Ambulance station manager, sacked for anti-vaccination comments on Facebook, asks invalidation of “unreasonable” public health orders

Background facts

An ambulance station manager refused to be vaccinated despite an order from the Health Minister of New South Wales directing all health care workers in NSW to be vaccinated. Later, the ambulance station manager made public statements against the government of NSW and cast doubt on the efficacy and necessity of vaccines. For these reasons, the Paramedicine Council of NSW suspended the license of the ambulance station manager and he was unable to practice his paramedic profession.

Because of the suspension of his paramedic license and his right to work, the ambulance station manager brought suit asking the NSW Supreme Court to invalidate two public health orders issued by the Health Minister of NSW on the ground that the public health orders mandating vaccination of all health care workers constituted a risk to public health.

The Court found that its only role is to determine whether the Minister of Health had the power to make those public health orders. And the only issue to be determined is whether the public health orders issued by the Health Minister was reasonable.

The public health orders

The two public health orders in question required all employees rendering work as paramedics in NSW to receive at least one dose of a Covid-19 vaccine by 30 September 2021 and two doses by 30 November 2021 or be prohibited from working as healthcare workers in NSW. The issuance of the public health orders was made under the Public Health Act which penalises any failure to comply with the public health orders with imprisonment of up to 6 months.

Paramedics are classified as health care workers

The ambulance station manager is a healthcare worker falling under the category of “registered paramedic” whose work involves the transport of patients, assessment of whether to transport persons, and to treat persons. He is a registered paramedic who has been rendering service in the healthcare service of NSW for 25 years. He alleges legal unreasonableness in the issuance of the public health orders.

Powers of the Minister of Health under the Public Health Act

Under the Public Health Act, the Minister of Health of NSW is empowered to act in the interest of public health and safety to protect residents and citizens and residents of NSW from contagion.

Factual bases for ordering vaccination of health care workers

In the questioned public health orders themselves, the Minister provided the basis for the orders. The Minister recognised the outbreaks of Covid-19 in Australia, the medical findings that the Covid-19 virus causes a severe acute respiratory syndrome that is highly contagious, and that may result in death.

Further, the Minister also declared that there an ongoing risk of continuing introduction or transmission of the Covid-19 virus in the community and the risk of transmission will remain significant unless vaccines are administered.

To ensure that health care workers are vaccinated will likely reduce the risk of infection, severe disease and death in the workers as well as reduce the risk of transmission of infection from workers to patients and other workers. The Minister declared that public health and hospital services are at risk without vaccination which is an appropriate and proportionate mitigation strategy to protect health care workers and patients.

Vaccination as a requirement for continued employment

For these reasons stated in the questioned public health orders, the Minister then directed that health care workers must not do work as a health care worker unless they have received one dose of a Covid-19 vaccine by 30 September 2021 and two doses by 30 November 2021. Further, the Minister directed all health care workers to provide evidence of vaccination if required to do so by an authorised person.

Issues raised by the ambulance station manager are not new

The Court had previously considered other public health orders issued in response to the Covid-19 pandemic and found them to be a legally reasonable exercise of the power authorised by the Public Health Act.

The Court found that the public health orders are within the power of the minister because the Minister issued them after considering reasonable grounds and has found that a situation has arisen that is likely to be a risk to public health.

Having found a risk to public health, the Minister has the power to deal with the risk and its possible consequences including those that may prevent the spread of disease. Among the strategies that the Minister may reasonably implement is the imposition of lock downs which will severely restrict movements to parts of NSW which have been declared as a public health risk area.

The Court has also previously found that requiring vaccination does not violate individual rights. Even the criminal penalties imposed by the Minister in the orders for any breach of the orders are not unreasonable even when the order severely curtails individual rights to freedom of movement.

Other vaccinations in the past had been ordered

In 2011, similar orders directing vaccination of the public and of health care workers in particular had been issued. Health care workers were ordered to be vaccinated against tuberculosis and hepatitis B to address the risks posed by the grave consequences of the infection and the high transmissibility of the virus as even vaccinated persons can still be infected and pass on the infection to others.

Covid-19 is a new disease

The first case of Covid-19 was detected in NSW in January 2020. Because Covid-19 is a new disease, the human population the world over has no immunity to the virus that causes it. The virus passes from person to person through virus particles expelled from the airways of an infected person. The Covid-19 virus is also capable of mutating.

New variants emerge

The Delta variant of the virus was detected in 2020 and was detected in NSW in June 2021. This new variant was found to be twice as infectious as the original virus. Unless control measures are implemented, one person infected with the Delta variant of the Covid-19 virus can infect between 3-8 persons.

Greater risk of severe illness

Adults infected with the Delta variant have an increased risk of requiring hospitalisation. Those who are aged 70 and older and those with chronic health conditions are at greater risk of severe Covid-19 illness. Those who are infected may develop what is called “long Covid” or prolonged symptoms after surviving the acute illness. And even those who survive Covid experience a range of residual health conditions.

Health care settings are high risk settings

It is accepted that health care settings, particularly hospitals are high risk settings and require controls to protect against outbreak. The Minister must protect the patients in hospitals who are vulnerable to severe health outcomes and also protect the health care workers who treat and care for patients. Health care staff in hospitals are at risk of acquiring infection in their day-to-day work. The provision of health care will be greatly impacted if the health care workers are also infected. For health care workers, vaccination is a major factor in reducing the risk of infection and transmission to patients and to other staff.

Not vaccinating health care workers disrupts health care provision to the public

The danger of not vaccinating health care workers is greatest in the vulnerable patients they treat and care for and in the families of health care workers. But when health care workers get sick with the Covid-19 disease, the orderly delivery of public health services is also disrupted. Facilities have to be deep cleaned and disinfected and the staff need to self-isolate until they test negative.

In NSW, on 18 August 2021, there had been one virus transmission event in a health care setting that resulted in almost 1300 NSW health care staff in isolation due to potential and actual infection. The number of staff in isolation has only been increasing since the Delta variant outbreak.

Consensus of the health care professional community obtained

The Health Minister met with health care associations and health care workers’ unions prior to issuing the questioned public health orders. All who attended agreed that vaccination was one measure to ensure a safe workplace for all health care staff to protect patients and themselves.

As at 25 August 2021, around 82% of NSW ambulance staff had received at least one vaccination. As at 29 September 2021, 96% of ambulance staff had received at least one vaccination. As at 22 October 2021, around 97% of ambulance staff had received at least one vaccination.

The ambulance manager’s objections inconsistent with Pope’s declarations

The ambulance station manager bases his objection to the vaccine mandate on his religious faith as a Catholic. He decided to refuse vaccination as he believed that the vaccines available may have been the product of research, testing, and production processes developed from cell lines derived and sourced from aborted foetuses and abortion was against his religious beliefs.

However, the Pope has also issued a statement that all vaccinations recognised as clinically safe and effective can be used by the Catholic faithful in good conscience with the knowledge that even if the vaccines had been developed from cells of aborted foetuses, receiving those vaccines does not constitute formal cooperation with abortion nor does it legitimate even indirectly the practice of abortion.

Ambulance manager’s license has been suspended because of anti-vaccine statements

The Court found that the ambulance station manager failed to prove any right to his claims for relief and failed to prove any unreasonableness in the Minister’s public health orders. More importantly, the ambulance station manager failed to prove that the public health orders were the direct cause of the suspension of his license.

The Paramedicine Council of NSW suspended the right of the ambulance station manager to practice as a paramedic but the suspension of his license was not based on his refusal to be vaccinated but based on his having public statements about vaccination which do not accord with accepted scientific facts about the vaccines.

The Australian Health Practitioner Regulation Agency had already declared that any promotion of anti vaccination statements or health advice that contradicts the best available scientific evidence or seeks to actively undermine the national immunisation campaign may be considered a breach of the code of conduct for health practitioners. As a licensed paramedic, the ambulance station manager took an oath to abide by the code of conduct.

Public comments made by health care workers such as the ambulance station manager may lead members of the public to reasonably believe that the ambulance station manager’s findings have professional, clinical or scientific weight and standing.

Upon investigation, the Paramedicine Council found that the ambulance station manager’s conduct and public statements were serious and acceptable considering the risk to the public interest and to public health and safety given the urgency and immediacy of the public health crisis.

The application for an order of declaratory relief was denied.

Source: Larter v Hazzard (No 2) [2021] NSWSC 1451 (10 November 2021)

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