assertive public health action on alcohol...
TRANSCRIPT
Assertive public health action on alcohol supply
Keith ReidNational Public Health AlcoholWorking Group ‐ NPHAWG
“assertive”Adj. – having or showing a confident or forceful
personality[Oxford English Dictionary]
‘Someone who is assertive behaves confidently and is not frightened to say what they want’
[Cambridge English Dictionary]
Sale and Supply of Alcohol Act 2012
• Outline the role of NPHAWG and how this supports frontline Public Health Unit (PHU) staff
• Consider the role of PHUs under this Act– Other mechanisms to provide support to PHUs
• Case studies to illustrate some key issues
NPHAWGChair: Dawn Meertens, Bay of Plenty• Steven Galvin, Auckland• Jayne Parris, Greater Wellington• Chris Clark, Ashburton• Keith Reid, Dunedin• Lynn Grace, Invercargill• Dave Hookway, WhangareiSupported by: Centre for Social and HealthOutcomes Research & Evaluation (SHORE),School of Public Health, Massey University – Sally Liggins
NPHAWG• Ministry of Health funded but independent• Membership drawn from the public health front‐line workforce
• Focus on providing practical support and training to front‐line colleagues
• Also provides expert advice on alcohol and public health regulation
Workforce Skills Development• Annual training through workshops• Content designed to address identified needs• Recent focus on developing skills in relation to hearings– Led by a DLC Chair and a DLC Commissioner– Led by a Barrister and former Law Senior Lecturer
NPHAWGSubmitting on amendments to the Act:• Rugby World Cup• Display of Low Alcohol Beverages and Other Remedial Matters Bill
NPHAWG resources• Public Health Regulatory Officers Group (PHROG) – list server to share information and provide rapid access to peer advice and support
• Also provides a virtual repository of advice, references and materials
‘PHUs’ – Public Health Unitsthe front‐line in public health
Role of the Medical Officer of Health
• ‘Must’ inquire and report into on‐, off‐ and club licences
• ‘May’ inquire and report into special licences• Can raise matters in opposition• Must collaborate with Police and Licensing Inspectors
Licence Applications Received and Oppositions Raised –January to December 2016
0.0
1.0
2.0
3.0
4.0
5.0
6.0
7.0
0
500
1000
1500
2000
2500
3000
3500
4000
4500
PHU1 PHU2 PHU3 PHU4 PHU5 PHU6 PHU7 PHU8 PHU9 PHU10 PHU11 PHU12
Opp
osition
s raised (percentage)
Num
ber o
f App
lications Received
Licence Applications (all) Opposition raised
PHU approaches• Setting up a high level technical advisory group ‐ ARAG
• Development of a risk sharing approach to legal costs
• ARPHS ‐ Retention of in‐house legal counsel
Case studies to illustrate assertive public health action
• Primary school in Mosgiel• Gifted a quantity of alcohol by a parent• Wished to use it to raise funds for the school
Elm Grove School• MOH opposed the licence application• Grounds for opposition were:
– Schools are different from other places in the community
– Selling drink and having drinking on school grounds to raise funds sends a clear ‘normalisation’ message
Elm Grove School• Case pivoted on the school’s statement that they wished to use the availability of alcohol at the school fair to attract parents (fathers) who would not otherwise attend the event
• DLC accepted ‘normalisation’ arguments
What was the significance?• Got national publicity – signalled that something had changed
• Set out the public health position ‐ a willingness to tackle entrenched attitudes
• ‘Totemic victory’• Still no national policy on alcohol on school premises
Birthcare Auckland• Private Maternity Hospital – Licensed• Opposed at Renewal: MOH seeking conditions on licence
• DLC took view unable to act unless harm demonstrated, licence was renewed
• ARLA upheld DLC decision• A causal link between operation of premises and harm is required
Birthcare Auckland• MOH appealed to High Court• Sought clarification on questions of law• What is the role of the MOH in proceedings?• What type of health evidence is required and how it should be treated by tribunals?
Birthcare Auckland• The role of Medical Officer of Health is not defined in the Act
• Both the DLC and ARLA accepted the evidence of harm put before them
• It is important to relate evidence to the context under consideration
• The ‘minimisation of harm’ is not the same as the ‘elimination of harm’
Birthcare Auckland• No onus on MOH to prove anything – Tribunal has an inquisitorial role where notions of onus of proof may not be helpful or appropriate
• Decision making is an evaluative process• MOH role is to provide relevant evidence
– Which may include specialised evidence
What is the significance?• Tribunals are not comprised medical experts• Tribunals must evaluate relevant evidence• Evidence must be presented in an accessible way to be effective
• Challenge to collect and present information in a way that is relevant to the matters at hand
‘Vaudrey Case’• Two supermarkets seeking a licence renewal• At issue: how alcohol can be displayed in a supermarket and who decides what is appropriate
SupermarketsWhy important?• Market share is significant• Experience suggestive of effectiveness of control measures
• Influence of industry in drafting legislation
Why pursue the case?• Sense that important issues at stake• Willing counsel• Agreement between 3 PHUs to support legal action
High Court judgment• Decision making is evaluative process• “Have regard to”
– Give genuine thought and attention to– Discretion in decision making resides with the tribunal (within limits)
• ‘Limit exposure’ does not mean ‘eliminate exposure’• ‘Reasonably practicable’ is a fluid term requiring balance between
difficulty and benefit sought• Precautionary approaches require some evidential basis to establish
the likelihood of the benefit sought
Appeal Court judgment• Confirmed the need to consider limiting exposure when describing alcohol displays in supermarkets
• Set out the process by which the final display area could be arrived at
• Set out that matters on appeal can be remitted back to a lower level decision‐maker
What is the significance?• Gained clarification on important points of process and of law
• Demonstrated the utility of risk‐sharing approach for PHUs
• National significance given number of retailers, volume of sales affected
Bream Bay 4 Square• Local grocery stores• Alcohol relatively small proportion of sales• Tobacco significant proportion of sales• Not eligible for an off‐licence and DLC has no discretion
A grocery store?• Case hinged around the inclusion of the word “but” in the legislation:
• Grocery store means a shop that‐a) Has the characteristics normally associated with shops of the kind
commonly thought of as grocery shops; andb) Comprises premises where‐
i. A range of food products and other household items is sold; butii. The principal business carried on is or will be the sale of food products
ARLA judgment – 2016 NZARLA PH 486Medical Officer of Health vs Uday Investments Ltd
Para 25 ‐ “it is not sufficient that the premises only have the appearance of a grocery store or sell a range of products. If the main product being sold is not food products, then the premises cannot be a grocery store”
Fall‐out from Bream Bay• Industry response has been telling:
‘The law is wrong and must be changed’
• Wider (cross sector) policy discussion has been absent
What is the significance?• Potentially constrains the ability of smaller grocery stores to sell tobacco or alcohol
• Has highlighted gaps at the centre of policy formulation in the alcohol space
• Illustrates again the ability of the industry to gain access to decision makers
“Assertive?”
‘Someone who is assertive behaves confidently and is not frightened to say what they want’
Under the 2012 Act• PHUs have collaborated to work effectively:
– to pursue cases of significance– to take cases that develop relevant case law
• PHUs have used regulatory tools available to them to define the limits of the legislation
• The Public Health potential of the Act remains largely unrealised?
