ON 12 January, the New South Wales public health order for self-isolation was amended to require NSW residents who had self-administered a rapid antigen test (RAT) and tested positive for COVID-19 to report the diagnosis to the CEO of NSW Health through the Service NSW website or app.
Premier Dominic Perrottet indicated that this legal “mandate” would not be enforced until late January. The grace period of about a week would presumably give people adequate notice of the new rule. The fine for failing to notify the diagnosis, it was reported, would be set at $1000.
In the week that followed the announcement, several legal scholars and commentators scratched their heads when reviewing the newly amended order. Some wondered why the current regulations only allowed authorities to impose a penalty of a $5000 fine when a $1000 fine had been reported in the media and the health order had already been amended. One public law professor even considered whether a legal challenge could be mounted against the mandate if the Health Minister were to lack a power to make the order.
On 19 January, the corresponding health regulation was amended to reflect the what had been reported. An exception was inserted into the text of the regulations to allow a penalty of $1000 to be imposed.
The short delay between this change to the health orders and the corresponding regulations might seem inconsequential, but it underlines the unprecedented speed with which the legal landscape is transforming during the Omicron phase of COVID-19. While the public health orders can be made and remade under the NSW Public Health Act virtually overnight (and in just about whatever way the Health Minister sees fit), the actual regulations are slightly less agile. Usually, the regulations must be tabled in Parliament when it sits, and changing them – such as by inserting a new fine amount – tends to take a little longer than 24 hours. Still, it is arguable that the pace and churn of health regulation reform has never been so frenetic as in the past few months.
But there are several curiosities about the new RAT reporting requirement beyond the enactment process.
Straight away, many legal commentators, myself included, recognised the mandate as virtually unenforceable. And, perhaps surprisingly, it was also as good as acknowledged to be so unenforceable both by the Premier himself and the Minister for Customer Service, Victor Dominello. It is rare indeed that any minister would describe a new law as difficult to enforce.
But a related curiosity was that the offence appeared to impose liability for an “omission” to act. In other words, the offence seemed to occur when someone failed to report a positive result immediately after they had received it but not reported it. By performing a RAT at home, returning a positive result, and subsequently doing nothing, a person would immediately become liable for a penalty.
A penalty for inaction?
At general law, offences like these, that take the form of omissions – failing to file a tax return or failing to report a serious car accident to police – can be notoriously difficult to prosecute. And that’s not just because they are difficult to police.
The renowned Welsh legal scholar Glanville Williams once suggested that if a legislator wanted to criminalise such omissions, they must make the law pellucidly clear about the legal duty that was alleged to have been breached. Only when a legal duty was expressly stated in the provision, Williams noted, would a failure to perform it attract any criminal or civil liability.
This general principle was approved by the High Court of Australia 10 years ago in relation to the federal criminal law. In a 2011 case involving a person who had failed to report certain income to Centrelink, the applicant successfully argued that her failure to notify her changed circumstances was not actually an offence. Despite her conviction, four out of the five High Court Justices agreed with the applicant, recognising that the law had not clearly identified that she had a legal duty to notify the income and quashing her conviction.
But why would the law hesitate to make omissions – like the failure to report a RAT result – difficult to prosecute?
For a start, the law of the Anglo-Australian tradition has focused on the prevention of harm and has placed a premium on individual freedom and autonomy. It has accordingly been rare for the law to compel or encourage the doing of good acts. As one scholar put it, the law tends to leave the “humanitarian virtue of the Good Samaritan … to other normative systems such as religion, ethics, social mores, education or etiquette”. In consequence, omissions to do good acts – such as failing to rescue a person from harm – have rarely been penalised.
Another reason relates to the inevitable difficulties involved in proving omissions. These problems are obvious in the case of the RAT reporting requirement. How exactly will a person be brought to the attention of law enforcement? And what evidence of the offence would be required for a fine to be issued? Would a witness statement be sufficient? Would a video of the person taking the test and receiving a positive result suffice, if there were no record of a notification? Or would it ultimately require a confession?
Mandatory disease notifications are not completely new
Despite these problems with policy and proof, the RAT reporting requirement is not the first time the NSW law has made it compulsory for certain diagnoses to be notified to government agents. Under the “old” public health legislation of 1991, NSW hospital administrators were required to report diagnoses of diseases such as human immunodeficiency virus (HIV) infection to hospital CEOs, who in turn were required to report the diagnoses to the Director-General of Health (now known as the Secretary of Health).
Indeed, under our current health legislation (the Public Health Act 2010), hospital CEOs have a legal duty to notify the health secretary when certain notifiable diseases, such as botulism or leprosy, are diagnosed. And – more similar still – the 2010 Act imposes a personal legal duty on those diagnosed with a sexually transmissible disease to take reasonable precautions against infecting others, imposing a maximum penalty of 6 months’ imprisonment for not taking such precautions (an omission offence).
And yet, despite these similarities, nothing in the Act before now has imposed a broad duty on the general public to notify health authorities of a positive diagnosis. At least in terms of the legislation, mandatory notifications have always been the responsibility of hospital administrators. And where personal liability was imposed on a diagnosed person, it was framed as a duty not to infect others, not as a duty to notify.
Self-diagnosis, self-notification and self-care: “personal responsibility” in action?
The new paradigm of self-notification highlights an unprecedented shift away from institutionalised oversight toward a policy of “personal responsibility” in health. Put another way, the duty to self-notify (and the expectation to self-diagnose and self-treat) may be seen as a new melding of practitioner and personal responsibility in the history of NSW health regulation.
Indeed, in the case of the RAT requirement, this newly cooperative system is symbolised by the fact that the distinction between personal and clinical (or point-of-care) diagnostics has begun to dissolve.
While clinical or point-of-care RATs have been approved for lawful supply and use by health practitioners (and their supervisees) since as long ago as March 2020, it was not until 13 October 2021 that the Therapeutic Goods Administration approved self-tests for lawful supply in Australia. Despite differences in their regulation (point-of-care tests must be administered in accordance with certain requirements), there have been several reports of certain unscrupulous sellers breaking up batches of point-of-care tests and selling them as individual self-tests (as reported by the 7.30 Report and many individual consumers). This simply represents just another symbol of the merging of practitioner and personal responsibility, of professional- and self-care.
The risks, of course, are obvious. At the same time as the individual is called upon to enter the world of pathological diagnostics, the reliability of the tests may decrease depending on the consumer’s process, and may threaten otherwise uniformly high standards of practitioner-led health oversight.
Success in spite of itself?
Despite all of the enforcement and proof hurdles discussed above, and the policy risks just illustrated, it might be surprising that, in only the first 24 hours of its operation, the self-notification functionality introduced into the Service NSW website and app elicited more than 80 000 notifications of positive self-diagnoses.
With such remarkable “compliance” among the community, one may well question the purpose of introducing a fine or penalty at all. Indeed, as Minister Dominello noted, the purpose of the fine was more about “messaging” than actual compliance. If no fine had been introduced, the Minister said, it might have left the government open to an accusation that it was not taking the matter seriously.
But this idea of threatening against non-compliance – sometimes known as a traditional “command-and-control” approach to regulation – is somewhat at odds with modern understandings of effective regulatory systems. Indeed, one of the most powerful regulatory insights to have been gleaned from behavioural concepts like “nudge theory” is that economic and disciplinary theories of compliance are not actually effective for creating laws to shape new social conditions and behaviours.
A new approach to disease notification could have “nudged” NSW residents to report their positive results in different ways, such as by promoting the epidemiological benefits made possible by the data collected through the Service NSW app and website. Of course, it may well have been precisely this idea – seemingly not a part of the official messaging – that produced the remarkable self-notifications.
Thus, the introduction of the RAT notification requirement and the accompanying penalty may have obscured an important opportunity to test out a different regulatory approach.
Such a new approach might have been based on a promotion to do a good thing with a new tool rather than on an economic threat to people who might already be poorly placed to confront it, such as workers in precarious jobs who cannot afford to self-isolate, much less voluntarily take a self-test only to thereby create a new legal duty to self-notify. Indeed, in the circumstance just illustrated, the legal threat could serve as a disincentive to self-testing in the first place.
Dr Christopher Rudge is a lecturer in private law at Sydney Law School and a member of Sydney Health Law. He focuses on legal issues relevant to the regulation of innovative medical technologies, including genome editing, stem cell-based interventions, and other innovative medical treatments in Australia. He was previously principal legal researcher at the Medical Council of NSW.
The statements or opinions expressed in this article reflect the views of the authors and do not represent the official policy of the AMA, the MJA or InSight+ unless so stated.