A DAY (NEARLY) LIKE ANY OTHER: HEALTHCARE WORK IN AN INFLUENZA PANDEMIC CAROLINE SAINT A THESIS SUBMITTED IN FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY FACULTY OF LAW UNIVERSITY OF SYDNEY JANUARY 2017 I ABSTRACT The World Health Organization has long anticipated an outbreak of a highly pathogenic influenza. Fear of a highly virulent influenza has been compounded by the 2003 outbreak of Severe Acute Respiratory Syndrome (SARS) where some health workers refused to work. In light of this, the question has been asked whether healthcare workers would continue to work during an influenza pandemic. Worryingly, surveys suggest that many would not. The thesis explores past experience of some ‘new’ infectious diseases and how these impacted on the health workforce. It considers evidence from the 1918 influenza pandemic, where (for the most part) nurses were not over-represented in the death statistics. It is argued that all infectious disease is not the same and a one-size approach by way of either compulsion or incentives to work should not be adopted. In situations where a healthcare worker faces a higher risk of infection and serious illness than the general population and attending at work could expose their family to additional risk (as was the case in SARS) consideration may need to be given to incentives to encourage work performance rather than any form of compulsion. However, the thesis argues that the health workforce would not be at greater risk during an influenza pandemic and the common law contract of employment sufficiently compels work performance, with public sector employees having a greater obligation to work than might their private sector counterparts. During an influenza pandemic workloads may increase but it will be a day (nearly) like any other. i II ACKNOWLEDGMENTS There are so many people I need to thank, but particular mention goes to the following individuals: Professor Belinda Bennett (since 2014 at QUT) and Emeritus Professor Terry Carney (AO) thank you for the opportunity, and an ARC Scholarship that enabled me to undertake this project. Your patience, support and encouragement, even at times when it seemed I would never finish, was always appreciated. Thank you for both staying the distance. To A/Professor Shae McCrystal; I have the privilege of being your first PhD completion. Thank you for accepting me as a student. It was much appreciated that you made time to meet when you were in Tasmania. Your encouragement (even before becoming my supervisor), direction and structural suggestions have been invaluable: thank you. Professor Cameron Stewart, thank you for taking the time to read though a very rough draft of this paper; your comments were extremely helpful. This experience would have been considerably more difficult without the support of the First Tuesday Thesis Club (FTTC) which, despite its name, hardly ever met on a Tuesday! Debates flourished as wine was drunk and friendships formed. While the first to start, I am the fourth to finish. Congratulations to Dr Nuncio D’Angelo; Dr Amanda Porter; Dr Felicity Bell with Tanya Mitchell to soon fly the nest. Thank you all for your emotional support during some difficult years as well as lots of interesting face-to-face and email discussions. Tony and Judy Anderson, thank you for your friendship. Thank you for caring so much for Jill before, and while, she was unwell. Your gentle encouragements and constant reminders that Jill would have wanted this finished, helped get me to this point. Elizabeth, the best sister ever: thanks for everything. This thesis is the culmination of a long journey that started many years ago with an undergraduate degree after Jill Meikle said ‘you should go to university’. For over twenty years Jill was my anchor in life and I still find it hard to believe she is not here to see this part of the journey finally finished. Thank you Jill for your love, generosity of spirit, boundless enthusiasm and constant encouragement: as well as several exciting sailing adventures. ii III DECLARATION OF ORIGINALITY I hereby certify that this thesis is entirely my own work and that any material written by others has been acknowledged in the text. The thesis has not been presented for a degree or for any other purposes at The University of Sydney or at any other university or institution. Signed: Date: 30 June 2016 iii IV TABLE OF CONTENTS CHAPTER ONE - INTRODUCTION I Introduction ............................................................................................................. 6 Key argument and scope of thesis ........................................................................... 7 II What is meant by ‘Pandemic’? ................................................................................. 11 III Infectious disease and health care work ................................................................ 13 IV Why is this discussion important? ........................................................................ 20 Chapter Outline ...................................................................................................... 25 CHAPTER TWO - INFLUENZA I Introduction ........................................................................................................... 30 II The Influenza A Virus ............................................................................................. 31 Cellular invasion and replication of the influenza virus ...................................... 32 III Influenza A - illness in the human population ..................................................... 34 Zoonosis a human risk ........................................................................................... 37 Highly pathogenic avian influenza (H5N1) ........................................................... 40 Seasonal Influenza .................................................................................................. 43 Pandemic Influenza ................................................................................................ 44 IV Estimating rates of influenza ................................................................................. 46 Surveillance for influenza ...................................................................................... 49 International Health Regulations .......................................................................... 52 V The pandemic of 2009 ........................................................................................... 53 Mortality rates in 2009 .......................................................................................... 55 Pre-pandemic exposure of health workers ........................................................... 56 VI Conclusion .............................................................................................................. 57 1 CHAPTER THREE - INFLUENZA 1918 I Introduction ........................................................................................................... 60 Science and infectious disease prior to 1918 .......................................................... 61 Australian efforts to exclude or contain influenza in 1918 ................................... 64 Border control 1918 ............................................................................................. 64 Vaccination ......................................................................................................... 66 Masks ............................................................................................................... 68 The 1918 influenza pandemic ................................................................................. 69 II Influenza and limited medical care 1918 ................................................................ 71 III The Australian Nursing Workforce ....................................................................... 76 Nursing workforce at the time of the 1919 pandemic ....................................... 76 Employment of nurses during the pandemic .................................................... 78 Compulsory inoculation of healthcare workers............................................. 80 Influenza mortality rates 1918 and healthcare workers ................................. 80 IV The once ‘forgotten’ 1918 influenza pandemic ...................................................... 82 V Influenza and SARS ................................................................................................ 85 VI Conclusion .............................................................................................................. 89 CHAPTER FOUR - CONTRACTUAL OBLIGATION TO WORK I Introduction ............................................................................................................ 91 Infectious diseases: a note ................................................................................. 92 II Healthcare Workers –willingness to work – survey responses ............................ 95 Other approaches to promote work compulsion .............................................. 97 III Common law contract of employment (Australia) ............................................. 100 IV Lawful and reasonable direction ......................................................................... 102 Would it be lawful and reasonable to expect HCWs to work during an influenza pandemic? ................................................................................................ 104 What might be the consequences