Diluted Thinking

in Australian healthcare

AVSN: NSW HCCC Investigation

Background

On 22 July 2009 a complaint was lodged [1] with the NSW Health Care Complaints Commission (HCCC) against both the Australian Vaccination Network and its president, Meryl Dorey. This complaint was made by Mr Ken McLeod and he alleged that both the AVSN and Meryl Dorey were providing a health service that endangered public health. A few individuals submitted evidence to the HCCC in support of this complaint.

The Commission had 60 days to assess the complaint and come to a decision and all parties involved were to be notified in writing of the decision within 14 days of the decision being made.

In accordance with general procedures the HCCC notified the AVSN and Meryl Dorey that a complaint had been made about them, and on 31 July 2009 they were provided with a copy of the complaint, and a request to provide a written response to the allegations by 28 August 2009.

On 7 September 2009 the AVSN and Meryl Dorey sent the HCCC a joint submission [2] in response to the allegations made against them.

A second complaint was lodged by another party on 16 December 2009. It was assessed for investigation on 18 January 2010 and it was decided to incorporate this complaint into the first one. The HCCC notified the AVSN and Meryl Dorey of this second complaint on 1 February 2010 but they did not supply a copy of the second complaint in accordance with procedures "where notification would put at risk the health or safety of a person, prejudice an investigation, place a person at risk of intimidation or affect the employment of an employee of a provider".

The Investigation

On 12 October 2009 the HCCC advised all involved parties that they would be proceeding with an investigation into both the AVSN and Meryl Dorey. In their letter to Ken McLeod they advised:
Following preliminary gathering of information, on 23 September 2009 , the Commission, has determined that your complaint would be investigated as it raises significant questions of public health and safety.

During the investigation more supporting evidence for the complaints was provided to the HCCC. In particular, an immunology student, Tom Sidwell [3] submitted an analysis of the references supplied by Meryl Dorey in her joint submission to the HCCC.

The Findings

On 7 July 2010 the HCCC handed down its findings.[4] The HCCC focused much of its attention on the AVSN's website because they felt that was the main source where members of the public would find information about vaccination.

The HCCC determined (amongst other things) that the AVSN:

On 12 July 2010, ABC Lateline ran a story about the HCCC investigation entitled Anti-vaccination group accused of harassing parents. Meryl Dorey stated that she did not agree that the HCCC had any jurisdiction over her or the AVSN and they were seeking legal advice on the matter. Please refer to the following media releases published by the AVSN Vaccine Safety Watchdog to Fight Government Censorship dated 12 July 2010 and Vaccine Safety Watchdog Opposes unjustified decision by HCCC dated 26 July 2010.

The Public Warning About the Australian Vaccination Network (AVN)

The HCCC also directed the AVSN to publish a suitable disclaimer on its website, which the AVSN refused to do. As a result of the AVSN failing to comply with this order, the HCCC issued the following public health warning:
Public warning about the Australian Vaccination Network (AVN)

26 July 2010

The Health Care Complaints Commission has investigated two complaints about the Australian Vaccination Network (AVN), a non-profit organisation registered in New South Wales that provides information about vaccination. The complaints alleged that the AVN provides incorrect and misleading information about vaccination.

The Commission's investigation of the complaints focussed on the material presented by the AVN on its website www.avn.org.au

The Commission's investigation established that the AVN website:

  • provides information that is solely anti-vaccination
  • contains information that is incorrect and misleading
  • quotes selectively from research to suggest that vaccination may be dangerous

The Commission is aware that both the complainant and the AVN have published the Commission's investigation report on the internet.

The Commission recommended to the AVN that it should include a statement in a prominent position on its website to the following effect:

  • The AVN's purpose is to provide information against vaccination, in order to balance what it believes is the substantial amount of pro-vaccination information available elsewhere.
  • The information provided by the AVN should not be read as medical advice.
  • The decision about whether or not to vaccinate should be made in consultation with a health care provider.

The Commission recognises that it is important for there to be debate on the issue of vaccination. However, the AVN provides information that is inaccurate and misleading.

The AVN's failure to include a notice on its website of the nature recommended by the Commission may result in members of the public making improperly informed decisions about whether or not to vaccinate, and therefore poses a risk to public health and safety.

Revocation of Authority to Fundraise

On 5 August 2010, media outlets reported that the NSW OLGR had been investigating the AVSN after claims it engaged in unauthorised fundraising. The AVSN had been given 28 days to prove why its authority to fundraise should not be revoked.

As a result of this investigation and the HCCC public health warning, the Minister for Gaming and Racing, the Hon Kevin Greene MP, announced that the AVSN's Authority to Fundraise had been revoked effective 20 October 2010. This meant that the AVSN was no longer able to solicit donations from the general public nor was it able to accept new members (existing members were still able to make donations and renew their membership). The AVSN published a media release The Office of Liquor, Gaming and Racing revokes the AVN's charitable authority dated 14 October 2010.

The Appeal

The AVSN appealed the HCCC's decision and after a lengthy process on 24 February 2012 the NSw Supreme Court handed down its ruling.[5] The court found that the HCCC did not have the jurisdiction to issue a public warning against the AVSN. This decision was based on a technicality; the Health Care Complaints Act 1993, Section 7 (2) states a complaint can be made about "a health service which affects the clinical management or care of an individual client". This, the AVSN legal team argued, was not demonstrated in the complaints. The court also dismissed the AVSN's request that certiorari should be granted, therefore allowing the revocation of the AVSN's fundraising authority to remain in place.

It is important to note that the findings of the HCCC investigation were not changed by the Supreme Court's ruling.

As a result of the HCCC public warning being retracted, the NSW Office of Liquor, Gaming and Racing eventually reinstated the AVSN's authority to fundraise on 16 April 2012. From this date, the AVSN was once again able to accept donations from non-members (who are residents of New South Wales) and was able to accept new members.

References:
1. Ken McLeod - original complaint (pdf)
2. AVN / Meryl Dorey - HCCC response (pdf)
3. Tom Sidwell - submissions to the HCCC:
Analysis of AVN articles (pdf)
Critical analysis of immune-suppression articles (pdf)
Source of AVN references (pdf)
Fourth Analysis (pdf)
4. HCCC Final Report (pdf)
5. NSW Supreme Court judgement AVN v HCCC (pdf)