March 26th 2016

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Articles from this issue:

ROYAL COMMISSION INTO SEXUAL ABUSE: J'accuse...! A travesty of justice

CANBERRA OBSERVED Turnbull's grand plan coming apart it seems

EDITORIAL Defence White Paper: rhetoric outpaces action


DOMESTIC AND FAMILY VIOLENCE Is not family breakdown the real issue?

ECONOMICS Oil offers resistance to free market's operation

HISTORY OF TAIWAN Kaohsiung Incident opens road to democracy

LAW AND SOCIETY Section 18C may render all speech "inoffensive"

VICTORIAN PARLIAMENT Risk to democracy, rights in health complaints bill

RESEARCH Transgenderism: treat it as a mental illness

MUSIC In deliberate pursuit of accidental sounds: Arve Henriksen

CINEMA AND SOCIETY Hollywood writes in "hero" part for Trumbo

CINEMA Hailing the Golden Era: Hail Caesar!

BOOK REVIEW Diminished expectations

BOOK REVIEW 12 million refugees

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Risk to democracy, rights in health complaints bill

by Rabbi Dr Shimon Cowen

News Weekly, March 26, 2016

On Thursday February 25, 2016, the Legislative Assembly of the Victorian Parliament passed a bill without even going to a division, a vote. Yet there is something very disturbing about this bill that not even members of the Opposition picked up.

The bill is not yet law, since it has still to go to the upper house, the Legislative Council. In this breathing space I would like to highlight its disturbing features, which seem to have escaped many members of the Parliament, the media and (as a result) the public. It may have escaped scrutiny because it is cloaked in a noble cause: to help the vulnerable against medical frauds through a proactive intervention which scans the society and culture for health-service fraudsters and initiates action against them on behalf of actual or potential victims.

The first problem is the statement Health Minister Jill Hennessy made, in the most emotive part of her speech introducing the second reading of the bill, that “importantly” the bill will provide the means to eliminate the “abhorrent” practice of therapy for unwanted same-sex attraction.

During the debate also the most vehement supporters of the bill referred to this issue. The fact is, however, that this issue is a matter for both scientific and political debate. It has been accepted or rejected in other parts of the world by parliaments and courts; here it is left to a commissioner, who is to be appointed with the intention of dealing with it outside parliamentary and judicial view.

The second problem is that, in order to achieve this intention, a super-commissioner with interested third-party informers is to be created to seek out and prohibit health-service providers and practices which could hurt many more than those who seek or provide therapy for unwanted same-sex attraction.

Under the existing legislation, it is the job of the commissioner simply to respond to the complaints of victims. The new bill allows to the commissioner to initiate the complaints as to what he or she finds unacceptable. The new bill also allows third-party informants to initiate complaints as to what they find unacceptable. The existing law limits the commissioner to complaints against practitioners from registered health services (doctors, psychologists and so on).

The new bill enables the commissioner to scan the entire culture for anyone offering health advice and take action. The new bill further accords the commissioner punitive powers to issue interim and ongoing prohibitions against the provision of a health service and to name the service publically – without any open process or remedy.

The political intention of the bill

A main driver for which this bill with its super health commissioner has been created is to eliminate therapy for people with same-sex attraction, even if they don’t want same-sex attraction and seek therapy to alter it. The new commissioner and his or her informants, however, will know better and are to disallow it. The radical reasoning behind this is that homosexuality is akin to skin colour; it can’t be changed.

Yet this is not what some of the great contemporary psychologists, who themselves sought to declassify homosexuality as an illness, said. Nicholas Cummings, former president of the American Psychological Association, stated that hundreds of his patients successfully changed their sexual orientation. He upheld the right of those individuals who wanted to work on their sexual orientation as a key principle of patient autonomy.

Robert Spitzer of the American Psychiatric Association, who pioneered the declassification of homosexuality as an illness in 1973, resolutely held to the category of ego-dystonic homosexuality, that is, unwanted homosexuality as a legitimate subject of therapy, and found in an important study that numbers of motivated individuals were successful in changing their sexual orientation. Even though he was beaten into an apology for the study by activists, he never repudiated its results.

As for the claim that therapy for unwanted same-sex attraction is “harmful”, the Report of the American Psychological Association in 2009 on SOCE (Sexual Orientation Change Efforts) concluded on p. 83: “There are no rigorously scientific studies of recent SOCE that would enable us to make a definitive statement about whether recent SOCE is safe or harmful and for whom.”

This is notwithstanding that of the seven psychologists chosen to undertake the study, six were homosexuals and therapists and one was a heterosexual but gay-affirming therapist – hardly a scientifically balanced panel.

The most vociferous supporters of the bill in the Victorian Parliament touted the “JONAH” trial decision in the United States, in which an organisation offering therapy to those with unwanted same-sex attraction was fined and ordered to close down on the grounds of “consumer fraud”.

What they did not know (or refused to acknowledge) was that the judge who gave the verdict against JONAH barred its expert witnesses, licensed therapists who could attest to the success of therapy for unwanted same-sex attraction. In barring the expert witnesses, the judge accepted the plaintiff’s assertion that they were adherents of “flat-earth” science. The consequence of the decision was no less than the denial of patient autonomy and rights.

The problematic means of the bill

The creation of a super health commissioner with a legion of informant-helpers to find and prohibit therapists who offer help to those with unwanted same-sex attraction (because the patient himself or herself would not complain) has major consequences for democracy and human rights.

First of all it gives the commissioner super-legislative and judicial powers. The question of whether or not therapy for sexual orientation should, and in which circumstances, be offered, is one involving human values. There are a great many people, who on the grounds of conscience and religious belief, want to struggle with a whole variety of impulses, and do so successfully with or without therapy.

It is not for an individual commissioner to decide matters of conscience and values of individuals. Accordingly “bans” on reparative therapy, as it is sometimes called, is a matter for a public and parliamentary debate. In the US, four states have legislated a ban, and 16 have rejected such a ban. But it went to the parliaments, not to a commissioner.

Moreover, the four out of 20 states that accepted the ban did so only for minors. The other 16 upheld ostensibly that parents have a right to educate their children, which includes supervising their physical and mental wellbeing. Ms Hennessy’s commissioner would have the power to uproot all therapy for unwanted same-sex attraction, making no distinction between minors and adults.

But usurpation of a political and legislative role could hurt many more than those seeking help with unwanted same-sex attraction. The health sphere is full of issues with political dimensions, be it abortion, euthanasia or palliative care. And what about gender transitioning treatment? Let all give thought to what they would not want a commissioner with his or her own values to allow or prohibit.

Beyond this, the search-and-prohibit function of the new commissioner with his or her voluntary third-party helpers could cause a lot of other harms. The example has been suggested to me of the ex-spouse of a health practitioner who wants to get at the practitioner for purported malpractice towards another. And what about the privacy of a supposed victim, on behalf of whom a third party complains, when the commissioner responds to that third party’s complainant with private information about the victim?

A commissioner with such punitive powers would constitute also an unscrutinised judicial power. Under the bill, the commissioner can place an interim and ongoing prohibition on a practitioner and name the practitioner publically, with potential destruction of the practitioner’s livelihood. Where is the openness of a “judicial” process that can lead to this harmful ban and naming? And what is the remedy for the practitioner for lost livelihood, if he or she successfully appeals?

Will it be transparent to the public if the commissioner is making his or her own essentially political decisions on a health practice (like therapy for unwanted same-sex attraction) where there is no legislation or judicial precedent? Remember: this can cut many ways.

Salvaging the bill

To implement the good in this bill and protect from its harmful effects for everyone across the political spectrum it needs to be amended as follows: (A) The commissioner can issue no more than a limited interim prohibition against a given health-service provider. (B) To move to an ongoing prohibition against the health-service provider, the commissioner must go to VCAT, whereby it becomes a public case and full public scrutiny becomes possible. (C) For a complaint to be initiated by a third party on behalf of a victim, this must have the authorisation of the victim. (D) Where an appeal is sustained against a decision of the commissioner, there must be a financial remedy for the health practitioner’s lost livelihood.

Amendments (A) and (B) would allow the commissioner to move to stop an immediate abuse, but the commissioner would have to justify him or herself under public scrutiny, so that no supra-legislative or supra-judicial powers were assumed.

Under the bill as it is, the commissioner can go straight to an ongoing prohibition, and it is up to the health practitioner on whom the prohibition has been imposed to launch an appeal, after great harm could have already been caused to that health practitioner. Also it places no onus on the commissioner to make known his or her reasons in advance of an ongoing prohibition, which may be of great concern both to the public and the health practitioner.

(C) provides that third parties do not mix personal motives into their representation of a victim, or gain unjustified access to a victim’s private matters. (D) ensures proper responsibility and answerability of the commissioner for his or her decisions within the framework of the law, given the extraordinary interventionist powers of the commissioner.

Rabbi Dr Shimon Cowen is the son of a former governor-general of Australia, the late Sir Zelman Cowen, and is director of the Institute for Judaism and Civilization, Inc.

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