application that is determined by the senior officer deciding to apply to the court, to the extent necessary for the purpose of pursuing court proceedings.  

Recommendation 32 If the Act is to continue, that the Act be amended to provide that, in all cases, a worker’s MDT application must include statement(s) of consent to the senior officer accessing their relevant medical records as necessary. 

Recommendation 33 If the Act is to continue, that the CHO review and revise the CHO guidelines to provide guidance to senior officers as to how and when they should be consulting with a worker’s medical practitioner. 

Recommendation 34 If the Act is to continue, that the Act be amended to require that, for the purpose of affording third parties an opportunity to make a submission: a. b. c. the senior officer must provide them with a redacted copy of the MDT application immediately, and in any case no later than 1 business day after the MDT application is made, and should they indicate that they wish to do so, third parties be given the opportunity to obtain medical and/or legal advice to assist with the decision to make (or not make) a submission, and to assist in the making of that submission. Pending any change to the legislation, this practice should be adopted by agencies as a matter of policy. 

Recommendation 35 If the Act is to continue, that the NSWPF review its policy and practices to ensure that third parties are genuinely provided an opportunity to make a submission on any matters relevant to the determination of an MDT application, and not merely on their reasons for not consenting to provide a blood sample for testing. 

Recommendation 36 If the Act is to continue, that the Act be amended to provide that the powers of law enforcement officers in respect of a detained third party provided by s 21 do not apply if the person has been detained only in connection with an offence under the Act. 

Recommendation 37 If the Act is to continue, that the NSWPF, CSNSW and other relevant agencies amend their policies to include a direction that, if a non-vulnerable third party consents to providing a blood sample for testing after an MDT application has been made, the senior officer must proceed to determine the application by refusing it, and giving notice of that determination in accordance with s 13 of the Act. 

Recommendation 38 If the Act is to continue, that the Act be amended to provide that, in respect of an MDT application about a non-vulnerable third party who has consented to voluntarily provide a blood sample for testing: a. b. c. the application is to remain on foot (and not be determined) until the blood sample for testing is provided - even if this is outside the 3-business-day timeframe within which a determination must ordinarily be made once the blood sample has been provided, the senior officer is to determine the application by refusing it but if the blood sample is not provided voluntarily (ie consent is withdrawn), the senior officer (or the court, if recommendation 2 is adopted) may proceed to determine the application by either making an MTO or refusing the application. 

Recommendation 39 If the Act is to continue, that the Act be amended to provide that the following provisions also apply where, following the making of an application for an MTO, testing is conducted with consent: a. b. s 22 (Results of blood test) s 29 (Disclosure of information) c. s 34 (Costs). 

Recommendation 40 If the Act is to continue, that the NSWPF, CSNSW and other covered agencies review and if necessary, revise their policies and procedures to provide that: a. b. c. d. a form is provided for completion by any non-vulnerable third party to allow them to indicate whether they will or will not consent the form includes a specific field inviting the third party to provide reasons for not consenting, if they do not consent returned forms (where consent has not been provided) are considered by the senior officer before determining an MDT application (or provided to the court if recommendation 2 is adopted), and otherwise kept on the relevant file if a third party does not complete a form, this is noted on the relevant file. 

Recommendation 41 If the Act is to continue, that the NSWPF, CSNSW and other covered agencies review and revise their MDT policies and procedures to include directions to senior officers that they: a. b. are to seek consent by asking whether or not the person will consent are to give the third party a reasonable opportunity to consider (including after seeking legal or other advice, if necessary) whether they will consent  c. d. e. are not to apply pressure in seeking consent - including that they must not imply that, if consent is not provided, an MTO will necessarily be made are to make a record of the manner in which consent was sought and, if relevant, obtained on the MDT application file (in the case of the NSWPF and CSNSW) are to record on BWV any conversation in which consent is sought. 

Recommendation 42 If the Act is to continue, that the CHO take steps to ensure that pathology laboratories are aware of their obligation to provide a copy of blood test results to the CHO if no medical practitioner has been nominated by the relevant third party. 

Recommendation 43 If the Act is to continue, that the CHO be funded to develop and deliver training for NSW pathology staff in relation to the operation of the MDT Act, including their obligations concerning the dissemination of blood test results and treatment of blood test samples, and risk mitigation for staff who administer tests under an MTO. 

Recommendation 44 If the Act is to continue, that the Act be amended to provide that a worker may nominate only one medical practitioner to receive the third party’s blood test results on the worker’s behalf. 

Recommendation 45 If the Act is to continue, that the Act (or the Regulation) be amended to provide that, when blood test results are to be disseminated to a medical practitioner: a. b. c. The pathology laboratory is to contact the medical practitioner to confirm that they are authorised and willing to receive the results on behalf of the relevant person The results are to be marked as confidential for the personal attention of the medical practitioner, and The results are to be accompanied by the following information: i. The fact that the test was undertaken under an MTO ii. iii. iv. The names of the relevant worker and third party A list of all persons who are receiving the results and why A copy of, or a reference to a public website that includes, the CHO guidelines. 

Recommendation 46 If the Act is to continue and subject to recommendation 45 being adopted, the CHO should issue advice to pathology laboratories with instructions to the above effect. 

Recommendation 47 If the Act is to continue, that the Act be amended to: a. b. provide that any person who receives the health information of a third party, including a worker and any person to whom the worker then discloses the information, is also subject to the prohibition on disclosing the information unless one of the exceptions in s 29(1) apply, and add exceptions for the disclosure of information where reasonably necessary for the purpose of: i. the worker informing a spouse, intimate partner or other person in respect of whom the third party’s health information may be relevant to that person’s own health or safety, or ii. the worker or a person referred to in paragraph (i) above for the purpose of seeking medical, counselling, legal or other professional advice. 

Recommendation 48 If the Act is to continue, that the CHO guidelines and the NSWPF, CSNSW and other agencies’ policies be amended to state clearly that the third party’s blood test results should not be disclosed to the senior officer, and the senior officer must not request those results. 

Recommendation 49 If the Act is to continue, that the Act be amended to provide that, at the time of disseminating the blood test results under s 22, the pathology laboratory is to notify the senior officer that the test was successfully completed in accordance with MTO. 

Recommendation 50 If the Act is to continue, that s 29(1)(e) of the Act be repealed. 

Recommendation 51 If the Act is to continue, that the Act (s 7) be amended to provide there is an absolute prohibition on the use of blood samples for any purpose not authorised by the Act, and that this applies to any law enforcement agency and any other person. 

Recommendation 52 If the Act is to continue, that the Act (s 31) be amended to provide that the prohibition on the use of samples and information as evidence applies to all proceedings and administrative decisions or assessments (other than if adduced by the third party themselves). 

Recommendation 53 If the Act is to continue, that (subject to consultation with the CHO to confirm that there is no impediment under national pathology standards to doing so) the Act be amended to provide that the sample must be destroyed by the pathology laboratory as soon as it is no longer required for the purposes of the Act. 

Recommendation 54 If the Act is to continue, that the Act (s 36) be amended to provide that the Ombudsman’s power to require information can: a. b. be exercised for the purpose of any Ombudsman function under the Act (and not just for its function of preparing a report) relate to any information relevant to the Act (and not limited to information relating to an MDT application) c. be made to any person (and not just to senior officers or the Commissioner of Police). 

Recommendation 55 If the Act is to continue, that the Act (s 36) be amended to provide that no Act (including any other provision of the MDT Act) or law prevents a person complying or affects a person’s duty to comply with a requirement of the Ombudsman to provide information, except that the Ombudsman must set aside a requirement to produce information if: a. b. c. the person is not a public authority, the person has a ground of privilege that would entitle them to resist such a requirement in court proceedings, and the person has not waived that privilege. 

Recommendation 56 If the Act is to continue, that the Act be amended (subject to consultation with the CHO to confirm that there is no impediment under the relevant health privacy laws and standards) to provide for the CHO to receive and collate: a. b. c. the result of pathology tests administered on third parties under the Act the PEP treatment of workers, including whether this changed following receipt of the third party test results data to the Ombudsman in deidentified and aggregated form for the purposes of our monitoring and reporting functions. (This should include in respect of all MDT applications, including where testing was done pursuant to an MTO and where testing was done by consent). 

Recommendation 57 If the Act is to continue, that the Act be amended to include (in addition to the requirement to give notice to the Ombudsman of any determination under s 13) that agencies must report annually to the Ombudsman on the number of MDT applications received and the outcome of those applications, including those that proceeded to determination, those that were withdrawn, and those that were dealt with by consent. 

Recommendation 58 If the Act is to continue (and to the extent necessary if recommendation 2 is adopted), agencies should ensure, and the Act should be amended to require, that the notices of reasons provided under s 13 are adequate, including by ensuring that they describe with appropriate specificity: a. the decision b. c. d. the findings on material facts the evidence or other material on which those findings are based the reasons for the decision. 

Recommendation 59 If the Act is to continue (and to the extent necessary if recommendation 2 is adopted), agencies should ensure – and the Act should be amended to require, that notices given to the Ombudsman under s 13(1)(d) of the Act are accompanied by: a. b. references to any information considered in making a decision, including a copy of all relevant (non-public) documents where the decision is to apply to the court for an MTO, a copy of the court application documents (and subsequently, once the court proceedings are finalised, notice of its outcome). 

Recommendation 60 If the Act is to continue, that the Act be amended to prescribe demographic information about third parties that agencies are required to seek and, if provided, to keep. This may include information about: a. age b. gender (including trans, intersex and non-binary) c. local government area of residence d. Aboriginal and/or Torres Strait Islander status e. cultural and linguistic diversity f. sexual orientation g. disability. 

Recommendation 61 If the Act is to continue, that the Act be amended to provide that: a. b. in addition to the full 3-yearly report required under the Act, the Ombudsman is to include in its Annual Report under the Ombudsman Act a report on its monitoring activities during the year, and this report may include de-identified, aggregated data, including demographic data, in relation to MDT applications and orders. 

Recommendation 62 If the Act is to continue, NSWPF enter into an arrangement to provide BOCSAR with data on key MDT Act activities of the NSWPF that it can include in its NSW Policing activity dashboard, including information about the number of applications and orders made.