Book review of Charlatan by Pope Brock
2008, Three Rivers Press, New York. Pages 1-325, incl index (pb)

reviewed by Dr Ian Freckelton SC

Brock’s biography of “Dr” John Brinkley is not the first account of arguably the most remarkable quack that the United States has produced but it is both absorbing and confronting. It tells the tale of a huckster who bought his way into a dubious medical school (the Bennett Eclectic Medical College), never finished the course and then achieved a remarkable level of fame and fortune by pioneering xenotransplantation for the recovery of virility.

Brock locates the career of Brinkley in what he calls the world’s most “quack-prone and quack-infested” country in the early 20th century, commenting (p 10):

“Of course, quacks have flourished in all ages and cultures, for nothing shows reason the door like cures for things. Unlike most scams, which target greed, quackery fires deeper into Jungian universals: our fear of death, our craving for miracles. When we see night approaching, nearly all of us are rubes.”

He describes the 19th century as a time when, perversely, charlatans and snake oil salesmen were almost joyously embraced in the United States. Patent medicines were hawked from town to town by charismatic purveyors who took liberal advantage of the difficulties of law enforcement across State boundaries.

Brock parallels “Dr” Brinkley’s career with that of the man who became his nemesis, the long-time editor of the Journal of the American Medical Association (JAMA) (between 1924 and 1950), Dr Morris Fishbein, himself an extraordinary and divisive character. Dr Fishbein graduated in 1912 and almost immediately (namely, without any significant time in clinical practice) made his way in an editorial capacity to JAMA and in due course embarked on an influential and high-profile career of exposing quackery.

Brinkley is best known for his transplantation of goat gonads into the testicles of males wanting to enhance or recover their sexual potency. He commenced the procedure in 1917, soon claiming that he could also cure dementia praecox (schizophrenia) and other conditions by the same technique. Brinkley’s greatest gift was in self-promotion, a skill that led his xenotransplantation to earn him up to a million dollars a year, a remarkable sum for the 1920s and 1930s. He became a household name throughout the United States with celebrities and ordinary people alike flocking to his clinics in search of potency. He managed this feat in spite of the deaths of a number of his patients and increasingly vehement attacks by Dr Fishbein, utilising articles in the JAMA, including the unsubtly titled, “John R Brinkley – Quack, The Commercial Possibilities of Goat-Gland Grafting”. Brinkley had happened upon men’s propensity to not just indulge their fantasies of avoiding ageing but their folly in preparedness to take extraordinary measures to try to counter sexual decline. He diversified into marketing potions said to enhance virility. In due course these were exposed as no more than coloured water. In 1930 his medical licence was revoked by the Kansas Board of Medical Examiners. His response was to run for Governor. He nearly succeeded.

Undeterred by his failure to assume high political office, Brinkley intensified his efforts to promote “rejuvenationism”, advertising his successes with impunity from Mexican radio stations which were outside the reach of the United States authorities but effectively broadcast across the border. He purchased a series of yachts, became friends with the Duke and Duchess of Windsor and indulged his passion for sports fishing.

In 1938 Dr Fishbein published a two-part article entitled “Modern Medical Charlatans” in the journal Hygeia. He denounced Brinkley as the apotheosis of charlatans. Brinkley’s response was his one great error – he sued for libel, seeking $250,000 in damages. Brock’s account of the trial is absorbing and dramatic. Judge McMillan declined to receive evidence from former patients prepared to extol the advantages they felt they had experienced from Brinkley’s treatment. However, he permitted expert evidence on behalf of Dr Fishbein to establish whether Brinkley had a reputation capable of being damaged. This resulted in three Texas urologists each denouncing Brinkley, his prostate treatments and his use of goat gonads. Then evidence was led about his coloured water scam.

A key phase in the trial was the testimony of Dr Fishbein who calmly told the jury that reversing the natural ageing process was no more possible than restoring the elastic in a pair of suspenders. Rejuvenation, he said, was a snare and a delusion from which he hoped the public was beginning to awaken. Cross-examination of him was brutal but the essence of what he contended was undamaged.

Brinkley himself took the stand to an assault from the orthodox pillars of scientifically based medicine. His performance was erratic at best with effective assaults upon his false and extravagant claims. Judge McMillan’s summation to the jury was damningly in favour of Dr Fishbein, directing jurors’ attention to a litany of anomalies in Brinkley’s evidence and the realities of his bogus credentials. The jury took only four hours to find in favour of Dr Fishbein “that plaintiff should be considered a charlatan and quack in the ordinary, well-understood meaning of those words” (p 264). Brinkley proclaimed that he would appeal but the Supreme Court denied review. A slew of lawsuits brought by former patients ensued and his empire fell to pieces. By 1941 he declared bankruptcy and a year later he passed away in his sleep.

Dr Fishbein, by contrast, lived until 1976 and has the “Morris Fishbein Center for the History of Science and Medicine” at the University of Chicago named after him. Brock comments of him (p 274):

“He won for the AMA the undisputed authority to set licensing standards for doctors nationwide. The case marked the boundary line between the unregulated melee that was American medicine going back two or three centuries, and the sober centralization that has defined it since.”

However, he laments that since Dr Fishbein’s death “new quacks with new quackeries have sprouted faster than ever” (p 275):

“[W]hatever ground he cleared the jungle soon reclaimed. Today bogus cancer and weight loss treatments, biological dentistry, ear candling, … Wild Yam cream, chelation therapy, Qiqong, and untold thousands of other get-well-quick schemes keep their inventors swimming in champagne.”

As the author suggests, much in Brock’s account of Brinkley’s life and exploits has a highly contemporary relevance with entrepreneurial charlatans continuing to prey upon the vulnerable with iconoclastic treatments and portraying themselves as pioneers and champions in the war against the medical establishment. When the lack of evidence-based justification for their treatments is raised against them, their usual response is to attack their critics personally and to attempt to distract by questioning the evidence base of conventional medicine, citing examples of the misdeeds of “Big Pharma” and the limitations of and deficiencies in conventional medicine. Modern quacks are found in many areas of the health professions but, typically, congregate in the vicinity of those with cancer, long-term ailments, progressive diseases and fertility issues. Quacks also all too often ply their treatments in the areas of cosmetic and anti-ageing medicine.

The extraordinary success of Brinkley attests to the propensity of the desperate and the hopeful to repose trust in those who make the promises that they would like to hear. Whether one views the phenomenon in terms of community gullibility or the potential for exploitation of the vulnerable perhaps does not matter. Commercial opportunities continue to abound for unscrupulous quacks. Arrayed against them are the regulatory frameworks of consumer protection and the disciplinary processes that apply to registered health practitioners. But the potential for lawsuits for defamation and for deceit, as well as for breaches of contract, and misleading and deceptive conduct, constitute important protections for persons who are taken advantage of by charlatans.

Brock’s tale of the rise and fall of “Dr” John Brinkley is a journalistic but riveting account of a remarkable phenomenon in American health care history. It is well researched and referenced. It is well written and hard to put down. Charlatan is one of those books that is truly memorable. It should be read by all who are tempted to invest in ready cures or extravagant promises made by persons offering novel treatments. It should galvanise regulators and plaintiff lawyers alike – bringing quacks to heel and exposing the cruelty and falsity of their promises is an important contribution to public health. Brock’s Charlatan is an account that is as relevant to today’s conditions as it was to those of the 1920s and 1930 when “America’s most dangerous huckster” thrived so outrageously. It has much to teach us.

The full citation for this book review is: (2012) 19 JLM 854

The latest issue of the Journal of Law and Medicine (Volume 20 Part 1) contains the following material:

EDITORIAL – Ian Freckelton SC

• Misplaced hope: Misleading health service practitioner representations and consumer protection

Articles

Levelling the playing field? Sharing of influenza viruses and access to vaccines and other benefits – Nicole Jefferies

With the adoption of the Pandemic Influenza Preparedness Framework, including its annexes, by the 64th World Health Assembly, this article investigates the disproportionate burden of risk and benefits between resource-poor countries in the developing South and resource-rich industrialised developed nations of the North in the World Health Organisation’s Standard Material Transfer Agreement (SMTA) for accessing and sharing influenza viruses. It concludes that the countries of the South have a unique opportunity to level the playing field through providing timely and affordable access to life-saving vaccine and meaningful benefit-sharing that will deliver technology and economic development. Importantly, the article also demonstrates that SMTAs are not merely a redirection of existing resources from North to South but offer a solution to the ongoing shortage of pandemic influenza vaccine by enabling the South to access technology necessary for sustainable vaccine production and thus increasing global vaccine capacity.

To purchase this article, complete the Individual Article Sale order form and email it to tlranz.journal.orders@thomsonreuters.com.

The dollars and sense of restraints and seclusion – Jeffrey Chan, Janice LeBel and Lynne Webber

Restraints and seclusion are a common practice in many human service settings despite the increasing evidence questioning their efficacy and appropriateness. There are many detrimental effects on people subject to these practices, such as falls, injury, psychological trauma and even death. In addition to the impact on people being served, there is also a range of negative effects on organisations and the workforce. This article outlines and discusses the costs to organisations in implementing restraints and seclusion, and the economic cost-benefits to be gained in working towards the safe elimination of restraints and seclusion. A brief outline of ethical alternatives to restraints and seclusion is explored. The emerging research evidence suggests that it is possible to achieve the safe elimination of restraints and seclusion in a human service organisation.

To purchase this article, complete the Individual Article Sale order form and email it to tlranz.journal.orders@thomsonreuters.com.

Are people who claim compensation “cured by a verdict”? A longitudinal study of health outcomes after whiplash – Natalie M Spearing, Dorte Gyrd-Hansen, Louis H Pobereskin, David S Rowell and Luke B Connelly

This study examines whether the lure of injury compensation prompts whiplash claimants to overstate their symptoms. Claim settlement is the intervention of interest, as it represents the point at which there is no further incentive to exaggerate symptoms, and neck pain at 24 months is the outcome of interest. Longitudinal data on neck pain scores and timing of claim settlement were regressed, controlling for the effect of time on recovery, to compare outcomes in claimants who had and had not settled their compensation claims. The results show clearly that removing the financial incentive to over-report symptoms has no effect on self-reported neck pain in a fault-based compensation scheme, and this finding concurs with other studies on this topic. Policy decisions to limit compensation in the belief that claimants systematically misrepresent their health status are not supported empirically. Claimants do not appear to be “cured by a verdict”.

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Criticisms of African trials fail to withstand scrutiny: Male circumcision does prevent HIV infection – Richard G Wamai, Brian J Morris, Jake H Waskett, Edward C Green, Joya Banerjee, Robert C Bailey, Jeffrey D Klausner, David C Sokal and Catherine A Hankins

A recent article in the JLM (Boyle GJ and Hill G, ²Sub-Saharan African Randomised Clinical Trials into Male Circumcision and HIV Transmission: Methodological, Ethical and Legal Concerns² (2011) 19 JLM 316) criticises the large randomised controlled trials (RCTs) that scientists, clinicians and policy-makers worldwide have concluded provide compelling evidence in support of voluntary medical male circumcision (VMMC) as an effective HIV prevention strategy. The present article addresses the claims advanced by Boyle and Hill, demonstrating their reliance on outmoded evidence, outlier studies, and flawed statistical analyses. In the current authors’ view, their claims portray misunder- standings of the design, execution and interpretation of findings from RCTs in general and of the epidemiology of HIV transmission in sub-Saharan Africa in particular. At the same time they ignore systematic reviews and meta-analyses using all available data arising from good-quality research studies, including RCTs. Denial of the evidence supporting lack of male circumcision as a major determinant of HIV epidemic patterns in sub-Saharan Africa is unsubstantiated and risks undermining the evidence-based, large-scale roll-out of VMMC for HIV prevention currently underway. The present article highlights the quality, consistency and robustness of the scientific evidence that underpins the public health recommendations, guidance, and tools on VMMC. Millions of HIV infections will be averted in the coming decades as VMMC services scale-up to meet demand, providing direct benefits for heterosexual men and indirect benefits for their female partners.

To purchase this article, complete the Individual Article Sale order form and email it to tlranz.journal.orders@thomsonreuters.com.

Childhood obesity, parental duties of care and strategies for intervention – Elise Jane Nolan

Childhood obesity is an increasingly serious issue which causes significant health problems among children. There are numerous causes of childhood obesity. However, the ultimate responsibility for the problems and costs associated with an obese child should be attributed to that child’s parents. Parents owe a duty of care to their child and, when their child is obese, have arguably breached that duty. However, if parents were required to pay their child damages, this would arguably be problematic and of little utility. Rather, intervention strategies should be implemented which seek to treat and prevent childhood obesity and to address the identified causes of childhood obesity.

To purchase this article, complete the Individual Article Sale order form and email it to tlranz.journal.orders@thomsonreuters.com.

Reappraising consent: Conducting ethical psychiatric research in Singapore – Gurpreet Rekhi, Benjamin Capps, Tamra Lysaght and Siow Ann Chong

Singapore is legally restrictive when it comes to research involving minors. The age of majority is 21 and parental consent is required for participation in medical research. This article explores the age of majority and the issues related to obtaining consent for research in Singapore, focusing on “young adults” (17-21 years), using an example of a translational and clinical research project called the Longitudinal Youth at Risk Study (LYRIKS). It describes the unique legal and social conditions pertaining to the age of majority in Singapore, before presenting an argument for consideration as to whether the age of consent to participate in research should be reviewed. It concludes that rather than a set of doctrinaire rules for the age of participation in research, there should be an assessment of the kind of tasks that minors can assume themselves in respect to a specific project, and the degree of parental involvement.

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The regulation of preimplantation genetic diagnosis: Is there anything the United Kingdom can learn from the Australian experience? – Michelle de Souza

The United Kingdom fertility regulator, the Human Fertilisation and Embryology Authority (HFEA), is set to be abolished and its functions transferred to the Care Quality Commission. Together with the Human Fertilisation and Embryology Act 1990 (UK), the HFEA has played a central role in the regulation of preimplantation genetic diagnosis (PGD) and human leukocyte antigen tissue typing (HLA typing). Australia, on the other hand, does not have a national regulatory body for assisted reproductive technologies, which are instead regulated by a series of national guidelines, State legislation and State regulators. Using PGD and HLA typing as a focal point, this article asks, is there anything the United Kingdom can learn from Australia?

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The legal status of the fetus in New South Wales – Talat Uppal, A Pickering, K Erasmus, J Pardey and Roy G Beran

The issue of how to define the legal status of the fetus is complex. Three clinical cases with fetal losses following motor vehicle accidents raise important issues regarding the legal status of the unborn child. Legislation was submitted to the New South Wales Parliament in the form of the Crimes Amendment (Grievous Bodily Harm) Bill 2005 (NSW) but was subsequently repealed. Medical technological advances make the viability of a fetus a shifting standard and encourage the comparison between newborns and late-term fetuses, offer increased fetal health status information and provide greater capacity to maintain the life of babies born prematurely. In view of the sophisticated state of medical care available in New South Wales, the three cases reviewed highlight the discrepancy between the medical recognition of the fetus as a patient and its lack of legal recognition.

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Avoiding a fate worse than death: An argument for legalising voluntary physician- based euthanasia – Julia Werren, Necef Yuksel and Saxon Smith

The legalisation of voluntary physician-based euthanasia is currently the subject of much political, social and ethical debate and there is evidence in Australia of growing support for its implementation. In addressing many of the issues that surround legalisation, the article looks at some overseas jurisdictions that have legalised euthanasia to determine whether the social, political and ethical concerns prominent in the Australian debate have proved problematic in other jurisdictions. In addition, the article examines the report on the Dying with Dignity Bill 2009 (Tas) which commented extensively on the issues relating to voluntary physician-based euthanasia.

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The many cases of XFJ: Suitable to drive a taxi or “killer cabbie”? – Vanessa Taylor and Janette Nankivell

For 10 years, the refugee now known by the pseudonym XFJ attempted to gain accreditation to drive a taxi-cab. After many internal reviews and rejections by the Victorian Taxi Directorate, XFJ appealed to the Victorian Civil and Administrative Tribunal (VCAT). The difficulty for XFJ was that shortly after arriving in Australia, he had killed his estranged wife. The Supreme Court of Victoria subsequently found him not guilty of murder on the grounds of insanity. Since XFJ’s mental health has been stable for many years, much of the legal argument at VCAT and the court cases that followed centred around whether he was “suitable in other respects to provide the service” of driving a taxi, as required by s 169(1)(b)(ii) of the Transport Act 1983 (Vic). This article looks at the tension between the expert medical evidence and the concept of “suitable in other respects”, which XFJ’s opponents claimed included the maintenance of public confidence and the meeting of community expectations.

To purchase this article, complete the Individual Article Sale order form and email it to tlranz.journal.orders@thomsonreuters.com.

Sections

LEGAL ISSUES – Bernadette McSherry

• Legal capacity under the Convention on the Rights of Persons with Disabilities – Bernadette McSherry

MEDICAL ISSUES – Danny Sullivan

• A new ball game: The United Nations Convention on the Rights of Persons with Disabilities and assumptions in care for people with dementia – Anita Smith and Danny Sullivan

BIOETHICAL ISSUES – Malcolm Parker

• A fair dinkum duty of open disclosure following medical error – Malcolm Parker

MEDICAL LAW REPORTER – Thomas Faunce

• Civil liberties and the critics of safe vaccination: Australian Vaccination Network Inc v Health Care Ccomplaints Commmission [2012] NSWSC 110 – Tim Vines and Thomas Faunce

BOOK REVIEW

• The Immortal Life of Henrietta Lacks by Rebecca Skloot

For the pdf version of the table of contents, click here: JLM Vol 20 Pt 1 Contents.

Click here to access this Part on Westlaw AU

The Immortal Life of Henrietta Lacks, by Rebecca Skloot: 2010, Broadway Paperbacks. Pages 1-381. Price: $US16 (pb).

Reviewed by Dr Ian Freckelton SC

Skloot’s book about Henrietta Lacks tells the painstakingly researched story of the woman (and her family) who gave rise to the HeLa cell line which has become the most influential cell line in history.¹

Henrietta  Lacks  was  a  poor  black  tobacco  farmer  who  lived  in  Turners  Station,  a  small, segregated Baltimore community. She journeyed there in 1943 from a plantation town in Virginia, leaving her family behind, most of them still picking tobacco many years after they gained freedom from slavery. At the age of 31, and with five children, in 1951 Henrietta was diagnosed with an aggressive form of cervical cancer. A scraping of her cervix was taken and the cells conveyed to George Gey, head of tissue culture research at Johns Hopkins Hospital. He and his wife, Margaret, had been searching for a tool for the study of cancer: a line of human cells that would live indefinitely outside the body.

Their hope was that through such a discovery they would be able to observe and test human cells in ways that could not be done in humans, with a view to discovering a cure for cancer. Their efforts, until Henrietta’s cells were delivered, had not been successful. Latterly, at the request of Richard TeLinde, then Hopkins chairman of gynaecology, they had been focusing upon cervical cells. The cells were marked “HeLa”, to represent Henrietta’s name, placed in culture and then they started to grow “with mythological intensity. By the next morning they’d doubled” (p 40) and they continued to do so, continuing to double their numbers every 24 hours, growing 20 times faster than Henrietta’s normal cells “which died only a few days after M put them in culture. As long as they had food and warmth, Henrietta’s cancer cells seemed unstoppable.” It was not long before Dr Gey told colleagues that he thought his laboratory may have grown the “first immortal human cells” (p 41). He was soon met with requests to provide some of them to other researchers. It was 1951, the time of a polio pandemic so it was not long before testing took place with HeLa cells and the polio virus, enabling proof of the effectiveness of the Salk vaccine. However, not all uses to which Henrietta’s cells were put were so positive. Shortly afterwards the HeLa cells were used in the infamous Tuskegee syphilis experiments and the Ohio State Penitentiary cancer experiments. The view of many was that the 1947 Nuremberg Code did not apply to human research conducted within the United States.

The conclusion was soon arrived at that “the fact that HeLa was malignant just made it more useful. HeLa cells grew much faster than normal cells, and therefore produced results faster. HeLa was a workhorse: it was hardy, it was inexpensive, and it was everywhere” (p 97).

In the meantime, on 4 October 1951 Henrietta Lacks died of metastasising cancer after a time of intense pain, at the age of 31, without having given any consent to research using her cells. Her daughter Deborah was just one year old. Henrietta rests today in an unmarked grave in the cemetery across the street from her family’s tobacco farm in Virginia. Within weeks of her death most of her family tested positive to tuberculosis.

To say that the childhood and early adulthood of Deborah and her siblings was bleak and difficult is a gross understatement. Skloot tracked them down and tells their story, intersecting it with relevant developments in genetics, human research and legal decision-making in relation to such issues. In particular, she refers to the controversies attaching to the case that became known as Moore v Regents of the University of California 51 Cal 3d 120; 271 Cal Rptr 146; 793 P 2d 479 (1990), a decision of the Supreme Court of California in relation to a cancer patient at UCLA Medical Center where the plaintiff’s doctor, over a period of several years, removed blood and other bodily fluids from Mr Moore which eventually became a “cell line” called “Mo” and was patented for commercial use.

It was  these  actions,  without  his  consent,  that  were  the  subject  of  challenge  by  Mr  Moore  who complained that several extremely valuable proteins had also been created from his cell line without his permission. The California Supreme Court by majority held that no action based on the concept of conversion could be prosecuted where the subject matter of the allegation was excised cells taken in the course of a medical treatment. The majority held the cells in effect to have been abandoned by Mr Moore and no longer to be a product of his body, having been transformed into an invention that had become the product of his doctor’s “human ingenuity” and “inventive effort”.² However, the court accepted that an action potentially could be based on breach of fiduciary duty or lack of informed consent.

By the early 1970s Henrietta’s name was published as having given rise to the cell line. In 1985 Michael Gold, a science reporter, published a book about a campaign to stop HeLa contamination. It quoted extensively from Henrietta’s medical records in spite of the fact that neither Henrietta nor anyone in her family had given permission for such use. Deborah read the account in the book of the autopsy conducted on her mother and commenced a lengthy period in her life of intense distress, introspection and obsessionality. Skloot comments (p 211):

It wasn’t illegal for a journalist to publish medical information given to him by a source, but doing so without contacting the subject’s family to ask additional questions, verify information, and let them know such private information was being published could certainly have been considered questionable judgment.

In 1996 a documentary about Henrietta was made by a BBC producer. By the time that Rebecca Skloot commenced to speak with members of Henrietta’s family, they felt a deep sense of betrayal and that they had been taken advantage of by scientists and journalists alike. Skloot documents her efforts from 2000 onwards to engage them and persuade them of her bona fides, so that her own book would not occasion still more trauma for Henrietta’s family.

Skloot’s accounts of Deborah’s distress and sense of having been exploited, as well as that of Henrietta’s other children, are extremely powerful. She chronicles the assistance she provided to the Lacks family to understand better personal aspects of Henrietta’s life that were important to them and the use that has been made of her cells. A particularly moving moment documented by Skloot is when Deborah is presented with a colour image of the cells of her mother who died when she was so young. Later Skloot accompanies Deborah to a laboratory to see her mother’s cells. Deborah’s response, looking down the microscope was (p 266):

“They’re beautiful,” she whispered, then went back to staring at the slide in silence. Eventually, without looking away from the cells, she said, “God, I never thought I’d see my mother under a microscope … this is my mother. Nobody seem to get that.”

Skloot closes her book with reflection on how we as a community should deal with the commercialisation of human tissue. She acknowledges that we live in a market-driven society, with science being part of that market. She notes that the Lacks family has few legal options, given the passage of time and the proliferation of Henrietta’s cells. Her son told Skloot shortly before the book went to press that Deborah would not have wanted legal action taken: “and besides, I’m proud of my mother and what she done for science. I just hope Hopkins and some of the other folks who benefitted off her cells will do something to honor her and make right with the family” (p 328).

Skloot’s The Immortal Life of Henrietta Lacks is a memorable tale. It deals with conceptual and ethical dilemmas in a deeply human way. Highlighting the impact of the exploitation of Henrietta’s tissues without any recourse to the feelings or wishes of Henrietta and her family, it chronicles the very personal impact of  the existence and notoriety of the HeLa cells, dealing with the related scientific, medical, ethical and racial issues. There are ample portions of pain, grace and tenderness in the book. It is a work that reminds us that informed consent and exploitation of parts of the human body are issues that matter most because of  the effects that they have on people at  their most vulnerable and on those close to them. It is a book which fleshes out and gives meaning to such concepts that otherwise can seem theoretical and dehumanised.  It should be read by all with an interest in human research and the important contemporary issues in bioethics and the law.

1. See too Landecker H, “Immortality, In Vitro: A History of the HeLa Cell Line” in Brodwin P, Biotechnology and Culture: Bodies, Anxieties, Ethics (Indiana University Press, Bloomington, 2000); Skloot H, “Henrietta’s Dance” (2000) Johns Hopkins Magazine, http://www.jhu.edu/~jhumag/0400web/01.html viewed 31 July 2012.

2. Compare Doodeward v Spence (1908) 6 CLR 406.

The citation for this article is (2012) 20 JLM 216.

Hospital  Babylon,  by Imogen Edwards-Jones: 2011,  Bantam  Press,  London.  Pages  1-319.  Price: $A32.95 (pb).

Reviewed by Ian Freckelton SC

Hospital Babylon is an archetypal airport book. It can be read on a flight between Brisbane and Melbourne, as long as there isn’t a distraction on the television screens or too much turbulence. It is written by Imogen Edwards-Jones (author of, among other books, Hotel Babylon, Fashion Babylon, Beach Babylon, Pop Babylon and Wedding Babylon) and she acknowledges unnamed others as having provided information for the book. In short, it is written to a formula, amalgamating the stories told to her by a series of anonymous persons in the “industry” about what is said to be the reality of life for a young doctor in an accident and emergency department that is part of an unidentified hospital somewhere in England. As such, it retails multiple stories, generally the most salacious, and cannot in fairness be said to be representative of its subject-matter.

The book is written in the words of a young male intern over a 24-hour period of his last rotation through an accident and emergency department. The subject asserts (p 16) that:

A & E is universally acknowledged to be the worst department to work in in the whole hospital … It is viewed as the worst mainly because it is hard to do a good job. A & E is still about waiting times and getting people in and out as quickly as possible. All you can do is just enough either to patch them up and send them home or move them through the system to somewhere else.

He identifies with frustration the kickbacks given to some doctors by specialists for making referrals to them and the easier life of practitioners who have nothing to do with the hurly-burly of the A & E provision of medical services. He observes the incidence of errors among A & E doctors whose concentration wavers, as well as the level of protection afforded to them from within hospitals, protection which is not related either to the seriousness of their mistakes and the risk that they continue to pose or to the extent of their insight into what has gone wrong or what has caused their errors. By contrast, he notes the way in which breaches of bureaucratic regulations can be dealt with in a heavy-handed and unfair manner by “the system”.

A moving part of the book relates to an elderly lady who is left unattended while awaiting radiology for a significant period of time, during which she deteriorates without anyone being aware of the worsening in her condition until it is too late. The subject doctor is responsible for some of what occurs, although he cannot admit it. He is unable to face the daughter who attends later to see her mother  who  she  quite  reasonably  expects  is  at  no  particular  risk  and  will  still  be  subject  to investigation for her presenting condition.

An issue which arises on more than one occasion throughout Hospital Babylon is the disorganisation which can result in young doctors undertaking shifts that can extend for up to 24 hours or multiple shifts in very few days. Concomitant with this is a level of exhaustion which can only conduce to errors and poor exercise of judgment, both professional and personal. Such overloading of shifts is asserted still to be prevalent in spite of attempts to deal with the issue throughout the NHS. In addition, there is a radiating impact on their families and those with whom they endeavour to have relationships. He comments (p 228):

Working here really affects your personal life in ways you could not possibly imagine. Quite apart from the long hours, the high stress, and the matter-of-fact attitude you have to things like cannulating yourself and popping extremely strong cocktails of drugs to make you sleep, keep awake or just plain feel a little bit better, we also become inured to a lot of things. After you have seen life and death at its most raw, visceral and gruesome, you become cauterized, so much so that it is often quite hard to get emotional about anything.

A useful part of the book relates to the doctors’ and nurses’ sexual behaviours, the usage of alcohol and drugs and the detachment which the A & E workers need to develop in all aspects of their lives to try to survive the demands of not just the environment but the system which places so much pressure upon inexperienced doctors whose learning curve has to be very fast but who nonetheless shoulder heavy burdens in relation to their patients. Although the book relates a variety of entertaining episodes in which sexual transgressions take place, amusing interactions with patients and scenarios in which, for instance, various objects are lost in a variety of orifices, the distress of all concerned when their best efforts fail to treat a patient effectively or to succeed in a resuscitation is authentically conveyed.

Another component of A & E life which is effectively depicted by Edwards-Jones is the myriad of difficulties posed by those with mental illnesses and/or substance dependencies who take up a great deal of time in emergency departments and who cause so much difficulty and risk for staff. He recites what he was told by an experienced consultant when he started work in the A & E department and complained to him about drug-addicted patients (p 95):

He told me they weren’t trouble, they were a challenge. He also reminded me they were victims of life, that what we should do is turn back the clock and see how it all started. We should try to understand rather than sit in judgment. Some were born victims, there was no question of that. But some were also weaker than others. They were simply not able to cope with what life had thrown at them. Some had fallen to the bottom of the pile because they didn’t have the discipline or the strength of character to keep standing, keep fighting. They were just not capable of sorting themselves out.

Such a characterisation aptly captures a well-intentioned attitude on the part of many medical practitioners. In terms of the values and assumptions of the doctors, much also is communicated by the many (judgmental and dismissive) acronyms that the principal characters identify as regularly used in the workplace.

All in all, Hospital Babylon is a surprisingly engrossing book. It is accessible and entertaining. It captures aspects of the life which it seeks to depict and at times it is moving, memorable and plausible in the stories and experiences which it relates. It is well researched. It also provides something of a perspective into elements of what takes place for good and ill in the complex and demanding environment of the A & E department. That is not to say that it isn’t sensationalised for the sake of a good story: of course, it is. Disappointingly, it deals particularly poorly with the female perspective of those who comprise a majority of young doctors and the race and ethnic issues which are part of modern medicine in England, as well as in Australia, Canada, New Zealand and Australia.

However, should readers of the JLM find themselves without the latest copy, and without work to which they must apply themselves on a plane flight, they could do worse than be diverted by the pages of Hospital Babylon.

The citation for this review is (2012) 20 JLM 470 at 472.

*Please note that the links to the content in this Part will direct you to Westlaw AU. If you are still using Legal Online, the links can be found in the LOLA PDF at the bottom of this post.

The latest issue of the Journal of Law and Medicine (Volume 20 Part 2) contains the following material:

EDITORIAL – Ian Freckelton SC

• Hoarding Disorder and the law

Articles

Who controls the uses of organs after death? Law in the books, law in practice and the view of the people – Ngaire Naffıne, Bernadette Richards, Sheryl de Lacey, Annette Braunack-Mayer and Wendy Rogers

The conventional wisdom is that we are free to dispose of our organs at death and that they will be employed according to our wishes. However, this reflects neither the formal law nor medical practice. This article explores the theory underlying the principle of self-determination after death. It presents an overview of Australian law and the way that the law is interpreted in clinical practice. It then presents the results of a community survey on organ disposition, and identifies a gap between community expectations and the current operation of Australian law. It concludes with some specific recommendations for development of the law to align it more closely with contemporary community views.

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Potential law reform for Australia’s organ donation system – Alexandra Halls

Australia’s current organ donation rates are very low, particularly in comparison to several European countries such as Spain and Austria. Many Australians wait for many years to receive organs that they desperately need, and many die while waiting. Australia’s current organ donation system is based on express consent, with intending donors registering that intent at the Australian Organ Donation Registry. However, given that organs can only be donated in certain circumstances, this system is proving to be inadequate. This article compares the current express consent (or “opt-in”) system and the presumed consent (or “opt-out”) system used in the European countries that have significantly higher donation rates. It suggests reforms to Australian legislation to change the current system to that of presumed consent, and considers whether it is likely to work in Australian society.

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The sideshow or the circus? The role for public interest organisations at inquests – Megan Prictor

Recent changes in coronial law in Australian jurisdictions have enabled inquests to adopt an expanded scope and have facilitated the participation of family members and other interested parties. Public interest bodies have increasingly sought to have input to coronial policy and practice. This article examines the involvement by public interest organisations in Australian inquests over recent years. These organisations adopt various roles in inquests, including the representation and support of family members of the deceased, and the pursuit of policy and legislative changes. A further role is that of participation in specific inquests as an “interested party”, in order to provide relevant expertise, shape the scope of the inquiry, and illuminate systemic issues which may have contributed to a death. This article considers the legal framework for the involvement of public interest organisations, and critically reflects upon the main purposes and effects of such intervention.

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Application of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ) in recent New Zealand Coroners Court cases – Jennifer Moore

This article discusses the issues raised by the Coroner’s findings about the deaths of Scott Chapman and Tony Rosimini, who were patients of New Zealand mental health services. Coroner Smith, who made recommendations in both cases, concluded that the patients were “placed in accommodation effectively without the necessities of life”. Chapman and Rosimini’s tragic stories are, unfortunately, common cases which illustrate that certain adverse social conditions may detrimentally affect people’s health and wellbeing. The Chapman case highlights the difficulties in treating the co-existing physical health conditions of patients subject to the Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ) without their consent. What medico-legal tools can be applied to patients who live in “chaotic social circumstances”? How can a mental health patient’s physical health and general wellbeing be managed under this Act? This article combines traditional legal analysis with public health literature to explore these questions.

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Regulating bodily integrity: Cosmetic surgery and voluntary limb amputation – Aileen Kennedy

Cosmetic surgery and voluntary limb amputation share a number of features. Both procedures are patient-driven forms of body shaping that can only be performed by surgeons, and therefore the procedures require the imprimatur of the medical profession to be lawful. Both invoke identity construction as a central legitimating factor that renders the procedures therapeutic. The legal regulation of surgery is subsumed within general principles regulating medical practice, where autonomy and consent are constituted as fundamental authorising principles. The legitimacy of consent to surgical intervention operates unevenly in relation to these two forms of surgery. Amputation of healthy limbs is presumed to be non-therapeutic. Capacity is closely interrogated and minutely scrutinised. Consent to cosmetic surgery, by contrast, is presumed to be a valid expression of autonomy and self-determination.

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Public authority responses to marine stinger public health risks: A scenario analysis of the Irukandji health threat in controlled spaces at public beaches in Australia – Lynda Crowley-Cyr

This scenario analysis was undertaken to anticipate the likelihood of public authority liability for negligence arising from harm associated with the relatively new phenomenon of the Irukandji marine stinger health threat in Australia. The tort of negligence is about allocating liability for wrongs typically committed by one person or entity against another. The author questions whether a person who enters a marine stinger enclosure at one of Australia’s patrolled and flagged beaches and suffers serious injury from an Irukandji sting can seek compensation or damages in negligence against government. It is argued that as the law currently stands, an injured bather without adequate warning could successfully sue a local authority for creating a false perception of safety and therefore inducing risky behaviour. Changes in ecology and climate variability are relevant considerations. This is a novel issue not previously dealt with in Australian courts.

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How relevant is undergraduate medical law teaching to clinical practice? A graduates’ perspective – Nicole Koehler and Christine McMenamin

The Monash University medical law tutorial program was implemented in 2002. A major aim of this program is to enable medical students to recognise and understand their legal obligations in clinical practice, thereby improving clinical standards and contributing to better patient outcomes. The present study examined whether, from a graduate perspective, the medical law tutorial program provides adequate legal information of relevance for a clinical context. Monash University medical graduates from 2007 to 2009 who were working at a Victorian hospital or who were members of the Royal Australian College of General Practitioners were invited to participate in the study. Fifty-six participants completed the survey. Overall, participants had positive perceptions of the medical law program. The medical law program is an essential component of students’ medical education and provides information relevant to future clinical practice.

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Psychiatric disability and the practising lawyer in Australia – Frances Gibson

In recent years there has been significant recognition given to the extent of mental illness, particularly depression, in the legal profession. At the same time, international trends suggest that as more students with disabilities are given support to make it through school, more will become law students and enter the legal profession. International studies have already shown that law students and members of the legal profession exhibit higher levels of psychological distress and depression than do community members of a similar age and sex. In light of rights such as those in the Convention on the Rights of Persons with Disabilities for individuals with disabilities to pursue their chosen profession, this article examines whether people with mental illnesses should be admitted to or remain in the legal profession, the obligations on legal practitioners to report mental illness in other lawyers, and the types of matters brought before disciplinary bodies where mental health issues are raised.

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The experience of patients with advanced chronic obstructive pulmonary disease and advance care-planning: A South Australian perspective – Margaret Brown, Mary A Brooksbank, Teresa A Burgess, Mary Young and Gregory B Crawford

Advance care-planning conversations with people who have chronic obstructive pulmonary disease (COPD) are important because of the severity of the disease and the unpredictable timing of death. Advance care-planning is a process involving conversations about future wishes, including end-of-life care and the appointment of a substitute decision-maker. This qualitative research explored issues relating to end-of-life decisions with 15 individuals and their carers living in the community who had severe COPD. Findings indicated that, although patients and carers would welcome the opportunity to discuss end-of-life decisions, almost no conversation about care-planning had been initiated by health professionals with any of the participants. It also demonstrated that professional support is required to assist with advance care-planning and the completion of the legal advance directive documents.

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How should Australia regulate voluntary euthanasia and assisted suicide? – Ben White and Lindy Willmott

This article invites consideration of how Australia should regulate voluntary euthanasia and assisted suicide. It attempts to pose this question as neutrally as possible, acknowledging that both prohibition and legalisation of such conduct involve decisions about regulation. It begins by charting the wider field of law at the end of life, before considering the repeated, but ultimately unsuccessful, attempts at law reform in Australia. The situation in Australia is contrasted with permissive jurisdictions overseas where voluntary euthanasia and/or assisted suicide are lawful. The authors consider the arguments for and against legalisation of such conduct along with the available empirical evidence as to what happens in practice both in Australia and overseas. The article concludes by outlining a framework for deliberating on how Australia should regulate voluntary euthanasia and assisted suicide. It asks a threshold question of whether such conduct should be criminal acts (as they presently are), the answer to which then leads to a range of possible regulatory options.

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Bottled babies and frozen hope: A review of three recent decisions on the property of cryopreserved sperm – Jesse Braid

The English common law has taken a deliberate step away from the Australian High Court’s longstanding “work or skill” exception to the rule against proprietary claims over the human body. Now, at least in respect of cryopreserved sperm, the English Court of Appeal has recognised a proprietary interest arising from a principle of “subsisting right to use”. However, recent Australian decisions illustrate the ongoing role of the “work or skill” exception in circumstances where a widow seeks access to her deceased husband’s sperm to conceive a child. If such claims are to be made within a property law paradigm, as it appears they must, then Australian courts should supplement the all too easily satisfied “work or skill” exception with a clear and robust outline of discretionary considerations.

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When is the sterilisation of an intellectually disabled child “therapeutic”? A practical analysis of the legal requirement to seek court authorisation – Lesley Naik

It is an established legal principle that certain sterilisation procedures fall outside parental power to consent to medical treatment and thus require court authorisation prior to their performance. The practical assessment of whether court authorisation is required has traditionally focused on determining whether the procedure is one which is “therapeutic”. However, the development of the legal meaning of a “therapeutic sterilisation” through judicial interpretation may have resulted in a divergence in the legal meaning of the term and its practical application. Cases involving sterilisation in the context of gender dysphoria have also raised some conceptual challenges to the previously utilised “therapeutic”/“non-therapeutic” distinction. This article advocates for the terminology “special medical procedure” to replace the words “therapeutic” and “non-therapeutic” and reintroduces the “but for” test as a potential practical tool to assist medical practitioners to negotiate this area of law successfully.

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Direct-to-consumer genetic testing: The double helix unleashed, problem or panacea? – Lynden Griggs

Direct-to-consumer genetic testing: for some people it is to be discouraged, controlled, and in some jurisdictions even prohibited. For others, direct-to-consumer testing is merely the natural evolution of the human genome project. For them it represents the democratisation of medicine and patient care. This article, in making some brief recommendations that can be quickly implemented, seeks to draw a middle ground. The balance proposed aims not to smother what this writer sees as one of the most significant developments in health care in recent times, but to encourage the introduction of consumer-friendly measures that will allow the research community the time to explore the fundamental question posed by direct-to-consumer testing: does it actually do harm?

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Sections

LEGAL ISSUES – Danuta Mendelson

• From expert witness to defendant: Abolition of expert witness protection and its implications – Danuta Mendelson

MEDICAL ISSUES – David Ranson

• Age determination of asylum seekers and alleged people smugglers – Richard Bassed and David Ranson

BIOETHICAL ISSUES – Grant Gillett

• Ethics committees in New Zealand – Grant Gillett and Alison Douglass

NURSING ISSUES – Kim Forrester

• Notifications and mandatory reporting – Two years on – Kim Forrester

MEDICAL LAW REPORTER – Thomas Faunce

• Balancing public health, trade and intellectual monopoly privileges: Recent Australian IP legislation and the TPPA – Tim Vines, Kim Crow and Thomas Faunce

BOOK REVIEWS

• The Good Little Girl, by A Stephens
• Hospital Babylon, by Imogen Edwards-Jones

 For the pdf version of the table of contents, click here: LOLA – JLM Vol 20 Pt 2 Contents or here: WAU – JLM Vol 20 Pt 2 Contents.

Click here to access this Part on Legal Online

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The Journal of Law and Medicine publishes contributions about issues that have a legal, medical or bioethical content arising at the interface between law and health, including the delivery of the full range of health services. Its focus is broad, international and cross-disciplinary. The journal seeks to encourage informed discourse about contemporary issues from empirical, practical, policy and theoretical perspectives. The Editor of the journal is Ian Freckelton SC. All contributions to the journal are peer reviewed.

In keeping with this broad focus, a selection of articles to be published in the forthcoming March 2013 issue are:

• “Personalised Medicine in the Genome Era” by Don Chalmers, Dianne Nicol, Margaret Otlowski and Christine Critchley
• “Manufacturing Mental Illness (and Unlawful Abortion): Doctors’ Attitudes to Abortion Law and Practice in New South Wales and Queensland” by Heather Douglas, Kirsten Black and Caroline de Costa
• “Using Economic Policy to Tackle Chronic Disease: Options for the Australian Government” by Lauren Kaplin and Anne Marie Thow
• “Cain v Australian Red Cross Society: The Case for Universal Blood Donation Reform” by Rodney Croome and Benedict Bartl

To be notified when this issue publishes, sign up to email notifications using the “keep updated via email” box on the right.

*Please note that the links to the content in this Part will direct you to Westlaw AU. If you are still using Legal Online, the links can be found in the LOLA PDF at the bottom of this post.

The latest issue of the Journal of Law and Medicine (Volume 20 Part 3) contains the following material:

EDITORIAL – Ian Freckelton SC

• Fetal Alcohol Spectrum Disorder and the law in Australia: The need for awareness and concern to translate into urgent action – Ian Freckelton SC

Articles

A right to refuse: Legal aspects of dealing with intoxicated patients who refuse treatment – Lisa Butson, Mandy Shircore and Ben Butson

Doctors in hospital emergency departments are frequently confronted with intoxicated patients who may be uncooperative, aggressive and refuse to undergo diagnosis and treatment. In the chaotic environment of the emergency department, the doctor must decide whether to override the patient’s refusal and detain the patient for treatment or respect the refusal and allow the patient to leave and potentially suffer further injury. A preliminary pilot survey of emergency doctors in a regional Queensland hospital indicated that those surveyed had limited understanding of the circumstances in which they could, or could not, legally detain and continue to treat an intoxicated patient who refuses treatment, and the concomitant legal consequences. This article considers the complex common law and statutory framework existing in Queensland to determine the legal position of doctors treating intoxicated patients who refuse treatment.

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Manufacturing mental illness (and lawful abortion): Doctors’ attitudes to abortion law and practice in New South Wales and Queensland – Heather Douglas, Kirsten Black and Caroline de Costa

Around one-quarter of Australian women will have an abortion during their lifetime but access is affected by the way health care providers interpret the law about abortion. In Queensland and New South Wales abortion is a criminal offence although it is defensible in certain circumstances. Drawing on interviews with 22 doctors who provide abortion services to women in New South Wales and Queensland, this article examines doctors’ responses to two common scenarios in which women may request an abortion. The two scenarios discussed in this article are a request for a first trimester abortion in circumstances where the woman does not feel ready to have a baby; and a request for abortion in the second trimester where the fetus has been diagnosed with an abnormality. This article explores doctors’ understanding of the law related to the provision of abortion in these two States and their views about the effect of the law on their practice.

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Personalised medicine in the Genome Era – Don Chalmers, Dianne Nicol, Margaret Otlowski and Christine Critchley

The “Genome Era”, a term that has been used to describe the period following the sequencing of the human genome, has heralded significant changes in biomedical research and clinical practice. Personalised medicine aims to use this increased genetic knowledge base to identify predisposition to disease and to tailor treatment to the individual based on an analysis of their genome. In 2003, the Australian Law Reform Commission and the Australian Health Ethics Committee released a report recommending regulatory reform to ensure adequate protection of genetic information. There have been significant developments in this area since that report was released, and the authors argue that it is time to reconsider the regulatory framework of personalised medicine in Australia. The authors identify a number of ethical concerns that need to be addressed if the promise of personalised medicine is to be fully realised.

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Epidemiology, quality control and consumer access in the medical marketplace: The changing landscape of human genetic technology regulation in Australia – Jacqueline Savard

Advances in genetics, genetic therapeutics and the application of genetic technologies to many aspects of human life have challenged the capacity of regulatory authorities and legislative processes the world over. In Australia, developments in the “new genetics” prompted the government to initiate a major inquiry into the protection of human genetic information, resulting in the production and publication of Report 96, titled Essentially Yours: The Protection of Human Genetic Information in Australia in 2003. This article examines the recommendations set out in this report and how they have provided Australia with a framework to deal with the advances in human genetic technologies, using the examples of direct-to-consumer personal genome testing and whole-genome sequencing.

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Using economic policy to tackle chronic disease: Options for the Australian Government – Lauren Kaplin and Anne Marie Thow

Australia suffers from one of the highest prevalences among developed countries of persons being overweight and obese, these conditions arising from the overconsumption of energy-dense, nutrient-poor foods that are generally less expensive than healthier options. One potential avenue for intervention is to influence the price of foods such that healthier options are less expensive and, therefore, are an easier choice to make. This article considers the potential for fiscal policies that would realign food prices with health incentives. Through a review of consumption taxes, consumer subsidies, trade policies, agricultural support policies, and other incentive programs as possible avenues for intervention, this article asks what the Commonwealth Government has already done to help improve Australian diets, and looks at where further improvements could be made.

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What counts as a health service? Weight loss companies through the looking glass of New Zealand’s Code of Patients’ Rights – Megan J Neill

In New Zealand, the Code of Health and Disability Services Consumer’s Rights is a key innovative piece of legislation for the protection of health and disability service users. It provides rights to consumers and imposes duties on the providers of such services, complemented by a cost-free statutory complaints process for the resolution of breakdowns in the relationship between the two. The Code has a potentially liberal application and is theoretically capable of applying to all manner of services through the generalised definitions of the Health and Disability Commissioner Act 1994 (NZ). As the facilitator of the Code, the Health and Disability Commissioner has a correspondingly wide discretion in determining whether to further investigate complaints of Code breaches. This article considers the extent to which the Code’s apparent breadth of application could incorporate commercial weight loss companies as providers and the likelihood of the Commissioner using the discretion to investigate complaints against such companies.

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Property rights in human gametes in Australia – Vanessa White

It has long been a basic tenet of the common law that there can be no property interest in human bodies or body parts. However, exceptions to the rule have been recognised from the mid-19th century and developed over time. In the early 21st century, there have been interesting developments in the common law of Australia and England, with Australian Supreme Court judges and the English Court of Appeal casting aside existing exceptions, and finding property rights in human body parts, including gametes, by relying instead on a “rational” and “logical” basis to identify property interests in human body parts.

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Back to the future: Prohibiting surrogacy for singles, same-sex and shorter-term heterosexual couples in Queensland – Malcolm K Smith, Lindy Willmott, Pip Trowse and Ben White

This article considers the regulatory position concerning altruistic surrogacy in Queensland, focusing on the intended changes to the current legal framework announced by the government in June 2012. The previous government had made significant progress by reforming surrogacy laws in 2010. However, that progress is at risk of being reversed. The proposed changes to the law would make it a criminal offence to enter into an altruistic surrogacy arrangement for certain individuals or couples. If enacted, the offence would only apply in altruistic surrogacy cases where the intended parent or parents are either single, in a same-sex relationship, or are in a heterosexual relationship of less than two years. Moreover, if enacted, the offence would apply extra-territorially. The authors argue that these changes represent a retrograde step for the law and urge the government to reconsider. This is based on the fact that they are out of step with current social attitudes, are contrary to the spirit of anti-discrimination laws, and that they are unjustified in terms of child welfare concerns.

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Access to information about donors by donor-conceived individuals: A human rights analysis – Sonia Allan

While assisted reproductive treatment using donated gametes is widespread, and in many places, widely accepted, it has historically been shrouded in secrecy. Over time, however, there has been an increasing call from donor-conceived people, recipient parents and some donors to end the secrecy, and to release identifying information about donors to donor-conceived people. “Rights-based” arguments have at times been used to justify this call. This article examines whether a human rights framework supports the release of information and how such a framework might be applied when there are competing rights. It argues that the current balancing approach used to resolve such issues weighs in favour of release. Legal action has the potential to be legitimate and justifiable. A measure such as a contact veto system, which would serve to prevent unwanted contact with the person lodging the veto (either the donor or the donor-conceived person), would ensure proportionality. In this way, both donor-conceived people’s rights to private life, identity and family, and donors’ rights to privacy may be recognised and balanced.

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Cain v Australian Red Cross Society: The case for universal blood donation reform – Rodney Croome and Benedict Bartl

This article reports on a recent Australian decision in which an Anti-Discrimination Tribunal was asked to rule on whether the exclusion of homosexual men from blood donation amounted to discrimination. While the tribunal ultimately found that the Red Cross’s policy of “deferring” all donors who are men who have sex with men (MSM) within the last 12 months was “reasonable”, the case is an important step forward for advocates of blood donation reform, given the consensus reached by many of the experts who gave evidence and importantly the tribunal’s implicit rejection of the MSM donor deferral policies of most of the world’s industrialised countries, including the United States of America, Canada and much of continental Europe. The article concludes by calling on governments, research institutes and universities to initiate the needed medical and sociological studies so that ultimately blood donor suitability is determined on the specific question of sexual behaviour and not the clumsy, awkward and ultimately discriminatory MSM question that remains in operation.

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Sections

LEGAL ISSUES – Joanna Manning

• Criminal responsibility for the non-disclosure of HIV-positive status before sexual activity – Joanna Manning

MEDICAL ISSUES – Ian Freckelton SC

• Eyewitness identification law reform: The need for persistence – Ian Freckelton SC

BIOETHICAL ISSUES – Malcolm Parker

• “Forced sterilisation”: Clarifying and challenging intuitions and models – Malcolm Parker

MEDICAL LAW REPORTER – Thomas Faunce

• Planetary medicine and the Waitangi Tribunal Whanganui River Report: Global health law embracing ecosystems as patients – Tim Vines, Alex Bruce and Thomas Faunce

BOOK REVIEW

• The Good Doctor, What Patients Want by R Paterson

For the pdf version of the table of contents, click here: LOLA – JLM Vol 20 Pt 3 Contents or here: WAU – JLM Vol 20 Pt 3 Contents.

Click here to access this Part on Legal Online

Click here to access this Part on Westlaw AU

*Please note that the links to the content in this Part will direct you to Westlaw AU. If you are still using Legal Online, the links can be found in the LOLA PDF at the bottom of this post.

The latest issue of the Journal of Law and Medicine (Volume 20 Part 4) contains the following material:

GUEST EDITORIAL – Jenni Millbank, Isabel Karpin and Anita Stuhmcke

• Towards facilitative regulation of assisted reproductive treatment in Australia

Articles

Rethinking consent, information-giving and counselling concerning stored embryos within IVF treatment – Eloise Chandler, Anita Stuhmcke, Jenni Millbank and Isabel Karpin

This article presents findings on consent practices drawn from a larger research project about the impact of law, ethical guidelines and clinical policies and practices upon the decisions that people make about their stored embryos created during IVF. In exploring the process of decision-making about stored embryos, participants reflected upon their earlier experiences of clinic information-giving and counselling, particularly at the outset of treatment. The study found that the type and timing of the information given and the range of options presented by clinics in typical consent processes did not meet many participants’ needs. Informed consent processes in IVF involving the storage of embryos require a number of key changes. Consent to treatment and subsequent decisions about storage and further outcomes for stored embryos need to be addressed separately. To be effective, embryo directive forms should be accompanied by plain language explanations of their legal effects, including what elements are binding, the source of the rules governing decisions, and available formal and informal dispute resolution avenues. Consent and embryo directive forms should be made available on clinic websites to allow greater opportunity for reflection, as well as enabling patients to compare the options available at each clinic. Greater availability of ongoing counselling as well as other external sources of information are crucial to enable informed decision-making.

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Use of stored embryos in IVF following separation or death of a partner – Anita Stuhmcke, Isabel Karpin, Eloise Chandler and Jenni Millbank

When stored embryos are created through IVF, the individuals responsible for them are rarely contemplating what will happen to those embryos in the unexpected event of separation from their partner or death. This article draws upon the findings of a larger empirical study based upon interviews with people who have or have had embryos in storage. It explains the stark attitudinal difference of interviewees between what should happen to embryos following separation as opposed to the death of a partner and exposes confusion and uncertainty surrounding “consent” in these circumstances. In particular, on the subject of the posthumous use of embryos, the present research highlights a dramatic mismatch between law, consent forms and the express wishes of participants. This article concludes that current legal approaches are insufficiently nuanced to effectively resolve disputes concerning what will happen to stored embryos in the event of separation or death and recommends changes to law, the NHMRC Ethical Guidelines, and clinical policies and practices. The present authors advocate for the development of both formal and informal dispute resolution mechanisms and propose that the current position of the NHMRC Ethical Guidelines and State legislation requiring express written consent to posthumous use by the deceased be reversed.

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Embryo donation for reproductive use in Australia – Jenni Millbank, Eloise Chandler, Isabel Karpin and Anita Stuhmcke

This article presents empirical findings on embryo donation for the reproductive use of others in Australia, drawn from a larger research project about the impact of law, ethical guidelines and clinical policies and practices upon the decisions that people make about stored embryos created during IVF. The authors interviewed 10 people who had actually donated embryos for the reproductive use of others and four people who were recipients of donated embryos. In addition, another nine interviewees had attempted to donate, or had a strong desire to donate, but had been prevented from doing so. The article places the present findings in the context of Australian and international research on widespread unwillingness to donate for reproductive use of others. The article then examines why the donors interviewed here were willing and able to donate, and presents findings concerning the donation process and models in operation, including matching and counselling practices and the contentious question of “directed donation”. The article also reports the experiences of several “would-be” or thwarted donors and examines the rationales for some of the external barriers to donation identified in the course of the study.

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Analysing IVF participant understanding of, involvement in, and control over embryo storage and destruction in Australia – Isabel Karpin, Jenni Millbank, Anita Stuhmcke and Eloise Chandler

This article examines the impact of laws regulating the storage and destruction of embryos on the people most affected by them: individuals and couples who have engaged in IVF treatment. It presents findings from a large empirical study examining the impact of law, ethical guidelines and clinical policies and practices on the decisions that people make about stored embryos created during IVF. The authors support the continued storage of embryos where this is desired by patients and, equally, the destruction of embryos where this is desired by patients. Based on this research, they have crafted a number of recommendations that aim to respect the deeply emotional dimension of decision-making concerning stored embryos and their disposition and to maximise the opportunity for informed choice.

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Stem cells and regenerative medicine: From research regulation to clinical applications – Donald Chalmers, Peter Rathjen, Joy Rathjen and Dianne Nicol

Stem cell science has attracted widespread international interest in recent years. Stem cells are valuable tools for basic science. There are considerable hopes that stem cell technology may lead to treatments for degenerative diseases, such as Parkinson’s disease, and for ischemic events, such as stroke and heart attack. Stem cells may become sources for replacement and transplantation tissue for nerve, muscle, blood, liver, pancreatic and heart diseases. The science has accelerated over the last decade, especially since the discovery of pluripotent embryonic stem (ES) cells in humans in 1998. The term “regenerative medicine” is increasingly used as stem cell research moves towards clinical applications, such as trials to address macular degenerative disorders. This article examines the current state of the science of stem cell technology, the regulatory frameworks established for the derivation of stem cells, particularly from human embryos, which has attracted the greatest ethical and legal controversy, and the translation of stem cell research to clinical applications.

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Recent moves to compensate women who provide their eggs for research and implications for Australia – Loane Skene

In Australia, it is unlawful for women to be paid or otherwise rewarded for donating their eggs for use in medical research (or for treatment). The issue was considered and rejected in both reviews of the Australian federal legislation on human embryo research. However, compensation is permitted in some parts of the United States; and in the United Kingdom, women can gain fertility treatment more cheaply if they donate some eggs for research (a process called “egg sharing”). Recent policy reviews support some compensation for women who donate eggs for research. The collection of human eggs is invasive and may have risks. If women are compensated, it would not be for the eggs themselves. Women not undertaking fertility treatment would be compensated for the time, discomfort, inconvenience and potential health risks associated with egg collection. Women who are already having eggs collected for treatment would be compensated for the loss of a chance of pregnancy from an egg provided for research. The women would be compensated even if no eggs are collected, or the eggs are not suitable for research (but not if the women later change their minds and want to keep their eggs). This need not be a precedent for payment for the donation of organs or tissue, which can be distinguished from egg donation.

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Best interests of neonates: Time for a fundamental re-think – Neera Bhatia and Mirko Bagaric

This article examines the operation of the “best interests” test in relation to life and death decisions involving very young children. It is in this context that the best interests standard operates most acutely because it is not clouded by other considerations, especially individual autonomy. It argues that the standard is too obscure to provide an acceptable legal, medical and moral framework to inform life and death decisions. In particular, it argues that the basal assumption that underpins the test – that some lives are so pitiable that they should not continue – is conceptually flawed. This should prompt a fundamental reassessment of the test, whereby the legislature establishes concrete criteria regarding the application, scope and content of the standard.

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Adult guardianship: Law, autonomy and sexuality – The Hon Michael Kirby AC CMG

The history of the law governing adults considered incompetent to make decisions for themselves originated in England in the parens patriae powers of the King. Subsequently, legislation revealed repeated competition between due process objectives and help and care models. Recent law reform inquiries in Australia, partly influenced by the new United Nations Disabilities Convention, have tended to favour enhancement of personal autonomy, to the highest degree feasible. In 1993, the author, in Holt v Protective Commissioner (1993) 31 NSWLR 227, foreshadowed and encouraged this approach, to which he adheres. However, new challenges are arising in respect of sexual relations and activities by persons with diminished capacity. The author suggests that these issues too must be resolved with high respect for the subject’s personal autonomy. Particular questions arise in attempted denial of that autonomy affecting sexual minorities and these are described and some conclusions drawn.

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Rights, risks and the value of life: A critical analysis of the right to life under the European Convention on Human Rights – Alexander Green

The right to life has become increasingly debated in recent years and is of particular interest and importance to the medical profession. As it is enshrined under Art 2 of the European Convention on Human Rights, it is one of the most clearly developed provisions of that treaty. This article argues that courts assume the sanctity of life in their judgments and that judicial treatment of Art 2 constitutes an instrumental policy approach based on risk, rather than an attempt to remain loyal to rights-based reasoning. These two elements are criticised as antithetical to the concept of rights and a return to a rights-based approach is argued for.

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Contemporary practices in dementia research: Should the legal governance processes catch up to the clinical realities? – Richard Polkinghorn

Research involving people with dementia has grown exponentially in recent years as a result of the ageing population and the growing interest in research in this area. Many subjects cannot give informed consent to take part in the research, by virtue of their age and mental capacity, and are extremely vulnerable. It is ethically and legally unacceptable to exploit such people. However, it is argued that, in practice, researchers and members of ethics committees have difficulty applying the existing NHMRC and other guidelines because there is a “disconnect” between what is evident in theory and what happens in the reality of practice. This is demonstrated through an examination of the various procedures including informed consent, dual consent and the practice of both researchers and ethics committees. The article also recognises that researchers, clinicians and regulatory authorities must work collaboratively to achieve workable solutions that address the legal and ethical needs of this very vulnerable group of patients.

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Withholding and withdrawal of “futile” life-sustaining treatment: Unilateral medical decision-making in Australia and New Zealand – Lindy Willmott, Ben White and Jocelyn Downie

This article examines the law in Australia and New Zealand that governs the withholding and withdrawal of “futile” life-sustaining treatment. Although doctors have both civil and criminal law duties to treat patients, those general duties do not require the provision of treatment that is deemed to be futile. This is either because futile treatment is not in a patient’s best interests or because stopping such treatment does not breach the criminal law. This means, in the absence of a duty to treat, that doctors may unilaterally withdraw or withhold treatment that is futile; consent is not required. The article then examines whether this general position has been altered by statute. It considers a range of suggested possible legislation but concludes it is likely that only Queensland’s adult guardianship legislation imposes a requirement to obtain consent to withhold or withdraw such treatment.

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Sections

LEGAL ISSUES – Bernadette McSherry

• Torture and ill-treatment in health care settings: Lessons from the United Nations – Bernadette McSherry and Piers Gooding

MEDICAL ISSUES – David Ranson

• The Coroners Court and public communications: Delivering the prevention message – David Ranson

BIOETHICAL ISSUES – Grant Gillett

• Immunisation and minimally informed consent – Grant Gillett and Simon Walker

NURSING ISSUES – Kim Forrester

• Understanding law in clinical practice: Theory or reality? – Debra Griffıths

COMPLEMENTARY HEALTH ISSUES – Ian Freckelton SC

• Legal implications for complementary medicine practitioners of the New South Wales Health Practitioner Code of Conduct – Michael Weir

MEDICAL LAW REPORTER – Thomas Faunce

• Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65: Should gene patent monopolies trump public health? – Tim Vines and Thomas Faunce

BOOK REVIEW

• Stress, Trauma and Wellbeing in the Legal System by Monica Miller and Brian Bornstein

For the pdf version of the table of contents, click here: WAU – JLM Vol 20 Pt 4 Contents or here: LOLA – JLM Vol 20 Pt 4 Contents.

Click here to access this Part on Legal Online

Click here to access this Part on Westlaw AU

Recently published in the Journal of Law and Medicine at (2013) 20 JLM 723.

There is a fairly well formed doctrine of informed consent in Australasia that includes the kind of information that a reasonable doctor would impart, the information that a reasonable patient should expect to be given and any details of treatment that a particular patient would need to make a reasoned decision. Whereas this standard seems generally applicable in clinical practice, the situation is otherwise in public health. The ethical balance to be struck in public health-related choices is a little different due to several factors. These include the public interest in effective herd immunity, the practicalities of mass immunisation programs, the likelihood of subjective bias distorting an objectively reasonable choice, and the unreliability of anecdotal evidence regarding risks and benefits in this area. Four factors of ethical importance arise: a proper system of health governance and the trust it warrants; the likelihood that subjective assessments of risk and benefit may be misleading; the need for individual compliance in the service of a shared or public good; and the nature of adequate information for the relevant decision in relation to the objective best interests of members of a community. These combine to justify a less stringent standard for consent in certain public health settings.

Current laws, codes and guidelines require health care professionals to inform patients of the nature, purpose, benefits, side-effects and risks of a treatment or procedure before administering it. The level of information given should be determined in response to the particular needs and concerns of the individual patient, a standard – often referred to as the “subjective patient standard” – confirmed through the decision of Rogers v Whitaker (1992) 175 CLR 479.¹ This standard reflects a certain understanding of the ideal professional-patient relationship as a “partnership”, established on a platform of respect, collaboration and trust.

Immunisation is one aspect of health care practice where this model appears to be less applicable. Typically, immunisation procedures are carried out with an emphasis on efficiency, and little time and discussion are given to discerning whether the individual patient has particular questions or concerns about particular risks. This is not to say that the procedure is undertaken without concern for the patient, simply that the development of the relationship and ascertainment of her or his particular concern is not, in this context, considered a priority, and in some contexts seems practically unrealistic. This at least seems to be the case in mass vaccination programs, such as are annually offered by large institutions (including hospitals) to protect staff from seasonal influenza. In such programs an abbreviated or truncated clinical relationship appears to be required by the basic purpose, which is to safely vaccinate as many people as possible in as short a time as possible, and in a manner that causes minimal distress or disruption. Insisting on “full” verbal disclosure of the risks and benefits of immunisation for every patient would undermine this goal.

Nevertheless, these widespread and generally uncontroversial practices sit uneasily alongside public and governmental statements on immunisation,² which, in New Zealand, set the following demanding requirements for “vaccinators”:

Standard 2: The vaccinator obtains informed consent to immunise
Required characteristics of the vaccinator
2.1 Evidence-based information about the disease and vaccines must be given to individuals/parents/ guardians to enable them to make an informed choice and give informed consent.
2.2 The vaccinator communicates in a form, language and manner that enables the individual/parent/ guardian to understand the information provided. Communication should be supported by evidence-based health education material.
2.3 The vaccinator allows time to answer questions and obtains feedback indicating that the individual/parent/guardian understands which vaccine is being recommended and why.
2.4 The vaccinator informs the individual/parent/guardian about the NIR [National Immunisation Register] including information on the use and disclosure of the information held on the NIR, how the information is stored and that all vaccinations given will be recorded on the National NIR (if applicable) unless the individual/parent/guardian chooses to opt off the NIR …

The statements in which these requirements are set out explicitly invoke certain of the rights included in the Code of Health and Disability Consumers’ Rights, which functions as a legal standard for clinical encounters in the New Zealand setting, namely:

• Right 5: Right to effective communication;
• Right 6: Right to be fully informed; and
• Right 7: Right to make an informed choice and give informed consent.

Though these requirements are in close agreement with the general standards for clinical informed consent, they suggest a more extensive discussion than that standardly possible in the brief encounters of mass immunisation programs. One might take this as indicating that the standard requirements of informed consent are unrealistic or out of step with actual practice. Another response is to argue that our procedures to try and achieve immunisation outcomes are necessarily contrary to current ethical standards and that even though the practice could be regarded as a breach of patients’ rights, it should be permitted under the broad rubric of “practicality” and therefore as not a major concern in this setting. That stance smacks of a kind of “ad-hocery” that seems like an ethical compromise. An alternative response becomes available through a more analytical discussion of the desiderata for a range of clinical encounters in the context of a contemporary health system. In the case of immunisation, that would include a consideration of the balance between societal or institutional concerns such as access and justice for all, and the more individual requirements for consent to interventions as part of clinical care. We therefore need to explore the issues a little further to find a reason why this apparent attenuation of hard-won patient rights can properly be part of an ethically responsible health system.

We could opt for the view that notions of public or shared good legitimise tacit consent which marginalises the full requirements of individual informed participation in health practice, but that road is treacherous, for various reasons to do with transparency of government and dangers in health care attendant on the existence of major influential interest groups. The unhealthy relationship that many have noted between health industry players and policy-makers in certain contexts cautions those of us in a quasi-watchdog role as ethicists or advocates of consumers not to relax our guard.³

A different argument is available on the basis of the legitimate decision-making power of a “proper system of health care”.⁴ In such a context, “the underlying framework of shared goods and participation in the shared enterprise that is ‘a proper system’ of health care requiring individuals not to be moral free-riders has a certain ethical bite”. The upshot is that:

• “Respect for relevant values is secured by suitable safeguards in a proper system”;
• “There is no good reason for opting out of a proper system”; and
• “A proper system can presume consent except where explicitly consent cannot be obtained.”⁵

It then becomes important to spell out just what constitutes “a proper system” and what role it has in justifying lesser types of consent for immunisation than those required in general clinical practice. That case turns on several factors:

• the trustworthiness of health systems in relation to their guardianship/kaitiaki function vis-à-vis the health of the public;
• the nature of adequate information for the relevant decision in relation to the objective best interests of members of a community;
• the likelihood that subjective assessments of risk and benefit may be misleading; and
• the need for individual compliance in the service of a shared or public good.

A PROPER SYSTEM AND TRUSTWORTHINESS

A proper system of health care governance is one in which the concerns of individuals are not overridden or neglected but where the fairness of the system or its role in making good decisions for all is properly discharged. Such a system rationally weighs the factors of relevance to health care decisions, such as magnitude of distributed risk and fair use of resources to obtain maximum benefit to all those entitled to them (or, by reason of societal structure, dependent on collective decisions for their basic human rights to be respected). Such human rights in regard to health care could include adequate provision for individual wellbeing insofar as it is practicable within the collective commitments of the community and relevant to the health care system. They may not, for instance, include an unconstrained right to health care services no matter what the likely outcome nor may they include an unlimited right to life-saving interventions not generally considered within the bounds of reasonable medical health care practice.⁶ When such a system strikes the right balance between shared or public good and individual entitlement or responsibility, it can be considered trustworthy in terms of the shared values of the community supporting it and its required duties can be discharged with good conscience by the professionals involved. What is more, individual patients, as well as the public in general, ought to trust that the best will be done for them. A system violates this trust when those making health care decisions are also part of clandestine arrangements and unbalanced policies, eg at the behest of industry players or an insensitive professional elite. Such decisions often would not stand the scrutiny of a concerned public.⁷

ADEQUATE INFORMATION ABOUT OBJECTIVE BEST INTERESTS

It is part of the responsibility of a properly functioning system to foster a climate of open debate and policy-making that carefully weighs the evidence relating to any policies it adopts and makes balanced decisions about what, in general, will serve the best interests of those who depend on it for their health care. In the face of such decisions, special pleading on behalf of individuals or groups is not to be accorded unreasonable influence on what is done. For instance, were we to ask of the health system that it provide, for a small minority of those supporting it, treatments which would severely compromise its ability to care for the rest, then a decision not to do that might be the only one it could justly make. That stance leaves it open for the shortfall in available interventions to be made up outside the shared framework even though within it the stewardship of resources in the shared interest might be justly required. That policy may lead to high-profile tragedies and these might command public sympathy, but as a responsible guardian of community trust, those charged with the relevant decisions must, with due sensibility, be resolute. We often would like to do the most we can for all but there is sometimes a need to make the appropriate response rather than the response of desperate extravagance as a realistic ethical stance in a tragic situation. We are also committed to maximally valuing the life of every member of the community even though we routinely make what can seem like cynical choices that result in harm to the few.⁸ This occurs when, for instance, we set a speed limit knowing that at that speed, whatever it is, there is a certain speed-related effect on road traffic accident statistics. Parallel reasoning applies to immunisation: we adopt a community-wide health-related measure that is likely, on a statistical basis, to result in or allow certain harms to occur because of the net value to us all (even to the one adversely affected, given that he or she was part of a population for which a probabilistic net benefit was secured). To come out on the wrong side of a statistic is tragic when that wrong is severe morbidity or mortality but we live in a world of uncertainties and we have to pursue a policy of choice optimisation rather than absolute safeguards and guarantees.

THE LIKELIHOOD OF SUBJECTIVE DISTORTIONS

Immunisation is a long pay-off strategy for a society in that it is aimed at preventing future disease outbreaks which have only a statistical likelihood of adversely affecting any individual. The gains for a community from such initiatives are largely invisible in the short term and definitely not newsworthy even though they make a great deal of sense for health planners concerned with the health of populations. However, it only takes one case of a child suffering a highly visible or tragic complication from an immunisation to make a massive media impact and raise a spectre of fear in the mind of any parent. Thus, immunisation is a health intervention that is vulnerable to subjective distortion in the minds of members of the target population as individual decision-makers. Such interventions should not be subject to the irrationality of subjective bias because to allow that is to act, potentially or probablistically, to the detriment of all. Therefore, decisions in this area must be made on a more principled basis rather than each of us being allowed to make (or, worse, being set up to make) mistakes in judgment that are going to affect us all. Immunisation is a strategy in which this danger is very real: a series of badly made individual decisions could put all of us at risk on the basis of our shared herd immunity: a bad outcome that should be avoided rather than us being diverted from good policy by an undue quasi-ethical emphasis on (unrealistic) individual autonomy.

 THE NEED FOR INDIVIDUAL COMPLIANCE

To safeguard the shared guardianship role of health system decision-makers, individual compliance must be the statistical (and indeed prescriptive) norm that most of us follow to do what is best for all (or to avoid putting all at risk). In such a situation, “the whole nine yards” of informed consent, as it does and should apply to an individual clinical decision, must be attenuated because of the combination of our inevitable interdependence in relation to the specific issue involved and its vulnerability to subjective mistakes of judgment. It is fine for you to refuse any clinical treatment whatsoever for yourself when it is only you (and yours) who will bear the burden of that decision (assuming you have negotiated appropriately among those of you deeply concerned in the decision). It is not fine for you to have the same sovereignty over yourself when your decision has implications for us all.

We can therefore conclude that, in relation to immunisation, both the community as a whole and the individual have not only rights but also responsibilities. The community has a right to protect itself against bad decisions by its members but it also has a responsibility to operate a properly functioning health system in which the voices of those who are dependent on it are properly considered and good decisions made which serve the objective best interests of those concerned. These decisions would need to be made properly with a critical eye to the best evidence available and a freedom from community bias, for instance by a powerful lobby with a commercial bio-medical agenda. Given that that kind of vigilance and critical thinking is in place, it is in everybody’s best interests to be part of a group in which there is herd immunity (to a health threat) rather than one in which there is not. However, if you have such an interest, you have also an obligation to ensure that you do your part to allow it to be accommodated (the same goes for sharing the benefits of health-related research). Thus it is in your (objective) best interest to be immunised and you should (for reasons of the risk to all) not be encouraged or facilitated in reneging on that responsibility. For that reason, the sometimes perfunctory consent processes on behalf of children are ethically adequate in that it is (objectively) in every child’s best interest to be a member of a community sharing herd immunity, and the child is not yet capable of an autonomous decision otherwise. In fact, we could go further and say that we have a duty to immunise children just as we have a duty to protect them from the subjectively distorted judgments of adults leading to abuse or neglect in other areas of parenting. The fact that parents only have a moral right to decide for their children insofar as they are making decisions in their child’s best interests strengthens that obligation. This argument undercuts an individual’s right to insist on a standard of information that would seriously compromise the immunisation program. A similar relaxed view of minimally informed consent could be applied to large-scale, institutionally funded, immunisation programs (such as those described earlier), especially in health care institutions like hospitals. Here the argument for a presumption of consent and therefore less rigorous consent procedures is strengthened not only by duties to the immunisee but also by the consequences of members of the workforce carrying an illness and passing it onto patients.

This understanding of our “objective best interests” as served through the effective operation of a “proper system” does not overturn the standard ethical arguments related to doctor-patient relationships and informed choice. They are rather re-framed in relation to our wider societal interdependence, in ways that are already familiar in other areas of health care ethics, eg in the use of human tissue in research, the rule of rescue, and entitlements to extraordinary health care measures at any age.

Grant Gillett
DPhil (Oxon), FRACS (Neurosurgery); Professor of Medical Ethics, Dunedin Hospital and Otago Bioethics Centre, University of Otago Medical School, NZ
and
 Simon Walker
 PhD, MA; Lecturer in Bioethics, Otago Bioethics Centre.

¹ Gillett G and Walker S, “The Evolution of Informed Consent” in “Bioethical Issues” (2012) 19 JLM 673.
² See New Zealand Ministry of Health, Immunisation Handbook 2011, http://www.health.govt.nz/publication/immunisation-handbook-2011 viewed 28 February 2013.
³ Spielmans G and Parry P, “From Evidence-based Medicine to Marketing-based Medicine: Evidence from Internal Industry Documents” (2010) 7(1) Journal of Bioethical Inquiry 13.
⁴ Gillett G, “The Use of Human Tissue” (2007) 4(2) Journal of Bioethical Inquiry 119.
⁵ Gillett, n 4 at 124.
⁶ Honeybul S, Gillett GR, Ho KM and Lind CRP, “Neurotrauma and the Rule of Rescue” (2011) 37 Journal of Medical Ethics 707.
⁷ Healy D, “The Latest Mania: Selling Bipolar Disorder” (2006) 3(4) PLoS Med e185.
⁸ See Honeybul et al, n 6.

Journal of Law and Medicine (JLM)

From whistle-blowing to immunisation, genetic testing and professional legal responsibility, Issue 1 of Volume 21 will cover a broad range of topics at the interface of law and medicine. Articles include:

• “Is whistle-blowing now mandatory? The impact of mandatory reporting laws on trust relationships in health care” by Jayne Hewitt
• “Jabs and barbs: Ways to address misleading vaccination and immunisation information using currently available strategies” by Jon Wardle, Cameron Stewart and Malcolm Parker
• “Determining the risk of recidivism in previously de-registered health practitioners” by Laurie Warfe
• “A curious exception: (No) legal remedies for negligent pre-birth genetic testing” by Thomas Cleary
• “Work-related musculoskeletal injury and suicide: Opportunities for intervention and therapeutic jurisprudence” by Marie-Claire Davis, Joseph Elias Ibrahim, David Ranson, Joan Ozanne-Smith and Virginia Routley
•  ”Children and refusal of medical treatment: In urgent need of reform ” by Nicholas Lennings
•  ”Rights and research: An examination of research under the Code” by Lydia Wadsworth
•  ”The international right to health: State obligations and private actors in the health care system” by Paula O’Brien
•  ”Australian reforms enabling disclosure of genetic information to genetic relatives by health practitioners working in the private sector ” by Margaret Otlowski
•  ”Scoping the ethics of dementia research within an Australian human research context ” by Leslie Dowson, Colleen Doyle and Victoria Rayner
•  ”Professional legal responsibility of the sports physician” by Andrea Verzeletti
•  ”A minority report: Homebirth in Australia before and after the 2009 Maternity Services Review” by Jindalae Kim Skerman

 Environmental and Planning Law Journal (EPLJ)

Issue 4 of Volume 30 is a special issue containing papers from the National Environmental Law Association’s 2013 National Conference – “Discovering a Low Carbon Future”. The articles to be included in this issue explore the conference’s theme in a variety of ways and focus on both Australian and international environmental law. A number of options are discussed for lowering global carbon emissions, such as emissions trading, a carbon tax, further regulation and even litigation. Articles include:

• “The role of litigation in multi-level climate change governance: Possibilities for a lower carbon future?” by Hari M Osofsky and Jacqueline Peel
• “Regulating for sustainable electricity market outcomes in Britain: Asking the law question” by Aileen McHarg
• “Environmental dispute resolution – lessons from the States” by Judge Michael Rackemann
• “Design elements of emissions trading regulation in China’s pilot programs: Regulatory challenges and prospects” by Hao Zhang
• “Trading carbon the kiwi way” by Karen Price and Jessie Duffin 

*Please note that the links to the content in this Part will direct you to Westlaw AU. If you are still using Legal Online, the links can be found in the LOLA PDF at the bottom of this post.

The latest issue of the Journal of Law and Medicine (Volume 21 Part 1) contains the following material:

EDITORIAL – Ian Freckelton SC

• Stillbirth and the law: Options for law reform and issues for the coronial jurisdiction – Ian Freckelton SC

Articles

Determining the risk of recidivism in previously de-registered health practitioners – Laurie Warfe

Health practitioners who have been de-registered in the past due to serious professional misconduct pose significant challenges to registration boards and tribunals when applying for re-registration. These practitioners need to demonstrate to their professional regulatory body that they possess the necessary attributes expected of a member of a caring profession. Boards are obliged by legislation to decline to grant registration to any applicant if that person is deemed not fit and proper to be a member of the profession or who poses a risk to public safety. Studies have shown a significant incidence of repeated misconduct among previously de-registered practitioners and the exercise of reregistration requires an accurate assessment of this risk of recidivism. This article examines the incidence and risk of recidivism in previously de-registered health practitioners. It also discusses how boards may more accurately perform an assessment of the risk and thereby assist them to meet their statutory obligation of public protection.

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Is whistleblowing now mandatory? The impact of mandatory reporting law on trust relationships in health care – Jayne Hewitt

Trust is vital for promoting positive health care relationships aimed at achieving positive patient outcomes. Patients, as well as the broader society, trust that health care practitioners who have been granted authority by the state to provide safe and beneficial health care are competent to do so. Recent instances where patients have been harmed as the result of treatment that fell below the accepted standard of competence have negatively impacted on trust. As the state has a responsibility to protect the public from this type of harm, legislation that mandates reporting of certain instances where the behaviour of health care professionals has fallen below the acceptable standard has been introduced. While this may have been designed to restore public trust, this article argues that it has the potential to diminish trust on the basis that mandatory reporting may be equivalent to mandatory whistleblowing.

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A curious exception: (No) legal remedies for negligent pre-birth genetic testing – Thomas Cleary

This article analyses the ability of parents and resulting children to claim compensation for negligent pre-birth genetic testing in New Zealand. It looks first at whether the parents and/or the child can claim compensation under New Zealand’s statutory compensation scheme. It then assesses whether there are any remedies in tort, namely the torts of wrongful birth or wrongful life, that the parents or the child could use. It concludes that, at present, there is no legal ability for either the parents or the child to obtain compensation for negligent pre-birth genetic testing in New Zealand.

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Work-related musculoskeletal injury and suicide: Opportunities for intervention and therapeutic jurisprudence – Marie-Claire Davis, Joseph Elias Ibrahim, David Ranson, Joan Ozanne-Smith and Virginia Routley

This article presents evidence for the existence of a common trajectory from work-related musculoskeletal injury to suicide. Specifically, it is argued that the pathway from injury to suicide is typically mediated by three critical events: unsuccessful return to work; the development of chronic pain or disability; and suicidal ideation in the context of chronic pain. The moderating influence of systemic factors is also examined, along with opportunities for intervention at the individual and systemic levels, the latter arising from a therapeutic jurisprudence perspective.

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Children and refusal of medical treatment: In urgent need of reform – Nicholas Lennings

The ability of children to refuse medical treatment is far from certain. The New South Wales Law Reform Commission report on this topic, released in 2008, addressed a number of key concerns. As yet, no action on that report has been taken. Neither the present statutory nor common law regime provides sufficient guidance on this issue. The case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, while important, is not as far-reaching as it first appeared and has been subject to substantial limitations regarding refusals of treatment. Specifically, the position in relation to the assessment of competency, and the weight of a competent decision, remains outstanding. The ability of children to refuse medical treatment is in urgent need of attention and rectification.

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A minority report: Homebirth in Australia before and after the 2009 Maternity Services Review – Jindalae Kim Skerman

In 2009 the Australian Federal Government released its Maternity Services Review. Since then, homebirth has been virtually outlawed for those women who are unable to obtain one of the limited places on a publicly funded program. However, homebirth is a valid choice for women and advocating for homebirth does not reflect a desire to “turn back the clock”, as regard to the history of birth will show. At its core, the controversy over homebirth is about the control of pregnant women’s bodies, particularly when they make a choice about their bodies and their babies which sits outside of the mainstream. While only a minority of Australian women presently plan a homebirth, the issues surrounding the status of homebirth have wider implications for women and illustrate a troubling trend towards restricting choice through legal and administrative back-roads, without proper consideration of the risks or benefits involved.

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Jabs and barbs: Ways to address misleading vaccination and immunisation information using currently available strategies – Jon Wardle, Cameron Stewart and Malcolm Parker

Misleading vaccination information undermines confidence in vaccination and may lead to reductions in the effectiveness of vaccination programs. A number of regulatory techniques can be employed to challenge the spread of false information, including health care complaints, therapeutic goods laws, consumer protection laws and professional discipline. This article examines three case studies involving the publication of anti-vaccination information by non-professionally aligned organisations, by nonregistered health professionals, and by registered health professionals under the National Law. The article examines the effectiveness of different regulatory responses and makes suggestions for future strategies to deal with the publication of demonstrably false information regarding vaccination.

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Medical malpractice and the professional legal responsibility of the sports physician – Andrea Verzeletti

As with other medical specialties, litigation in sports medicine appears to be on the increase. In most countries, the applicable legal standard is “good medical practice” as identified with reference to the physician’s own field of specialisation: what is commonly done by physicians in the same specialty generally serves as the standard by which a physician’s conduct is measured. To enhance the quality of sports medicine practice, medical societies have been issuing guidelines for use by sports physicians, and a number of courts have recognised guidelines as evidence of good medical practice. One potential field of malpractice in sports medicine relates to privacy issues: an athlete should be asked to fill in a consent form if the medical information needs to be shared with other parties. Another relevant field is doping: for any act of drug prescription to be legally sound, sports physicians have to be aware of the requirements of the World Anti-Doping Agency Code and its international standards. Ultimately, the best way for sports physicians to avoid sources of liability is for them to keep up to date with the latest research and to act in a careful and diligent manner.

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Rights and research: An examination of research under New Zealand’s Code of Health and Disability Services Consumers’ Rights – Lydia Wadsworth

New Zealand’s Code of Health and Disability Services Consumers’Rights came into force in 1996 after Judge Silva Cartwright’s Cervical Cancer Inquiry concluded that a research study into the course of cervical cancer had taken place at National Women’s Hospital without the participants’ knowledge or consent. The Code creates rights in respect of the provision of health and disability services which explicitly extend to research. However, in the absence of a statutory definition of “research”, its meaning and the application of the Code to research in New Zealand are unclear. This article seeks to identify the gaps and find a solution.

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The international right to health: State obligations and private actors in the health care system – Paula O’Brien

Most health systems have historically used a mix of public and private actors for financing and delivering care. But the last 30 years have seen many rich and middle-income countries moving to privatise parts of their health care systems. This phenomenon has generated concerns, especially about equitable access to health care. This article examines what the international right to the highest attainable standard of health in Art 12 of the International Covenant on Economic, Social and Cultural Rights says about the obligations of states which use private actors in health care. The article involves a close study of the primary documents of the key institutions responsible for interpreting and promoting Art 12. From this study, the article concludes that in mixed public-private health care systems, states not only retain primary responsibility for fulfilling the right to health but are subject to a range of additional specific responsibilities.

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Scoping the ethics of dementia research within an Australian human research context – Leslie Dowson, Colleen Doyle and Victoria Rayner

Research with people with dementia can be ethically challenging because of the effects of dementia on cognitive function. A narrative literature review of ethical human dementia research was conducted, highlighting ethical challenges that can be categorised under the following themes: substitute judgment; how capacity can vary due to risks; barriers to recruiting people with dementia; how to determine capacity to give consent; and gaining assent rather than consent from participants. The results of the review were further analysed in relation to the Australian National Statement on Ethical Conduct in Human Research (National Statement). Gaps in the National Statement include: how capacity should be determined; what defines best interests; how assent and dissent by someone with dementia should be determined and respected; and whether or not people with dementia should be included in high-risk research.

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Australian reforms enabling disclosure of genetic information to genetic relatives by health practitioners – Margaret Otlowski

The familial nature of genetic information means that information about one family member may have relevance for the health of genetic relatives; however, patients are not always willing to share relevant information. This article outlines groundbreaking legislative developments in Australia which create a lawful pathway for health practitioners to make disclosure of genetic information to genetic relatives notwithstanding refusal by the patient to consent to such disclosure. The article traces the background to this reform, and its implementation through amendments to the Privacy Act 1988 (Cth) and the introduction of enabling guidelines. It examines the circumstances in which disclosure is permitted and the protocols established under guidelines and the strengths and limitations of these reforms. Pursuant to these changes, health practitioners are not legally obliged to make disclosure but are legally able to do so without breaching statutory privacy obligations. The aim is to encourage this as best practice in appropriate circumstances but questions remain regarding the interplay between ethics and law if disclosure is indicated but not made with adverse health consequences for the relatives.

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Sections

LEGAL ISSUES – Danuta Mendelson

• Opioid regulation: Time to reconsider the nomenclature and approach – Danuta Mendelson and George Mendelson

MEDICAL ISSUES – Danny Sullivan

• Disorders, sublime menu: The DSM-5 – Danny Sullivan

BIOETHICAL ISSUES – Malcolm Parker

• Double standards in special medical research: Questioning the discrepancy between requirements for medical research involving incompetent adults and medical research involving children – Nikola A Stepanov and Malcolm K Smith

MEDICAL LAW REPORTER – Thomas Faunce

• Disclosure of material risk as systems-error tragedy: Wallace v Kam (2013) 87 ALJR 648; [2013] HCA 19 – Thomas Faunce

LETTER TO THE EDITOR

• Death scene evaluation in hoarding disorders – Diogenes syndrome

BOOK REVIEW

• The Inheritor’s Powder: A Cautionary Tale of Poison, Betrayal and Greed by Sandra Hempel

For the pdf version of the table of contents, click here: LOLA – JLM Vol 21 Pt 1 Contents or here: WAU – JLM Vol 21 Pt 1 Contents.

Click here to access this Part on Legal Online

Click here to access this Part on Westlaw AU

Professor Loane Skene – image thanks to www.law.unimelb.edu.au

Now in its 21st year, the Journal of Law and Medicine (JLM) focuses on legal, medical and bioethical issues that arise at the dynamic nexus between people’s health and the law.

Professor Loane Skene of the University of Melbourne is the guest editor and coordinator of the upcoming December 2013 Special Issue of JLM. Titled Regulating the Use of Human Bodily Material, this Special Issue will include thought-provoking articles by a range of distinguished authors on how the law accommodates interests in the human body. A guest editorial by Professor Skene, Imogen Goold and Professor Jonathan Herring (both at the Faculty of Law of the University of Oxford) provides an overview of the topics covered, including the following:

• whether or not a property approach should be taken in regulating the use of human bodily material;
• whether the recognition of property rights in human tissue would enhance the protection of tissue donors’ interests;
• the law of gifts and conditional donation; and
• the status of extra-bodily DNA samples obtained by police.

Under the careful guidance of founding editor, Dr Ian Freckelton SC, JLM publishes approximately 240 pages of content every quarter, with all articles subject to peer review.

Journal of Law and Medicine General Editor Dr Ian Freckelton SC met with Thomson Reuters earlier this year to discuss some of the recurring themes of the Journal and highlight developments at the intersection of law and medicine.

Stay tuned to hear more insights from our team of expert authors.

*Please note that the links to the content in this Part will direct you to Westlaw AU.

NB: Please note that Legal Online will be decommissioned on 31 December 2013. From now on, all updates will include links for Westlaw AU only (with the exception of the Journals available on Checkpoint, which will have an extra PDF). For further information, please click here.

The latest issue of the Journal of Law and Medicine (Volume 21 Part 2) contains the following material:

GUEST EDITORIAL – Loane Skene, Imogen Goold and Jonathan Herring

• Regulating the use of human bodily material

Articles

Relational bodies – Jonathan Herring and P-L Chau

This article argues that debates over the legal status of bodies reveal a much deeper dispute over the nature of the self. In these discussions lawyers and ethicists have much to learn from a more profound understanding of the biological nature of the body. Far from being a static entity, the body is constantly recreating itself. It contains parts that are organisms in their own right. Bodies are dependent upon other bodies and the external environment for survival. The complex biological picture reflects a philosophical truth that bodies are interdependent and “leaky”. We should not, therefore, expect a single legal regime, such as property, to capture the biological and ethical values that are at stake in relation to every part of the body. A more complex statutory regime is required to recognise the complexity of the interests in, and nature of, different body parts.

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Property or not property? The spectrum of approaches to regulating the use of human bodily material – Imogen Goold

This article presents the case for taking a property approach in regulating the use of human bodily material. It examines the current debates on the issue and outlines the various perspectives, ranging from the anti-property stance, through the spectrum of positions on modified and semi-proprietary approaches, through to the “full-blooded” property approach advocated by some commentators. It elucidates why those approaches that allow some proprietary aspects into regulation are to be preferred.

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 “Thin” property and controversial subject matter: Yanner v Eaton and property rights in human tissue and embryos – Lyria Bennett Moses and Nicola Gollan

This article examines the definitions of “property” offered by the majority of the High Court of Australia in the case of Yanner v Eaton (1999) 201 CLR 351, which involved a statute giving the Crown “property” in fauna. It argues that the majority judges in that case endorsed a flexible or “thin” conception of property that is consistent with recognition of property in “things” such as excised human tissue and in vitro human embryos, despite the many differences between such “things” and ordinary chattels. A similar flexible conception of property was also an important factor in the United Kingdom case of Yearworth v North Bristol NHS Trust [2010] QB 1.

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Making something into nothing: Reforming the “no property” rule for human tissue – Nicolas Rolf

Advances in medical science have redefined the use and worth of once useless human tissue. The Australian common law has not kept pace with these advances, perpetuating the “no property” rule in human tissue. This has led to a plethora of legal problems surrounding who owns human tissue. This article examines the Australian common law position in relation to regenerative tissue. It then compares it with approaches in the United States and the United Kingdom. With a focus on absurd or unethical outcomes in these jurisdictions, it illustrates how such situations will occur in Australia. Finally, it proposes a framework of property rights that could be adopted at common law to prevent these problems without the commodification of human tissue occurring.

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Body ownership and research – Rebekah E McWhirter, Dianne Nicol, Don Chalmers and Joanne L Dickinson

This article questions whether recognition of property rights in human tissue would enhance protection of the interests of donors of tissue used for research purposes. Best practice already obliges researchers to comply with a range of legal and ethical obligations, with particular focus on informed consent and research transparency. A number of lawsuits relating to research use of human tissue emphasise the central importance of informed consent to donors. Informed consent of communities, as well as individuals, becomes essential when engaging in research with indigenous peoples. Increasingly, genetic researchers are adopting participatory governance as a model for working with communities to develop culturally appropriate genetic studies that address health problems that are priorities for the communities involved. The transparency of the participatory governance model means that participants feel that their autonomy is respected and that their interests are being represented throughout the research process. The question of ownership of samples becomes irrelevant as control is codified through alternative mechanisms.

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Stepping back from the property line: A perspective from regulatory theory – Chris Dent

There are multiple populations affected by issues associated with the excision and use of human tissue, each with different interests. There are also multiple subject matters for regulation; multiple regulatory goals that inform the system; and multiple strategies that may contribute to the attainment of those goals. This article outlines a range of regulatory mechanisms and suggests that a property regime is only one method of regulation in this area. Others may need to be considered to take account of the interests of all who may be affected.

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Establishing the offence of non-consensual genetic testing in Australia: A call for action – Margaret Otlowski

A criminal offence should be created in Australia for non-consensual genetic testing. This has been recommended in several law reform inquiries due to the sensitive and personal nature of genetic information, and the real potential for harm that non-consensual genetic testing can cause. Since those recommendations were made, the potential for misuse of genetic information has increased, with new methods to easily access large quantities of genetic material and information, such as whole genome sequencing and the increasing availability of direct-to-consumer genetic testing. Some countries have already created an offence of non-consensual genetic testing and their provisions are considered and compared.

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Biobanking of blood and bone marrow: Emerging challenges for custodians of public resources – Lorena Aparicio, Wendy Lipworth, Shih-Ning Then, Cameron Stewart, Patrick Coghlan, Ian Kerridge and Jennifer Fleming

The Australian Bone Marrow Donor Registry (ABMDR) is a publicly funded company that is part of an international network that facilitates unrelated bone marrow transplantation. This role means that the ABMDR has access to a large biospecimen repository, therefore making it a highly valuable research resource. Recognising the potential value of these biospecimens for research purposes, the ABMDR is in the process of determining whether, and how, to share its biospecimens with other biobanks. While this would undoubtedly be of value to the scientific community, and ultimately to the wider community, it would also inevitably transform the role of an institution whose primary role is therapeutic, and would compromise the degree of control that a custodian has over donated material. This article describe the challenges confronting the ABMDR, and organisations like it, in balancing their duties to donors, patients, researchers and the general public. These problems have led inevitably to the use of “property” rights language in the discussion of these issues but notions of gift, ownership, trusteeship and transfer might also be considered.

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The law of gifts, conditional donation and biobanking – Cameron Stewart, Jennifer Fleming and Ian Kerridge

Tissue banks are critical to research efforts into the causes and treatment of many diseases. Biobanks are created from donated tissue but property concepts have not played a major role in understanding methods of the collection and use of tissue. Little work has been done to study the proprietary dimensions of these gifts primarily because of the influence of the res nullius rule. Instead, the primary focus of studies has been the concept of informed consent, but this has proven to be problematic. This article examines how the law of gifts can help to resolve these difficulties. It argues that the concept of conditional donation is a more useful way to understand and explain how tissue can be donated to biobanks. The article also suggests ways that conditional donation could be regulated so as to balance the needs of researchers and the concerns of donors.

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Property in recyclable artificial implants – Jamie Glister and Tony Glister

This article discusses property rights in recyclable artificial implants such as pacemakers. These implants can remain useful and valuable after the death of the first user, but it is not clear who owns the devices when they are removed. The article explains how property rights are transferred consensually and by the operation of law. It then applies these principles to the problem of recyclable implants and argues that the central question is whether the device in any given case accedes to its host human body. If it does not, then on removal the device is owned by the same person who owned it when it was first implanted: this may be the first user or their estate, or a hospital, or even a manufacturer. On the other hand, if the device does accede to the host body, then it ceases to exist as an independent object. The thing into which it has merged, a living human body, cannot be the subject of property rights. This means that any earlier rights in the implant are lost, and would not revive on removal. Instead, new property rights may attach to an explanted device.

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Extra-bodily DNA sampling by the police – Jeremy Gans

Forensic investigators have statutory powers to take DNA samples directly from suspects’ bodies in certain circumstances but sometimes the powers fall short, legally or practically. Police may then look for samples that have become separated from their suspects for one reason or another. No jurisdiction currently bars or even regulates this practice, which is instead loosely governed by laws on property, consent and evidence. This article argues that this lack of regulation undermines the entire system of forensic procedure laws.

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Who owns your body? Patricia Piccinini and the future of bioethics – Matthew Rimmer

This article analyses some popular cultural representations of biotechnology, especially the artistic work of the Australian artist Patricia Piccinini to reflect on the role of law, technology and ethics in relation to bodily material. Her view that “with creation … comes an obligation to care for the result”, so evident in her poignant pictures, is a sober reminder to us of our responsibilities in regulating new technologies.

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How are pharmaceutical patent term extensions justified? Australia’s evolving scheme – Charles Lawson

This article examines the evolving patent term extension schemes under the Patents Act 1903 (Cth), the Patents Act 1952 (Cth) and the Patents Act 1990 (Cth). The analysis traces the change from “inadequate remuneration” to a scheme directed specifically at certain pharmaceuticals. An examination of the policy justification shows there are legitimate questions about the desirability of any extension. The article concludes that key information provisions in the Patents Act 1990 (Cth) that might assist a better policy analysis are presently not working and that any justification needs evidence demonstrating that the benefits of patent term extensions to the community as a whole outweigh the costs and that the objectives of extensions can only be achieved by restricting competition.

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Plagiarism and registered health professionals: Navigating the borderlands between scholarly and professional misconduct – Jon Wardle

As access to published materials becomes more readily available, the ability to plagiarise material, deliberately or unwittingly, has become easier than ever. This article explores important recent decisions in Australia and the United Kingdom regarding registered health practitioners who have engaged in plagiarism, both related and unrelated to their clinical practice, and explores the ways in which regulatory authorities in these countries have viewed scholarly misconduct committed by registered health professionals. This article also examines the implications of plagiarism for the registered health professions, and makes suggestions for strategies to reduce its influence and incidence in modern clinical practice.

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Destination death: A review of Australian legal regulation around international travel to end life – Sarah Steele and David Worswick

Travel for euthanasia or assisted suicide – so-called “death tourism” – is a controversial emerging subset of medical travel. Both anecdotal reports and research indicate that individuals from around the world, including Australians, are travelling abroad to source medications or procedures that hasten death. This article surveys the laws that govern these markets, and asks – using the Australian framework as a case study – whether current criminal laws are themselves facilitating, even driving, this new form of medical travel. It is suggested that the complex, uncertain and often problematic nature of provisions around assisting death in Australia is making euthanasia travel increasingly desirable for those wishing to end their lives.

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Regulating impaired doctors: A snapshot from New South Wales – Helen Kiel

This article examines the regulation of impaired doctors in Australia and explores the inherent tensions in the new Health Practitioner Regulation National Law in attempting to both treat the doctor and protect the public. It discusses both informal and formal mechanisms of regulation with particular reference to therapeutic jurisprudence and mandatory notification. It focuses particularly on New South Wales and examines all the impairment cases which resulted in disciplinary proceedings in the Medical Tribunal of New South Wales in 2010. It identifies the most common forms of impairment and discusses the particular challenges that impaired doctors pose for regulators.

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Responsibility for reporting patient death due to hospital error in Japan when an error occurred at a referring institution – Shoichi Maeda, Jay Starkey, Etsuko Kamishiraki and Noriaki Ikeda

In Japan, physicians are required to report unexpected health care-associated patient deaths to the police. Patients needing to be transferred to another institution often have complex medical problems. If a medical error occurs, it may be either at the final or the referring institution. Some fear that liability will fall on the final institution regardless of where the error occurred or that the referring facility may oppose such reporting, leading to a failure to report to police or to recommend an autopsy. Little is known about the actual opinions of physicians and risk managers in this regard. The authors sent standardised, self-administered questionnaires to all hospitals in Japan that participate in the national general residency program. Most physicians and risk managers in Japan indicated that they would report a patient’s death to the police where the patient has been transferred. Of those who indicated they would not report to the police, the majority still indicated they would recommend an autopsy.

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Paradoxical justice: The case of Ian Tomlinson – Rebecca Scott Bray

On 1 April 2009, 47-year-old London newspaper vendor Ian Tomlinson collapsed and died during the G20 protests in central London. The initial autopsy found death consistent with “natural causes”. However, that finding was disputed after the public release of mobile phone video footage showing a police officer striking and pushing Tomlinson to the ground. The release of this footage changed the course of events in the case: further post-mortem examinations found blunt force trauma to Tomlinson’s body; the Independent Police Complaints Commission launched a criminal investigation; and a coronial inquest opened that was presided over by public order policing expert Judge Peter Thornton QC. On 3 May 2011, a coronial jury delivered a verdict of “unlawful killing”, finding police actions against Tomlinson “excessive and unreasonable”. The Crown Prosecution Service then revised its decision not to prosecute the officer filmed striking and pushing Tomlinson, and on 19 July 2012 the officer was acquitted of manslaughter. This case highlights a number of key issues discussed in this article, including the symbolic and practical importance of open inquests in allaying suspicion and rumour; the ordeal of death investigation proceedings as obstacles to justice; and the seeming contra-indications for justice thrown up by divergent legal outcomes. In high-profile matters such as the Tomlinson case, these issues are further underscored by the “new publicity” around inquests in a multi-media digital age.

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Privacy protectionism and health information: Is there any redress for harms to health? – Judy Allen, C D’Arcy J Holman, Eric M Meslin and Fiona Stanley

Health information collected by governments can be a valuable resource for researchers seeking to improve diagnostics, treatments and public health outcomes. Responsible use requires close attention to privacy concerns and to the ethical acceptability of using personal health information without explicit consent. Less well appreciated are the legal and ethical issues that are implicated when privacy protection is extended to the point where the potential benefits to the public from research are lost. Balancing these issues is a delicate matter for data custodians. This article examines the legal, ethical and structural context in which data custodians make decisions about the release of data for research. It considers the impact of those decisions on individuals. While there is strong protection against risks to privacy and multiple avenues of redress, there is no redress where harms result from a failure to release data for research.

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Sections

LEGAL ISSUES – Bernadette McSherry

• The legal regulation of seclusion and restraint in mental health facilities – Bernadette McSherry

MEDICAL ISSUES – David Ranson

• Using existing information from medico-legal death investigations to improve care of older people in residential aged care services – Joseph Elias Ibrahim, Lyndal Bugeja and David Ranson
• Sexual misbehaviour in the Australian Defence Force – Angela Williams and David Ranson

BIOETHICAL ISSUES – Grant Gillett

• Consent, competence and lies to children: Veracity in paediatric care – Maeve McMurdo, Nikki Kerruish and Grant Gillett

NURSING ISSUES – Kim Forrester

• A new beginning for health complaints in Queensland: The Health Ombudsman Act 2013 (Qld) – Kim Forrester

MEDICAL LAW REPORTER – Thomas Faunce

• Government control over health-related not-for-profit organisations: Agency for International Development v Alliance for Open Society International Inc 570 US __ (2013) – Tim Vines, Angus M Donohoo and Thomas Faunce

BOOK REVIEW

• Unholy Trinity: The Hunt for the Paedophile Priest, Monsignor John Day by Denis Ryan and Peter Hoysted

For the pdf version of the table of contents, click here: WAU – JLM Vol 21 Pt 2 Contents.

Click here to access this Part on Westlaw AU

*Please note that the links to the content in this Part will direct you to Westlaw AU.

NB: Please note that from now on, all updates will include links for Westlaw AU only (with the exception of the Journals available on Checkpoint, which will have an extra PDF). For further information, please click here.

The latest issue of the Journal of Law and Medicine (Volume 21 Part 3) contains the following material:

EDITORIAL – Ian Freckelton SC

• The ethics and regulation of overcharging: Issues in the commerciality of the health practitioner-patient relationship – Ian Freckelton SC

Articles

Intake rigour: Ensuring only “reportable deaths” become coroners’ cases – Michael Barnes, Ainslie Kirkegaard and Belinda Carpenter

The failure of medical practitioners to discharge their obligation consistently to report sudden or unnatural deaths to coroners has rightly prompted concern. Following recent public scandals, coroners and health authorities have increasingly developed procedures to ensure that concerning deaths are reported to coroners. However, the negative consequences of deaths being unnecessarily reported have received less attention: unnecessary intrusion into bereavement; a waste of public resources; and added delay and hindrance to the investigation of matters needing a coroner’s attention. Traditionally, coroners have largely unquestioningly assumed jurisdiction over any deaths for which a medical practitioner has not issued a cause of death certificate. The Office of the State Coroner in Queensland has recently trialled a system to assess more rigorously whether deaths apparently resulting from natural causes, which have been reported to a coroner, should be investigated by the coroner, rather than being finalised by a doctor issuing a cause of death certificate. This article describes that trial and its results.

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Coronial law and practice: A human rights perspective – Ian Freckelton SC and Simon McGregor

Coronial law and practice inevitably impact upon the human rights of those affected by deaths. It is important that such rights be incorporated in how death investigations, up to and including coronial inquests, take place. This article explores the significant impact of the jurisprudence emanating from the European Court of Human Rights, as well as the application of such law by the courts of the United Kingdom and potentially in other countries. It argues that viewing the work of coroners through the lens of human rights is a constructive approach and that, although in the coronial legislation of Australia and New Zealand, many human rights, especially those of family members, and civil liberties are explicitly protected, there remain real advantages in reflecting upon compliance with human rights by death investigation procedures and decision-making.

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An empirical approach to the New Zealand government’s review of the coronial jurisdiction – Jennifer Moore

Given the public profile of New Zealand coroners, it is surprising that there has been limited empirical research about coroners’ decision-making. This article uses evidence from New Zealand’s first empirical study of coroners’ recommendations to discuss the New Zealand government’s recent review of the coronial jurisdiction. In June and October 2013, New Zealand’s Courts Minister announced proposed changes to the coronial system. Several of the Minister’s proposals are consistent with the empirical evidence, but there are also significant gaps in the review. The Minister’s review acknowledges the importance of coroners’ preventive function, but will the proposals enable New Zealand’s coronial law to achieve its full preventive potential? The empirical evidence suggests that the prophylactic potential of coroners’ recommendations is not being maximised.

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An absurd inconsistency in law: Nicklinson’s case and deciding to die – Michael Douglas

R (Nicklinson) v Ministry of Justice [2012] EWHC 2381 was a tragic case that considered a perennial question: whether voluntary, active euthanasia is murder. The traditional position was affirmed, that is, it is indeed murder. The law’s treatment of decisions to refuse treatment resulting in death is a stark contrast to the position in respect of voluntary, active euthanasia. In cases of refusing treatment, principles of individual autonomy are paramount. This article presents an overview of the legal distinction between refusing medical treatment and voluntary, active euthanasia. It questions the purported differences between what are described as acts of “active” or “passive” euthanasia. It also highlights the inconsistency of the law’s treatment of different ways that people decide to die.

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Consent versus scrutiny: Restricting liberties in post-Bournewood Victoria – Michael Williams, John Chesterman and Richard Laufer

The article considers the problem of people with impaired capacity who face restrictions on their liberty but who are compliant with such practices. The issue has bedevilled courts and law reform commissions throughout the common law world since HL v United Kingdom [2004] ECHR 471 exposed the legal “gap” in which such people were languishing. Proposals to address it have either been excessively complex, or largely concerned with the mechanism for lawful consent to restrictive practices rather than scrutinising the practices themselves. The article critically discusses these proposals and argues that a suitable, if not ideal, regime for regulating the problem already exists in the Victorian Disability Act 2006.

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Safety, risk and mental health: Decision-making processes prescribed by Australian mental health legislation – Jennifer Smith-Merry and Andrew Caple

Adverse events in mental health care occur frequently and cause significant distress for those who experience them, derailing treatment and sometimes leading to death. These events are clustered around particular aspects of care and treatment and are therefore avoidable if practices in these areas are strengthened. The research reported in this article takes as its starting point coronial recommendations made in relation to mental health. We report on those points and processes in treatment and discharge where coronial recommendations are most frequently made. We then examine the legislative requirements around these points and processes in three Australian States. We find that the key areas that need to be strengthened to avoid adverse events are assessment processes, communication and information transfer, documentation, planning and training. We make recommendations for improvements in these key areas.

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Medical practitioner regulation: Is it all about protecting the public? – Katie Elkin

This article explores the purpose of professional regulation as it applies to medical practitioners in Australia and New Zealand. Purpose is considered in terms of regulatory theory, legislative statement, judicial commentary, and the realities of who and what is regulated and by whom. It is considered both in relation to the regulatory framework as a whole, and more specifically in relation to the disciplinary system that operates as a critical component of that framework. The author concludes that the dominant purpose of medical practitioner regulation should be the protection of the public, particularly when it comes to disciplinary decision-making. While it may be reasonable for broader public interest considerations, such as workforce supply, to be taken into account when it comes to making registration decisions, extreme caution should be exercised in allowing such considerations to influence disciplinary decisions.

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An analysis of Australia’s legal regime for imposing liability on manufacturers of pharmaceutical drugs – Mabel Tsui

Following a trial in June 2009 where the Federal Court heard submissions regarding whether Merck Sharpe and Dohme Australia (MSDA) should be held liable for an increased risk of cardiovascular conditions noted in patients who had taken the anti-inflammatory drug Vioxx, a judgment was handed down against MSDA in March 2010. MSDA then appealed to the Full Federal Court, where it was successful. A subsequent special leave to appeal application to the High Court of Australia was rejected in May 2012. This article examines the themes raised in the trial judgment and the appropriateness of Australia’s statutory consumer protection regime through the lens of pharmaceutical drug injuries and side effects.

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The art of apportionment: Working out responsibility for health care misadventures – Timothy Bowen

When something goes wrong in the provision of health care, it is often unclear who might be at fault, and whether they actually are at fault. A necessity and strength of modern health care is the variety of professionals who participate in it, who differ in their respective roles and expertise. Trying to work out who did what can be difficult, and whether they did something wrong often more so. So when one arrives at the task of working out whether one party is more to blame than the other, it is rarely a straightforward exercise. Arriving at a percentage figure to identify a party’s blameworthiness might seem superficially simple, but it often requires the balancing of a bewildering array of various factors, over which different minds are commonly at odds.

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Ethical, legal and social issues to consider when designing a surrogacy law – Merryn Elizabeth Ekberg

The aim of this article is to address the ethical, legal and social issues that arise when a woman becomes pregnant and gives birth to a child with the intention of surrendering this child to another woman or couple. The secondary aim is to offer some recommendations that will be beneficial for the lawmakers, policymakers and regulators who design and enforce the rules and regulations that govern surrogacy arrangements. The article considers both commercial and altruistic surrogacy and highlights some of the similarities and differences between the two. Beginning with the initial question of whether surrogacy should be legal, the controversial questions raised relate to the time before conception, during the pregnancy and after the birth of the child. The article concludes that surrogacy arrangements are ethical and should be legal because they enable the medically and socially infertile, including singles and same-sex couples, the opportunity to become parents and to enjoy the lifelong pleasures of parenthood. For many, this will be the strongest argument for the legalisation of surrogacy and the greatest benefit to arise from surrogacy arrangements.

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Sections

LEGAL ISSUES – Joanna Manning

• Changing disciplinary responses to sexual misconduct by health practitioners in New Zealand – Joanna Manning

MEDICAL ISSUES – Mike O’Connor

• The Australian National Disability Insurance Scheme for cerebral palsy: An end to the “forensic lottery”? – Mike O’Connor
• Sexual violence in armed conflict: The least condemned of war crimes – Mike O’Connor

BIOETHICAL ISSUES – Malcolm Parker

• “See you next week – Unless I’m dead” – Malcolm Parker

COMPLEMENTARY HEALTH ISSUES – Ian Freckelton SC

• Aboriginal and Torres Strait Islander health practitioner regulation – Ian Freckelton SC

MEDICAL LAW REPORTER – Thomas Faunce

• Commissions of audit in Australia: Health system privatisation directives and civil conscription protections – Caroline Colton and Thomas Faunce

BOOK REVIEW

• Damned If I Do by Philip Nitschke with Peter Corris

For the pdf version of the table of contents, click here: WAU – JLM Vol 21 Pt 3 Contents.

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The latest issue of the Journal of Law and Medicine (Volume 21 Part 4) contains the following material:

EDITORIAL – Ian Freckelton QC

• Fitness to stand trial under international criminal law: The historical context – Ian Freckelton QC and Magda Karagiannakis

Articles

Unfitness to stand trial decision-making in the Extraordinary Chambers in the Courts of Cambodia – Ian Freckelton QC and Magda Karagiannakis

In the small number of trials for matters such as genocide and crimes against humanity that have taken place before the Extraordinary Chambers in the Courts of Cambodia, by 2014 three occasions had arisen in which the fitness of the accused persons to participate in their trials had become contentious. This is hardly surprising given that the key period of Khmer Rouge government occurred a very long while ago – between 1975 and 1979. The accused persons are all aged. In two instances, the Trial Chamber of the Courts of its own motion sought expert evaluations of the accused persons’ fitness to stand trial and, promptly, upon receipt of such reports, determined them to be fit by reference to criteria utilised by the Appeal Chamber of the International Criminal Court for the Former Yugoslavia (the ICTY). In the other instance an accused person, Ieng Thirith, was found unfit to stand trial and a range of important issues was traversed as to the measures that can properly be taken to try to render a person fit for trial and how legitimate the imposition of detention for that purpose is, and then how legitimate encroachments on a person’s civil liberties are to monitor them if there is only a remote possibility that their mental state might improve. It is likely that the balance adopted by the Supreme Court Chamber in the Courts of Cambodia in making significant efforts to render an accused person fit for trial and then in continuing to monitor their mental state when such efforts do not bear fruit, instead of simply releasing them back into the community, will stand as an important precedent for future occasions under international criminal law when issues of fitness to stand trial and how they should be handled arise.

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Legal risk management and injury in the fitness industry: The outcomes of focus group research and a national survey of fitness professionals – Patrick Keyzer, Ian R Coyle, Joachim Dietrich, Kevin Norton, Betul Sekendiz, Veronica Jones and Caroline F Finch

The Australian Fitness Industry Risk Management (AFIRM) Project was set up to explore the operation of rules and regulations for the delivery of safe fitness services. This article summarises the results of recent focus group research and a national survey of risk management practices by the AFIRM Project. Our focus group research in four States identified the following most important concerns: (1) the competency of fitness professionals; (2) the effectiveness of pre-exercise screening and the management of de-conditioned clients; (3) poor supervision of fitness service users and incorrect use of equipment; (4) fitness trainers failing to remain within their scope of practice; (5) equipment misuse (as distinct from incorrect use); and (6) poor fitness training environments. This information was then used to develop 45 specific items for a questionnaire that was disseminated throughout the fitness industry. The survey, which is the largest ever conducted in the Australian fitness industry (n=1,178), identified similar concerns. Our research indicates that efforts to improve risk management in the fitness industry should focus, first and foremost, on the development and monitoring of safety policy, and improvements in the education and training of fitness instructors to ensure that they can incorporate risk management practices.

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Just a little bit more: When sports scientists cross the line – Tyler Fox

Sports science has attracted controversy for the role it plays in an athlete’s career and health, but Australian jurisprudence lacks any discussion of their criminal and civil liability when athletes suffer personal or professional harm. This article explores how liability may attach to both sports doctors and sports scientists in the future based on principles from current case law. It finds that criminal and civil liability attaching to personal harm could be proven, provided that consent to the risks or the treatment has not been given. Establishing professional harm caused by negligent advice regarding whether a substance does not comply with the World Anti-Doping Code is arguable considering the athlete’s vulnerability to be exposed to sanctions. Expert evidence regarding what, and how a substance, is taken will be crucial to establishing causation in manslaughter prosecutions.

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Beauty is only photoshop deep: Legislating models’ BMIs and photoshopping images – Marilyn Krawitz

Many women struggle with poor body image and eating disorders due, in part, to images of very thin women and photoshopped bodies in the media and advertisements. In 2013, Israel’s Act Limiting Weight in the Modelling Industry, 5772-2012, came into effect. Known as the Photoshop Law, it requires all models in Israel who are over 18 years old to have a body mass index of 18.5 or higher. The Israeli government was the first government in the world to legislate on this issue. Australia has a voluntary Code of Conduct that is similar to the Photoshop Law. This article argues that the Australian government should follow Israel’s lead and pass a law similar to the Photoshop Law because the Code is not sufficiently binding.

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Medical use of cannabis in Australia: “Medical necessity” defences under current Australian law and avenues for reform – Charles Martin

The possession of cannabis is an offence in all Australian jurisdictions. No exception is made for medical use under any of the State and Territory Drug Acts, nor the Commonwealth’s pharmaceutical regulation scheme. Nevertheless, questions remain about the scope for defences argued on the basis of necessitous medical use. More fundamentally, the increasingly favourable light in which the medical use of cannabis is growing to be seen by state and national legislatures overseas raises important questions about the need for reform of Australian drug laws. This article explores those questions.

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Patents and the obligation to protect health: Examining the significance of human rights considerations in the protection of pharmaceutical patents – Olasupo Ayodeji Owoeye

This article discusses the human right to health in the context of patent protection and access to medicines. It considers the limitations in international human rights law, especially in relation to socioeconomic rights, that make it difficult for the right to health to be a potent justification for derogation from trade or intellectual property agreements. The article takes the view that while the right to health may be somewhat unenforceable in international law, its close association with enforceable rights such as the right to life can be a legitimate basis for making maximum use of the flexibilities in the international intellectual property regime to protect public health. It also argues that trade and intellectual property agreements must be interpreted in a way that endeavours to resolve where possible any seeming inconsistency with the right to health.

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“Best interests” and withholding and withdrawing life-sustaining treatment from an adult who lacks capacity in the parens patriae jurisdiction – Lindy Willmott, Ben White and Malcolm K Smith

Disputes about withholding and withdrawing life-sustaining treatment are increasingly coming before Australian Supreme Courts. Such cases are generally heard in the parens patriae jurisdiction where the test applied is what is in the patient’s “best interests”. However, the application of the “best interests” test, and its meaning, remains unclear in this context. To shed light on this emerging body of jurisprudence, this article analyses the Australian superior court decisions that consider an adult’s best interests in the context of decisions about life-sustaining treatment. It identifies a number of themes from the current body of cases and considers how these themes may guide future decision-making. After considering the law in the United Kingdom, the article suggests an approach for assessing best interests that could be adopted by Australian Supreme Courts.

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Transparency in mental health: Why mental health tribunals should be required to publish reasons – Alison Smith and Andrew Caple

There is a need for greater transparency and accountability in Australia’s civil commitment system, which governs the involuntary detention and treatment of people with mental illness. This article explains how transparency and accountability may be addressed by Australia’s mental health tribunals publishing reasons more frequently. The principles of open justice, therapeutic jurisprudence, and human rights provide justifications for an increase in the publication of reasons. The right to privacy is important in civil commitment cases but the use of redacted reasons would appropriately balance the right to privacy with the need for transparency and accountability. Ideally, mental health tribunals should provide redacted reasons in all cases. If resource constraints prevent this, then redacted reasons should be published, as a minimum, in cases which involve a novel issue or complex factual circumstances, or when a patient makes a competent request for the reasons to be published.

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Government databases and public health research: Facilitating access in the public interest – Carolyn Adams and Judy Allen

Access to datasets of personal health information held by government agencies is essential to support public health research and to promote evidence-based public health policy development. Privacy legislation in Australia allows the use and disclosure of such information for public health research. However, access is not always forthcoming in a timely manner and the decision-making process undertaken by government data custodians is not always transparent. Given the public benefit in research using these health information datasets, this article suggests that it is time to recognise a right of access for approved research and that the decisions, and decision-making processes, of government data custodians should be subject to increased scrutiny. The article concludes that researchers should have an avenue of external review where access to information has been denied or unduly delayed.

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The spectre of court-sanctioned sacrificial separation of teenage conjoined twins against their will – Colleen Davis

In a recent decision of the Indian Supreme Court, judges foreshadowed authorising separation of teenage conjoined twins where both would die if not separated but where the operation could save only one. The absence of medical information advising separation precluded such a decision in the case at hand. However, the case raises a number of difficult legal and ethical questions that judges would have to consider before authorising sacrificial separation of these or other non-infant conjoined twins.

Judicial virtues and decision-making in the VCAT Guardianship List – Richard Polkinghorn

The contemporary legal theory of virtue jurisprudence provides great insight into the proper practice of Australian tribunal members and the desired operation of tribunals. Virtue jurisprudence identifies the attributes of “good” tribunal members and provides guidance on how legal disputes should be decided. This article focuses on the fundamental virtues relevant to tribunal practice in the Guardianship List of the Victorian Civil and Administrative Tribunal. The special features of this tribunal jurisdiction, particularly the disadvantaged nature of its primary client group, require tribunal members to undertake a fact-finding, inquisitorial role, as well as a support and advisory role. Decision-makers must also become conversant with expert evidence and the process of testing expert evidence. This analysis considers the fundamental breaches of human rights that occur when tribunal members fail to execute this multilevel task properly.

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Sections

LEGAL ISSUES – Danuta Mendelson

• Minors’ decision-making capacity to refuse life-saving and life-sustaining treatment: Legal and psychiatric perspectives – Danuta Mendelson and Ian Haywood

MEDICAL ISSUES – David Ranson

• The role of post-mortem imaging in preliminary examinations under the Coroners Act 2008 (Vic): A forensic pathologist’s perspective – Matthew J Lynch and Noel WF Woodford

BIOETHICAL ISSUES – Grant Gillett

• Was the tragedy of Tovia Laufau caused by an absence of trust? – Ben Gray and Grant Gillett

NURSING ISSUES – Kim Forrester

• Legal capacity in a health care context: An opportunity to review – Kim Forrester

MEDICAL LAW REPORTER – Thomas Faunce

• Hippocratic obligation to shareholder profit? Medical treatment patents and the Australian High Court in Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50 – Tim Vines and Thomas Faunce

LETTER TO THE EDITOR

BOOK REVIEW

• Juries in the 21st Century by Jacqueline Horan

For the pdf version of the table of contents, click here: WAU – JLM Vol 21 Pt 4 Contents.

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Australia’s first scholarly article on digitally altered images, body image and the law appears in the June Part of the Journal of Law and Medicine.

On 1 January 2013, the Israeli legislation popularly known as “Photoshop Law” came into effect. The first ever law of its kind, Photoshop Law requires that all models used in advertisements or other media have a body mass index higher than 18.5. Where images are digitally altered (or “Photoshopped”) to make models appear thinner than they are in real life, the published images must clearly state that the images are altered, as well as the reasons why they were altered. Furthermore, this disclaimer must take up at least 7% of the total area of the image.

The purpose of the Photoshop Law is to mitigate any negative effects on self esteem and body image that may be caused by exposure to depictions of models as extremely thin, and to curtail the development of eating disorders in Israel.

In her article “Beauty is only photoshop deep: Legislating models’ BMIs and photoshopping images” (2014) 21 JLM 859, Marilyn Krawitz argues that Australia should follow Israel’s lead, and pass a law similar to the Photoshop Law. In doing so, Krawitz considers the success of the 2009 Australian Government’s National Advisory Group on Body Image, and its implementation of a voluntary Code of Conduct on Body Image.

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Should Australia follow Israel’s lead by legislating about body image? Or is a voluntary industry code still the way to go? Let us know what you think on Twitter @JournalsTalk, or below in the comments.

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The latest issue of the Environmental and Planning Law Journal (Volume 31 Part 5) contains the following material:

Articles

Compliance with Indigenous cultural heritage legislation in Queensland: Perceptions, realities and prospects – Michael J Rowland, Sean Ulm and Jill Reid

Since 1959, various pieces of legislation have been enacted in Queensland which include provisions for the protection of Indigenous cultural heritage. To date there has been very limited assessment of compliance with or the efficacy of these laws. The number of prosecutions under both Commonwealth and State legislative regimes is difficult to measure, but deemed to be low. This article explores a broad range of explanations both for the lack of prosecutions and also for the lack of research on compliance in general. It provides examples of prosecutions and attempted prosecutions under the various legislative regimes in Queensland, demonstrating that the reasons for compliance/noncompliance are complex. It is proposed that cultural heritage legislation in Queensland needs to be developed and controlled by a responsible government authority that can set standards and monitor all aspects of cultural heritage management. Cultural heritage management should also be incorporated at every level of environmental planning. Reporting of all cultural heritage activities should be mandatory. The current largely self-assessable and minimally regulated legislation fails to meet best practice cultural heritage management standards and its effectiveness is also difficult to measure.

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Restorative justice intervention in an Aboriginal cultural heritage protection context: Conspicuous absences? – Mark Hamilton

In the author’s previous work, (2008) 25 EPLJ 263, the successful use of restorative justice conferencing in the Land and Environment Court of New South Wales decision of Garrett v Williams (2007) 151 LGERA 92; [2007] NSWLEC 96 was canvassed. This article explores the development, or rather the lack thereof, in the use of restorative justice conferencing for offences against cultural heritage under the National Parks and Wildlife Act 1974 (NSW) since Garrett v Williams. Despite what appear ideal opportunities for both the Land and Environment Court and the New South Wales Parliament to promote the use of restorative justice conferencing, no such opportunities have been taken. These in the author’s view are lost opportunities to further restorative justice intervention in an Aboriginal cultural heritage protection context.

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Carbon pricing and renewable energy innovation: A comparison of Australian, British and Canadian carbon pricing policies – Karen Bubna-Litic and Natalie Stoianoff

Introducing its now-abolished carbon price from July 2012, Australia argued that a price on carbon would reduce greenhouse gas emissions by improving energy efficiency and increasing investment in clean technology innovation. The United Kingdom has priced carbon since 2008 and is in the process of major electricity market reform with the aim of attracting £100 billion of infrastructure investment. British Columbia in Canada introduced a carbon tax in 2008, providing support for clean technology industries through a variety of allowances and operating subsidies. This article compares the United Kingdom, Canada and Australia, to assess the evidence base and policy experience of these jurisdictions in carbon pricing. In so doing, the article identifies what lessons can be learnt from these policy frameworks in order to promote investment in low-carbon innovation.

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Implementing legislative and governance frameworks for integrated catchment management: The gap between theory and practice – Kate Matthews

Using the Victorian catchment management and land-use planning systems as a case study, this article evaluates the delivery of integrated catchment management (ICM) legislation and governance arrangements. A key finding is that despite being relatively strong “on paper”, practical implementation of ICM in Victoria is hampered by poor resourcing, a lack of communication between agencies, and differing views as to what ICM means in practice.

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The future of Land and Environment Court oversight of major project offsets – Vanessa Walsh

Policy-makers in New South Wales have recognised the need for a transparent and consistent response to the assessment of offsets proposals in addressing the biodiversity impacts of major projects. This follows a high-profile rejection of a biodiversity offset proposal by the Land and Environment Court (LEC) for a coalmine extension in the Hunter Valley. A policy and methodology for calculating offset requirements has since been prepared by the New South Wales Government and will be used by consent authorities in approving new major project development. This article examines how this policy is likely to impact upon the LEC’s important role in the oversight of offset proposals in both its merits review and judicial review jurisdiction. Whether implemented administratively or through legislation, this article concludes that oversight is likely to continue despite moves by the New South Wales Government to limit recourse to the LEC.

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The latest issue of the Journal of Law and Medicine (Volume 22 Part 1) contains the following material:

EDITORIAL – Ian Freckelton QC

End-of-life decision-making in India – Ian Freckelton QC

The extraordinary circumstances and the tragic life of Aruna Shanbaug, together with the landmark Supreme Court of India decision in Shanbaug v Union of India (2011) 4 SCC 454, have provided a fillip and focus to debate within India about end-of-life decision-making. This extends to passive euthanasia, decision-making about withdrawal of nutrition, hydration and medical treatment from persons in a permanent vegetative or quasi-vegetative state, the role of the courts in such matters, the risks of corruption and misconduct, the criminal status of attempted suicide, and even the contentious issue of physician-assisted active euthanasia. The debates have been promoted further by important reports of the Law Commission of India. This editorial reviews the current state of the law and debate about such issues in India.

LEGAL ISSUES – Bernadette McSherry

Locked mental health wards: The answer to absconding? – Bernadette McSherry

A recent decision by the Queensland government to lock its 16 mental health inpatient facilities has met with condemnation by a number of professional bodies. This column canvasses some of the legal and ethical issues relating to locked wards and provides an overview of the literature on whether or not locking wards reduces absconding. It is argued that any benefits in preventing absconding through locking all mental health inpatient facilities is outweighed by the adverse effects locked wards have on those detained.

MEDICAL ISSUES – Danny Sullivan

Smoking bans in secure psychiatric hospitals and prisons – Danny Sullivan and Megan A Rees

The proposal of complete smoking bans in closed institutions, such as prisons and psychiatric hospitals, creates a tension between individual “rights” and the health of all members of that community. Smokers in closed institutions generally smoke more, suffer more health consequences and are less likely to quit than smokers in other settings. Complete smoking bans do not cause an increase in behavioural problems, nor do bans cause worsening of mental illness or quality of life. Although infrequently tested, the responsibility of public institutions to protect others from second-hand smoke has usually outweighed any individual “right to smoke” in legal judgments. A substantial cultural shift may be required from considering smoking a “rare pleasure” during detention to the realisation that smoking is the most significant reversible health risk factor for this population. The implementation of complete smoking bans in closed institutions is challenging and requires careful and proactive planning by staff. As complete smoking bans are being considered in many institutions and jurisdictions, this column presents a review of the evidence base and ethical issues involved.

BIOETHICAL ISSUES – Malcolm Parker

Unreasonable adjustments: Medical education, mental disorder, disability discrimination and public safety – Malcolm Parker

Recently the Civil and Administrative Tribunal of New South Wales found that the University of Newcastle had discriminated against a medical student with borderline personality disorder and bipolar disorder on the grounds of her disability. This column summarises the case, and integrates a psychodynamic account of borderline personality disorder with Fulford’s conceptual analysis of mental disorder as action failure, that is no different in principle from physical illnesses, some instances of which appear to uncontroversially rule out of contention some applicants for medical training. It is argued that some applicants for medical and health care programs with mental disorders should not be selected, because their disabilities are not amenable to satisfactory accommodation in the university training period, and they are incompatible with clinical training and practice. Universities should develop “Inherent Requirement” policies that better integrate their responsibility to support disabled students with the responsibility, currently reserved entirely to regulators, to ensure safe practice by their graduates.

MEDICAL LAW REPORTER – Thomas Faunce

The Health Legislation Amendment Act 2013 (Qld) and Queensland’s health assets privatisation dispute – Caroline Colton and Thomas Faunce

New legislation in Queensland has provided a “pathway” for the privatisation of health assets and services in Queensland, which effectively realigns the health care system to the financial market. This column explores how this legislation contained the antecedents of the Queensland doctors’ dispute when doctors roundly rejected new employment contracts in February 2014. It also argues that such legislation and its attendant backlash provides a valuable case study in view of the federal government’s 2014 budget offer to the States of extra funding if they sell their health assets to fund new infrastructure. The move to privatise health in Queensland has also resulted in a government assault on the ethical credibility of the opposing medical profession and changes to the health complaints system with the introduction of a Health Ombudsman under ministerial control. The column examines these changes in light of R (Heather) v Leonard Cheshire Foundation [2001] EWHC Admin 429, a case concerning the obligations of a private entity towards publically funded clients in the United Kingdom. In discussing concerns about the impact of privatisation on the medical profession, the column points to a stark conflict between the duty to operate hospitals as a business rather than as a duty to patients.

Articles

The emergence and popularisation of autologous somatic cellular therapies in Australia: Therapeutic innovation or regulatory failure? – Alison K McLean, Cameron Stewart and Ian Kerridge

Private stem cell clinics throughout Australia are providing autologous stem cell therapies for a range of chronic and debilitating illnesses despite the lack of published literature to support the clinical application of these therapies. The Therapeutic Goods Administration has excluded autologous stem cell therapies from its regulatory domain leaving such therapies to be regulated by the same mechanisms that regulate research, such as the National Health and Medical Research Council Research Ethics Guidelines, and clinical practice, such as the Australian Health Practitioner Regulation Agency. However, the provision of these stem cell therapies does not follow the established pathways for legitimate medical advance – therapeutic innovation or research. The current regulatory framework is failing to achieve its aims of protecting vulnerable patients and ensuring the proper conduct of medical practitioners in the private stem cell industry.

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Re Jamie (No 2): A positive development for transgender young people – Michael Williams, John Chesterman and Phil Grano

Re Jamie (No 2) is an important decision of the Full Family Court that significantly clarifies the law concerning “special medical procedures”. The court has held that so-called stage one treatment for gender dysphoria, designed to suppress pubertal development, no longer requires judicial approval. The decision contains an important endorsement of the view that the phenomenon of gender dysphoria could be de-pathologised. Crucially, the decision also confirms that if a young person is found to be Gillick competent, the court has no power to override their treatment decisions. However, given the consequences of such treatment, and consistently with the authority in Marion’s Case, the court will continue to have a “safeguard” role in determining whether Gillick competence exists. The article outlines some cautionary notes about the removal of court oversight at stage one, but argues that the decision is a positive one for enabling access to treatment and ameliorating the financial burden of legal proceedings on the families of transgender adolescents.

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Australian children living with gender dysphoria: Does the Family Court have a role to play? – Fiona Kelly

A growing number of Australian children are seeking medical treatment for gender dysphoria. Until recently, such treatment was available only to children whose parents received the authorisation of the Family Court. However, the 2013 Full Court of the Family Court decision of Re Jamie changed the legal landscape for children living with gender dysphoria by allowing parents to consent to stage one treatment (the administration of puberty “blockers”). The court did not, however, come to the same conclusion with regard to stage two treatment (the administration of testosterone or oestrogen). Stage two treatment was held to be a “special medical procedure” and thus subject to court authorisation, unless the child is Gillick competent. While Re Jamie improved the process of seeking treatment for gender dysphoria, this article argues that the Full Court failed to correctly apply the test for “special medical procedures” articulated in Marion’s Case. Crucially, the court failed to grapple adequately with the distinction made in Marion’s Case between therapeutic and non-therapeutic treatment.

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Storage limits of gametes and embryos: Regulation in search of policy justification – Anita Stuhmcke and Eloise Chandler

In Australia regulatory limits with respect to the storage of gametes and embryos differ according to both the “type” of reproductive material and the jurisdiction the material is stored within. This article examines the differences and similarities in storage limits across Australian States, evaluating the reasons for the introduction of storage limits and identifying historical policy change. The article argues that justifications for current storage limits are not clearly articulated and calls for further debate and discussion in this increasingly important area of law.

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Barriers for domestic surrogacy and challenges of transnational surrogacy in the context of Australians undertaking surrogacy in India – Louise Johnson, Eric Blyth and Karin Hammarberg

The ethical, social, psychological, legal and financial complexities associated with cross-border travel for reproductive services are gaining attention internationally. Travel abroad for surrogacy, and the transfer of gametes or embryos between countries for use in a surrogacy arrangement, can create conflict in relation to the rights of the parties involved: commissioning parents, surrogates and their families, gamete and embryo donors, and children born as a result of the arrangement. Australian surrogacy laws are restrictive and limit access to domestic surrogacy. Despite the introduction of laws in some Australian jurisdictions that penalise residents entering into international commercial surrogacy arrangements, hundreds of Australians resort to surrogacy arrangements in India and other countries each year. This article discusses legislation, policy and practice as they relate to Australians’ use of surrogacy in India. It reviews current surrogacy-related legislation and regulation in Australia and India and existing evidence about the challenges posed by transnational surrogacy, and considers how restrictive Australian legislation may contribute to the number of Australians undertaking surrogacy in India.

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Selective reduction of fetuses in multiple pregnancies and the law in Australia – Colleen Davis and Heather Douglas

This article considers whether it is lawful in Australia to terminate one or more fetuses in a multiple pregnancy selectively and, if so, under what circumstances. It begins by addressing the preliminary question whether selective reduction is covered by laws relating to abortion and provides a brief outline of the law of abortion in Australian jurisdictions. The article then considers selective reduction of high-order multiple pregnancies, before turning to selective reduction of twin pregnancies in a range of circumstances. The article demonstrates that the law of abortion, as applied to selective reduction of multiple pregnancies, is uncertain and that there are considerable variations from one State to another. It concludes that the law in this area is in need of reform to recognise that some reductions are not performed prima facie to prevent danger to the mother’s health and to remove the need for doctors to assert symptomatology of mental illness in order to guard against criminal law consequences. Further, there is a need to clarify whether selective reduction/termination is abortion for the purposes of the law, and to achieve greater consistency across jurisdictions.

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Interstate dispensing: A case for uniform, intuitive legislation – Nijole L Bernaitis, Michelle A King and Denise L Hope

Australian health practitioner registration is national, whereas legislation regarding the handling of medicines is governed by individual States and Territories. To align with the July 2010 national registration scheme some legislative modifications were made concerning scheduled drugs and poisons, but many differences between jurisdictions remain. In Queensland, the Health (Drugs and Poisons) Regulation 1996 (Qld) allows for dispensing of controlled drugs written by interstate prescribers but not lower scheduled specified restricted and regulated restricted drugs. The aim of this study was to assess awareness of seemingly counterintuitive legislation by pharmacists practising in South-East Queensland. Of 125 Gold Coast pharmacies contacted, 54 (43.2%) agreed to participate. The majority of pharmacists (88.9%) had good knowledge regarding controlled drugs. In contrast, they demonstrated confusion regarding specified restricted and regulated restricted drugs (51.9% correct awareness). Uniform legislation between jurisdictions or more intuitive legislation would ease practitioner confusion.

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Planning law and public health at an impasse in Australia: The need for targeted law reforms to improve local food environments to reduce overweight and obesity – Caroline Mills

Australia’s high rates of overweight and obesity, and the associated increased population risk of non-communicable diseases, pose a challenge to policy-makers across sectors beyond the health portfolio. In the last decade, strategies to promote healthy lifestyles and address non-communicable diseases have increasingly interested urban planners in Australia and internationally. However, Australian planning laws continue to operate largely without regard to public health goals, thus limiting the ability of communities to shape healthy built environments. In recent years, local governments have increasingly taken on responsibility for improving public health through community-based initiatives; however, their efforts are hindered by their limited capacity to influence planning priorities under current State-legislated planning schemes. This article considers the emerging body of research exploring the impact of urban planning on health and non-communicable diseases in Australia. It is contended that planning law in Australia is out of step with the evidence of planning’s potential impact on health, and reforms are required to ensure consistency with public health priorities.

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Compensating for the harms of family violence: Statutory barriers in Australian victims of crime compensation schemes – Christine Forster

This article considers the compensative capacity of the victims of crime statutory schemes that are present in all eight Australian jurisdictions for primary victims of family violence. It argues that the recommendations of the Final Report on Family Violence conducted jointly by the Australian Law Reform Commission and the New South Wales Law Reform Commission in 2010, although a positive step, are insufficient to facilitate meaningful compensation to victims of family violence. In addition to the primary limitations identified by the Commissions – a requirement to report the crime to the police within a reasonable time and a requirement for multiple acts of violence to be reduced to a single act if they are related – there are other statutory barriers that disproportionately disadvantage victims of family violence. These include time limitation provisions, a requirement to report the crime to police, the restriction of compensation to prescribed categories of loss which exclude many of the social, vocational, emotional and psychological harms suffered by victims of family violence, and significant cut-backs on the non-economic component of the schemes. This article further argues that the statutory barriers cumulatively contribute to the perception of a crime as an isolated event perpetrated by a deviant individual. The article recommends that specific provisions for family violence victims should be introduced.

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Mandatory reporting of health professionals: The case for a Western Australian style exemption for all Australian practitioners – Hon Nick Goiran MLC, Margaret Kay, Louise Nash and Georgie Haysom

This article discusses the current mandatory reporting obligations for health practitioners in Australia under the Health Practitioner Regulation National Law. It provides a summary of the mandatory notification legislation, and contextualises the introduction of this law. The details of the Western Australian exemption, under which a treating doctor is exempt from mandatory reporting of a doctor-patient, and the rationale for its introduction are examined. This is followed by a consideration of the potential impact of the mandatory reporting obligations. The authors argue that the Western Australian exemption has merit and should be considered for adoption throughout Australia.

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“CAM-creep”: Medical practitioners, professional discipline and integrative medicine – Walid Jammal, Cameron Stewart and Malcolm Parker

This article examines the problem of applying disciplinary standards to the practice of integrative medicine. The article examines the structure of the National Law and discusses examples of when medical practitioners have been found to have breached professional standards because of their use of complementary and alternative medicine. The article argues there is a danger in medical practitioners who move away from the principles of evidence-based practice and informed consent in their adoption of integrative medicine. The authors posit a concept of “CAM-creep”, situations where practitioners abandon medical professional standards in favour of ones from complementary and alternative medicine.

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BOOK REVIEW

• Health and Human Rights in a Changing World by Michael A Grodin, Daniel Tarantola, George J Annas and Sofia Gruskin

For the pdf version of the table of contents, click here: WAU – JLM Vol 22 Pt 1 Contents.

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The latest issue of the Journal of Law and Medicine (Volume 22 Part 2) contains the following material:

EDITORIAL – Ian Freckelton QC

Criminalising research fraud – Ian Freckelton QC

The incidence of research fraud has reached troubling levels. Too often peer review has failed to prevent it. The harm caused by such conduct extends to patients, co-authors, supervisors, employing institutions, funders, journals, publishers, and importantly, the area and direction of the research itself and its potential influence are tarnished. A number of commentators have raised the option of criminal charges being preferred against those responsible for such fraud. This has occurred in the United States, in particular, but also in the United Kingdom, Korea and Australia in high-profile cases. There is much to be said for this form of prosecutorial response to the phenomenon of research fraud given its multi-level ramifications, the considered nature of the conduct, and the fact that it is engaged in by persons well positioned to appreciate the harm that their deceit may cause. The involvement of the criminal law enhances the potential for deterrence from yielding to the temptation and opportunity to engage in research fraud.

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LEGAL ISSUES – Danuta Mendelson

Disciplinary proceedings for inappropriate prescription of opioid medications by medical practitioners in Australia (2010-2014) – Danuta Mendelson

An analysis of 32 cases reported between July 2010 and September 2014 by professional disciplinary tribunals in New South Wales and Victoria against medical practitioners found guilty of inappropriately prescribing Sch 8 medications (mainly opioids) and Sch 4 drugs (mainly benzodiazepines) demonstrated, among others, a lengthy delay between the occurrence of the miscreant conduct and the conclusion of disciplinary proceedings. The study also raised questions about the appropriateness of utilising common criminal law theories of punishment and deterrence by non-judicial tribunals.

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MEDICAL ISSUES – Ian Freckelton QC

Legal liability for psychiatrists’ decisions about involuntary inpatient status for mental health patients – Ian Freckelton QC

The decisions by the High Court in Hunter and New England Local Health District v McKenna [2014] HCA 44 and by the majority of the New South Wales Court of Appeal in Hunter Area Health Service v Presland (2005) 63 NSWLR 22 create a high level of immunity for psychiatrists and the institutions in which they provide services from tortious liability for failure to impose involuntary detention or maintain involuntary detention of persons who, after release, engage in violent conduct. This column scrutinises the development of Australian law in such matters, including the public policy issues. It argues that the law has gone too far in denying a duty of care on the basis of both the least restrictive principle that is inherent in the power (as against duty) to detain involuntarily and in seeking to avoid the creation of a defensive mindset in psychiatrists or a distortive influence upon their decision-making.

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BIOETHICAL ISSUES – Grant Gillett

Is a cleft lip and palate a serious “handicap”? Jepson v Chief Constable of West Mercia – A legal and ethical critique – Michael Morrison and Grant Gillett

This column considers the legal and ethical dimensions of the controversial case of Jepson v Chief Constable of West Mercia. The purpose of bringing legal proceedings was to judicially review the notion that a cleft lip and palate should be regarded as a serious “handicap” for the purposes of s 1(1)(d) of the Abortion Act 1967 (UK). The column argues that while Parliament failed to provide a sufficiently precise definition of “seriously handicapped”, it is clear that it never intended and positively rejected the notion that a cleft lip and palate was a serious enough condition to warrant the lawful termination of a pregnancy. In determining what constitutes a sufficiently serious disability, the column critiques the medical model of disability and proposes a remedy model in its place. Finally, it argues that an attentive and responsive moral framework is fundamental to any substantial narrative ethics, and it suggests that a life with a disability can generate meaningful stories and that when there is a network of support and relationships around the person living that life, that human life is not only viable but also, in its own way, fulfilling, even if not ordinary.

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NURSING ISSUES – Kim Forrester

Nursing documentation: A valuable clinical activity – Kim Forrester

Professional codes and guidelines in combination with organisational and institutional policies and procedures identify and benchmark the standards of good documentation practices within a health care context. The Nursing and Midwifery Board of Australia has adopted, as part of the regulatory framework for nursing and midwifery practice, the principles essential for good documentation. Although these principles have remained unchanged for decades, issues based on poor documentation practices continue to be raised in courts and tribunals. This column seeks to highlight the importance of recognising documentation as a valuable clinical activity and therefore deserving of closer attention and adherence.

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MEDICAL LAW REPORTER – Thomas Faunce

Crimes Amendment (Zoe’s Law) Bill 2013 (No 2): Paradoxical commercial impacts of the conservative agenda on fetal rights – Roseanna Bricknell and Thomas Faunce

In 2013, Liberal MP Chris Spence introduced a Private Member’s Bill to the New South Wales Parliament, reinvigorating an earlier Bill introduced by Christian Democrat MP Fred Nile. If passed, the Bill would have bestowed legal personhood on fetuses of 20 weeks or more for the purpose of grievous bodily harm offences in the Crimes Act 1900 (NSW). The Bill had the potential to undermine freedom of choice for women in relation to abortions prior to the point of viability (capacity for fetal existence outside the womb) as well as other decisions concerning pregnancy and childbirth. One hypothesis is that legislative measures such as this that support the rights of the fetus are well intentioned initiatives by those for whom the fetus is an essentially independent entity or symbol of innocence and moral purity whose existence must be protected over and above the interests and independent decision-making capacity of the mother. This column explores this hypothesis in the context of the paradoxical negative commercial implications of such legislation on multiple areas involving fetal-maternal interaction including surrogacy.

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LETTER TO THE EDITOR

Articles

The bereavement gap: Grief, human dignity and legal personhood in the debate over Zoe’s Law – Hannah Robert

A Bill before the New South Wales Parliament attempted to re-frame harm to late-term fetuses as grievous bodily harm to the fetus itself rather than (under the existing law) grievous bodily harm to the mother. To achieve this, the Bill extended legal personhood to the fetus for a limited number of offences. The Bill was brought on behalf of Brodie Donegan, who lost her daughter Zoe at 32 weeks’ gestation when Donegan was hit by a drug-affected driver. This article asks what the perspective of a grieving mother can bring to the debate, in terms of helping the criminal law accurately come to grips with the complexity of pregnancy and the specific harm of fetal loss. It assesses the likely impacts of a change to fetal personhood and suggests an alternative legislative approach which is less likely to result in an erosion of bodily autonomy for pregnant women.

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The standard of medical care under the Australian Civil Liability Acts: Ten years on – Joseph Lee

It has been more than a decade since the modified Bolam test was legislatively enacted by the Australian States following the medical indemnity crisis. Since its implementation, the modified Bolam test has been configured by judges as a defence to the common law standard of care in medical diagnosis and treatment. The article argues against this interpretation and suggests an alternative way of implementing this statutory test. It is proposed that the modified Bolam test ought to have been applied as a single yardstick to determine the required standard of care in diagnosis and treatment. Changes are also recommended to reform the test with a view to striking a balance between the interests of patients and doctors in medical disputes, and strengthening judicial supervision of the medical profession. These proposed reforms could resolve the shortcomings of the common law more effectively. They may also enhance the standard of medical care in Australia in the long run.

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Holding unregistered health practitioners to account: An analysis of current regulatory and legislative approaches – Jon Wardle

An increasingly large part of health care delivery in Australia is provided by unregistered health practitioners, who have not been historically subject to formal regulatory arrangements and instead have been held to account via a milieu of non-specific regulatory and legislative obligations. This article explores current trends in the regulation of unregistered practitioners in civil law, criminal law and in the development of new regulatory tools such as “negative licensing”. In addition, this article conducts an empirical analysis of the favoured model for extending accountability to unregistered health practitioners (negative licensing) by examining its application in New South Wales. Based on this analysis, it is argued that although negative licensing offers greater protections than previous models, it should not be viewed as a replacement for extension of statutory registration to new health disciplines, and instead should be viewed as a complementary measure to existing and new statutory registration arrangements.

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Voluntary palliated starvation: A lawful and ethical way to die? – Ben White, Lindy Willmott and Julian Savulescu

Increasingly, individuals want control over their own destiny. This includes the way in which they die and the timing of their death. The desire for self-determination at the end of life is one of the drivers for the ever-increasing number of jurisdictions overseas that are legalising voluntary euthanasia and/or assisted suicide, and for the continuous attempts to reform State and Territory law in Australia. Despite public support for law reform in this field, legislative change in Australia is unlikely in the near future given the current political landscape. This article argues that there may be another solution which provides competent adults with control over their death and to have any pain and symptoms managed by doctors, but which is currently lawful and consistent with prevailing ethical principles. “Voluntary palliated starvation” refers to the process which occurs when a competent individual chooses to stop eating and drinking, and receives palliative care to address pain, suffering and symptoms that may be experienced by the individual as he or she approaches death. The article argues that, at least in some circumstances, such a death would be lawful for the individual and doctors involved, and consistent with principles of medical ethics.

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Confusing criminal and civil law: When may a hospital refuse to release a dead body? – Steven B Gallagher

A United Kingdom bereavement advice group has expressed concern that hospitals in Britain may be acting “illegally” in refusing to release dead bodies to relatives unless they provide evidence that funeral arrangements have been made. In some cases, hospitals may have refused to release a body to anyone other than an undertaker. The charity argues that this behaviour constitutes the common law offence of preventing the lawful burial of a body. This article considers the confusion that may occur between this offence and interference with the right to possession of a body for lawful burial. The conclusion is that it is extremely unlikely a hospital or its employees would fall foul of the criminal law in refusing to release a dead body and may be liable in the civil courts if they release a body to someone who does not have the duty and consequent right to possession of the body for lawful burial.

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A right to choose how to live: The Australian common law position on refusals of care – Katherine Curnow

There has been limited examination of the Australian common law position regarding contemporaneous refusals of care or medical treatment by competent adults since the first two Australian cases to adjudicate on refusals of this type: H Ltd v J and Brightwater Care Group (Inc) v Rossiter. This article maps the legal position in Australia in light of the two cases with particular emphasis on the finding in H Ltd v J that self-starvation is not suicide at common law. Finally, this article highlights the broader relevance of this area of the law and its capacity to inform debates as disparate as whether to legalise voluntary euthanasia and the possible implications for the autonomy of pregnant women of proposed laws giving legal status to fetuses (particularly, Zoe’s Law).

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New Zealand’s Mental Health District Inspector in historical context: “The impartial scrutiny of a citizen of standing” – Kate Prebble, Claire Gooder and Katey Thom

The Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ) legislates for District Inspectors who ensure that mental health consumers held under the Act are aware of their legal rights. The New Zealand District Inspector role first appeared in 19th century legislation. Its historical longevity does not, however, denote that this role has been consistent since its inception. This article looks at the historical development of the District Inspector and its companion role, the Official Visitor, focusing in particular on the period 1969-1992, when the purpose and scope of the roles was part of a Mental Health Act 1969 review. This was a time of fundamental social and professional change, shifting ideas of psychiatric practice, new locations of treatment, and growing emphasis on patient/consumer rights. The sometimes heated debates surrounding the roles reflect these changing ideas. An historical analysis of the District Inspector and Official Visitor roles aids understanding of how the social and political contexts affect mental health issues; this has relevance for current mental health law.

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Wrongful life claims and negligent selection of gametes or embryos in infertility treatments: A quest for coherence – Noam Gur

This article discusses an anomaly in the English law of reproductive liability: that is, an inconsistency between the law’s approach to wrongful life claims and its approach to cases of negligent selection of gametes or embryos in infertility treatments (the selection cases). The article begins with an account of the legal position, which brings into view the relevant inconsistency: while the law treats wrongful life claims as non-actionable, it recognises a cause of action in the selection cases, although the selection cases bear a relevant resemblance to wrongful life claims. The article then considers arguments that may be invoked in an attempt to reconcile the above two strands of the law. Three of these counterarguments consist in attempts to distinguish the selection cases from wrongful life claims. It is argued that these attempts fail to reveal a valid basis for treating these situations differently. A fourth possible counterargument levels against the present analysis a charge of reductio ad absurdum. It is shown that this argument suffers from a fundamental flaw caused by confusion between different senses of the term “identity”. Finally, the article discusses possible changes to the legal position that could rectify the problem. It argues that one of these changes, which focuses on legal redress for violation of personal autonomy, is particularly apt to resolve the problem at hand, but also highlights the need for further inquiry into the broader implications of introducing this form of redress into the law of torts.

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Young people and medical procedures: Whether or not young people can be competent to make medical decisions in their own interests – Michael Easton

Young people, as they grow older, gain increasing competency to make their own decisions – this is reflected in many areas of their lives. Yet, in relation to medical procedures, the case law both in Australia and in England suggests that the area remains uncertain, with courts often resorting to tests of best interests in lieu of personal autonomy, particularly where the medical procedure increases in complexity and/or urgency. In fact, at common law, young people must prove themselves to be more competent than adults in order to have their ethical autonomy respected. Legislation in two States in Australia has addressed the issue. However, reform is needed to prescribe an age at which competency of a young person may be presumed for both consent and refusal of medical treatment. Further, the adoption into legislation of the test of Gillick competency would provide for determinations below the age of presumption, and restrict the practice of courts imposing best interests over a young person’s own interests.

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We didn’t start this fireless vapour: E-cigarette legislation in Australia – Dr Marilyn Krawitz

Electronic cigarettes (or e-cigarettes) are devices that heat a cartridge containing a solution that becomes a vapour for the user to inhale. The vapour may or may not contain nicotine. E-cigarettes do not contain tar and other toxins, which traditional cigarettes do, so they may be less damaging to people’s health than smoking traditional cigarettes. However, no studies exist about the long-term effects of using e-cigarettes yet. It is illegal to sell e-cigarettes with nicotine in Australia, though Australians may import a three-month supply from overseas. It is legal to sell e-cigarettes with nicotine in some other jurisdictions, such as the United Kingdom and the European Union. This article argues that the Australian government should consider legalising the sale of e-cigarettes with nicotine in Australia for health, safety and economic reasons and to protect youth. If the sale of e-cigarettes with nicotine becomes legal, the Australian government must strictly regulate it.

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BOOK REVIEW

• Maralinga by Frank Walker

For the pdf version of the table of contents, click here: JLM Vol 22 No 2 Contents.

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