Rodney Croome . gay advocate

An important step forward in blood donation reform: Cain v Australian Red Cross Society

This summary of the Tasmanian gay blood donation case by Ben Bartl and Rodney Croome* was published in the Tasmanian Law Society Journal in October 2009.

On 27th May 2009 a landmark case for reform of Australian blood donation policy was handed down in Tasmania’s Anti-Discrimination Tribunal. The case of Cain v Australian Red Cross Society [2009] TASADT 03 concerned Michael Cain, a young Tasmanian who was refused the opportunity to donate blood at an Australian Red Cross Society Blood Service (ARCBS) collection centre in Launceston because he answered ‘yes’ to a question asking whether he had male-to-male sex (MSM) within the last 12 months. Four and a half years after lodgment of the complaint of discrimination on the grounds of sexual orientation and lawful sexual activity, the Tasmanian Anti-Discrimination Tribunal, comprised of Chairperson Wood and Tribunal Members Rheinberger and Otlowski, unanimously upheld the Red Cross policy as ‘reasonable’. In coming to its conclusion, the Tribunal acknowledged that the policy did disadvantage and discriminate against homosexual men, but given that the ARCBS is bound by law to ensure the risk of unsafe blood is as low as possible, the Red Cross policy did not amount to either direct or indirect discrimination. However, whilst the decision was disappointing for the complainant, it is an important step forward for the reform of blood donation policy both in Australia and around the world particularly given the number of internationally recognized medical, public policy and social research experts that were called to gave evidence to the Tribunal, and the fact that the Red Cross is responsible or partly-responsible for the collection of blood in many of the world’s developed countries.

One of the many interesting aspects of the case was the threshold question of whether the Red Cross had provided a ‘service’ to Michael Cain as required in section 22 of the Anti-Discrimination Act 1998 (Tas). The ARCBS argued through its submissions that it only provides a service to the recipients of the blood it collects and that the blood donor merely provides a ‘gift’. The ARCBS also argued that by not accepting Michael Cain’s blood they were not refusing him a service, but rather exercising a discretion whether to accept or reject an offer to donate blood, and finally, that the refusal to allow Michael Cain to donate blood was not ‘in connection with’ the provision of a service. One of the cases relied on in support of this view was the earlier Tasmanian case of Buchanan v RSL [2003] TASADT 15 in which the complainant, a republican had applied to join the Returned and Services League of Australia Ltd but refused to swear allegiance to the Queen. In that case the respondents had sought to argue that they had not provided any service to the complainant as he had merely applied to be a member of the RSL Ltd. In a similar manner, the ARCBS submitted that they had not provided any service to Michael Cain. The Tribunal rejected these arguments holding that the definition of ‘service’ in Tasmania’s Anti-Discrimination Act 1998 is worded more broadly than its counterparts in other States and Territories and in any event the ‘service’ provided by the Red Cross must be considered as inclusive of ‘the collection, processing, screening and distribution of blood services’.

On the central question of whether the ARCBS had either directly or indirectly discriminated against Michael Cain, the Tribunal was inundated with studies from Australia and much of the developed world, both in support of reform and maintenance of the status quo. Some of the evidence provided by the ARCBS about high levels of disease and promiscuity among MSM (men who have sex with men) was rightly attacked during the hearing by counsel for Michael Cain, Mr Peter Tree SC, as unrepresentative of the entire cohort of MSM and therefore irrelevant to the case. The Tribunal also provided the following strongly-worded rebuke of the ARCBS in its finding:

‘this attempt to apply data about the practices of some clearly unrepresentative cohorts within the MSM group to all members of the group, as a means of undermining the reliability and commitment of all male-to-male relationships simply lacks validity’.

The biggest problem for Michael Cain was finding evidence that allowing MSM donation would not endanger the blood supply. Most countries which are comparable to Australia have even stricter exclusions. For example in the United States of America and the United Kingdom any man who has had sex with anther man since 1977 is excluded. This is despite the fact that the first diagnosed HIV infection was in the early 1980s and that testing procedures have been in place for many years that are able to detect the HIV virus within 14 days. There are some countries in which the exclusion has been lifted and screening procedures are similar to those proposed by Mr Cain, that is, they focus on safety of sexual activity rather than gender of sexual partner. Two such countries are Italy and Spain. Some evidence has emerged from Italy that this new policy has been accompanied by a decrease in the transmission of HIV through blood transfusion. But the ARCBS questioned how relevant this is to the Australian experience, given the differences in the HIV epidemics in the two countries.

In the absence of empirical data that was accepted by both sides, experts were called on to provide and evaluate different mathematical models for determining the safety of blood donation by different population cohorts.

In its assessment of the risk of the broad category of gay men who have safe sex the Tribunal sought expert testimony and mathematical modeling from Professor John Kaldor, the head of epidemiology at the National Centre in HIV Epidemiology and Clinical Research and a former advisor to the ARCBS. Prof Kaldor’s modeling showed ‘that the low risk MSM group poses a relative risk of HIV transmission that is still higher than high risk heterosexual male donors’. Prof Kaldor’s model was critiqued by two of Mr Cain’s key witnesses, Dr Scott Halpern and Professor Anne Mitchell. As a social researcher with the Centre for Sex, Health and Society at La Trobe University, Prof Mitchell questioned whether the samples of small MSM used by Prof Kaldor were representative of the entire MSM group, particularly those many ‘normalised’ homosexual couples who live far away from the inner cities of the major cities and who are at far less risk of HIV and more likely to donate blood. Commenting on why such MSM are not included in the studies upon which Prof Kaldor drew, Professor Mitchell said: ‘those that are at risk remain at risk, practice unsafe sex, maybe don’t go for HIV testing and that group will always be the target of the research and of the safe sex messages. But there is a much wider community of men who have sex with men that aren’t at any risk - frequently excluded, deliberately excluded from studies’. The Tribunal took heed of Prof Mitchell’s views in its finding:

In fact, the epidemiological evidence establishes that the blood of the majority of homosexuals do not pose a risk to the blood supply. Indeed, focusing on the risk posed by particular individuals rather than groups, there are some individuals who are homosexual whose blood would pose a less of a risk than the blood of some heterosexuals who are permitted to donate. However...the donor deferral policy must, as a matter of practicality, work on the basis of addressing broad categories of the population…

In his role as a lecturer in Biostatistics and Epidemiology at the University of Pennsylvania, Dr Halpern was also critical of Prof Kaldor’s model for a variety of sociological, clinical and methodological reasons, including the way Kaldor and his colleagues calculated prevalence of HIV among MSM. Halpern’s conclusion was that, in regard to MSM, ‘not only have they (Kaldor and his colleagues) failed to explore the range of possibilities, but they’ve selected the model of sexual behaviour that will result in the HIGHEST POSSIBLE risk’. Again, the Tribunal took this evidence seriously but with a caveat. In its summary of the medical evidence the Tribunal held:

Mr Cain has demonstrated that the best case scenario could be correct, in which case the group to which he belongs, being those in monogamous relationships and having protected sex, may, according to some current, valid data present a relative risk that is lower than that shown in the (Kaldor) model. This observation amounts to a valid critique of the current system...but it is not an appropriate basis for amendment of the deferral policy.

In short, the Tribunal conceded that the Kaldor model ‘is based on some assumptions’ about the number of MSM in the general population and the prevalence of HIV among MSM, to which there were ‘valid’ objections provided by expert witnesses for Michael Cain. However, it concluded that ‘the ethical principles that guide the Red Cross require it to take the ‘precautionary principle’; to take the pessimistic view that ‘what can go wrong will go wrong’.

Despite this final finding, the Tribunal also offered hope that the issue can and should be reviewed. The Tribunal endorsed further review of the policy by stating:

Ongoing critical review of the policy will ensure that our blood supply is and will continue to be as safe as it can be and ensure that if other viable options are indicated they will be assessed. New data, enhanced research and refined methods can be considered (and) will assist in maintaining public confidence in the blood supply.

Almost five years after the original complaint was lodged, it is important to acknowledge the efforts of Michael Cain, who never once wavered from his belief that the acceptance of some MSM by the ARCBS would result in decreased stigmatization of the homosexual community, increased support for the important work of the ARCBS and most importantly fresher and more plentiful blood for the people that most require it. In tribute to the efforts and integrity of Michael Cain, the Tribunal wrote:

The review of the donor deferral policy that has been undertaken in these proceedings, as a consequence of Mr Cain’s sense of justice and altruistic motivations, have contributed to the beneficial process of review and scrutiny of the deferral policy. It remains for the Tribunal to mention that the responsible approach Mr Cain has taken in acknowledging the critical importance of the safety of the blood supply...as the foundation of his case, so that he only is advocating change if there is no increase in risk to the blood supply, has facilitated the Tribunal's proper analysis of the issues...

• Mr Rodney Croome is a spokesperson with the Tasmanian Gay and Lesbian Rights Group which was the support organisation for Mr Cain. Mr Benedict Bartl was the instructing solicitor with the Hobart Community Legal Service in the Anti-Discrimination Tribunal (Tasmania) case of Cain v Australian Red Cross Society [2009] TASADT 03.