COUNCIL
No. H96/87
Number of pages - 15
COURTHUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION HRNGDISABILITY DISCRIMINATION ACT 1992 W CARTER (Inquiry Commissioner) Maroochydore, 22-23 July 1996 (hearing(, 20 December 1996 (decision) ORDER#DATE 20:12:1996 #ADD 3:2:1997 Complainant: In person Respondent: In person Complaint dismissed. JUDGE1W CARTER (Inquiry Commissioner) INTRODUCTION 1. This is an inquiry, pursuant to s.79(1) of the Disability Discrimination Act 1992 (Cth) ("the Act"), by Mr Greg Beattie, on behalf of his two children Kiro and Lewis, against Maroochy Shire Council ("the Council"). 2. By letter dated 18 November 1993 Mr Beattie, on behalf of Kiro (then aged 3) and Lewis (then aged 10), lodged a complaint with the Queensland Anti-Discrimination Commission pursuant to s.69 of the Act, alleging that they had been refused entry to a child care centre conducted by the Council on the ground that they "were not medically immunised". Upon receipt of the complaint, Mr Beattie and the Council commenced upon a detailed process of correspondence and ultimately of conciliation which was designed to resolve the issue. A conciliation conference had been held on 2 November 1994 but this had proved to be unsuccessful. On 4 January 1995 Mr Beattie requested that the matter be referred to a public hearing. 3. On 4 April 1995, Mr Beattie and the Council were advised that it was proposed to refer the matter to the Human Rights and Equal Opportunity Commission ("the Commission"). After consideration of the matter, on 28 April 1995 the Disability Discrimination Commissioner ("the Commissioner") advised Mr Beattie that, in her view, the subject matter of the complaint was not unlawful and that, pursuant to s.71(2)(a) of the Act, she had decided to discontinue the inquiry into the complaint. 4. In her letter to Mr Beattie dated 28 April 1995, the Disability Discrimination Commissioner referred to several relevant provisions of the Act, and in particular to s.48 which is set out below. She also referred to the guidelines issued by the National Health and Medical Research Council (NHRMC) on "Health Needs of Preschool Children in Day Care" which had been produced to her by the Council. On the basis of this material she concluded that the exclusion of unvaccinated children from day care centres was reasonably necessary to protect public health and, accordingly, any discrimination by the Council was not unlawful by reason of s.48 of the Act. At the same time she advised Mr Beattie of his right to have her decision reviewed by the President of the Commission. 5. By letter dated 8 May 1995, Mr Beattie sought review of this decision by the President. By letter dated 16 October 1995 the President, pursuant to s.101(2) of the Act, advised the parties that he would direct the Commissioner to continue to inquire into the complaint. After a further attempt at conciliation by the Commission had failed, Mr Beattie again asked that the complaint "be referred for a hearing" and, by letter dated 24 April 1996, the Commissioner, having formed the view that the matter could not be settled by conciliation, referred the complaint to the Commission for inquiry pursuant to s.76 of the Act. 6. A public hearing of the inquiry was held at Maroochydore on 22-23 July 1996. LEGISLATION AND ISSUES FOR DETERMINATION 7. The fact that the children had been refused entry to the child care centre and that such refusal occurred because the children had not been medically immunised is not denied by the Council. The Council has at least since 1976 had a policy that any child wanting to attend a child care centre controlled by the Council must be medically immunised before acceptance. This policy was formalised by the Council on 11 May 1993 adopting the "Policy and Procedures Manual - Child Care Centres" which include the pre entry requirement for the medical vaccination of children attending a Council controlled child care centre. Proof of the immunisation is required on enrolment and after each immunisation update. The standard immunisations required are stated as being "per current Health Authority recommendations". 8. Accordingly there is no dispute between Mr Beattie and the Council in relation to the basic facts of the matter; firstly, the Council excluded the Beattie children from the child care centre because they had not been vaccinated in accordance with the policy; secondly, it is conceded that the children had not at the relevant time been medically vaccinated in respect of the relevant infectious diseases. 9. The operation of the Act in the circumstances of this case requires some explanation. Section 5 (1) of the Act provides: "For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the "disability. 10. The term "disability", so far as it is relevant to the present purposes, is defined by s.1(4) of the Act to mean: " ... (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness;" 11. The definition thereupon proceeds to include within the definition not only a "disability" that presently exists, but also one which previously existed but no longer exists or one which may exist in the future or which is imputed to a person. 12. Therefore, a "disability" as defined in paragraphs (c) and (d) above remains a "disability" by definition even though it does not presently exist. If it "may exist in the future" it is nonetheless a "disability" for the purposes of the Act. In the case of the Beattie children it is therefore the case that since they may in the future have in their bodies the organisms which cause or are capable of causing certain diseases or illnesses they suffer a "disability" as defined in the Act. The complaint on their behalf is that they have been discriminated against contrary to s.5 (1) of the Act because on account of that disability they have been treated less favourably by the Council in that they were refused admission to the Council's child care centre. Prima facie such discrimination is unlawful. 13. One then needs to turn to s.48 of the Act. It provides: "This Part does not render it unlawful for a person to discriminate against another person on the ground of the other person's disability if: (a) the person's disability is an infectious disease; and (b) the discrimination is reasonably necessary to protect public health." 14. Therefore if s.48 is to save the Council's act of discrimination against the Beattie children it must be established: - that the disability, that is, the disease or illness causing organisms which may in the future exist in the bodies of the Beattie children, are those of the infectious diseases which are the subject of vaccination, such as measles, diphtheria, pertussis (whooping cough), poliomyelitis, etc, - and that the discrimination, that is, the decision to exclude them from the child care centre unless vaccinated against the relevant infectious diseases, is reasonably necessary to protect public health. 15. Accordingly, the core issue which arises because of the complaint and the terms of the Act is a relatively narrow one. If it is determined that the future disease or illness which may exist is an infectious disease the question then remains whether the decision to exclude the unvaccinated Beattie children from the Council's child care centre is reasonably necessary to protect public health. THE COMPLAINANT'S EVIDENCE 16. Mr Beattie and his wife are vigorously opposed to the vaccination of their children and to vaccination generally, either as a private or as a public health procedure. He asserts the fundamental right of himself and his wife to choose vaccination or otherwise, but in his case he goes much further and strongly and vigorously advocates the notion that the vaccination of his children would be potentially and positively harmful to their well being. In his view, not only is vaccination harmful, but it is also a useless procedure with harmful and perhaps disastrous side effects. It follows that he denies the proposition that vaccination is a measure which is reasonably necessary for the protection of public health. Therefore, in his view, the discriminatory conduct of the Council in refusing his children access to the Council's child care centre remains unlawful and cannot be saved by s.48 of the Act. 17. Mr Beattie ably represents that section of the community which opposes vaccination as a procedure, the validity of which is, in his view, unsupported by both the medical and historical experience. Vaccination is therefore not only positively harmful to the individual, and for that reason alone cannot be supported, but moreover the history of vaccination and the medical literature abound with case histories and statistical information which comprehensively and persuasively reject the utility of vaccination as a worthwhile public health initiative. His interest in the subject goes far beyond the immediate health care needs of his own children. His interest in the subject has spawned his almost encyclopaedic knowledge of the literature, particularly that section of it which calls into question the validity of vaccination as either an acceptable private or public health care procedure. He is plainly an effective lay advocate for those who oppose vaccination and he is supported by others in a variety of disciplines, including some medical practitioners. At the conclusion of the public hearing, Mr Beattie sought to support the complaint by forwarding to the Commission additional statements from medical practitioners. I accepted these statements for inclusion in the body of evidentary material after inviting the Council to respond, if it desired to do so. 18. It is simply not possible to seek to address all of the evidentary material used either by Mr Beattie or by his principal witness, Dr Viera Scheibner. The latter, like Mr Beattie, vigorously opposes vaccination. She also referred extensively to the literature which in her view refutes the traditional viewpoint that vaccination is a valuable - indeed a necessary - procedure for the preservation of both private and public health. It is necessary for me, however, to deal more fully with the evidence of Dr Scheibner. 19. Dr Scheibner completed a course in Natural Sciences at the University of Brattislava in the former Czechoslovakia and, in 1964, was awarded a doctorate in Natural Sciences. Her evidence is that this doctorate is the equivalent of the "Anglo Saxon Ph. D". Her speciality is in micro-palaeontology, and her interest in matters relevant to this complaint and concerning the utility or otherwise of vaccination seems to have stemmed from about 1985 when she met her late husband, a biomedical engineer who specialised in patient monitoring systems. 20. She and her husband developed a breathing monitor for babies - technology which provided a computerised record of babies breathing. This was used to record, inter alia, the breathing response of babies who had been subjected to vaccination, and this led her to assert a link between vaccination and Sudden Infant Death Syndrome (SIDS). She now claims expertise in this area and generally in her support of the proposition that vaccination is harmful and should be rejected both by parents and the wider community. Obviously, she is strongly opposed to those in traditional medicine who propose not only the vaccination of young children but who seek to influence the relevant public health care agencies to support a community vaccination programme over as wide a community base as possible. 21. Whilst her interest in vaccination seems to have stemmed from her hypothesis that there is a direct causal link between SIDS and vaccination, she claims that her condemnation of vaccination is supported by comprehensive reference to the literature to which I referred earlier. Dr. Scheibner presents as one who is implacably opposed to the traditional view that vaccination is a necessary method of containing the spread of infectious illnesses and disease. 22. In 1993 Dr Scheibner published a book entitled "Vaccination", the sub-title of which reads "100 years of orthodox research shows that vaccines represent a medical assault on the Immune System". Dr Scheibner's evidence asserts the truth of the following propositions:- - most cot death researchers are reluctant to admit that there is a causal link between administration of vaccines and cot death; - that pertussis (whooping cough) is not a dangerous disease in unvaccinated children and so there is no point in vaccinating against pertussis; - government health authorities world wide have wrongly advocated the effectiveness of vaccine to prevent pertussis; - there is no public health risk involved in allowing a child with measles to attend a child care centre; rather there is a public benefit in exposing others to natural infection; - medical practitioners are encouraged not to diagnose poliomyelitis in a vaccinated child; - the medical literature, if properly interpreted and understood, supports the proposition that vaccination is positively disadvantageous to public health. 23. These propositions and others of a like kind which appear in Dr Scheibner's evidence very clearly and vigorously challenge the validity and correctness of education programmes which advocate vaccination, the chief proponents of which are specialists, medical associations and public health authorities. At the same time Dr Scheibner made no attempt to obscure her view that there was an "unholy alliance" between medical practitioners and government health authorities on the one hand and pharmaceutical companies on the other. She claimed that drug companies have a vested financial interest in vaccination programs and that these were supported by governments "to the detriment of the citizens of their countries". She asserted that in recent years in England health authorities "created a sort of panic" that "a huge epidemic of measles was on the way". In truth, according to Dr Scheibner, the stocks of unused measles vaccine of two drug companies were "near expiry date" and the "panic" was artificially created so that the vaccine could be used. Dr Scheibner claims that as a result of this unjustifiable increase in measles vaccination there were 500 reported cases of damage done by the vaccine to the vaccinated children. This occurred only because the relevant health minister had, for subjective reasons, advocated vaccination in order to assist the financial interest of the two drug companies. Dr Scheibner stated that "it was demonstrated that the then health minister held shares in one of those drug companies". 24. A relevant part of Dr Scheibner's evidence is included here so as to demonstrate one crucial part of her strongly held views which relates to SIDS: "DR SCHEIBNER: I can supply them with papers, papers published. Perhaps we can have a look at the product information published by vaccine producing companies. This is Lederle leaflet, Lederle product insert from diphtheria and tetanus shot and pertussis vaccine, tri-immunol, triple antigen. What they write here in a very, very fine print is, "The occurance of sudden infant death syndrome has been reported following administration of DPT". Number 1, why would they put in it if it's totally irrelevant? Then they put in a disclaimer which says, "However, a large case control study in the US revealed no causal relationship between receipt of DPT vaccine and SIDS." They are referring to those articles that I was showing you. They evaluated the wrong raw data. They are the articles they are referring to. Buy why would they put it in if it's totally irrelevant. So does a Canadian product insert of DPT vaccine says very similar thing. Why don't Australian leaflets for DPT say the same thing? You don't find any mention of SIDS in the Australian product inserts. THE COMMISSIONER: Why do you say it is omitted? DR SCHEIBNER: Because it is relevant. THE COMMISSIONER: Because it is? DR SCHEIBNER: It is relevant. Because it is relevant. What these drug companies are envisaging... THE COMMISSIONER: Just a moment. What you are saying is and what you are asserting really is that apparently responsible medical people have really failed or have deliberately excluded what you would describe as the causal relationship between the vaccine and cot death? DR SCHEIBNER: I am questioning why they did not include it in the Australian leaflets. THE COMMISSIONER: Do you have any reason as to why they did not include it? DR SCHEIBNER: Perhaps I should use your own words, "perhaps deliberately", yes. THE COMMISSIONER: You say that they deliberately excluded it? DR SCHEIBNER: Yes, I would think so. THE COMMISSIONER: Why would you hypothesise? DR SCHEIBNER: I really don't know. We should really ask them. I have no answer for that because I personally was pro-vaccinate before. I had my children vaccinated and it was this type of information that I'm presenting and our own research that made me change. THE COMMISSIONER: I understand that, but from a person in my position, having some general knowledge of the subject, one knows that the whole question of cot death, sudden infant death syndrome, is an enormously - a live medical issue in the community. There is apparently a significant body of research going into the subject. I mean, all of us I suspect know of some family who has experienced sudden infant death syndrome. One knows that there are presumably significant funds being invested in the research into sudden infant death syndrome. Are you saying that they have deliberately excluded what you would call the causal relationship between vaccination and cot death? DR SCHEIBNER: I must say yes. They do not even look at the .... THE COMMISSIONER: I would find it difficult to understand why responsible medical authorities researching this subject, in which there is an enormous of public money and public interest invested, what interest would such people have in deliberately failing to reveal what you say is a causal relationship between cot death and vaccination? DR SCHEIBNER: To protect the vaccines. THE COMMISSIONER: To protect the vaccine? DR SCHEIBNER: The vaccines, the vaccinations programs. If they admitted the causal link between vaccination and cot deaths vaccination would have to cease immediately. THE COMMISSIONER: So that you say all of that research is really being supported on the basis of a false proposition that there is no danger between vaccination and cot death? DR SCHEIBNER: Exactly. I have reasonable evidence that ... THE COMMISSIONER: That in itself is a somewhat remarkable proposition to assert publicly, isn't it? I mean, it seriously challenges the integrity, not only of a significant number of professional researchers, but of widespread research programs in which there is invested enormous public funds. The integrity of all of those people and those programs, you say, is to be seriously questioned? DR SCHEIBNER: Yes." 25. Her expressed view that vaccination programs, which are espoused by medical practitioners and health authorities, are in truth designed to support the financial interest of drug companies, is really the corollary of her primary proposition that vaccination is "positively disadvantageous to public health". That is the fundamental point of departure for her from the view that vaccination against infectious illnesses and disease is reasonably necessary to protect public health which, as pointed out earlier, is the real question that has to be decided. If Dr Scheibner's view is the acceptable one then s.48 cannot save the discriminatory decision made by the Council in respect of the Beattie children from unlawfulness. On the other hand, if the decision to exclude the children can be found to be reasonably necessary to protect public health, then it follows that the complaint of unlawful discrimination cannot be substantiated. Before attempting to resolve that question there is one other matter raised by s.48 which deserves further attention. IS AN INFECTIOUS DISEASE A DISABILITY? 26. Earlier references to the definition of "disability" in the Act demonstrate a somewhat artificial situation. Not surprisingly, Mr Beattie originally was at pains to assert that "my children do not have an infectious disease". Accordingly, in his view, there was no "disability" in his children which could support the discriminatory exclusion of them from the Council's child care centre. The extended definition of "disability" however, includes not only presently existing diseases or illnesses, but those which may exist in the future. This generalised extension is wide ranging and will include the presence in the body at any future time of the organisms which cause, or which are capable of causing, illness or disease. Such diseases, on the evidence, may include diphtheria, pertussis, measles, poliomyelitis, and others against which vaccination is available. The fact that children, including the Beattie children, may at some undefined future time contract such an illness gives rise to the somewhat artificial conclusion that at the relevant time each was subject to a "disability" as defined by the Act. It was this "disability" which was the source of the discriminatory action excluding them, and only if the decision to exclude them can be found to be reasonably necessary to protect public health can it be concluded that the discrimination was not unlawful. THE CASE FOR THE RESPONDENT 27. It is an integral feature of the Council's case that the decision to exclude the Beattie children, and any other unvaccinated children who are comprehended by the extended definition of "disability" in the Act, was indeed a discriminatory one but one which is reasonably necessary to protect public health. In short, the Council's insistence that the children will not be admitted to the child care centre unless vaccinated, whilst discriminatory, is reasonably necessary to protect public health. 28. It is clear that s.48 imposes a test of "reasonableness" when the decision has to be made as to whether the particular discrimination is necessary to protect public health. I understand "public health" in this context to be a reference to the general health and well being of a total community. The health of any particular individual is a personal matter and may be quite idiosyncratic. Public health, on the other hand, refers to the widespread state or level of health throughout a whole community. Whilst the health of any individual may be determined by individualistic matters of lifestyle and personal characteristics, the public or general health of a community will almost invariably be determined by matters of public hygiene and other features of life in a society which will determine the level or quality of health in that community, irrespective of the personal characteristics of the individual. 29. The incidence of serious infectious disease in a community is a matter relevant to public health. From experience one knows that an individual or a group of persons may fall victim to some ailment which by its very nature is said to be infectious. The illness in one person may be the source of infection in another. The seriousness of the illness and the virility of the process of infection may be such as to affect the health and well being of the wider community. On the other hand, the level of morbidity in the case of a less serious infectious illness may be seen not to raise public health issues because it is within the capacity of the individual to take appropriate remedial or preventative action. 30. Again, public health, as distinct from matters of private health, will raise issues of social responsibility which have to be grasped and addressed by government and semi-governmental authorities, as well as by individuals. Whilst the state of one's own health will to some extent be the responsibility of the individual and within his or her own control, matters of illness and disease may arise in a community in epidemic proportions which can only effectively be addressed by the so- called health authorities in the community and will, as a matter of community responsibility, need to be addressed because of the widespread and serious consequences for the good of the whole community. The possibility of the spread of serious infectious illnesses and diseases fall into this category, and is a matter which raises issues of public health which need to be addressed in the best interest of the community as a whole. Such illnesses as diphtheria, pertussis, measles and poliomyelitis are described as infectious diseases. So, too, was smallpox before it was largely eradicated. It is in this context of protecting the public health of a community that vaccination as a health measure becomes relevant and, so far as the Council is concerned, it has rightly or wrongly perceived its public duty to be to protect the public health of all children, particularly those who attend its child care centre by insisting on their vaccination against infectious diseases before admitting them. 31. It is again a matter of general relevance that the spread of infectious diseases which impact on the public health of a community is facilitated by gathering people, particularly children, together in congregations such as in schools or in child care centres. The onset of a serious infectious disease in a community such as poliomyelitis immediately raises matters of widespread concern. Not only is the individual at a greater risk of infection, the likelihood of widespread infection has implications for the public health of the whole community. Because of the nature of the disease and its disabling consequences, and because of the infectious character of it, the risk that the infection may assume epidemic proportions is seen to give rise to public - in addition to private - health concerns, and so those whose statutory or other responsibilities it is to address matters of public health are required to responsibly address it by appropriate remedial and preventative action. 32. It is for these reasons that vaccination has been proposed as a public health measure and the advocates of vaccination, by publicity and education programmes, are intent on raising the so-called "herd immunity" level of a community in relation to the various potential infections. The required level of herd immunity would be defined by experts in the medicine of infectious diseases and public health as the percentage of the target population which must be vaccinated in order to develop and so block the transmission of the target disease. 33. For each infectious disease which gives rise to public health concerns there is an accepted critical level of vaccination coverage required to block transmission. For measles and pertussis this is set at 92-95% of the target population; for poliomyelitis and diphtheria, the desirable herd immunity level is 80-85%. 34. Those who advocate vaccination as a public health imperative assert that the immunisation process with the use of vaccine is the only truly effective preventative measure available to public health authorities if the required level of herd immunity is to be achieved. That is not to say that natural immunity is to be discouraged. Rather, it is asserted that effective prevention in respect of highly infectious diseases as a public health issue can only be achieved by effectively and deliberately raising the level of herd immunity for the various infections and this can only be satisfactorily achieved by an orderly, well publicised and educative program of vaccination directed at the parents of young children. Every responsible measure should be taken, so it is argued, to ensure the greatest possible measure of protection by ensuring immunity by means of vaccination. The evidence firmly establishes that those who assume any measure of responsibility in terms of public health are of the one mind in advocating or recommending the use of vaccination in order to protect the young individual as well as the wider community from the disastrous consequences of an infectious disease which may readily assume epidemic proportion if unchecked or uncontrolled. 35. The response from a variety of governmental type agencies will vary having regard to the place which each occupies in this stratum of public health care. On the one hand, those responsible for the management of children's health care in the public hospital system may well adopt a policy denying admission to unvaccinated children except in emergency cases. On the other hand, a local authority which provides day care facilities for the children within the area of local government may well set out to encourage parents to embrace the vaccination of their children as a necessary and desirable health care initiative and in the interest of public health, may refuse admission to the day care centres which they control to unvaccinated children. Whatever the measure selected, and whoever the relevant authority might be, the fundamental strategy is the same; namely, to raise the level of herd immunity in respect of the target population and so attempt to block transmission of the disease. 36. The evidence establishes a present reduction in the level of herd immunities for certain diseases which is viewed with some measure of alarm. Evidence was given in this case that Australia now has some of the lowest immunisation coverage rates in the world, frequently less than in many developing countries. As a consequence, deaths from vaccine preventable diseases such as measles and whooping cough have occurred throughout Australia in the last 4-5 years. As a consequence of this poor vaccination uptake rate, the herd immunity for these diseases is lower than the critical percentages referred to above and, accordingly, the relevant diseases continue to spread. 37. The Council would argue that in the light of such evidence, the decision to exclude unvaccinated children from its child care centres is reasonably necessary to protect pubic health. THE COMPETING ISSUES 38. It seems inevitable that one has to address the competing attitudes and viewpoints which plainly exist in relation to this important issue in the light of the evidentary material collected and produced by either side. The competing views expressed in this case are consistent with those expressed in the public debate on the question which has recently been exposed in the media. 39. Those who oppose vaccination assert that it is a harmful invasive procedure which is productive of serious debilitating side effects and which produces no benefits at all for public health. It is argued that vaccination simply puts at risk the health and well- being of otherwise healthy children who should be allowed to develop natural immunity to the onset or risk of infection. This side of the debate would argue that known past epidemics were in decline by the time vaccines were developed, and would submit that the experience as disclosed by the literature persuasively supports the proposition that mass vaccination has never produced the public health outcomes urged by those in favour of widespread vaccination. As mentioned earlier, it is a corollary of this submission that the advocates of vaccination are being driven by vested financial interests such as the pharmaceutical manufacturers and distributors. Accordingly, it is alleged that the energetic pro- vaccination campaigns and programmes lack both professional expertise and, above all, integrity. 40. On the other hand, the opponents of this view reject entirely the interpretation of the experiences disclosed in the medical literature which is contended for by the anti-vaccination lobby. It is said that the references to past experience is both unduly selective and misunderstood and fails to give due weight to the other relevant factors which have impacted on the experiences of the past. It is submitted that the valid research and experience of qualified and committed health professionals and specialists in infectious diseases medicine is all one way, and they point to the highly successful vaccination campaigns which have effectively rid many world communities of smallpox and poliomyelitis. 41. I turn to the resolution of these competing viewpoints in the light of the requirements of s.48 of the Act. 42. I am satisfied that the unvaccinated Beattie children were persons in whose bodies there may exist in the future the organisms which cause or which are capable of causing infectious diseases or illnesses which are preventable by vaccination. 43. It is then necessary to determine whether the decision to exclude them from the Council's child care centre was reasonably necessary to protect public health. It was noted above that the "test" is one based on reasonableness. What is reasonably necessary will depend on the circumstances of the individual case and, in the present context, will depend very much upon the present state of acceptable scientific knowledge and research in order to determine whether a particular act or decision can be said to be reasonably necessary to protect public health. If such a decision is made arbitrarily, or for irrelevant and improper reasons, then it clearly fails the test of reasonableness. On the other hand, it seems to me that if a decision is taken for the alleged purpose of protecting public health, that decision will be seen to be reasonably necessary for that purpose if properly qualified and appropriately experienced persons, after taking into account and balancing all of the relevant competing circumstances and by using and relying upon the results of current medical knowledge and research, decide honestly and with integrity that the particular decision needs to be taken in the best interests of the general health of the community. The test so formulated immediately rejects any whimsical, arbitrary or intellectually dishonest process of decision making. It necessarily involves the making of a decision which is professionally qualified, soundly based on appropriate expertise and scientific experience, and which is supported by valid objective criteria and which rejects irrelevant considerations in favour only of those which are designed to achieve the optimal result in terms of the public health of the community. 44. The Council and its public health advisers were clearly reliant upon the medical and scientific opinions of the specialists in infection diseases medicine. Mr Beattie, on the other hand, would complain that the decision of the Council and the policy upon which that decision was based are not supported by valid medical and scientific experience. I turn now that question. 45. It is common ground between the parties that the use of vaccine can produce a variety of side effects which range from the very mild on the one hand to the very serious and disabling on the other. 46. In this inquiry the Commission had the benefit of hearing evidence from Professor John Pearn, the head of the Department of Child Health at Royal Children's Hospital, Brisbane, Dr Michael Whitby, the Director of Infectious Diseases, Inspection Control and General Health at Princess Alexandra Hospital and a Clinical Associate Professor of Medicine at the University of Queensland, and Dr Brian Feery, a distinguished medical practitioner whose extensive clinical and research activities in relation to immunology and the use of vaccines are detailed in his curriculum vitae. It is simply not possible on the evidence to reject the extensive professional clinical and research experience of these men. Each in his own area of medical expertise - Professor Pearn as a highly respected pediatrician and health care administrator; Dr Whitby an extensively qualified expert in the medicine of infectious disease; and Dr Feery who, inter alia, was extensively involved as a Municipal Medical Officer in the first poliomyelitis immunisation with Salk vaccine - comprehensively and persuasively expressed opinions that immunisation with the relevant vaccine was an essential ingredient in any public health program aimed at preventing the onset of serious infectious diseases and their transmission throughout the community. Each of them accepts that side effects are an accepted risk of immunisation. Professor Pearn's evidence is that the best recent studies of complications in Italy in 1992/93 establish that approximately one half suffer irritability whereas the more serious consequence, namely convulsions and generalised cyanosis, occur only in 0.015-0.02% of those vaccinated. These complication rates are reduced with the use of new acellular combined vaccines. The most feared complication is that of permanent post- immunisation encephalopathy. The best current estimate for this particular complication is less than 1 in 400,000 immunisations, and there remains some doubt as to whether this complication is properly attributable solely to immunisation. 47. Professor Pearn's evidence is that current best medical practice recommends the routine immunisation of all children, with the exception of those who are sick or who have pre-existing neurological or genetic conditions. Accepting, as the medical evidence does, the risk of complications in varying degrees, the issue requires that one balance the risk to the child. The prospect of complication in the individual child after immunisation is, generally speaking, relatively mild and only rarely is it relatively serious. On the other hand, the risk of serious infection - even death - in the case of an unvaccinated child is significant, particularly if the herd immunity is reduced a level which is inadequate to effectively block transmission throughout a community. In the process of balancing the risks, Professor Pearn's view is that it is unquestionably desirable that all children except those referred to above should be routinely immunised. The resultant benefits will be shared not only by the individual person, but also the public benefit through increased herd immunity. 48. It is the universal experience among the pediatricians that there is a very high rate of transmission of disease in facilities where children congregate, such as in child minding, preschool and kindergarten centres. From the medical point of view, and having balanced the benefits against risks, there is in Professor Pearn's view a universal consensus "among informed opinion" that all children should be immunised before attending such centres. 49. Dr Whitby persuasively rejected the notion that, in the event of an epidemic or period of high infection, the unvaccinated child can be protected by removal from the source or place of infection. In the case of measles, the incubation period for this highly infectious viral illness is ten to fourteen days, and it is particularly infectious from its onset and for four days after the appearance of the rash. In this highly infectious period there is no satisfactory way of making an accurate diagnosis, so that any policy of removing unvaccinated children from the source of infection is of no practical value. Dr Whitby and the other specialists noted that the risk of vaccination failure was not insignificant, so that some children who may be thought to be immune are in fact not because of the failure of the vaccine in the individual case. The risk of infection for these children is the equivalent of that for the unvaccinated child, in spite of the parents' best endeavours to counter the risk of infection. Those children, in his view, deserve particular recognition. 50. I am comfortably persuaded by the evidence, particularly that of the Council's witnesses, that a proper regime of vaccination will in most cases protect children against the onset of vaccine preventable illnesses and diseases, that any risks associated with side effects are heavily outweighed by the protection which vaccination affords, and that the only practical and effective means of raising the herd immunity in any community so as to block the transmission of vaccine preventable disease is by a widespread programme of immunisation. It follows that any measure which results in increasing vaccination levels above the critical threshold necessary to block the transmission of disease within the community is one which is reasonably necessary to protect public health. 51. It only remains for me to refer again to the evidence of Dr Scheibner. One cannot seriously doubt the profound and compassionate interest which Dr Scheibner has developed in this subject. She in fact had had her own children immunised in years past, but her more recent professional experience and inquiry has led her to develop a passionate objection to immunisation, which she now views as a harmful medical procedure, of no value to the individual or to the community. It is a pity that she has been led to believe that very concerned, honourable and committed professionals have been corrupted and have had their professional integrity compromised by vested interests. However, one cannot fail to recognise the severe limitations in the evidence she has presented. Whilst she professes to have the expertise of the specialist or expert witness, she is in fact an advocate of a highly subjective viewpoint, the scientific validity of which is questionable. That she is a highly intelligent and well qualified woman is beyond doubt. At the same time, I am not satisfied that her formal qualifications and professional experience properly equip her to provide a valid professional opinion on the complex subject of immunology and its application in the present context. Her extensive references to the empirical data in some of the medical literature is well enough understood. At the same time one must question her capacity to properly evaluate and interpret the results of others' scientific experience. I am not prepared therefore to accept her evidence in preference to that of Professor Pearn and Drs Whitby and Feery. 52. Their evidence has positively persuaded me to the view that the decision of the Council to exclude the children from the child care centre is one which is reasonably necessary to protect public health. 53. It follows the complaint has not been substantiated, and is therefore dismissed.
