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The latest issue of the Journal of Law and Medicine (Volume 22 Part 3) contains the following material:

EDITORIAL – Ian Freckelton QC

The privilege against self-incrimination in coroners’ inquests – Ian Freckelton QC

The privilege against self-incrimination has a venerable history in the conduct of coroners’ inquests. However, recent statutory reforms to the privilege in coroners’ courts, which have had disuniform outcomes throughout Australia, have complicated the circumstances in which the privilege is extended to those claiming its protection. This editorial reviews the evolving law on the privilege generally and rulings that have been made in high-profile coronial inquests, as well as the modest volume of appellate litigation on this important issue. It identifies that the emerging law on the area prioritises amongst relevant factors for the coroner’s discretion to exercise coercive powers over witnesses’ objections to give evidence the fact that they are charged with serious criminal offences, and that the need for and utility of the evidence are also functioning as important considerations.

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LEGAL ISSUES – Belinda Bennett

Updating Australia’s pandemic preparedness: The revised Australian Health Management Plan for Pandemic Influenza (AHMPPI) – Belinda Bennett

In 2014, Australia updated its health management plan for pandemic influenza. This updated plan builds upon the lessons from the 2009 influenza pandemic and revised guidance from the World Health Organization. The 2009 pandemic highlighted the need for flexibility in responding to pandemics so that responses can be tailored according to the severity of a pandemic. Recognition of the need for flexibility is a key feature of both the revised WHO guidance and the revised Australian plan. This column provides an overview of the updated WHO guidance and of the revised Australian Health Management Plan for Pandemic Influenza.

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MEDICAL ISSUES – Mike O’Connor

Cruise control: Prevention and management of sexual violence at sea – Mike O’Connor

The drug-related death of Dianne Brimble on the P&O cruise liner Pacific Sky in 2002 triggered a wide-ranging review of the safety on board cruise ships operating in the Australian market. This column assesses the frequency of recent sexual assaults on cruise ships and examines the findings and recommendations of the Brimble inquest, focusing on the Commonwealth government’s response to those recommendations. The problem of jurisdiction on flag of convenience registered ships is discussed, with emphasis on a possible co-operative arrangement between Australian police and foreign flag states. It seems likely that the United States and Canadian models of cruise ship regulation to enhance passenger safety will in part be introduced in Australia.

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BIOETHICAL ISSUES – Malcolm Parker

Clayton’s compromises and the assisted dying debate – Malcolm Parker

Richard Huxtable has recently argued that while assisted dying has been both repeatedly condemned and commended, a compromise resolution is possible. Following critique of other purported solutions, he argues for a new legal offence of “compassionate killing” as a plausible compromise between supporters and opponents of legalised assisted dying, because it offers something of significance to both sides. However, it turns out that “compassionate killing” would leave both sides with insufficient net benefit for the proposal to qualify as a compromise between them. By analogy with another apparently intractable bioethical debate, concerning destructive embryo research, this column rejects Huxtable’s solution as another “Clayton’s compromise”. True compromise is not possible in bioethical debates involving divisions over deeply held values and world views. Resolving such debates inevitably involves the substitution of one dominant world view with another.

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MEDICAL LAW REPORTER – Thomas Faunce

Professional misconduct: The case of the Medical Board of Australia v Tausif (Occupational Discipline) – Caroline Colton

In 2014, the Australian Capital Territory Civil and Administrative Appeals Tribunal (ACAT) made a finding of professional misconduct against a Canberra general practitioner working in two bulk-billing medical practices established by a corporate medical practice service company, Primary Health Care Limited (Medical Board of Australia v Tausif (Occupational Discipline) [2015] ACAT 4). This column analyses that case, particularly in relation to the ACAT finding that the practitioner’s professional misconduct was substantially contributed to by an unsafe system of care, specifically, the failure of Primary Health Care to provide supervision and mentoring for clinicians working at its medical centres. The case highlights the professional pressures carried by general practitioners who practise medicine within the framework of corporate bulk-billing business models. The column also examines the related issue of general practitioner co-payments in Australia and their impact on business models built around doctors purportedly characterised as independent contractors, bulk-billing large numbers of patients each day for short consultations.

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LETTERS TO THE EDITOR

Articles

Health care justice for temporary migrant workers on 457 visas in Australia: A case study of internationally qualified nurses – Paula O’Brien and Melissa Phillips

Workers and their families in Australia under the Temporary Work (Skilled) Visa (subclass 457) scheme have no access to publicly funded health care. Rather, they are required by the Commonwealth government to purchase costly private health insurance. Our empirical study revealed the serious negative effects of the government’s policy on the ability of internationally qualified nurses on 457 visas to meet their basic health care needs and to settle effectively into Australian society. This article argues that the current policy is unjust and evaluates three options for reform which would accord more fully with the government’s obligations to minimise harm to people’s health and to ensure that all people in society have their health care needs met in a fair manner.

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A delayed inheritance: The Medical Board of Victoria’s 75-year wait to find doctors guilty of “infamous conduct in a professional respect” – Gabrielle Wolf

The Medical Board of Victoria (Board) was created in 1844 to register “legally qualified medical practitioners”. It was not until 1933, however, that the Board attained the power to remove from its register a doctor who had engaged in “infamous conduct in a professional respect” (the power), even though the General Council of Medical Education and Registration of the United Kingdom on which the Board was modelled had been granted the power 75 years earlier. This article argues that the delay in the Board’s inheritance was attributable to successive Victorian Parliaments’ distrust of the Board and that this attitude was unwarranted, at least from early in the 20th century. The article maintains that the granting of the power to the Board was a crucial event in the history of the regulation of the Victorian medical profession. This is illustrated both by the difficulty encountered by the medical profession in dealing with doctors’ unethical conduct before 1933, and the Board’s concern to use its new authority responsibly and appropriately to protect the public and the profession in the three years after it attained the power.

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Correcting the record: Australian prosecutions for manslaughter in the medical context – David J Carter

The failure to prosecute Dr Jayant Patel successfully for any of the deaths associated with his time as Director of Surgery at Bundaberg Base Hospital was received in some quarters as an abject failure of the criminal law to deal adequately with significant wrongdoing. The case itself, the multiple public inquiries and the significant expense to pursue, extradite and prosecute Patel, resulting finally in a finding of guilt on a number of minor fraud charges, seems to compound this sense of failure. This article argues otherwise. When placed within the far longer and forgotten history of the prosecution of manslaughter by criminal negligence in the Australian jurisdiction, this story of prosecutorial failure becomes instead wholly consistent with the case law over time. No adequate account of the history of prosecution in the Australian jurisdiction exists for this area of law. To present Patel in context, the article draws upon archival research to provide a significantly extended account of the history of prosecution for manslaughter in the health care context. The extension of the case law is significant, from four known prosecutions, case histories of another 33 inadequately acknowledged prosecutions are presented.

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Adapting to concurrent expert evidence in medical litigation – Tina Cockburn and Bill Madden

In medical negligence litigation expert evidence has long played a dominant role. The trend towards the use of concurrent expert evidence is now well underway. However, for the lawyers and the doctors involved, the pathway is not yet familiar. Disputes have frequently arisen in the context of pre-hearing expert conclaves, given the adversarial nature of litigation and perhaps fuelled by fears of a less transparent process at this increasingly important stage. This article explains the concurrent expert evidence framework and examines areas of common dispute both in the conclaves and at trial, with a view to providing assistance to legal practitioners working in this area and the medical practitioners called upon to provide expert evidence in such litigation.

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“Loss of situation awareness” by medical staff: Reflecting on the moral and legal status of a psychological concept – Hugh Breakey, Roel D van Winsen and Sidney W A Dekker

This article examines the emergence of “accurate situation awareness (SA)” as a legal and moral standard for judging professional negligence in medicine. It argues that SA constitutes a status, an outcome resulting from the confluence of a wide array of factors, some originating inside and others outside the agent. SA does not connote an action, a practice, a role, a task, a virtue, or a disposition – the familiar objects of moral and legal appraisal. The argument contends that invoking SA becomes problematic when its use broadens to include professional or legally appraisable norms for behaviour, which expect a certain state of awareness from practitioners.

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Coroners’ guidelines for health practitioners: Help or hindrance? – Sarah Middleton

In Victoria, New South Wales and Queensland, coroners’ guidelines have been developed to assist health practitioners in complying with their coronial reporting obligations. These guidelines, which are intended to work hand in hand with the legislation, leading the health practitioner through the law, its interpretation and its application, have been commended for assisting with a more detailed and structured consideration of often complex issues. However, closer scrutiny of these guidelines shows legal inaccuracies and other errors that have the potential to lead health practitioners into error. In circumstances where failure to comply with reporting obligations can constitute a criminal offence as well as professional misconduct, this situation is unacceptable. This article recommends changes to the guidelines to bring them into conformity with the law ensuring that the guidelines operate as a help, and not a hindrance, to health care practitioners.

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Unfair employment discrimination of previously depressed individuals – Kenneth Wei-Qiang Choo and Wei-Liang Lee

Individuals who have recovered from or are in a remissive state of depression are often required to declare their psychiatric history during applications for employment. This practice exposes such individuals to discrimination even though they are no longer afflicted by the condition, leading to the question whether the practice is fair and justified. Such discrimination can also have adverse health implications as individuals with active depression might not want to seek help early for fear of stigmatisation. In this article, constructive dialogue among relevant stakeholders is proposed to encourage appropriate and measured responses to this problem. A more durable solution in Singapore may be to introduce legislation to prevent unfair discrimination.

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The decision-making of the Mental Health Review Tribunal in New Zealand – Katey Thom, Stella Black and Graham Panther

This article reports the findings of a qualitative research project that explored the decision-making of the Mental Health Review Tribunal in New Zealand, providing “thick descriptions” of the hearing process by closely focusing not only on the content of final written decisions, but also how decisions are made and delivered within the context they are formed. Drawing on interviews with tribunal members (n=14), observation of hearings (n=11), and review of written decisions (n=60), the article illustrates how the MHRT attempts to practise in a way that enhances rather than damages ongoing relationships between applicants and clinicians. The factors that constrain its ability to conduct a hearing perceived as fair and participatory by the applicants is considered, and synergies with the international literature are noted in relation to the heavy use of medico-legal language, dominance of public safety concerns, and the covert interventionist practices of the MHRT. The article concludes by highlighting the value of qualitative observations of this decision-making body. While written decisions provide a justification for the outcome decided by the MHRT, it leaves out nuances gleaned from in-depth clinical reporting, inquisitorial investigation and unwritten observations during hearings.

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Re-visiting Re X: Hysterectomy, removal of reproductive capacity and the severely intellectually disabled child in New Zealand – Jeanne Snelling

The law governing parental consent to any surgery performed on an intellectually disabled minor that results, directly or indirectly, in the loss of reproductive capacity was first considered in New Zealand in the High Court case of Re X in 1991. The decision was remarkable in several respects, not least because it reflected a genuine attempt to obtain a representation of interests beyond those of the particular child and parents involved. However, legal and socio-political developments in the intervening years, both locally and internationally, suggest that a review of the decision is timely. This article questions whether, in light of these events, Re X should be revisited and concludes by suggesting a possible legal response.

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An alternative to Zoe’s Law – James Dalmau

Under the criminal law of New South Wales, the destruction of a foetus (other than in the course of a medical procedure) constitutes grievous bodily harm to the pregnant woman. Charges can be laid for offences against the woman, but not against the foetus. Many are dissatisfied with this. The Crimes Amendment (Zoe’s Law) Bill 2013 (No 2) (NSW) aimed to change this by providing that a foetus is taken to be a living person for the purposes of certain offences. The Bill was strongly opposed on the basis that according personhood to a foetus in this way will have undesirable consequences that could erode the reproductive rights of women. The public debate over how the criminal law addresses the destruction of a foetus has centred on Zoe’s Law. This article proposes an alternative amendment that aims to accommodate the concerns of the Bill’s supporters and its detractors.

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BOOK REVIEW

• Human Dignity in Bioethics and Law by Charles Foster

For the pdf version of the table of contents, click here: JLM Vol 22 No 3 Contents.

Click here to access this Part on Westlaw AU

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The latest issue of the Journal of Law and Medicine (Volume 22 Part 4) contains the following material:

EDITORIAL – Ian Freckelton QC

Medicinal cannabis law reform: Lessons from Canadian litigation – Ian Freckelton QC

This editorial reviews medicinal cannabis litigation in Canada’s superior courts between 1998 and 2015. It reflects upon the outcomes of the decisions and the reasoning within them. It identifies the issues that have driven Canada’s jurisprudence in relation to access to medicinal cannabis, particularly insofar as it has engaged patients’ rights to liberty and security of the person. It argues that the sequence of medicinal schemes adopted and refined in Canada provides constructive guidance for countries such as Australia which are contemplating introduction of medicinal cannabis as a therapeutic option in compassionate circumstances for patients. In particular, it contends that Canada’s experience suggests that strategies calculated to introduce such schemes in a gradualist way, enabling informed involvement by medical practitioners and pharmacists, and that provide for safe and inexpensive accessibility to forms of medicinal cannabis that are clearly distinguished from recreational use and unlikely to be diverted criminally maximise the chances of such schemes being accepted by key stakeholders.

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LEGAL ISSUES – Bernadette McSherry

Support for the exercise of legal capacity: The role of the law – Bernadette McSherry and Andrew Butler

In 2014, the Australian Law Reform Commission released a report dealing with recognition before the law and legal capacity of people with disability. The report recommended that “supported decision-making” should be introduced into relevant Commonwealth laws and legal frameworks. This column explores what is meant by “support” to exercise legal capacity and what role the law may play in attempting to move beyond the traditional substituted decision-making model for those with mental and intellectual impairments.

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MEDICAL ISSUES – David Ranson

The loss of Malaysia airlines flight MH17: A forensic and humanitarian task – David Ranson

While forensic medical tasks are usually associated with supporting the criminal justice system, there are a range of forensic medical skills that can be brought to bear on addressing humanitarian activities. Disaster victim identification is a procedure that has achieved international standardisation through the work of a multinational Interpol Standing Committee. While part of a police organisation, it includes forensic pathologists, anthropologists, odontologists and molecular biologists who provide most of the specialist scientific input regarding identification that is integrated with police processes such as document examination and fingerprinting. The loss of Malaysian Airlines Flight MH17 represented a major activation of these procedures in an environment that had both humanitarian and forensic criminal investigation components. The information that is derived from the processes involved in disaster victim identification has a value that goes far beyond the determination of identity. It has an important humanitarian role in supporting the family and friends of the victims in their bereavement journey.

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BIOETHICAL ISSUES – Grant Gillett

Think of the children: Sex selection and child welfare – Rachael Wong and Grant Gillett

This column considers the phenomenon of social sex selection and whether its legal prohibition can be justified in Australasia. It looks at whether the liberal autonomy framework is an adequate ethical basis for assessing sex selection and whether sex selection may raise ethical concerns about the nature of parenting and the welfare of future children in the Australasian context. It argues that with sex selection comes the implicit instrumentalisation and commodification of children, which both stem from and encourage attitudes contrary to those underpinning the virtues required of parents. It concludes that in lieu of robust arguments in favour of sex selection and in light of the probable (or at least plausible) negative impact on the nature of parenting and the welfare of future children, the legal prohibition on social sex selection should be maintained in Australasia.

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NURSING ISSUES – Kim Forrester

Recognising and responding to the deteriorating patient – Kim Forrester

The timely and appropriate identification of, and response to, a patient’s deteriorating condition by health professionals is essential for optimal patient outcomes and the avoidance of preventable harm. National regulatory authorities, the Australian Commission on Safety and Quality in Health Care, State, Territory and federal health departments, health care facilities and institutions have all recognised the importance of implementing frameworks, standards and processes to facilitate the prompt recognition of the deteriorating patient and appropriate mechanisms for responding to and escalating such matters. Factors that may affect identification and response include the level of knowledge and skill of the health professionals, the culture of the organisation and the parameters of the assessment and audit tools. The 2014 findings of the Coroner in the inquest into the death of Graeme Barry Gulliver highlights the significance to nursing practice of recognising and responding to the deteriorating patient in an appropriate and timely manner.

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MEDICAL LAW REPORTER – Thomas Faunce

Australian Competition and Consumer Commission v Pfizer: Evergreening and market power as a blockbuster drug goes off patent – Thomas Faunce

In Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2015] FCA 113, the ACCC alleged that Pfizer’s “Project LEAP” involved a scheme to lock pharmacists into substituting its generic version of the high sales volume anti-cholesterol drug, patent-expired atorvastatin (Lipitor), which took advantage of a substantial degree of market power for a purpose proscribed by s 46(1)(c) of the Competition and Consumer Act 2010 (Cth). The ACCC also claimed that Pfizer’s actions constituted a course of exclusive dealing pursuant to s 47(1)(d) and (e) for the proscribed purpose of lessening competition. Flick J in the Federal Court of Australia, in a judgment heavy with quotations but sparse in reasoning, dismissed the ACCC’s Amended Originating Application alleging abuse of market power and ordered the ACCC to pay Pfizer’s costs. The ACCC has now appealed the decision. This column explores this case in the context of Pfizer’s broader strategies to preserve its income globally from this high sales volume drug in the period following its patent expiration.

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ARTICLES

The Australian quarantine and biosecurity legislation: Constitutionality and critique – Anthony Gray

Australia’s quarantine and biosecurity laws have been in focus recently with the serious outbreak of the ebola virus and the not-so-serious incident involving an actor’s dogs apparently gaining unauthorised access to Australia. These incidents have coincided with the move to replace Australia’s existing quarantine legislation with a modern regulatory framework for managing biosecurity risks. This article critiques the existing and new Australian legislation, comparing them with approaches in other jurisdictions and discussing some relevant public policy issues. In particular, the article comments on the constitutionality of the provisions relating to the detention of individuals for public health reasons, such as to control or limit the spread of disease, finding the new legislation to be an improvement on the existing one.

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States of confusion: Jurisdictional variation in Australian medicines nomenclature – Denise Hope and Michelle King

In December 2000, the Galbally Review recommended Australia achieve national uniformity in drugs and poisons legislation. While the Commonwealth Poisons Standard classifies and schedules medicines and poisons, the Australian States and Territories are responsible for regulating the supply of medicines and poisons through individual medicines legislation. In December 2013, this legislation was examined to identify the nomenclature used to describe medicines. The research found considerable variation across jurisdictions in terms of the nomenclature used, in particular the terms used for Schedules in the State and Territory legislation were often inconsistent with each other and the terms used in the Poisons Standard. Of most concern is that the same term may be used to describe different medicines in different jurisdictions, leading to possible confusion for health practitioners working across jurisdictions as is now possible under national registration. It is therefore imperative that national uniformity of drugs and poisons legislation is achieved to facilitate a common practice reference.

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The case for MDMA (ecstasy) regulation – Joshua Donelly

Drug-related harm is the most rational means of determining a substance’s legal status. The available evidence suggests that compared to other drugs, 3,4-methylenedioxy-Nmethamphetamine (MDMA or “ecstasy”) poses a low level of harm to most individual users and causes negligible harm to society. There is no sound justification for criminalising the use of MDMA. The depenalisation model adopted in Australia does not have any benefits that cannot be achieved by removing minor MDMA offences from criminal law entirely. The current model also operates within a prohibition framework that is costly to society and increases harm to ecstasy users. These arguments support the proposal by David Penington in 2012 that MDMA should be regulated on a legal market. The supply of MDMA from pharmacies appears to be a practicable law reform option with the potential to reduce harm associated with ecstasy use and the costs of prohibition.

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Patenting genetic diagnostic methods: NGS, GWAS, SNPs and patents – Charles Lawson

This article reviews the problems posed by patent claims to genetic diagnostic methods associated with genome-wide association studies (GWAS) adopting methodologies using next-generation sequencing (NGS) and single nucleotide polymorphisms (SNP). These problems are essentially about experimental reproducibility and the credibility and veracity of reported developments. An analysis of the relevant law demonstrates that the current Australian and United States laws about suitable patentable subject matter differ, and that the current reproducibility (sufficiency, enablement and inutility) standards are unlikely to address these problems. The article concludes that following the United States approach excluding these genetic diagnostic method claims from patenting is one solution. Failing this, improving analysis and quality controls that are now being adopted in the basic research will reduce the nature of the problems, although this will remain problematic for patent examiners and the broader public.

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Genetic testing of stored tissue from a deceased person to define a relative’s disease risk: Legal and ethical viewpoints – Loane Skene, Julian Savulescu and Martin B Delatycki

It is now possible to undertake gene sequencing on DNA obtained from stored tissue removed from a person now deceased or from stored tissue from a living person. The sequencing may assist close blood relatives who are at risk of having a mutation that predisposes them to cancer to find out their own genetic risk. If the test had been done previously, Australian law would permit the test results to be provided to close blood relatives of the “originator” without consent, even if other relatives object, although good practice is to inform all family members about proposed genetic tests. However, it is less clear whether a pathology laboratory can lawfully, and should ethically, provide stored tissue for genetic testing, without the originator’s consent. This article argues that the law and ethics need to be clarified so pathology laboratories can confidently make stored tissue available for testing to assist blood relatives.

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Double standards: Standards of proof for persons found unfit for trial – Betheli O’Carroll

This article examines the laws surrounding whether a court has to be satisfied that a person who is unfit for trial committed an offence. Currently in Western Australia, Queensland, the Commonwealth and New Zealand, there is one standard of proof for persons who are fit for trial and a different, or no, standard of proof for persons found unfit. In particular, in Western Australia and Queensland, courts do not have to be satisfied to any standard of proof that a person who is unfit for trial committed an offence. This practice is of concern as unfit persons in these jurisdictions may be subject to custody orders or be involuntarily detained without having been convicted of an offence. The legislation in these jurisdictions is compared with the legislation in the remaining Australian jurisdictions where courts need to be satisfied beyond reasonable doubt that a person who is unfit for trial committed the conduct or objective elements of the alleged offence.

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Fitness to stand trial, human rights and possibilities from England and Wales – Jeanette Stewart, Mary Woodward and Ilana Hepner

The capacity of individuals with disability, including cognitive or mental health impairments, to access justice on an equal basis has been considered recently in several Australian jurisdictions. Impairments can render individuals vulnerable in the legal system, affecting their reliability as a witness or their fitness to be tried, especially when limited support is available to help these individuals meet the test and criteria for fitness to stand trial. This article considers the situation in Australia in light of human rights perspectives and compares it with the England and Wales approach where special support measures have been introduced to help individuals access justice. The article recommends that better support measures be introduced in Australia that would be consistent with a human rights framework calling for support to enable individuals with disability to access justice. In particular, the introduction of intermediaries, as used in England and Wales, would go some way towards helping vulnerable individuals to access justice.

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Tasmania’s Reproductive Health (Access to Terminations) Act 2013: An analysis of conscientious objection to abortion and the “obligation to refer” – Ronli Sifris

This article focuses on Tasmania’s Reproductive Health (Access to Terminations) Act 2013, which decriminalises abortion in that State. The article first provides an overview of the Tasmanian legislation, comparing it with Victoria’s Abortion Law Reform Act 2008. It then provides a more in-depth analysis of a doctor’s right to “conscientious objection” and the requirement in both Acts of an “obligation to refer”. The article concludes that ultimately, as a democratic society, it is important that both a woman’s right to terminate a pregnancy and a doctor’s right to freedom of conscience is respected. Where these rights conflict, as is the case when a doctor with a conscientious objection to abortion is confronted with a patient who seeks information about abortion, they must be balanced. The Victorian and Tasmanian Acts represent a considered and reasonable approach to balancing the rights at issue.

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Regulating preimplantation genetic diagnosis in Australia: Disability and parental choice – Michelle de Souza

Preimplantation genetic diagnosis (PGD) is the process by which an early in vitro embryo is screened for a genetic condition. As the name suggests, the procedure is undertaken prior to the embryo being implanted into a woman and therefore affected embryos can be discarded. This article argues that the objections previously put forward opposing the use of PGD to select against disability are flawed. It also argues that permitting parents to act in a procreatively beneficent manner and to preserve their child’s right to an open future are good reasons for parents to have the freedom to select against disability. In light of this, are there any sound reasons to limit the use of PGD to selection against serious disabilities?

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End-of-life decisions in Malaysia: Adequacies of ethical codes and developing legal standards – Puteri Nemie Jahn Kassim and Fadhlina Alias

End-of-life decision-making is an area of medical practice in which ethical dilemmas and legal interventions have become increasingly prevalent. Decisions are no longer confined to clinical assessments; rather, they involve wider considerations such as a patient’s religious and cultural beliefs, financial constraints, and the wishes and needs of family members. These decisions affect everyone concerned, including members of the community as a whole. Therefore it is imperative that clear ethical codes and legal standards are developed to help guide the medical profession on the best possible course of action for patients. This article considers the relevant ethical codes and legal provisions in Malaysia governing certain aspects of end-of-life decision-making. It highlights the lack of judicial decisions in this area as well as the limitations with the Malaysian regulatory system. The article recommends the development of comprehensive ethical codes and legal standards to guide end-of-life decision-making in Malaysia.

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BOOK REVIEW

• Elder Law in New Zealand by Kate Diesfeld and Ian McIntosh

For the pdf version of the table of contents, click here: JLM Vol 22 No 4 Contents.

Click here to access this Part on Westlaw AU

A special issue on commercial surrogacy will feature in a forthcoming issue of the Journal of Law and Medicine.

Chief Judge John Pascoe of the Federal Circuit Court of Australia says:

The fundamental issue for any community in relation to surrogacy is the sanctity of human life and how the community deals with the human rights of those affected, be they adults or children, or the unborn. The problem that confronts any community is that commercial surrogacy has the potential to commodify the creation of life and the children born of it.

As such, it is essential that the law responds in an effective way to commercial surrogacy, addressing the needs and requirements of the disparate and sometimes conflicting parties to such arrangements, including surrogate mothers, donors of genetic material, donor-conceived children and fertility clinics. Any response by the law to commercial surrogacy needs to recognise the fundamental premise in the United Nations Convention on the Rights of the Child that the best interest of the child is unequivocally paramount.

These issues, and more, are explored in the collection of scholarly articles to be published as part of the special issue, providing an important contribution to the ongoing debate on commercial surrogacy. The articles include:

• Commercial Surrogacy: What Role for Law in Australia?
• The Regulation of Commercial Surrogacy: The Wrong Answers to the Wrong Questions
• Responsive Regulation of Cross Border Assisted Reproduction
• Commercial Surrogacy and the Human Right to Autonomy
• Genes and Gestation in Australian Regulation of Egg Donation, Surrogacy and Mitochondrial Donation
• The Family Courts and Parentage of Children Conceived through Overseas Commercial Surrogacy Arrangements: A Child-centred Approach

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The latest issue of the Journal of Law and Medicine (Volume 23 Part 1) contains the following material:

EDITORIAL – Ian Freckelton QC

The medico-scientific marginalisation of homeopathy: International legal and regulatory developments – Ian Freckelton QC

The 2010 report of the United Kingdom Science and Technology Committee of the House of Commons and the 2015 report of the Australian National Health and Medical Research Council have overtaken in significance the uncritical Swiss report of 2012 and have gone a long way to changing the environment of tolerance toward proselytising claims of efficacy in respect of homeopathy. The inquiry being undertaken in the United States by the Food and Drug Administration during 2015 may accelerate this trend. An outcome of the reports and inquiries has been a series of decisions from advertising regulators and by courts rejecting medically unjustifiable claims in respect of the efficacy of homeopathy. Class actions have also been initiated in North America against manufacturers of homeopathic products. The changing legal and regulatory environment is generating an increasingly scientifically marginalised existence for homeopathy. That new environment is starting to provide effective inhibition of assertions on behalf of homeopathy and other health modalities whose claims to therapeutic efficacy cannot be justified by reference to the principles of evidence-based health care. This has the potential to reduce the financial support that is provided by insurers and governments toward homeopathy and to result in serious liability exposure for practitioners, manufacturers and those who purvey homeopathic products, potentially including pharmacists. In addition, it may give a fillip to a form of regulation of homeopaths if law reform to regulate unregistered health practitioners gathers momentum, as is taking place in Australia.

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LEGAL ISSUES – Danuta Mendelson

Disciplinary proceedings against doctors who abuse controlled substances – Danuta Mendelson

This study examined 27 reports from disciplinary tribunals throughout Australia (save Tasmania where reports were not accessible) against medical practitioners who abused narcotic analgesics (often combined with other drugs of addiction) between 2010 and 2015. The reports revealed that 12 medical practitioners were in their 40s; five in their 30s; and one person still in their 20s. Although the majority were general practitioners (15 out of 27), other medical specialties were also represented. Self-administered pethidine was the most prevalent opioid (11 out of 27) and was the only drug used alone. Morphine was self-administered by six doctors; the same number used high doses of Panadeine Forte, codeine and codeine phosphate. Fentanyl was abused by five doctors. Surprisingly, fewer medical practitioners appear to use propofol, and similar opiates such as tramadol (Tramol) and/or oxycodone (Endone). The examination of cases suggests lack of consistency in the imposition of professional sanctions and penalties by the relevant tribunals. To remedy this problem, it is suggested that disciplinary tribunals should apply the test of proportionality in the form of “reasonable necessity” when deciding whether to remove or suspend the addicted medical practitioner from the Register.

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MEDICAL ISSUES – Danny Sullivan

Methamphetamine: Where will the stampede take us? – Danny Sullivan and Michael McDonough

Methamphetamine, particularly “ice”, currently preoccupies the media and there are a range of government initiatives which seem to follow media interest. We summarise the progress of government attention, briefly review health concerns associated with methamphetamine use, and summarise the evidence for treatments, including psychosocial interventions and medications. Amid concerns that governments will seek to fund any promising initiative in order to be perceived as responding to an epidemic, we caution that existing treatments should not be abandoned in favour of untested but potentially attractive treatments. Harm reduction and outpatient psychological treatments remain the mainstay of drug treatment programs and may be more cost-effective and broader-reaching than inpatient, medication-based detoxifications.

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BIOETHICAL ISSUES – Malcolm Parker

“Never regard yourself as already so thoroughly informed”: The withdrawal of its invitation to Rodney Syme to address its 2015 congress by the Royal Australasian College of Physicians – Malcolm Parker, Ian Kerridge and Paul Komesaroff

In 1628, William Harvey presented his revolutionary theory of the circulation to ears at the Royal College of Physicians that had been deafened by the unquestionable authority of Galen’s teachings, from one and a half millennia in the past. Harvey’s theory was initially rejected, despite his faith in his colleagues being eager for truth and knowledge, and never regarding themselves as so well informed that they would not welcome “further information”. Recently Rodney Syme, the retired Melbourne urologist who for a long time has agitated for the legalisation of assisted dying, and also challenged the authorities to apply the current law in response to his admitted assistance to a number of individuals, was invited to address the 2015 Congress of the Royal Australasian College of Physicians. At the eleventh hour, the invitation to speak was withdrawn. In this column, we trace the course of events leading to this withdrawal of the invitation, and describe some of the correspondence to and from the College in response to the withdrawal. We draw parallels between the experiences of Harvey and Syme, and point to lessons to be learnt from the recent episode of apparent unwillingness, on the part of an institution that seeks to present itself as outward-looking, progressive and socially aware, to fulfil this promise in the increasingly important area of the end-of-life.

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MEDICAL LAW REPORTER – Thomas Faunce

Australian Competition and Consumer Commission v ACN 117 372 915: Should consumer law regulate doctor-patient relations in a corporatised health care system? – Jessica Wallace, Ella Pyman and Thomas Faunce

In April 2015, North J of the Federal Court of Australia made a finding of unconscionable conduct against Advanced Medical Institute, a promoter and provider of erectile dysfunction treatment, in a case concerning unfair contract terms (Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 368). The contract required a minimum 12-month commitment, with costs exceeding treatments available from general practitioners, and made refunds available only after all possible treatment plans were exhausted which included penile injections. This column analyses that case, particularly in respect to the consumer law standards of practice under which it was litigated. Those standards refer to patients as “consumers” yet North J made extensive reference to the Good Medical Practice: A Code of Conduct for Doctors in Australia, a text which refers to “patients”, as evidence of what constitutes appropriate professional conduct or practice for the health profession. This column considers whether legislative and judicial categorisation of patients (a class of people presumptively suffering, sick and vulnerable) as “consumers” undermines the formal and informal protections accorded to patients under normative systems of medical ethics such as those represented by the Code. The case, it is argued, also illuminates the contemporary tensions between the ethical, legal and human rights standards required of doctors in their treatment of patients and the commercial interests of businesses.

LETTER TO THE EDITOR

Articles

Medical teams and the standard of care in negligence – Carolyn Sappideen

Medical teams are essential to the delivery of modern, patient-centred health care in hospitals. A collective model of responsibility envisaged by team care is inconsistent with common law tort liability which focuses on the individual rather than the team. There is no basis upon which a team can be liable as a collective at common law. Nor does the common law countenance liability for the conduct of other team members absent some form of agency, vicarious liability or non-delegable duty. Despite the barriers to the adoption of a team standard of care in negligence, there is scope for team factors to have a role in determining the standard of care so that being a team player is part and parcel of what it is to be a competent professional. If this is the case, the skill set, and the standard of care expected of the individual professional, includes skills based on team models of communication, cross-monitoring and trust.

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Prevention of non-communicable diseases in Australia: What role should public health law play? – Kate Mulvany

This article explores the role of public health law in the prevention of non-communicable diseases in Australia. The growing urgency to address these diseases is acknowledged and the definition of public health law explored. It is argued that a broad definition of public health law would allow greater recognition of the numerous ways that law can positively influence health outcomes at the population level. Far from substantiating claims of over-reaching state intervention, public health law in the 21st century in Australia should be viewed as a more nuanced and protective strategy in promoting better public health. Adopting this approach offers a way forward towards addressing rising rates of non-communicable diseases, as well as significant health inequities, but it will require greater political will and leadership.

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Personal responsibility or shared responsibility: What is the appropriate role of the law in obesity prevention? – Benjamin Brooks

Sensitive to allegations of “nanny state” paternalism, Australian governments support the doctrine that combating obesity is a matter of personal responsibility. Policy-makers endorse the “holistic” approach to obesity prevention, with a view to managing both sides of the nutritional energy equation. This paradigm allows the food and drinks industry to deflect its contributory responsibility for the epidemic and to avoid more stringent regulatory intervention beyond existing self-regulatory and corporate social responsibility regimes. This article argues that the industry must bear shared responsibility for the extent of the obesity crisis, although it cannot bear sole responsibility. It defends the public interest case for more invasive, government-led regulation, reframing the crisis as one of public not individual burdens. Mindful of the political risk associated with unfocused calls for regulatory intervention, it articulates a set of regulatory principles to ensure that the interests of consumers and industry are properly acknowledged prior to further regulatory intervention. Finally, the article clarifies the subject, object and content of possible regulatory initiatives, offering an evaluation of their efficacy, practicality and fairness.

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Assessing testamentary and decision-making capacity: Approaches and models – Kelly Purser and Tuly Rosenfeld

The need for better and more accurate assessments of testamentary and decision-making capacity grows as Australian society ages and incidences of mentally disabling conditions increase. Capacity is a legal determination, but one on which medical opinion is increasingly being sought. The difficulties inherent within capacity assessments are exacerbated by the ad hoc approaches adopted by legal and medical professionals based on individual knowledge and skill, as well as the numerous assessment paradigms that exist. This can negatively affect the quality of assessments, and results in confusion as to the best way to assess capacity. This article begins by assessing the nature of capacity. The most common general assessment models used in Australia are then discussed, as are the practical challenges associated with capacity assessment. The article concludes by suggesting a way forward to satisfactorily assess legal capacity given the significant ramifications of getting it wrong.

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Slice them up or slice them out? Legal liability for operating on the troublesome patient in cosmetic surgery – Aileen Kennedy

The practice of cosmetic surgery is constructed as psychologically beneficial. This therapeutic promise transforms cosmetic surgery into proper medical treatment. However, there is emerging evidence that a significant percentage of cosmetic surgery patients suffer from the condition of Body Dysmorphic Disorder (BDD), which is characterised by excessive preoccupation with imagined or minor defects in appearance. BDD is uniformly identified as a strong contra-indication for cosmetic surgery. Articles in scholarly journals on cosmetic surgery identify the “red flag” indicators to assist in screening out problem patients. However, a close examination of the most common indicators reveals that most are ineffective in identifying BDD in prospective patients. This article also considers the legal liability of cosmetic surgeons who operate on patients with BDD, and concludes that there is little likelihood of liability in trespass or negligence under current Australian law.

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State intervention in pregnancy: Should the law respond thus to the problem of Foetal Alcohol Spectrum Disorder? – Emily Gordon

Maternal consumption of alcohol during pregnancy poses a serious threat to the life and health of unborn children. A submission to the Queensland Child Protection Commission of Inquiry proposed that the State’s Child Protection Act be extended to allow intervention to protect unborn children, with a court empowered to order that the mother be taken into care pending birth, or otherwise impose conditions upon conduct. This article considers whether or not the law in Australia should respond to the problem of Foetal Alcohol Spectrum Disorder by allowing the involuntary treatment and detention of pregnant women. The focus is upon intervention in response to existing pregnancies. Using a utilitarian critical framework, this article evaluates the merits of creating powers to compel treatment and detain in light of current legal principles relating to maternal autonomy and the legal position of the foetus. The common law position is considered, as well as current legislation allowing intervention in autonomous decision-making and whether or not these statutes may be enlivened to prevent foetal harm. This article suggests that permitting involuntary treatment and detention would be a significant policy change. It weighs up benefits and potential harms in considering whether or not such action would result in the most “good”.

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Criminal injuries compensation: Protecting vulnerable applicants – Robert Guthrie

Each year large numbers of persons sustain injury as a consequence of criminal behaviour. All Australian jurisdictions provide State-funded compensation to those harmed in this way. In the case of vulnerable applicants, the Assessor must consider not simply the appropriate and fair amount of compensation, but also how a person will be affected by the payment of compensation. Often a vulnerable applicant will apply through a guardian or a public trustee, although many apply in person. This article examines the use of legislative provisions, rules, regulations and practices in the various Australian jurisdictions in relation to how vulnerable applicants may be protected and supported once an award of compensation is made in their favour. Most jurisdictions provide for a mechanism by which compensation may be held in trust where the Assessor considers that the applicant may be unable to manage his or her financial affairs in his or her best interests. This article explores what factors are taken into account by Assessors in the absence of and pursuant to legislative directions. It considers how the approach may vary across jurisdictions and creative approaches to financial protection of vulnerable applicants.

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Unwanted pregnancy: The outer boundary of “treatment injury” in the New Zealand accident compensation scheme – Rosemary Tobin

The New Zealand accident compensation scheme has undergone many changes over the years and these changes are reflected in the way unwanted pregnancy claims have been dealt with under the regime. The New Zealand Supreme Court has now confirmed that pregnancy as a result of medical misadventure can be classified as a personal injury under the scheme with the result that the woman patient is entitled to the benefits of the scheme and may not pursue a common law claim against the medical practitioner. This article analyses two recent decisions in the context of consideration of the changing fortunes of the unwanted pregnancy claims.

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Patient’s right to information under the New Zealand Code of Rights – Kyla Mullen

The Code of Health and Disability Services Consumers’ Rights includes right 6: the “Right to be Fully Informed”. Analysis of the Health and Disability Commissioners’ opinions between 2008 and 2013 that have discussed right 6 shows that the duties on providers have increased in a number of areas: the need to inform of risks, including provider-inherent risks; open disclosure of adverse events; ongoing need to inform consumers throughout the therapeutic relationship; information of all available options; and provision of sufficient time between disclosure of information and obtaining informed consent for provision of health services. Following a breach opinion, the Human Rights Review Tribunal and the Health Practitioners Competency Tribunal, on occasion, have the opportunity to consider the case but their role in law development is limited compared with that of the Commissioner. The limitations of law development in this manner are discussed.

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A way through the dark and thorny thickets? The adjudication of “serious injury” under the narrative tests in the Transport Accident Act 1986 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Jason Taliadoros

The so-called “narrative” test provides the means by which injured persons who satisfy the statutory and common law definition of “serious injury” may bring proceedings for common law damages under s 93 of the Transport Accident Act 1986 (Vic) and s 134AB of the Accident Compensation Act 1985 (Vic) (or, for injuries after 1 July 2014, under ss 324-347 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)). These are among the most litigated provisions in Australia. This article outlines the legislative and political background to these provisions, the provisions themselves, and an account of the statutory and common law requirements needed to satisfy the provisions.

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BOOK REVIEW

• A Scientist in Wonderland: A Memoir of Searching for Truth and Finding Trouble – by Edzard Ernst

For the pdf version of the table of contents, click here: JLM Vol 23 No 1 Contents

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The latest issue of the Journal of Law and Medicine (Volume 23 Part 2) contains the following material:

GUEST EDITORIAL

Commercial surrogacy: What role for law in Australia? – Ronli Sifris, Karinne Ludlow and Adiva Sifris

This editorial begins by illuminating current conversations regarding the regulation of commercial surrogacy in Australia. It defines “commercial surrogacy” and explains the interaction between changes in social attitudes and changes to the law before setting out the current Australian law and practice in this area. An examination of current domestic law and practice reveals that surrogacy legislation in Australia is mired in inconsistencies and a lack of uniformity but that the one key common element is the prohibition of commercial surrogacy. The inability of couples to access commercial surrogacy within Australia has led to offshore reproductive tourism and unpredictable, contradictory decision-making as the Family Court attempts to apply legislation which was never intended to apply in this context. The editorial then turns to consider the international arena, discussing the approach of the Hague Conference on Private International Law before delving into a human rights analysis of commercial surrogacy arrangements. The adoption of a rights-based approach requires an analysis of this vexed issue from the perspective of the child, surrogate and intending parents. While questions surrounding the human rights implications of legalising commercial surrogacy continue to be the subject of passionate debate, the authors believe that the human rights of all parties are best protected through appropriate regulation rather than absolute prohibition.

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LEGAL ISSUES – Bernadette McSherry

Defining seclusion and restraint: Legal and policy definitions versus consumer and carer perspectives – Cath Roper, Bernadette McSherry and Lisa Brophy

The practices of seclusion and restraint may be used in a variety of health settings to control behaviour. Laws and policies that seek to regulate these practices define seclusion and restraint in various ways and there are gaps as to which practices are regulated and in what circumstances. This column provides an overview of consumer and carer perspectives as to what is meant by these practices.

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MEDICAL ISSUES – David Ranson

The dangers of dementia: Getting the balance right – Ross Bicknell, Joseph Ibrahim, Lyndal Bugeja and David Ranson

Australia’s population is ageing and it is likely that there will be a threefold increase in the number of people living with dementia in the next 30 years. Caring for these individuals will incur a significant burden on our community both fiscal and personal. How we provide this care will say much about our compassion for and commitment to caring for those who are no longer part of the productive workforce. Individuals with dementia are a heterogeneous group with a wide range of function and capacity. Nevertheless, their impairment often requires a high level of formal care in order to reduce the risk of harm to themselves and others in the community. The imposition of such care arrangements can be invasive of their autonomy and in some cases their liberty.

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BIOETHICAL ISSUES – Grant Gillett

Lecretia Seales and aid in dying in New Zealand – Grant Gillett

The application by Lecretia Seales, in relation to the lawfulness of physician aid in dying in New Zealand, was heard by Collins J, an experienced medical jurisprudentialist. It raised issues re-ignited by the recent Supreme Court of Canada ruling in Carter v Canada and the legislative change in California. Is a continued prohibition in Australasia and the United Kingdom against physician aid in dying causing patients to be subjected to cruel, inhumane and undignified deaths or, in fact, is a legislative change unnecessary given the level of care that patients can receive and the peaceful and harmonious deaths that we often hear about in hospice and other settings. A range of arguments, some traditional and some very contemporary, were canvassed in the case of Lecretia Seales and Collins J considered each of them, commenting in detail both on points of law and matters of ethical substance. A study of his judgment therefore makes fascinating reading for those interested in end-of-life decisions and the way they are dealt with in different developed world jurisdictions, and in particular, how such ethical matters may be considered from the point of view of indigenous and marginalised cultures.

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NURSING ISSUES – Kim Forrester

The role of observation and feedback in enhancing performance with medication administration – Karen Davies, Charles Mitchell and Ian Coombes

Legislation in Queensland such as the Health (Drugs and Poisons) Regulation 1996, the national registration competency standards set by the Nursing and Midwifery Board of Australia, and the Continuing Professional Development Registration Standards made pursuant to the Health Practitioner Regulation National Law define expected standards of practice for nurses. The Framework for Assessing Standards for Practice for Registered Nurses, Enrolled Nurses and Midwives, released in July 2015, includes the principles for assessing standards but not the methods. Local policies and procedures offer specific requirements founded on evidence-based practice. Observation of clinical practice with the provision of immediate descriptive feedback to individual practitioners has been associated with improved performance. This column describes the role of regular observation and individual feedback on medication administration as a strategy to enhance performance and patient care.

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MEDICAL LAW REPORTER – Thomas Faunce

Myriad voices against gene patents in the High Court – Lucas McCallum and Thomas Faunce

The Australian High Court’s recent landmark decision in D’Arcy v Myriad Genetics Inc overturned the decision by the Federal Court in Cancer Voices Australia v Myriad Genetics Inc regarding patenting of genetic material. The Federal Court had found that isolated DNA and RNA can constitute a patentable invention under s 18(1)(a) of the Patents Act 1990 (Cth). The decision by the High Court unanimously reversed this and declared it was appropriate to look to the policy implications at the heart of the legal question: are genes a category of things that can be patented? This column critically examines the implications of the High Court decision for both research and public health in Australia.

LETTER TO THE EDITOR

SPECIAL ISSUE NOTE AND ARTICLES

Introductory note to Special Issue – Chief Judge John H Pascoe

The regulation of commercial surrogacy: The wrong answers to the wrong questions – Anita Stuhmcke

The criminal ban on commercial surrogacy across Australian jurisdictions is the result of the conflation and confusion of two flawed assumptions. The first being that the criminalisation of commercial surrogacy will discourage a surrogacy “industry” and the second that commercial surrogacy and altruistic surrogacy are two distinguishable “types” of surrogacy arrangements. This article argues that the criminalisation of commercial surrogacy has resulted in unforeseen and undesirable consequences, removing opportunity for evidence-based law reform. Moreover, analysis of both the approach of Australian courts and the operation of surrogacy legislation suggests that the binary regulatory approach which distinguishes “commercial” from “altruistic” surrogacy is a legal fiction. In summary, this article argues that the current Australian regulation of surrogacy is both blunt and ineffectual, surrogacy is a nuanced and complex practice which requires a regulatory response which is principled, holistic and evidence based.

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Responsive regulation of cross-border assisted reproduction – Jenni Millbank

This article considers the question: how might Australian regulators constructively respond to the dynamic and complex challenges posed by cross-border assisted reproduction? To begin, the article summarises the available international scholarship and outlines what little we know about Australian cross-border reproductive travel. Of the three generally proposed responses to cross-border reproductive care (prohibition, harm minimisation and harmonisation), the article summarily rejects the first approach, and instead discusses a mixture of the latter two. The article proposes the beginnings of an immediate policy response aimed not at stopping cross-border practices per se, but rather at understanding and reducing the risks associated with them, as well as flagging the pursuit of more ambitious meta-goals such as developing more equitable and accessible treatment frameworks for assisted reproductive technology and encouraging domestic self-sufficiency in reproduction.

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Commercial surrogacy and the human right to autonomy – Ronli Sifris

Arguments against commercial surrogacy frequently focus on the rights of the surrogate. For example, those opposed to commercial surrogacy often argue that surrogacy arrangements amount to the exploitation of women and the commodification of their wombs. Phrased in the language of rights, such arguments draw on the right to be free from degrading treatment and the right to be free from discrimination. In contrast, those who support commercial surrogacy refute the arguments relating to exploitation and commodification and cite the right to work and more commonly the right to privacy / autonomy as the key rights in question. This article focuses on the human right to autonomy and interrogates whether prohibitions on commercial surrogacy violate the right of a woman to choose to be a surrogate.

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Genes and gestation in Australian regulation of egg donation, surrogacy and mitochondrial donation – Karinne Ludlow

This article considers genetic and legal relatedness for the purposes of Australian regulation of egg donation, surrogacy and parentage by examination of that regulation through the lens of mitochondrial (mt) donation. The article addresses whether mt donors would be a child’s genetic parents following clinical use in that child’s conception should mt donation be legalised for such use in Australia. It then considers how genetic and gestational relatedness are relevant in the discourse around legal parentage following egg donation and surrogacy and argues that the current approach is in need of reform so that intending parents of all children are deemed to be the resulting child’s legal parents at birth.

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The Family Courts and parentage of children conceived through overseas commercial surrogacy arrangements: A child-centred approach – Adiva Sifris

This article adopts a child-centred approach to the vexed issue of commercial surrogacy. These arrangements are prohibited throughout Australia. Nevertheless, Australians are travelling overseas and entering into commercial surrogacy arrangements. This article addresses the dilemma confronting the Family Courts when the commissioning parents and the child return to Australia. Should the Family Courts make parenting orders enabling the commissioning parents to raise the child? Alternatively, should they make parentage orders legally recognising the commissioning parents as the child’s parents? After exploring the existing legislative structure and its application, the interest theory of children’s rights is utilised to justify changes to the law so that the commissioning parents are regarded as the child’s legal parents.

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Articles

Medical and scientific authorship: A conflict between discipline rules and the law – Elizabeth Adeney

When the results of medical collaborations are to be published, questions of authorship arise. Which members of the research team are to be acknowledged as authors of the paper? In what order are they to be acknowledged? Institutional rules will generally determine the attribution of authorship to members of the research team. However, those rules are most unlikely to be consistent with the legal rules governing authorship and its attribution, most of which will apply regardless of a team’s adherence to institutional rules. This article examines the meaning of authorship in the medical community, and in the legal community under the copyright laws. It considers various formulations of the institutional rules governing authorship, as well as editorial practices. Through consideration of a hypothetical scenario, the consequences of the disparity between authorship norms in law and in medicine are elaborated.

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Foetal Alcohol Spectrum Disorders: A consideration of sentencing and unreliable confessions – Heather Douglas

While Foetal Alcohol Spectrum Disorders (FASDs) are now a strong focus of policy-makers throughout Australia, they have received strikingly little consideration in Australian criminal courts. Many people who have an FASD are highly suggestible, have difficulty linking their actions to consequences, controlling impulses and remembering things, and thus FASD raises particular issues for appropriate sentencing and the admissibility of evidence. This article considers the approach of Australian criminal courts to FASD. It reviews the recent case of AH v Western Australia which exemplifies the difficulties associated with appropriate sentencing in cases where the accused is likely to have an FASD. The article also considers the implications for Australian courts of the New Zealand case of Pora v The Queen, recently heard by the Privy Council. In this case, the Privy Council accepted expert evidence that people with FASD may confabulate evidence, potentially making their testimony unreliable. The article concludes with an overview of developments in criminal policy and legal response in relation to FASD in the United States, Canada and Australia.

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Cutting the cord: Can society over-invest in extremely premature and critically impaired neonates? – Neera Bhatia

This article provides a critical examination of the allocation of scarce public health care funds in relation to extremely premature and sick neonates. Decisions to withdraw or withhold life-sustaining treatment from neonates born extremely premature are generally informed by arbitrary and often subjective considerations of those involved in their care – namely parents and medical practitioners. This article argues for a sharp and immediate focus in decisions to treat such neonates based on the allocation of limited health care resources. Accordingly, decisions to save and preserve the lives of imperilled neonates should not be limited to the immediate financial costs of medical treatment. More explicitly there should be a full appreciation of the cost of disability to the family, requirements for long-term care, and the benefits and associated costs of life, not only to the patient, but also to society.

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Nazi medical experiments on Australian prisoners of war: Commentary on the testimony of an Australian soldier – George M Weisz

Archival research reveals that Australian prisoners of war were exposed to non-consensual medical experiments during World War II. This article discusses the first known case of an Australian soldier exposed to German medical experiments.

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A problem of modernity: Dual burial plots, the right to inter, and the interrelationship between the two – Lynden Griggs

Vosnakis v Arfaras directly raises the issue as to how private law will resolve the tensions that can exist between family members in relation to burial licences and the right to inter. In evoking contract, property, and statute, the case reveals the complexity associated with this area, specifically in relation to dual burial plots, and how rather simple family disputes can escalate significantly beyond their economic worth. Recommendations to include a registry system to record details of funeral arrangements is encouraged to ensure that the many thousands of dollars spent by the litigants in this case is not repeated by other families. This, along with courts being required to give effect to the wishes of the deceased, will provide a clarity that is currently missing. In a time when the population is increasing, a changed dynamic to family life in Australia, and less land available for internment, the problem of the relationship of a dual burial licence and the right to inter is one of modernity, but one to which the community should expect the application of policy initiatives to complement a coherence within the legal position. This coherency and such policy initiatives are currently lacking but, with simple measures, this position can be rectified.

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Our Father who art in prison: Conviction and rehabilitation for Australian Catholic clergy who are child sexual offenders – Mike O’Connor

In light of the Royal Commission into Institutional Child Sexual Abuse, this article analyses the custodial sentences of 143 Australian Catholic clergy. The majority of these sentences were for convictions for indecent assault for which the median sentence was two years’ imprisonment. It is doubtful whether the Australian community would consider such sentences as adequate, particularly where offences were against children. Current Australian legislation allows for ongoing long-term sanctions, including judicial orders for chemical castration, to be imposed on convicted sex offenders, especially those assessed as being at high risk of re-offending. Clergy on parole are likely to be prohibited from resuming most pastoral responsibilities on the grounds of high actuarial risk of re-offending, but what limited data are available suggests that priests may have low rates of re-offending. If priests do have low rates of recidivism, what then should the Catholic Church do about priests convicted of child sexual abuse offences who want to return to pastoral work and how might they be managed and monitored? Laicisation of offender priests will inevitably produce ostracism and isolation which are conducive to re-offending.

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BOOK REVIEW

• Critically Impaired Infants and End of Life Decision Making by Neera Bhatia

For the PDF version of the table of contents, click here: JLM Vol 23 No 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.

The latest issue of the Journal of Law and Medicine (Volume 23 Part 3) contains the following material:

EDITORIAL – Ian Freckelton QC

Medicinal cannabis law reform in Australia – Ian Freckelton QC

Attempts at medicinal cannabis law reform in Australia are not new. However, in historical perspective 2015 and 2016 will be seen as the time when community debate about legalisation of medicinal cannabis reached a tipping point in a number of Australian jurisdictions and when community impetus for change resulted in major reform initiatives. In order to contextualise the changes, the August 2015 Report of the Victorian Law Reform Commission (VLRC) and then the Access to Medicinal Cannabis Bill 2015 (Vic) introduced in December 2015 into the Victorian Parliament by the Labor Government are scrutinised. In addition, this editorial reviews the next phase of developments in the course of 2015 and 2016, including the Commonwealth Narcotic Drugs Amendment Act 2016 and the Queensland Public Health (Medicinal Cannabis) Bill 2016. It identifies the principal features of the legislative initiatives against the backdrop of the VLRC proposals. It observes that the principles underlying the Report and the legislative developments in the three Australian jurisdictions are closely aligned and that their public health approach, their combination of evidence-based pragmatism, and their carefully orchestrated checks and balances against abuse and excess constitute a constructive template for medicinal cannabis law reform.

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LEGAL ISSUES – Joanna Manning

Non-consensual clinical research in New Zealand: Law reform urgently needed – Joanna Manning

In New Zealand non-consensual research studies on incapacitated adults are of doubtful legality under current laws. This column argues that the current situation goes too far, inevitably depriving incompetent participants as individuals and as a group of access to medications for which there is good reason to be confident may be directly beneficial to them, as well as to future patients and society. At the same time, incapacitated participants are particularly vulnerable to exploitation and harm. All jurisdictions in which non-consensual research is undertaken have to balance these competing ethical considerations. In the United Kingdom, three different pieces of legislation have been enacted which permit non-consensual research to proceed, subject to a comprehensive regime of strict protections for participants. The column analyses these and argues that an excellent model can be constructed from them. In late 2014, the New Zealand Health and Disability Commissioner agreed to investigate this issue with a view to proposing law reform, but the promised public consultation has never eventuated. It must do so without further delay for the protection of participants and researchers, and in the interests of society.

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MEDICAL ISSUES – Mike O’Connor

The treatment of intersex and the problem of delay: The Australian Senate inquiry into intersex surgery and conflicting human rights for children – Mike O’Connor

When a child is born with indeterminate genitalia (so-called intersex or disordered sex development), it becomes very difficult to balance the child’s right to determine their own sexual future against the problems of living as a child with an indeterminate gender. Moreover, the initial assignment of gender may prove to be inappropriate and major psychological disturbances in the recipient can arise during adolescence and adult life. The problems of these children were explained to the Australian Senate Committee during its inquiry into intersex surgery in 2013. As a result, the Committee made a number of recommendations, including a proposal that all surgery be deferred until the child is able to consent to treatment. The author argues that the Committee’s proposal to delay all modifications of indeterminate genitalia is impractical. The inclusion in the definition of intersex of common conditions (such as hypospadias in genetic male infants) means that necessary and uncontroversial surgery will be delayed until after puberty. This delay may be harmful and adverse to some children’s best interests.

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MEDICAL LAW REPORTER – Thomas Faunce

Regulation of Australian medical professionals and national security: Lessons from three case studies – Thomas Faunce, Michael McKenna, Johanna Rayner and Jazmin Hawes

In recent times, Australia’s national security concerns have had controversial impacts on regulation of Australian medical practitioners in areas related to immigration detention. This column explores three recent case studies relevant to this issue. The first involves the enactment of the Australian Border Force Act 2015 (Cth), which has a significant impact on the regulation of medical professionals who work with people in immigration detention. The second involves the decision of the High Court of Australia in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 that an amendment to Australian federal legislation justified sending children back to immigration detention centres in Papua New Guinea and Nauru. This legislation was previously heavily criticised by the Australian Human Rights Commissioner. The third concerns the deregistration of Tareq Kamleh, an Australian doctor of German-Palestinian heritage who came to public attention on ANZAC Day 2015 with his appearance online in a propaganda video for the Islamic State terrorist organisation al-Dawla al-Islamyia fil Iraq wa’al Sham, also known as Islamic State of Iraq and Syria (ISIS) or Daesh. Australia’s professional regulatory system should presumptively respect professional virtues, such as loyalty to the relief of individual patient suffering, when dealing with doctors (whether in Australia or ISIS-occupied Syria) working under regimes whose principles appear inconsistent with those of ethics and human rights.

Articles

The New Zealand Coroners Amendment Bill’s proposed approach to health care-related deaths that are reportable to the coroner – Jennifer Moore, Tim Stokes and Ben Gray

When must a death that occurs in a health care setting be reported to the coroner? This article explores this question by analysing the Coroners Act 2006 (NZ) and the amendments to the health care-related deaths provisions in the Coroners Amendment Bill 2014 (NZ). At the time of writing, the Bill was at the Select Committee stage. This article examines whether the amendments may improve the inconsistent clinical and coronial practices with respect to reportable health care-related deaths. It concludes that, while the proposed amendments are an improvement on the current legislative drafting, doubt remains about whether they will solve the challenges presented by health care-related reportable deaths. The second and third readings of the Bill should give serious consideration to the submissions received by the New Zealand Law Commission that express the view that the Queensland and Victorian legislation should be used as models.

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Decision-making in a death investigation: Emotion, families and the coroner – Gordon Tait, Belinda Carpenter, Carol Quadrelli and Michael Barnes

The role of the coroner in common law countries such as Australia, England, Canada and New Zealand is to preside over death investigations where there is uncertainty as to the manner of death, a need to identify the deceased, a death of unknown cause, or a violent or unnatural death. The vast majority of these deaths are not suspicious and thus require coroners to engage with grieving families who have been thrust into a legal process through the misfortune of a loved one’s sudden or unexpected death. In this research, 10 experienced coroners discussed how they negotiated the grief and trauma evident in a death investigation. In doing so, they articulated two distinct ways in which legal officers engaged with emotions, which are also evident in the literature. The first engages the script of judicial dispassion, articulating a hierarchical relationship between reason and emotion, while the second introduces an ethic of care via the principles of therapeutic jurisprudence, and thus offers a challenge to the role of emotion in the personae of the professional judicial officer. By using Hochschild’s work on the sociology of emotions, this article discusses the various ways in which coroners manage the emotion of a death investigation through emotion work. While emotional distance may be an understandable response by coroners to the grief and trauma experienced by families and directed at cleaner coronial decision-making, the article concludes that coroners may be better served by offering emotions such as sympathy, consideration and compassion directly to the family in those situations where families are struggling to accept, or are resistant to, coroners’ decisions.

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Negotiating grief and trauma in the coronial jurisdiction – Marc Trabsky and Paula Baron

This article is placed within the wider context of lawyer wellbeing research, which evidences abnormally high levels of depression, substance abuse and suicide among the legal profession. To date, however, relatively few works have sought to explore the phenomenon of lawyer distress in particular segments of the legal services industry. This article seeks to explore and understand the affective experiences of legal professionals working in the coronial jurisdiction. It examines the ways in which solicitors, barristers and coroners negotiate grief and trauma in the performance of a public role. The point of departure is an enduring conflict between the responsibilities of office and the cultivation of intimate relations. In exploring the likelihood of distress among legal personnel in the coronial jurisdiction, this article looks not only to research on the wellbeing of legal personnel, but to the literature on vicarious or secondary trauma reactions and compassion fatigue among professions dealing with trauma. In examining the different ways in which legal personnel manage and negotiate grief and trauma, the article draws on the sociological concept of intimate citizenship to suggest that the operational model of the court, informal networks among professionals and strong personal relationships may serve to ameliorate distress.

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“Blowed off by a side wind”? Coronial inquests following criminal acquittals – John Aberdeen

For three decades, Australian coroners have been moving steadily away from an historical partnership with the criminal law, and have emerged as independent judicial investigators with a dedicated court, and forensic and administrative support structures. Occasionally, however, a situation may arise where the ghosts of coronial law’s quasi-criminal past threaten to reappear, to the detriment of the coronial function. One of these situations might develop following an acquittal on a criminal charge which involved the causing of a death. Issues pertaining to a coroner’s duty may remain unresolved following criminal proceedings; and the question has to be posed as to whether the result of the previous criminal prosecution restricts or confines, in any way, the scope of permissible findings by a coroner in a later inquest. This article attempts to address this question in the particular context of Queensland law and its historical antecedents – many of which are common to other jurisdictions – in the hope that it might provoke consideration of the underlying practical and theoretical issues to the future benefit of coronial legal theory.

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The coronial investigation of suspected deaths: Prevalence and outcomes in New South Wales – Stephanie Dartnall and Jane Goodman-Delahunty

In Australia, the investigation of a missing person who remains unlocated may be reported to the coroner as a suspected death. In the first study of its kind in Australia, archival records on suspected deaths investigated by New South Wales coroners from 2000 to 2013 were aggregated to assess the number of inquests, investigation timeframes, findings, recommendations and responses thereto. Of 322 suspected deaths, 96% resulted in an inquest, with the majority (94%) yielding a finding that the missing person was deceased with the cause (81%) and manner (73%) of death predominantly unknown. In one-third of the cases, more than 20 years lapsed from the date of disappearance to closure of the coronial investigation. Formal recommendations were made in 15% of the cases. These findings on the processes and outcomes of suspected death investigations are of particular import to relatives of missing people. Challenges in accessing records and the broader implications of the findings are discussed.

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Does the removal of anonymity reduce sperm donors in Australia? – Damian H Adams, Shahid Ullah and Sheryl de Lacey

The National Health and Medical Research Council’s guidelines implemented in 2005 removed a sperm donor’s ability to remain anonymous in every Australian State except Victoria, which had removed anonymity completely by 1998. To assess the impact of these changes on sperm donor numbers in Australia, Assisted Reproductive Technology clinics were surveyed to obtain sperm donation figures between 2000 and 2012, with additional data collected from State-based oversight groups. There was an increase in total sperm donor numbers over the study period, including the year anonymity was removed as well as the non-anonymous period. Variations in total donor numbers and numbers of new recruits observed during the period could not be attributed to any specific change in policy or practice. As total sperm donor numbers have been increasing, the removal of a donor’s ability to remain anonymous has not been detrimental to the availability of sperm donors in Australia.

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Recall and understanding of risk in endodontics: A questionnaire survey – Mark Johnstone, Stephen Harlamb and Peter Parashos

The aim of this study was to determine the factors affecting the quantity and quality of information recalled by patients following endodontic consultations and their effect on anxiety. New patients attending the Royal Dental Hospital of Melbourne and University of Melbourne Dental Clinic were asked to complete a questionnaire assessing the amount of information retained following their consultation, determining a patient’s threshold for information disclosure and the effect of the consultation on patient anxiety. Only 9% of patients recalled more than two complications. Males (P = 0.02), patients older than 65 years (P < 0.001), and patients with education limited to high school (P < 0.001) recalled significantly less information. Most respondents (71.3%) wanted information about complications with a prevalence of less than 1%. Only 11 patients (8%) developed more anxiety as a consequence of the consultation. Patients had overall poor recall of complications following endodontic consultations.

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Health complaints and regulatory reform: Implications for vulnerable populations? – Terry Carney, Fleur Beaupert, Mary Chiarella, Belinda Bennett, Merrilyn Walton, Patrick J Kelly and Claudette S Satchell

Complaints and disciplinary processes play a significant role in health professional regulation. Many countries are transitioning from models of self-regulation to greater external oversight through systems including meta-regulation, responsive (risk-based) regulation, and “networked governance”. Such systems harness, in differing ways, public, private, professional and non-governmental bodies to exert influence over the conduct of health professionals and services. Interesting literature is emerging regarding complainants’ motivations and experiences, the impact of complaints processes on health professionals, and identification of features such as complainant and health professional profiles, types of complaints and outcomes. This article concentrates on studies identifying vulnerable groups and their participation in health care regulatory systems.

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Defining deviation: The peer professional opinion defence and its relationship to scope expansion and emerging non-medical health professions – Jon Wardle

The law imposes a duty to exercise reasonable care and skill in the provision of professional advice and treatment on all health practitioners, which in Australia is assessed via a modified Bolam principle. In an era of medical dominance, this standard was clearly related to the standards of the medical profession. However, the evolving nature of the Australian health workforce has fuelled speculation as to how non-medical professions are assessed to be practising in accordance with established standards. This article explores the peer-professional defence in relation to new, emerging and established non-medical professions practising in areas that were not historically part of their remit, and finds that individual health professions – even those which do not possess traits historically defined by professionalism – have ultimate discretion in determining the standards by which they are assessed, though such standards may be rejected by courts if they are deemed irrational.

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A Hospital-based Patient Legal Clinic – Liz Bishop, Hana Shahkhan and Bebe Loff

The HeLP Patient Legal Clinic has provided free legal advice to public hospital patients with health-related problems since March 2014. This article reports on the findings of a study of the first six months of HeLP’s operation. The study adopted qualitative methods informed by grounded theory and sought to understand patient and social worker experiences of HeLP. Interviews were conducted with 13 patients and 10 next of kin. Focus group discussions were carried out with 19 social workers who referred patients to HeLP. Locating the legal service in the hospital’s social work department enabled and expedited access to legal advice; a team-based approach to patient problems emerged that enhanced patient outcomes; and provision of legal advice relieved the anxiety experienced by patients, allowing them to focus better on their health concern.

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Beyond the corporeal: Extending propertisation of body parts to derivative information – Wendy Bonython and Bruce Baer Arnold

Jurisprudential consideration of property in the human body has typically conceptualised it as tangible, of finite lifespan, with limited end uses. This article offers an alternative conceptualisation: the body as information – intangible, infinite, and perpetual. Global markets in health “big data” – including population genomic data – trade this information. Emerging jurisprudence on source rights in this information are derived from jurisprudence based on the traditional, tangible, finite conceptualisation of the body – itself controversial – criticised in part for disregarding property rights vesting in the self, while recognising them in strangers. As such, it provides an uncertain foundation for extension to govern rights over derivatives, enabling disregard of legitimate concerns about health, commercialisation and genetic privacy, concerns compounded by the intergenerational nature of genetic information. A more nuanced approach, recognising that donors and strangers alike hold only weak custodial rights over access, use, and dissemination of tissues and derivative information, is required.

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Biobanking: Relational obligations – Valmaine Toki

The nature of the relationship between the donor and donee within a biobanking framework is complex and dynamic. Issues such as ownership, rights and benefits often influence outcomes and access for researchers. In New Zealand, a raft of soft and hard law measures exist unconvincingly to govern this relationship. This article examines the current legislative provisions in New Zealand and explores possible avenues such as dynamic and broad consent, equity and contract that may provide a more appropriate framework for biobanking donors and donees.

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BOOK REVIEW

• Saviour Siblings: A Relational Approach to the Welfare of the Child in Selective Reproduction by Michelle Taylor-Sands – reviewed by Ian Freckelton QC

For the PDF version of the table of contents, click here: JLM Vol 23 No 3 Contents.

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The latest issue of the Journal of Law and Medicine (Volume 23 Part 4) contains the following material:

EDITORIAL – Ian Freckelton QC

Medically assisted suicide: Recent jurisprudence and the challenges for law reform – Ian Freckelton QC

Decisions on the issue of medically assisted suicide were delivered within a two-year period by the Supreme Court of Ireland (Fleming v Ireland [2013] IESC 19), the Supreme Court of Canada (Carter v Canada (Attorney General) [2015] 1 SCR 331; 2015 SCC 5), the High Court of South Africa (Stransham-Ford v Minister of Justice and Correctional Services 2015 (4) SA 50; [2015] 3 All SA 109; [2015] ZAGPPHC 230 (GP)), and the High Court of New Zealand (Seales v Attorney-General [2015] 3 NZLR 556; [2015] NZHC 1239). This editorial scrutinises the jurisprudence generated by the decisions, identifies their ramifications and argues that it is likely that the combination of the carefully constructed judgments, together with their reception by the legal, medical and general communities, will lead to an increasing impetus for end-of-life law reform in many countries. It reviews the June 2016 report of the Legal and Social Issues Committee of the Legislative Council of the Victorian Parliament as an example of such reform initiatives. The challenge for those who wish to construct such changes to the law is to fashion legislative regimes which provide adequate protection to patients, as well as to the life-saving culture of medicine, and to safeguard dignity but ensure that respect for the quality of life is not eroded by pressures to end lives that some regard as no longer having value.

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LEGAL ISSUES – Danuta Mendelson

Mental health legislation (civil) in Australia and China: A comparative perspective – Danuta Mendelson and Nuannuan Lin

This comparative review of statutory provisions of Australian and Chinese law focuses on accessibility of mental health care, diagnosis, admission and treatment orders for involuntary patients in civil cases as well as discharge procedures. The introduction contextualises the object of the comparative study, including key rights and principles that are used as the basis for analysis. Such factors as different political and legal systems, history, culture, and infrastructure resources of China and Australia form the background for the legal examination. Not surprisingly, these five factors, rather than statutory texts per se, are found to be the most important drivers of each country’s approach to the law of mental health. Two cases, XX v WW [2014] VSC 564 in Australia and Xu Lixin v Xu Canxing, Qingchun Psychiatric Rehabilitation Hospital of Shanghai [2015], known as the Right to Liberty Case, in China illustrate practical differences in legal approach to involuntary treatment. The comparative analysis concludes by identifying the most problematic aspects of the legislation in each country.

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MEDICAL ISSUES – David Ranson

Family violence and clinical forensic medicine – The forgotten service? – David Ranson, Angela Williams, Barbara Thorne and Jennifer Ryan

The recent national focus on family violence has had an impact on many areas within the Australian community. The setting up of a Royal Commission into Family Violence in Victoria is just one of these responses and in turn the recommendations of this Royal Commission have implications for government, the courts as well as a range of State and Territory organisations. While issues affecting courts, police and social services provision have received significant media attention, the role of clinical forensic medical services is less well known. While only one of the Royal Commission’s recommendations specifically refers to clinical forensic medicine, a review of the report indicates that almost 30 recommendations have relevance to the practice of clinical forensic medicine. These recommendations deal with areas such as data collection, including information sharing and analysis, education, the development of specialist family violence service models, integration with family violence agencies and service providers, and the importance of research. A striking feature of the provision of services to those involved as parties to family violence, particularly victims, is the relative lack of engagement of clinical forensic medicine services in providing both medical support and evidential medical assessment. Greater utilisation of clinical forensic medical services has the potential to improve the utilisation and effectiveness of courts in addressing some of the issues arising out of family violence.

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BIOETHICAL ISSUES – Grant Gillett

Justice, restoration and redress: Error, no-fault and tort-based systems – Georgina Richardson and Grant Gillett

Justice after harm in health care is often framed in terms of recompense for the patient and redress against a professional. These two facets are linked by requiring the professional to compensate the victim. But that tort-based approach requires proof of causation and fault and that proof is difficult to achieve in a world where systems are complex and the doctor only one of the actors in it. Therefore a number of patients are left without any remedy or relief for what they have suffered. New Zealand’s no-fault compensation de-links the proven failings of health care professionals and the patient’s need for help or restoration, but does it, in doing so, remove a vital element of responsibility and the duty of care from the review and adjudication of medical harm? There are also other needs such as communication and the assurance that others will not suffer the same harms that a system of response to medical error and medical harm needs to meet. This column assesses the New Zealand system against the intuitive profile of justice for medical harm and considers professional answerability and competence.

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NURSING ISSUES – Kim Forrester

Nurse-to-patient and midwife-to-patient ratios – Kim Forrester

The Queensland Government has recently passed the Hospital and Health Boards (Safe Nurse-to-Patient and Midwife-to-Patient Ratios) Amendment Act 2015 (Qld) which legislatively mandates minimum nursing and midwifery staff ratios. Though there is both national and international research which demonstrates the impact of nursing and midwifery workloads and skill mix on the quality of patient care and patient outcomes, there has been little legislative response to address the issue. Queensland is the second State, after Victoria, to mandate minimum nursing and midwifery ratios as a mechanism to address the delivery of safe high-quality patient care.

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MEDICAL LAW REPORTER – Thomas Faunce

NuCoal Resources Ltd v New South Wales: The mining industry and potential health impacts of investor-state dispute settlement in Australia – Thomas Faunce and Shaneel Parikh

The Climate Council and Climate and Health Alliance have detailed the adverse health impacts of coal on Australian citizens and their environment. Such reports confirm established evidence that coal mining not only releases atmospheric toxins but destroys prime farming land and rivers. This column examines how the revocation of coal mining leases after proven corruption by disgraced New South Wales politicians, upheld by the High Court (NuCoal Resources Ltd v New South Wales (2015) 255 CLR 388; [2015] HCA 13), was challenged using mechanisms in the Australia-United States Free Trade Agreement, and potentially the Trans-Pacific Partnership Agreement (TPP). It is likely that foreign investors in the Australian coal mining and fracking industries will circumvent imprecise exceptions and use investor-state dispute settlement clauses in the TPP to initiate claims for damages before panels of conflicted investment arbitrators, alleging appropriation of their investments as a result of Australian legislation or policy taken against the coal industry on public health grounds. This issue is explored through analysis drawn from an extant investor-state dispute involving the mining industry in North America.

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Articles

Refusal of potentially life-saving treatment for minors: The emerging international consensus by courts – Ian Freckelton QC and Simon McGregor

A series of decisions by superior courts exercising their parens patriae jurisdiction in Australia, New Zealand, the United Kingdom and Canada has overturned decisions by parents, and by minors, including some close to the age of 18, to decline life-saving treatment on the basis that such treatment is “in the best interests” of the children concerned. This article reviews the reasoning in such cases and analyses the justifications proffered for giving limited weight to the expressed wishes of children and even of their parents in such matters. It identifies that the issues have particularly arisen in respect of families that are Jehovah’s Witnesses and also where there is strong opposition to the application of mainstream medicine in the context of burdensome treatment for life-threatening conditions. It acknowledges the seriousness of such decisions and the potential for collateral influences that are difficult to identify to exert significant impact upon wishes expressed in respect of children who are seriously ill. It also accepts the complexities of identifying the “real wishes” of children. However, it contends that in appropriate cases flexibility in determining children’s overall best interests is necessary and that the autonomy otherwise given to mature minors should play a more significant role in courts’ decision-making in respect of the authorisation of treatment that children have purported to decline.

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How should Australia respond to media-publicised developments on euthanasia in Belgium? – Neera Bhatia, Ben White and Luc Deliens

This article considers the implications that recent euthanasia developments in Belgium might have for the Australian debate on assisted dying. Through media database and internet searches, four significant developments in Belgium were identified: three cases involving individuals who requested access to euthanasia, and recent changes to the Belgian Act on Euthanasia 2002, allowing children access to euthanasia. The article outlines these developments and then examines how they have been discussed in Australia by the different sides of the euthanasia debate. It concludes that these developments are important considerations that legislators and policy-makers in Australia should engage with, but argues that that engagement must be rational and also informed by the significant evidence base that is now available on how the Belgian (and other) assisted dying regimes operate in practice.

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Aid in dying in New Zealand: Recent legal developments – Andrew Geddis and Colin Gavaghan

The issue of “aid in dying” (also called assisted suicide or euthanasia) in New Zealand is deeply contentious. However, until comparatively recently its legal status had not been conclusively determined. That changed in mid-2015 when the case of Seales v Attorney-General [2015] 3 NZLR 556; [2015] NZHC 1239 was heard by the High Court. This article considers the case against the background of existing legal regulation of the dying process. It critically analyses the reasoning in the decision and its potential consequences, as well as noting important factual findings made in the ruling. It concludes by drawing attention to contemporary parliamentary developments in relation to aid in dying, which have come about largely as a result of this case being heard.

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End-of-life decision-making in a health services setting: An access to justice lens – Katherine Curnow

This article uses an access to justice lens to draw links between the diffuse body of bioethics, health services and legal literature about end-of-life decisions and decision-making in a health services setting. It establishes that effective conflict engagement can be beneficial and conflict avoidance strategies, including ones commonly used by health professionals, detrimental. It also reveals factors that may affect the ability of parties to participate in end-of-life decision-making. First, formal law has a variable and fragmented role. This diminished role for law may impede the capacity of family members to overcome the significant knowledge/information power differential with health professionals. Secondly, effective communication with health professionals is critical to family member participation. Based on these findings, this article recommends training for health professionals regarding conflict, communication and power differentials. Further, it is argued appropriate information and advice about formal law is needed, particularly for those from disadvantaged socio-economic backgrounds.

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Lawyers and advance care and end-of-life planning: Enhancing collaboration between legal and health professions – Nola M Ries

In Australia and internationally, advance care planning (ACP) is emphasised as an important means by which individuals can express their wishes for health care during future periods of incapacity. ACP has mainly been promoted in health care settings and very little is said about the role of lawyers, despite the fact that some people are more likely to discuss their health care wishes with a lawyer than with a doctor. This article addresses this significant gap and advocates for collaboration between legal and health professionals to assist clients with advance care and end-of-life planning. It articulates the importance of law and lawyers in ACP and discusses the medical-legal partnership model as a means to increase inter-professional collaboration. It analyses how collaboration can tackle client, practitioner and system-centred barriers and recognise ACP as a preventive legal and health care practice that supports clients’ interests and promotes their autonomy.

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Does Australia need compulsory immunisation? – Wendy Jane Nixson

There are a significant number of factors that influence whether parents choose or refuse to immunise their children. The primary reasons appear to be civic duty, financial incentive, understanding of the medical implications, and complacency. This article considers these factors in light of Australia’s immunisation strategy, in particular the National Immunisation Program and the new No Jab No Play campaigns in various Australian jurisdictions. In assessing the effectiveness of these measures, the article concludes that some compulsory measures are required to maintain Australia’s immunisation rates against transmissible disease.

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Discharge against medical advice – Audrey Laur

It is established in law that patients are entitled to consent or refuse medical treatment. They can therefore leave hospitals “against medical advice” (AMA). This is a growing phenomenon worldwide that may result in adverse medical outcomes and malpractice litigation. “Discharge AMA” (DAMA) is a conflict between patients’ rights and doctors’ duty of care. Health care providers usually refer patients to a DAMA form, but this does not completely waive doctors’ liability. Even if patients are partly responsible for bad health outcomes, health care providers may nevertheless be liable for negligence. Medical providers’ decision-making should follow a protocol based on strong communication skills and appropriate documentation to protect against liability. This article analyses DAMA in Australia by reviewing reasons for the phenomenon, the population affected, its legal consequences, and recommendations to prevent lawsuits in negligence. Lastly, the dichotomy between doctors’ duties of care and patients’ rights to refuse is analysed.

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The role of photographic and video documentation in the investigation and prosecution of child sexual assault – Annie Cossins, Amanda Jayakody, Christine Norrie and Patrick Parkinson

Despite its widespread acceptance by medical investigators, the use of colposcopy to document ano-genital examinations after sexual assault allegations has attracted controversy. Concerns have been expressed about potentially negative effects arising from the misuse of photo-documentation with some arguing that colposcopic photo-documentation should not occur. We discuss the extent to which these concerns, so far as they relate to the medical examination of children and young people, are supported by the research evidence. We raise and answer four questions: are there negative impacts for children and young people from the use of colposcopy in the medical assessment of suspected child sexual assault? Does the use of colposcopy improve the reliability of the medical assessment? Does the use of colposcopy affect the outcomes in trials, and in particular, criminal prosecutions? Is there any legal or medical benefit to the retention of photo-documentation when the ano-genital examination reveals no abnormalities? We discuss whether the current practices in the use of colposcopy should continue, and what reforms to the law might be needed to protect against the misuse of photo-documentation of ano-genital examinations.

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Consent to innovative treatment: No need for a new legal test – Bernadette Richards and Katrina Hutchison

The provision of advice prior to medical treatment raises the perennial question of how much information is sufficient and how can patients truly understand the nature of the risks and benefits of any proposed treatment? This issue is potentially heightened in the context of innovative treatment where health care providers themselves do not know the full range of risks and benefits and thus cannot hope to communicate these to the patient. This potential issue in turn raises the question of whether or not there needs to be a specific legal framework around consent to innovative treatment. This article draws together the findings of a study into innovation in surgery and an analysis of the existing legal framework to demonstrate that while concerns around consent to innovative treatment are valid they are not unique and apply equally to the provision of all health care. The article concludes that to suggest a framework which specifically addresses innovative treatment would be to add an artificial and unnecessary formality to any pre-treatment consultation. In short, the current legal framework adequately addresses the concerns raised by the surgeons in the study and there is no need for a new legal test.

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Rethinking the “harmonisation” of international trade and public health – Ania Lang

The World Health Organization’s Framework Tobacco Convention on Tobacco Control marks the most significant international legal initiative to control, reduce, and ultimately eliminate, tobacco use. Yet as the global community mobilises to fight the increase of non-communicable disease associated with tobacco use, calls for international coordination and novel legal interventions have driven tobacco corporations to exploit international trade and investment agreements to undermine governments’ resolve in implementing progressive public health measures. The observable focus of the literature addressing these challenges has been on solutions that reinforce the compatibility of the public health and the international trade and investment regimes. Such consistency efforts have allowed international trade rules to encroach on a state’s right to pursue public health measures, as unequivocally affirmed under the Tobacco Convention. In certain situations, it may lead to the conclusion that free trade values are not as inherently applicable to public health policy as efforts of harmonisation would prompt us to assume.

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BOOK REVIEW

• Do No Harm: Stories of Life, Death and Brain Surgery by Henry Marsh – reviewed by Ian Freckelton QC

For the PDF version of the table of contents, click here: JLM Vol 23 No 4 Contents.

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The latest issue of the Journal of Law and Medicine (Volume 24 Part 1) contains the following material:

GUEST EDITORIAL

Where to Now for Reform of Global Health Governance? – Belinda Bennett

In 2015, the United Nations Secretary-General established a High-level Panel on the Global Response to Health Crises to consider the lessons learned from the outbreak of Ebola in West Africa and to make recommendations to strengthen the capacity of the international community to respond to future health crises. This guest editorial considers the recommendations of the High-level Panel in relation to the role of the International Health Regulations in providing a framework for the global control of communicable diseases, the complex issue of building capacity within national health systems, recommendations for a re-positioning of the role of the World Health Organization, regional and global responses to health emergencies, the funding of global health emergency preparedness and response, and the role of gender in global health governance.

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LEGAL ISSUES – Editor: Bernadette McSherry

Current Challenges for the Regulation of Chemical Restraint in Health Care Settings – Bernadette McSherry and Juan José Tellez

Various forms of restraint may be used in a variety of health care settings to control behaviour. Laws and policies regulate the use of physical and mechanical restraint across health care settings, but there is a gap in relation to the regulation of chemical restraint. This may partly be because of problems in defining the term and partly because of a lack of information as to the extent of the use of drugs aimed at controlling behaviour rather than ameliorating a medical condition. This column provides an overview of current definitions and argues that there is a need for national guidance as to what constitutes chemical restraint in order to reduce its use.

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MEDICAL ISSUES – Editor: Danny Sullivan

Solitary Confinement: Going Down the Rabbit Hole – Danny Sullivan and Adam Deacon

For many years, solitary confinement has been a contentious correctional intervention. This column explores the evidence that solitary confinement harms mental health, and reviews some of the international and local perspectives on the practice. Recommendations are made to end solitary confinement, contending that this is to the benefit of prisoners and prisons, as well as the communities to which prisoners will return. Solitary confinement is increasingly subject to opprobrium from health professionals and representative organisations, as well as being the subject of more rigorous recommendations in international instruments. The column proposes greater involvement of mental health professionals, systemic research to reduce solitary confinement, and programs of external review and scrutiny. Such measures are consistent with international instruments and would bring Australia into line with contemporary thinking about conditions of incarceration.

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COMPLEMENTARY HEALTH ISSUES – Editor: Ian Freckelton QC

The Need to Develop a Regulatory Body for the Practice of Al-Hijama – John F Mayberry

Al-Hijama is a traditional therapy which has been extensively used in the Middle East. It has an Islamic basis but is used in many cultures in the form of wet cupping. There has been a significant growth in its availability in most Western countries during the last decade. In none is it subject to statutory regulation and the training and quality of practitioners is variable. It has both a preventive and therapeutic element and so there are appropriate concerns about the potential for incorrect diagnoses and delays in other effective treatments. In the past, the apprenticeship model in which a trainee worked for some years with an experienced ijazah ensured such problems did not arise. However, there is now an urgent need to recognise the widespread practice of this therapy and ensure that it has the benefits of statutory regulation, be this through specific regulatory bodies or a negative licensing model.

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MEDICAL LAW REPORTER – Editor: Thomas Faunce

Corporatisation of Community Pharmacy and the Constitutional Prohibition of Civil Conscription for Medical Service Providers – Caitlin Yazidjoglou and Thomas Faunce

This column examines recommendations from the Harper Competition Policy Review relating to the opening up to corporate ownership of the community pharmacy sector in Australia. After studying the outcomes of similar proposals in other nations, it examines whether s 51(xxiiiA) of the Australian Constitution provides a prohibition against such a reduction of the small business option for those pharmacists wishing to develop a pharmacy business in Australia. An analysis of the services provided by community pharmacists finds that services such as the provision of advice on the safe and efficacious use of medicine, the prescribing and administering of vaccinations, the treatment of minor wounds and ailments, the provision of pharmacist-only medicines, and diabetes education all form part of the core function of community pharmacists. Given that these services are fundamentally medical in nature, community pharmacists as Commonwealth-regulated medical service providers for the purposes of s 51(xxiiiA) are thereby protected against Commonwealth policy or legislation facilitating civil conscription.

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Articles

Parents’ Opposition to Potentially Life-saving Treatment for Minors: Learning from the Oshin Kiszko Litigation – Ian Freckelton QC

This article reviews a series of high-profile decisions made during 2016 by the Western Australian Family Court in relation to a child with a brain tumour whose parents were resistant to his being treated with chemotherapy and radiotherapy by reason of their commitment to natural therapies and their belief at an early stage after his diagnosis that orthodox medical treatment should be abandoned in favour of palliative care. The article argues that the decisions in Director Clinical Services, Child & Adolescent Health Services v Kiszko [2016] FCWA 19, 34 and 75 constitute a problematic precedent in terms of the potential for certain forms of parental behaviour being able to engineer a desired outcome that may not be in the best interests of a vulnerable child. It contends that efforts should be made to hear the voice of a child in such cases, that it is important that collateral agendas which may be influencing antagonism to treatment be identified early, and that a constructive role may be able to be played by child protection authorities in prompt initiation of litigation where attempts at non-adversarial resolution of a treatment impasse have failed.

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The Legal Vacuum Surrounding Access to Gene-based Research Materials and Data – Jane Nielsen and Dianne Nicol

Tangible research materials and data sets are integral to biomedical research and diagnostic genetic testing. Patents over genes and other research tools have been blamed for restricting access to these tools, potentially slowing the pace of biomedical research and reducing availability of diagnostic genetic testing options. Given that many of these patents are expiring or being invalidated by the courts, this article suggests that attention should now be focused on how the materials and data themselves might be used where access is blocked. Access is critical to the effective conduct of future biomedical research and clinical practice, yet the availability of legal causes of action to facilitate this has not previously been analysed. This article explores possible legal mechanisms and concludes that the outlook for compelling access in the absence of patents is pessimistic. Paradoxically, patents may actually provide a mechanism to gain access to these critical tools, rather than constituting a hindrance.

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Disclosure of Individual Research Results and Incidental Findings in Biobank Research: Why We Need an Evidence-based Approach – Jennifer Fleming, Margaret Otlowski, Cameron Stewart, Christine Critchley and Ian Kerridge

Globally, genomic research is generating unprecedented advances in the understanding of the biology, pathogenetic mechanisms and prognostic markers of many cancers and is creating the possibility of precision (personalised) therapies. As more data are generated, it becomes increasingly necessary to determine the clinical significance of this data and to know when this data should be acted upon. The return of individual research results (IRRs) and incidental findings (IFs) from genomic research, in a well-informed and applicable manner, is becoming increasingly important and is already presenting practical challenges in Australian genetics clinics and familial clinics. This article argues for the need to develop an evidence-based approach to help frame ethical-legal responses to address these tensions – one that may offer flexible and defensible parameters to inform the management of disclosure of IRRs and IFs, safeguarding the health and wellbeing of tissue donors and allowing translational biobank genomic research to flourish.

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Open Access DNA, RNA and Amino Acid Sequences: The Consequences and Solutions for the International Regulation of Access and Benefit Sharing – Charles Lawson and Michelle Rourke

This article addresses how open access to DNA, RNA and amino acid sequences might be reconciled with the benefit-sharing obligations under the United Nations’ Convention on Biological Diversity and its Nagoya Protocol, the Food and Agriculture Organization of the United Nations’ International Treaty on Plant Genetic Resources for Food and Agriculture, and the World Health Organization’s Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses and Access to Vaccines and Other Benefits. Tracing the evolution of open access databases, the article posits models for reconciling open access and benefit sharing; the article concludes, however, that none of the proposed solutions – monitoring and tracing, the contract model, and the copyright and database right model – provides a perfect solution. Each model does, however, suggest that open access to these sequences might be at least partially reconciled with benefit sharing.

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Access to Experimental Treatments: Comparative Analysis of Three Special Access Regimes – Barbara von Tigerstrom and Emily Harris

“Special” or “expanded” access schemes permit the use, outside of clinical trials, of drugs or devices that have not yet been licensed or approved for marketing in a particular jurisdiction. Special access raises important and difficult questions, reflecting tensions between competing interests and values. This article explores similarities and differences between special access schemes in the United States, Canada, and Australia, focusing on areas closely connected with the controversies highlighted in the literature and where the comparison can provide insights for regulatory reform. These jurisdictions differ particularly with respect to how the regulations can be used to protect clinical trials and product development processes, whose authorisation is needed for special access use, and how ethical concerns, such as informed consent, are addressed. The requirements for data collection and reporting are similar, with all three countries appearing to be uncertain about the utility of information collected from special access use.

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Regulation of Non-consensual Genetic Testing in Australia: Use of Samples from Deceased Persons – Rebekah E McWhirter and Margaret Otlowski

The creation of a criminal offence for non-consensual genetic testing in Australia has been recommended repeatedly in recent years, but has not yet resulted in reform. The increasing affordability and accessibility of genome-wide analysis amplifies the potential harm that unauthorised testing could cause to individuals. The familial nature of genomic information means that there is also potential for serious harm to an individual’s relatives or community, such that harm can result even when the individual whose sample is being tested is deceased. In preventing such harms, it is important not to unduly restrict clinical, research and forensic applications that will result in considerable benefits and can better be regulated through alternative means. For these reasons, an offence of non-consensual genetic testing should be introduced and expanded to include samples from deceased persons, subject to appropriate exceptions.

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Translating Knowledge from Research to Outcomes: Pharmacogenomics in the Treatment of HIV/AIDS – Jayne E Hewitt

Although therapeutic medicines are frequently prescribed to improve health, individual responses are often inconsistent, unpredictable and potentially harmful. Recognising that individual genetic variation can influence response, pharmacogenomics aims to identify clinically relevant medicine/genome relationships, and use this knowledge to improve the safe and effective use of medicines. To facilitate the translation of new pharmacogenomic knowledge from the scientific laboratories where it is generated, into the clinical health services where it can be applied, Khoury et al developed a framework outlining a continuum of translation research. This framework must be embedded within a social and political environment conducive to supporting translational research if the desired outcomes are to be achieved. Drawing on the example of one pharmacogenomic test that is now well integrated into clinical practice, this article traces the contemporaneous social and political factors that facilitated translational pharmacogenomic research, and enabled the safe use of a vital medicine.

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Some Legal Issues Regarding the Patenting of Human Genetic Materials – Peter MacFarlane and Betty Kontoleon

This article examines issues of ethics, science and law in the context of a recent High Court decision involving an application by Yvonne D’Arcy to revoke patents granted to Myriad Genetics Inc for various genetic sequences found in the BRCA1 gene once isolated (which, when certain mutations were present, had been found to be linked to the occurrence of breast and ovarian cancer). This article provides a brief discussion on the history of patent law and an extensive discussion of the requirements under s 18(1) of the Patents Act 1990 (Cth) for the granting of a patent involving the use of human genetic material.

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Non-invasive Prenatal Testing: The Problem with “Fast Cars” – Jeanne Snelling, Nikki Kerruish and Jessie Lenagh-Glue

Prenatal screening and its technological counterpart, prenatal diagnosis (PND), have been the subject of extensive debate since their inception, particularly given PND’s inextricable links with abortion. Despite this, prenatal screening policy and practice has evolved over the last few decades and is now well established. However, a new permutation of prenatal testing, first performed in 2011 and subject to rapid commercialisation, potentially heralds a new era. This article provides an introduction to non-invasive prenatal testing and outlines some of the ethical and legal issues associated with the early clinical integration of this rapidly evolving technology.

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Medical Abortion in Australia: What Are the Clinical and Legal Risks? Is Medical Abortion Over-regulated? – Anne O’Rourke, Suzanne Belton and Ea Mulligan

This article examines the clinical and legal risks of early medical abortion. After providing an overview of the history of mifepristone in Australia, the evidence concerning the efficacy and safety of medical abortion is discussed. It is argued that the negligible medical risks associated with mifepristone do not justify the restrictive regulatory measures imposed on medical practitioners. The article then turns to the legal risks and considers whether medical practitioners are vulnerable to prosecution under existing State and Territory laws. It is argued that providing early medical abortion services in a number of jurisdictions is legally ambiguous, potentially posing a threat of prosecution to medical practitioners. The need for law reform is evident by the fact that in four jurisdictions it remains in the criminal statutes, creating legal uncertainty for both medical practitioners and women. The article concludes that there is sufficient evidence to allow some “demedicalisation” of medical abortion. However, this is only possible if the legal status of abortion in State and Territory laws is addressed.

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New Zealand’s Health Practitioners Disciplinary Tribunal: An Analysis of Decisions 2004-2014 – Lois J Surgenor, Kate Diesfeld, Michael Ip and Kate Kersey

Established under New Zealand’s Health Practitioners Competence Assurance Act 2003 in 2014, the Health Practitioners Disciplinary Tribunal (HPDT) hears and determines charges in relation to 21 health professions. Using publically available information, an exploratory descriptive analysis was conducted of 288 published HPDT decisions between 2004 and 2014 to assess the procedural factors (practitioner and hearing characteristics) and outcome factors (findings, penalties and appeals) relevant to these decisions. In particular, the study compared the two health practitioner groups (medical practitioners and nurses) with the highest number of decisions. The study found that nurses were significantly less likely to have legal representation or to lodge an appeal than medical practitioners, with nurses also more likely not to attend the hearing, have their registration cancelled and not receive permanent suppression. The study also revealed important characteristics of the decisions that are not contained in the summaries available on the HPDT website. These characteristics provide opportunities for future comparison across and within occupational groups. While relevant to health practitioners, lawyers, professional bodies, employers, educators and policy-makers, the findings also contribute to the international scholarship on professional discipline and tribunal decision-making.

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Cloak and Dagger? Statutory Privilege for Quality Activities in New Zealand – Meenal Duggal

Both New Zealand and Australia have enacted legislation which confers confidentiality on quality assurance activities undertaken by health providers. The statutory privilege is well utilised in New Zealand with over 40 organisations carrying out quality assurance activities under its provisions at any time. The article compares and contrasts statutory privilege in New Zealand with two Australian States (New South Wales and Victoria). It analyses notices issued under the legislation in New Zealand. The use of statutory privilege to review adverse events and systemic issues is considered. Public access to information about quality assurance activities conducted under statutory privilege is examined together with the impact on communication with patients and their families.

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BOOK REVIEW

• Health Law in New Zealand by Peter Skegg and Ron Paterson (eds) – Reviewed by Ian Freckelton QC

For the PDF version of the table of contents, click here: JLM Vol 24 No 1 Contents.

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The latest issue of the Journal of Law and Medicine (Volume 24 Part 2) contains the following material:

EDITORIAL

The Right to Sue for Non-Communication or Delay in the Diagnosis of Neurodegenerative Diseases – Ian Freckelton QC

Delay in diagnosis of neurodegenerative diseases can be caused by clinical factors such as the lack of recognition of symptomatology as attributable to the disease or confusion of symptoms with those from other conditions. A number of studies have shown that psychiatric symptoms may precede motor symptoms and the ultimate diagnosis, in substantial part because they may mirror symptoms arising from other aetiologies. Any delay in diagnosis of relatives with neurodegenerative diseases and failure to communicate such a diagnosis can have very significant adverse effects for provision of treatment and for decisions made which can result in the passing on of the disease. In turn such decisions made in the absence of information can cause significant distress which in its own right can be counter-therapeutic. This article reviews two important decisions made by the High Court of England and Wales in 2015 and 2016, ABC v St George’s Healthcare NHS Trust [2015] EWHC 1394 and Smith v University of Leicester NHS Trust [2016] EWHC 817, in which rights to sue were denied in the scenarios of failure to disclose neurodegenerative heritable symptomatology to relatives. In both decisions it was decided that no negligence was engaged in by a failure on the part of health professionals to disclose their knowledge of a person’s neurodegenerative condition to relatives of the person, in spite of the fact that failure to do so would foreseeably cause harm. This editorial argues that so doctrinaire an approach to the ethical obligation of confidentiality is counter-therapeutic and needs to be reconsidered.

LEGAL ISSUES – Editor: Danuta Mendelson

“My [Electronic] Health Record” – Cui Bono (For Whose Benefit)? – Danuta Mendelson and Gabrielle Wolf

We examine the operation of Australia’s national electronic health records system, known as the “My Health Record system”. Pursuant to the My Health Records Act 2012 (Cth), every 38 seconds new information about Australians is uploaded onto the My Health Record system servers. This information includes diagnostic tests, general practitioners’ clinical notes, referrals to specialists and letters from specialists. Our examination demonstrates that the intentions of successive Australian Governments in enabling the collection of clinical data through the national electronic health records system, go well beyond statutorily articulated reasons (overcoming “the fragmentation of health information”; improving “the availability and quality of health information”; reducing “the occurrence of adverse medical events and the duplication of treatment”; and improving “the coordination and quality of healthcare provided to healthcare recipients by different healthcare providers”). Not only has the system failed to fulfil its statutory objectives, but it permits the wide dissemination of information that historically has been confined to the therapeutic relationship between patient and health practitioner. After considering several other purposes for which the system is apparently designed, and who stands to benefit from it, we conclude that the government risks losing the trust of Australians in its electronic health care policies unless it reveals all of its objectives and obtains patients’ consent to the use and disclosure of their information.

MEDICAL ISSUES – Editor: David Ranson

The Foundations of the Comparison Forensic Sciences: Report of the President’s Council of Advisors on Science and Technology – Stephen Cordner, David Ranson and Richard Bassed

In September 2016, the President’s Council of Advisors on Science and Technology (PCAST) in the United States published its report to the President entitled Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods. The need for this report arose out of the highly critical 2009 National Research Council report on the state of forensic sciences in the United States. The report had noted that there were particular problems in feature-comparison disciplines where the science underpinning the validity of the discipline was poor. The PCAST report has developed the National Research Council’s thinking further. It looked at the foundational validity of a number of forensic disciplines, including, for example, bite mark interpretation in forensic odontology. PCAST concluded that bite mark analysis does not meet the scientific standards for foundational validity. In addition, it felt that the prospects of developing bite mark analysis into a scientifically valid method were poor, and they advised against government investment in research to try to establish such validity. The principles discussed in this report, focused as they are on forensic science, will need to be digested by forensic medicine. Forensic medicine will be increasingly called upon to justify the validity of the various areas in which its practitioners provide expert evidence.

BIOETHICAL ISSUES – Editor: Grant Gillett

Error and Accountability in a No-Fault System: Maintaining Professionalism – Rebecca Babcock and Grant Gillett

No-fault systems of dealing with medical error have been mooted but are often criticised for removing or blunting professional accountability. An analysis of contemporary health care and the systems approach to medical harm suggests that the criticisms are misplaced. A no-fault system in fact encourages correction of harm and prevention of injury due to systems and personal professional error. It removes an unhealthy climate of name, shame and blame, and an unrealistic image and set of expectations on health care professionals. By contrast a tort-based system fosters bitterness and an adversarial forensic lottery that perpetuates harmful practices and does little to identify and analyse the causes of misconduct and injury. What is more, a tort-based system can remove direct incentives for personal and institutional change through third-party risk sharing that mitigates any penalties on those who need to change their behaviour. Thus the criticisms of no-fault systems to deal with medical harm draw on populist but ill-thought reactions to a problem that can cause truly awful damage to both patients and the professionals who try to help them.

MEDICAL LAW REPORTER – Editor: Thomas Faunce

Seeding Australian Regulation of Genomics in the Cloud – Elizabeth Abbott and Thomas Faunce

Cloud computing has facilitated a revolution in genome sequencing. As big data and personalised medicine increase in popularity in Australia, are the legal and regulatory regimes surrounding this nascent area of scientific research and clinical practice able to protect this private information? An examination of the current regulatory regime in Australia, including the Privacy Act 1988 (Cth) and medical research laws that govern cloud-based genomics research highlights that the key challenge of such research is to protect the interests of participants while also promoting collaborative research processes. This examination also highlights the potential effect that the Trans-Pacific Partnership Agreement’s Electronic Commerce Chapter may have had on using the cloud for genomics and what the consequences may have been for researchers, clinicians and individuals. Lessons learnt here will be relevant to studying similar impacts from other trade and investment agreements such as the Trade in Services Agreement (TiSA).

Articles

Is Australia Well Equipped to Deal with Future Clinical Trials? – Lisa Eckstein and Don Chalmers

The French Biotrial tragedy highlighted the potential for healthy volunteers to suffer tragic injuries in clinical trials and the need for clear and effective regulatory oversight. The Australian system for approving clinical trials has been reviewed continually over the past three decades, resulting in a considerable degree of deregulation. Approval to commence a trial largely depends upon assessment by voluntary Human Research Ethics Committees (HRECs), without much government oversight of the investigational products or trial procedures. Once a trial has been initiated, ongoing review of its safety is conducted by Data Safety and Monitoring Boards (DSMBs), which operate largely outside the boundaries of Australian or international regulations. Australia should carefully audit its regulatory frameworks for ensuring the safety of participants who consent to enrol in clinical trials.

Is There a Role for Law in Medical Practice When Withholding and Withdrawing Life-Sustaining Medical Treatment? Empirical Findings on Attitudes of Doctors – Lindy Willmott, Ben White, Malcolm Parker, Colleen Cartwright and Gail Williams

The law regulates many aspects of decision-making around the withholding and withdrawing of life-sustaining medical treatment from adults who lack decision-making capacity and are approaching the end of their lives. For example, it governs whether an adult’s advance directive is binding and applicable and, if not, who is authorised to make the treatment decision and the criteria that should guide the decision. Doctors who treat patients at the end of life should be aware of the prevailing law so that they can practise within those legal parameters. However, the law in this field is complex and challenging for doctors to know and understand. Doctors will be prepared to invest time into learning about the law only if they believe that the law is worth knowing and that practising medicine in a legally compliant way is a desirable goal. This article provides insight into doctors’ attitudes about the role of law in medical practice in this field, and argues that education is required for doctors to reconceptualise knowledge of the law as constituting an integral component of their clinical expertise.

The Knowledge and Practice of Doctors in Relation to the Law That Governs Withholding and Withdrawing Life-Sustaining Treatment from Adults Who Lack Capacity – Ben White, Lindy Willmott, Colleen Cartwright, Malcolm Parker and Gail Williams

Law establishes a framework for making decisions about withholding and withdrawing life-sustaining treatment from adults who lack capacity. However, to what extent do doctors know and follow this law? This article reports on a three-year empirical study that sought to answer these questions. The research found that doctors have significant legal knowledge gaps in this area. It also found that doctors do not attach significant weight to legal considerations in their decision-making. This article argues that law does have a role to play in end-of-life care. However, law reform is needed to make the law more accessible, medical education needs to be improved, and a change in attitude by doctors to medical law is required.

Decision-Making Capacity and its Relationship to a Legally Valid Consent: Ethical, Legal and Professional Context – Scott Lamont, Cameron Stewart and Mary Chiarella

Decision-making capacity has been researched from within the disciplines of bioethics, medicine and law. The field of capacity assessment is dominated by tension between the principles of autonomy (self-determination) and beneficence (protection). Further, decision-making capacity is argued to be the central component of a legally valid consent. This article discusses the relevant ethical, legal and professional responsibilities relating to decision-making capacity and consent to treatment within health care. It begins with an overview of the ethical principles underpinning decision-making capacity and consent, and follows with a legal analysis of these concepts, focusing on the common law of trespass and negligence. The article then explores the concepts of best interests and necessity, which underpin the treatment of incapacitated persons, before concluding with an examination of treatment refusal and legislation relating to decision-making capacity and consent to treatment.

Balancing Self-Tracking and Surveillance: Legal, Ethical and Technological Issues in Using Smartphones to Monitor Communication in People with Health Conditions – Jacki Liddle, Mark Burdon, David Ireland, Adrian Carter, Christina Knuepffer, Nastassja Milevskiy, Simon McBride, Helen Chenery and Wayne Hall

Smartphones are being used to track the health of individuals in their own environments. For example, a smartphone app could be used to monitor the impact and progression of Parkinson’s disease, as well as indicate whether treatments may need to be adjusted, based on an analysis of voice and discourse. The app uses smartphone audio sensors to detect when conversations are taking place and activates an app to record the conversation. But what happens if a background conversation is also collected by the recording? The participants of the background conversation are unaware of and have not consented to the recording. Unauthorised recording could also raise legal issues under surveillance devices legislation and has ethical implications. It is a complex task to balance the potential benefits of self-tracking of health conditions to consumers and the health system, with the legalities and ethical issues related to privacy. The health-related monitoring industry is moving so rapidly that current legal and ethical processes and protocols may fail to balance these concerns. This article explores Australian legal and ethical perspectives on how to achieve the potential benefits of these technological approaches while preserving privacy.

Primum Non Nocere: A More Proactive Workplace Drug Testing Regime for Australian Medical Practitioners? – Claire Leyden-Duval

This article considers whether Australian medical practitioners should be subject to a more proactive workplace drug testing regime in order to minimise the risk of harm to patients. It first canvasses the history of workplace drug testing in the United States, the United Kingdom and Australia, before exploring whether there is a need for more proactive drug testing of Australian medical practitioners. It then considers whether workplace drug testing adequately addresses drug-related risks to patient safety, and discusses some of the privacy issues associated with workplace drug testing regimes. The article concludes that although an argument can be advanced in favour of a more proactive workplace drug testing regime for all Australian medical practitioners, the implementation of such a regime would be costly and complicated. As a result, it should only apply to practitioners assessed as working in “high-risk” roles.

“Dealing with the Drink”: A Case for Reviewing Gradual Regulation of Teenagers’ Access to Alcohol – Brendan Walker-Munro

Alcohol has long been a part of the social fabric of Australian culture – a fact almost irreconcilable with the finding that alcohol has been the causal factor in 5% of deaths and hospitalisations over the past decade. Although some links exist between the availability of alcohol and density of supply, the findings are not as determinative as one would hope. That reform is necessary in this area has been universally accepted by scholars, but how is it best to achieve this in a political system that favours liberalisation and deregulation, and an industry that fights against anything that would reduce their market share? This article proposes a gradual legalisation of alcohol consumption, backed by parental supervision and education, that balances individual autonomy and development into adulthood against the risks of rapid overexposure to alcohol.

Red Bull: Does It Give You Wings or Cardiac Disturbances? Modifying the Law Regarding Energy Drinks in Australia – Marilyn Bromberg and Justine Howard

People consume vast quantities of energy drinks worldwide. Yet, energy drinks may cause serious health problems when consumed excessively. Currently, people of any age in Australia can easily purchase energy drinks from any retailer who sells them, including bars, grocery stores, convenience stores and online stores. This article explains what is meant by the term “energy drinks” and details their health repercussions. It discusses the marketing and legal aspects of energy drinks, including the limitations of current energy drink legislation, and argues that Australian governments should regulate the licensing and sale of energy drinks similarly to how they regulate alcohol. This could significantly decrease the ability and desire of minors to obtain and consume energy drinks and compel those who distribute energy drinks to abide by strict regulations.

Zolpidem, Complex Sleep-Related Behaviour and Volition – Marilyn McMahon

A commonly prescribed hypnotic, Zolpidem, has been linked to accidental death, driving offences and a very uncommon legal defence – automatism. The deaths and prima facie criminal behaviour that have triggered legal concern and considerable publicity have occurred while the person was in a sleep-like state and apparently acting involuntarily after ingesting the drug. Australian courts have had a mixed response to these claims, and have closely examined the expert evidence that is essential to establishing the link between the conduct and the medication. Accepting that a connection has been established, in 2014 a Victorian Coroner suggested that guidelines issued in Australia should reduce recommended dosages of Zolpidem and increase warnings about adverse effects. However, forensic issues associated with unpredictable, complex sleep-related behaviour triggered by Zolpidem will not be resolved entirely by these changes. Exploration of the legal implications of this conduct is essential as the issue is likely to be of continuing and particular significance in Australia, where reports of adverse effects associated with this hypnotic have been more frequent than in other countries.

Judicial Recognition of PTSD in Crime Victims: A Review of How Much Credence Australian Courts Give to Crime-Induced PTSD – Paul McGorrery

The criminal justice system often finds itself concerned with what was happening inside someone’s mind – what they were thinking, what they were feeling, what they intended. That investigation into people’s minds, however, seems to be disproportionately more concerned with what is happening in defendants’ minds (their credibility, culpability and dangerousness) than it is with victims’ minds (the harm done). This is concerning given that one in five victims of violent crime and one in two victims of rape suffer from post-traumatic stress disorder (PTSD). This research reviews 139 reported criminal law judgments around Australia that mentioned PTSD in the 12-month period between 1 November 2014 and 31 October 2015. Of those 139 cases, it was in only 28 cases that a court’s mention of PTSD had to do with whether the victim had PTSD; and of these, it was in only 11 that the victim’s potential diagnosis of PTSD was somewhat or very relevant to the court’s reasoning. This article suggests that victim PTSD should take a more prominent role in decision-making in the criminal justice system.

Collision or Collusion? Homicides Staged as Car Accidents – Claire Ferguson

A staged crime scene involves deliberate alteration of evidence by the offender to simulate events that did not occur for the purpose of misleading authorities. Staging has received little attention in the medical, legal and criminology literature, and discussions of staged car accidents are almost non-existent – bar a few case studies, no literature exists. The study examined 16 homicides staged as car accidents. The descriptive analysis examined common staging behaviours, and victim, offender and offence characteristics. Findings indicate staged car accidents present differently than true accidents. They often involve single vehicle, slow speed, downhill scenes, with middle-aged, female victims. Physical damage to vehicles is usually minimal, except for fire damage. Common offender behaviours include transporting the body to a vehicle, mutilation of the body, arson, and clean up. The results suggest these efforts are often unsophisticated and potentially identifiable to investigators and physicians.

Name Suppression Practices of New Zealand’s Health Practitioners Disciplinary Tribunal 2004-2014 – Kate Diesfeld, Lois J Surgenor, Michael Ip and Kate Kersey

Permanent name suppression decisions related to health practitioner disciplinary proceedings can result in debate across various interest groups, including practitioners, the public, the media and complainants themselves. However, there has been no analysis of name suppression patterns, principles and practices in New Zealand since the 2004 legislative reforms under the Health Practitioners Competence Assurance Act 2003 (NZ) provided for the combined regulation of 21 health professions and established the Health Practitioners Disciplinary Tribunal (HPDT) to hear and determine charges relating to those professions. This article reviews health practitioner name suppression debates within New Zealand in light of an exploratory descriptive analysis that was undertaken of 288 published decisions of the HPDT from 2004 to 2014. The study revealed that just under one-half of all cases involved a permanent name suppression application; amongst these, just over one-third were approved. Grounds cited for approving or declining name suppression varied and generally reflected established case law regarding naming principles and the Act’s intent. While the public interest dominated as the most frequently cited reason to decline name suppression, the most frequent justification for granting name suppression was the health and wellbeing of various individuals. The findings have relevance for understanding current trends in name suppression, and whether there are changing practices or differences adopted between health practitioner groups.

BOOK REVIEW

• Lecretia’s Choice: A Story of Love, Death and the Law by Matt Vickers – Reviewed by Ian Freckelton QC

For the PDF version of the table of contents, click here: JLM Vol 24 No 2 Contents.

Click here to access this Part on Westlaw AU

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The latest issue of the Journal of Law and Medicine (Volume 24 Part 3) contains the following material:

EDITORIAL

Bolam Buried, Belatedly? – Ian Freckelton QC

This editorial reviews the international lineage and also the ramifications of the decision by the United Kingdom Supreme Court in Montgomery v Lanarkshire Health Board [2015] 1 AC 14; [2015] UKSC 11 in respect of medical practitioners’ obligations to advise of risks to their patients. It argues that the abandonment of the test set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 constitutes the final interment of the paternalistic rationales for withholding pertinent information from patients. The decision is internationally significant in terms of its recalibration of the doctor-patient relationship, its identification of the dignity in informed decision-making by patients, and its assertion of a culture of shared information to enable patients to balance clinical with non-clinical considerations in making decisions about treatment.

LEGAL ISSUES – Editor: Danuta Mendelson

Judicial Review of Medical Panel Decisions – Carol Newlands

The Medical Panels as constituted under Victorian workers’ compensation legislation and the Wrongs Act 1958 (Vic) are a unique entity. They are deemed to be a tribunal for the purposes of the Administrative Law Act 1978 (Vic) and have evolved through a series of legislative amendments from providing advice on medical issues to the decision-making arms of the Victorian Workcover Authority to occupying an important role in dispute resolution. As such, Medical Panels provide opinions and determinations which are binding on all parties and the courts and which are subject only to judicial review by the Victorian Supreme Court. There is no merits review of Panel decisions. The nature of appeals brought against Panel decisions are considered here, including the impact the successful appeals have had on the policies and procedures adopted by the Medical Panels. Whether the use of panels of expert medical practitioners might prove advantageous in other jurisdictions is also considered.

MEDICAL ISSUES – Editor: Mike O’Connor

Alcohol Consumption and Impairment of Surgeons: A Case for Total Abstinence? – Mike O’Connor

In the 2016 appeal Health Care Complaints Commission v Schmidt [2016] NSWCATOD 145, the New South Wales Civil and Administrative Tribunal heard evidence to the effect that the influence of alcohol (alertness, judgment and co-ordination) could occur at blood alcohol concentrations as low as 0.01% and that on-call health professionals should not consume any alcohol. The NSW Health Code of Conduct requires all staff, including contractors, “not to be under the influence of alcohol or drugs when commencing work and while at work”, and the Public Health Regulation 2012 (NSW) similarly requires that “health practitioners must not practise while suffering from a physical or mental impairment … that detrimentally affects, or is likely to detrimentally affect, his or her ability to practise or that places clients at risk of harm”. If this were to be accepted as a professional standard for on-call medical practitioners, then it would have major implications for much of the medical profession, particularly those on continuous call in private practice whose hours are not delimited. The evidence for alcohol-induced impairment of clinical performance is assessed here through the prism of the cognitive and psychomotor skills requirements for surgeons.

MEDICAL LAW REPORTER – Editor: Thomas Faunce

The Essendon Football Club Supplements Saga: Exploring Natural Justice for Team Sanctions within Anti-Doping Regulations – Madeleine Farrar and Thomas Faunce

On 10 October 2016 the Essendon Football Club (EFC) performance-enhancing drugs regulatory saga concluded with the Swiss Federal Tribunal deciding not to “entertain” EFC’s appeal of the Court of Arbitration of Sport’s (CAS) guilty finding, thus supporting the World Anti-Doping Authority (WADA). The appeal is a unique decision as it is the first time a team (34 players from the one team) has been subject to CAS’s jurisdiction for allegations of doping contrary to the World Anti-Doping Code. One significant concern throughout this regulatory saga was that the team-based nature of the infraction denied individual players natural justice. Central to these concerns is the fact that the players were advised by EFC to take part in the program and that its chief architect, sports scientist Stephen Dank, never gave sworn evidence that could be tested in cross-examination. This column investigates whether there are important lessons for team-based anti-doping infractions from the EFC saga.

LETTER TO THE EDITOR

Articles

Vexatious, Misconceived and Avoidable Reports by Peers to Medical Regulators: A Qualitative Study of Health Practitioners in Australia – Laura A Thomas and Marie M Bismark

The introduction of a mandatory duty to report health practitioners who engage in notifiable conduct has heightened concerns about the potential for notifications to be motivated by rivalry or spite, rather than genuine concern for patient safety. The research discussed in this article explores the views and experiences of health sector professionals in Australia regarding vexatious and misconceived notifications by doctors against other doctors. Interviewees believed most mandatory reports are made on strong grounds with sound motives. Under-reporting was seen as a more significant problem than over-reporting. Three types of inappropriate reports are identified: misconceived reports resulting from a misunderstanding of the reporting thresholds; vexatious reports made with the intention of causing trouble for another practitioner; and avoidable reports where the threshold for reporting need not have been reached if colleagues or employers provided early appropriate support. In light of recent mandatory reporting laws, this article offers recommendations that may assist in supporting appropriate reports and reducing the number of inappropriate reports.

Practitioner Health Issues Featuring Before New Zealand’s Health Practitioners Disciplinary Tribunal: An Analysis of Cases 2003-2014 – Lois J Surgenor, Kate Diesfeld, Kate Kersey and Michael Ip

Increasingly, the health and wellbeing of professionals is causing concern, particularly when it compromises the interests of those they serve. Often their health issues are reported when their conduct results in professional disciplinary action. In New Zealand, health practitioners who appeared before the Health Practitioners Disciplinary Tribunal for misconduct reported a range of physical and mental health conditions. This study of 288 decisions revealed the professions that reported diverse health issues, including categories of health issues, in published decisions between 2004 and 2014. The study also identified how frequently practitioners self-reported impairment or submitted health evidence from others of their physical and/or mental health status and/or their substance dependence. The study’s findings may be applied preventatively for the benefit of practitioners and the people they serve, thereby promoting the Health Practitioners Competence Assurance Act 2003 (NZ)’s emphasis on public safety.

Monitoring a “Menace”: Peer Review and the Regulation of Substance-Addicted Doctors, 1933-1948 – Gabrielle Wolf

This article examines the first power that Victorian parliamentarians granted to the Medical Board of Victoria (Board) to regulate impaired doctors. Convinced that substance-addicted doctors were a “menace”, in 1933 the legislature gave the Board discretion to remove their names from its register of “legally qualified medical practitioners”. In the next 15 years, however, the Board chose not to cancel the registration of several doctors who came to its attention for their addiction to alcohol or drugs and instead the Board monitored those doctors; it mostly sought assurances from the practitioners that they were obtaining treatment for their addiction, abstaining from consuming alcohol and drugs, and refraining from practising medicine, usually until their treating practitioners considered that they were fit to resume medical practice. This article evaluates the benefits and pitfalls of the Board’s regulation of these doctors, including in light of Anglo-American legal scholars’ discussion at that time about the merits of the growth of administrative agencies and their work. The article then considers the lessons that can be learnt from this history about how substance-dependent doctors should be regulated and who should be involved in decision-making regarding their regulation.

Lights and Sirens: How Coronial Inquests Can Highlight Challenges in Paramedic Regulation – Dominique Moritz

Paramedics provide emergency and community health services to diagnose, treat, transport and provide advice to patients. However, current regulatory structures do not adequately protect the public from the potential for paramedics to cause harm to their patients. Paramedic employers regulate the paramedic industry rather than the National Registration and Accreditation Scheme used for other equivalent registered health practitioners in Australia. A number of coronial inquests have considered the conduct of paramedics and highlight the challenges of the current paramedic regulation in protecting the public from risk.

Expert Witness Immunity in Australia after Attwells v Jackson Lalic Lawyers: A Smaller and Less Predictable Shield? – Tina Cockburn and Bill Madden

Expert witnesses act as “injury brokers” in contributing to the analysis of what qualifies as legally recognised and compensable injury in medical negligence litigation. The orthodox approach in Australia is that expert witnesses, like advocates, are immune from suit in negligence. In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; [2016] HCA 16, the High Court of Australia upheld, but narrowed, advocates’ immunity. This article outlines the decision in the Atwells case and after reviewing Australian authority on expert witness immunity argues that, given the recent narrowing of the scope of advocates’ immunity, similar limitations are likely to be placed on the scope of expert witness immunity with two effects – it will be less commonly available and less predictably available.

The Right to Health: Implications for the Funding of Medicines in Australia – Claudia Harper, Narcyz Ghinea and Wendy Lipworth

Australia’s health system is characterised by an ongoing tension between a commitment to utility and a commitment to individual rights. This tension is particularly problematic for the Australian Government when deciding which cancer medicines to add to the Pharmaceutical Benefits Scheme in order to make them cheaper for patients. This article investigates how the right to the highest attainable standard of health has influenced decisions about funding high-cost cancer medicines in Australia. It considers the value of the right to health for funders and concludes that resource allocation decisions should not be entirely informed by the right to health. It is maintained that, instead, regard should be had to the cost-effectiveness and affordability of cancer treatments before they are subsidised.

Asynchronous Medicines Legislation for Non-Medical Prescribing – Denise L Hope and Michelle A King

National registration of Australian health practitioners aimed to facilitate workforce mobility. Non-medical prescribers, including nurses, podiatrists and optometrists, are overseen by National Boards which, in some cases, specify a formulary from which their health practitioners may prescribe. All prescribers must comply with their respective State or Territory’s legislation. If prescribing a medicine that is a benefit under the Pharmaceutical Benefits Scheme (PBS), additional restrictions may apply. National Board and PBS prescribing formularies were compared and State and Territory medicines legislation was interrogated regarding non-medical prescribing. Discrepancies were identified between the approved formularies for non-medical prescribers, PBS prescribing formularies and medicines allowed to be prescribed under jurisdictional legislation. Asynchronous medicines legislation provides potential for health professionals to either inadvertently or knowingly breach legislation following national changes to health policy. Consideration should be given to the development of consistent legislation and its uniform commencement across all Australian jurisdictions.

Paying for Risky Decisions: Civil Liability of Non-Vaccinators – Nikki Bromberger

Since their widespread introduction in the early 20th century, vaccinations have saved millions of lives worldwide and have near to eradicated some diseases in several countries. Vaccination in Australia, although not mandatory, is strongly and actively encouraged through pervasive education campaigns, financial incentives and administrative requirements. Despite this, approximately 10% of children in Australia are not fully vaccinated against vaccine preventable diseases and every year thousands of Australians are infected with one of these diseases. This article considers the liability in negligence of parents whose unvaccinated children infect and cause harm to others. It argues that policy considerations will ultimately determine decisions about liability in a given case and, in particular, that courts should take into account the reasons for failure to vaccinate in making their determination on liability. The article further argues that if reasons for failure to vaccinate are not regarded as appropriate matters of differentiation for the purposes of tort law, all unreasonable non-vaccinators should nonetheless be liable for physical harm that their failure to vaccinate causes.

Criteria for Decision-Making Capacity: Between Understanding and Evidencing a Choice – Lisa Eckstein and Scott YH Kim

Although the abilities to understand and to evidence a choice are universally recognised as necessary for decision-making capacity (DMC), they are not sufficient for DMC. Additional criteria such as “appreciation”, “reasoning”, and “using or weighing information” are often used, but the broad and under-defined nature of some of these additional legal criteria has resulted in diverse and sometimes inconsistent interpretations. This article canvasses jurisdictional variations in DMC criteria, focusing on common law and statutory tests in the United States, the United Kingdom and Canada. It proposes a more integrated framework for interpreting DMC beyond the understanding and evidencing a choice criterion by describing how, in addition to the familiar criterion of the ability to form adequate beliefs, “the ability to value” criterion can usefully fill that space. The article illustrates the potential usefulness of this framework by reviewing how the ability to form adequate beliefs and the ability to value are relevant in several challenging cases drawn from the legal literature and clinical experience.

A Positive Duty to Rescue and Medical Practitioners: A Review of the Current Position in Australia and a Comparison with International Models – Jayr Teng

Providing medical assistance to an injured, unrelated third party is an act often viewed positively by society. A tension in tort law that has arisen in most jurisdictions is whether such a duty should be imposed on certain classes of individuals or on society as a whole. In Australia this issue has arisen in cases such as Lowns v Woods [1996] Aust Torts Reports 81-376 and Dekker v Medical Board of Australia [2014] WASCA 216, which have posed the question as to whether there is a legally enforceable duty for medical practitioners to render such assistance in certain circumstances. This article examines the current position of the Australian law on whether a duty to rescue exists generally, or in regards to medical practitioners specifically. A review and comparison of the Australian position with respect to other common law and civil jurisdictions is also undertaken.

The Making of a Health Profession: A South African Case Study – Andra le Roux-Kemp

The judgment by the Supreme Court of Appeal of South Africa in South African Dental Association v Minister of Health [2015] ZASCA 163 concerns a seemingly technical question about the statutory professional recognition of dental assistants, and therefore provides an opportunity for a legal-historical analysis of how a health/medical profession is “made”. The primary locus of this article is South Africa. However, the value of the analysis is not confined to jurisdictional boundaries, as the reader is invited to reconsider how and when a vocation or occupation becomes a profession. The underlying question of professionalisation, incidental to the Supreme Court of Appeal’s reasoning, informs and guides an important debate with relevance not only for the parties before the Court, but also for the contemporary notion of professional practice. It is argued that the power of professionalisation deserves to be demystified in order to make legal sense and to affect legitimacy and trust in the eyes of the public at large.

Development, Access to Medicines and the Ebola Virus Epidemic in West Africa – Olasupo Owoeye and Jumoke Oduwole

The 2014 West African Ebola outbreak constituted a social and economic development challenge, at the core of which was the enduring and unresolved problem of global access to medicines. The Ebola outbreak provided strong evidence of the world’s unpreparedness for the socio-economic challenges of a large-scale pandemic and served as a poignant reminder that using intellectual property regulations to perpetrate a formidable access to medicines’ regime can put global public health in serious jeopardy. This article highlights the connection between the access to medicines conundrum and the right to development against the backdrop of the 2014 West African Ebola outbreak. It argues that diseases ravaging populations in developing countries has a ricochet effect on global public health as well as global security, and as such there is a need for more international co-operation in stemming the tide of such pandemics.

BOOK REVIEW

• The State and the Body: Legal Regulation of Bodily Autonomy by Elizabeth Weeks – Reviewed by Ian Freckelton QC

For the PDF version of the table of contents, click here: JLM Vol 24 No 3 Contents.

Click here to access this Part on Westlaw AU

For general queries, please contact: tlranz.journal.orders@thomsonreuters.com.

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

To purchase an article, please email: LTA.Service@thomsonreuters.com or contact us on 1300 304 195 (Australian customers) or +61 2 8587 7980 (international customers) during business hours (Mon-Fri, 8am-6pm AST).

The latest issue of the Journal of Law and Medicine (Volume 24 Part 4) contains the following material:

EDITORIAL

Doctors Suing Patients: Wrestling with Doing No Harm – Ian Freckelton QC

The obligation to abstain from doing harm to patients (non-maleficence) and the duty to engage in conduct which does good (beneficence) has a lengthy ethical history in medicine, dating back to the Hippocratic Corpus of writings. Generally, for a health practitioner to initiate litigation against a patient would be inconsistent with such precepts. However, the conduct of some patients constitutes a waiver in this regard. The circumstances surrounding the Supreme Court action in New South Wales of Al Muderis v Duncan (No 3) [2017] NSWSC 726 illustrate that such conduct by health practitioners may not only be ethically defensible but prudent in the modern online environment in which a very small subsection of patients are prepared to calumny their practitioners in the belief that they have impunity to publish their aggrievements to the world via the internet regardless of the harm that attaches to their publications.

LEGAL ISSUES – Editor: Bernadette McSherry

Supporting People with Decision-Making Impairments: Choice, Control and Consumer Transactions – Yvette Maker, Bernadette McSherry, Lisa Brophy, Jeannie Marie Paterson and Anna Arstein-Kerslake

A key goal of the National Disability Insurance Scheme is to increase the choice and control that people with disabilities have over the goods and services they purchase. However, research indicates a range of barriers to the participation of people with disabilities as consumers. These barriers can have an impact on individuals’ health and social and economic participation, especially when they affect access to basic and essential services such as utilities and telecommunications. There are particular challenges for consumers with cognitive or psychosocial disabilities who may experience decision-making impairment. This column explores these challenges and discusses options for providing support for people with decision-making impairments to participate in consumer transactions on an equal basis with others.

MEDICAL ISSUES – Editor: David Ranson

Novel Psychoactive Substances: The Challenges for Health Care, Analytical Science and the Law – Victoria Bicknell, Dimitri Gerostamoulos and David Ranson

Designer or synthetic drugs of abuse are a growing problem for legislators, law enforcement and health care providers. The rapidly modified chemical structure of such substances means that not only are their legislative categorisations uncertain and fluid but their health effects remain largely unclear with little opportunity for timely research that could be used to support patients with problems. For the forensic medical and scientific community the lack of validated drug standards for these newly emerged chemicals makes analysis problematic. The need for drug intelligence communication and drug surveillance systems has never been greater. The creation of, as well as wider access to, national and international data bases of new and emerging synthetic drugs would go some way to address the forensic analytical and health care problems that these substances create.

BIOETHICAL ISSUES – Editor: Grant Gillett

Taking the Moral Measure of Mental Capacity: Interpretation and Implementation – Grant Gillett

A new report on mental capacity and revisions to mental health law has highlighted the need to soften the hard-edged autonomy/rights framework of much legislation and its increasing encroachment into health law. Ethics allows us to introduce into this area moral perception and a sense of life as requiring sensitive attunement, awareness and responsiveness to the lives of others. That inflection of our reading of mental health law and provisions for impaired capacity and vulnerability makes the science of law a more natural science which takes nuanced account of the human predicament and its fragility in the face of ill-health in general and mental health in particular. Concepts such as supported and relational autonomy and the holding in being of individuals struggling to retain a sense of their own identity in a complex world of shifting relationships and power imbalances then becomes part of the pragmatic anthropological project in which our legislative interventions must aim to help and not hinder or disrupt our mutually interwoven journeys of self-formation and self-understanding.

MEDICAL LAW REPORTER – Editor: Thomas Faunce

Public Health Legislation Prohibiting Sports-Embedded Gambling Advertisting – Madeleine Farrar and Thomas Faunce

Federal Labor, Green and Independent politicians have recently called for a blanket ban on sports-embedded gambling advertising (SEGA), and the Prime Minister has announced that such advertising would be banned during live sporting telecasts before 8.30pm. A considerable body of research establishes the adverse public health impacts of such gambling. The decision of the Australian High Court in Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 paved the way, however, for an expansive online Australian sports-betting market for both interstate operators and internationally located gambling companies. The combination of widespread internet access and smart phone usage has resulted in an environment where placing a bet is more likely to occur in the home in front of children, hence the concern about its “normalisation”. Elite sports people have made public pronouncements that SEGA is now excessive, inconsistent with blanket prohibitions on gambling by elite sports people and damaging to public health. This column critically examines the regulatory landscape governing the advertisement, sponsorship and promotion of SEGA within Australian sport and why the current Bills on this topic do not go far enough.

Articles

Complementary Health Practitioners Disciplined for Misconduct in Australia 2010-2016 – Jenni Millbank, Miranda Kaye, Anita Stuhmcke, David Sibbritt, Isabel Karpin and Jon Wardle

This article examines disciplinary proceedings brought against complementary medicine (CM) practitioners in Australia at tribunal level since the inception of the Health Practitioner Regulation National Law. The article looks at all 32 such cases and identifies trends in the kinds of misconduct established, and the orders imposed. These findings are compared with earlier and more sizable studies of tribunal-level outcomes for disciplinary proceedings against doctors in Australia and New Zealand. While there are some clear comparisons – such as the gender ratio of respondent practitioners and the most common type of misconduct, ie sexual misconduct – there were also notable differences. Specifically, the rate of removal from practice, either by suspension or cancellation of registration, of CM practitioners was found to be significantly higher than that reported in earlier studies of cases against doctors. More research needs to be done to explore the reasons for this apparent disparity.

Professional Discipline of the New Zealand Nursing Residential Care Workforce: A Mixed Methods Analysis of HPDT Decisions 2004-2014 – Kate Kersey, Kate Diesfeld, Lois J Surgenor and Michael Ip

Allied to the growing demand for aged residential care services, with a shifting mix to higher levels of care for those with complex co-morbidities, is concern about the standard of care provided to those residing in such facilities. In the course of their work in aged residential care, nurses may face complaints about conduct or practice amounting to allegations of elder abuse or neglect. The ultimate step in the complaints process in New Zealand is a disciplinary charge laid before the Health Practitioners Disciplinary Tribunal (HPDT), a civil disciplinary body set up under the Health Practitioners Competence Assurance Act 2003 (NZ). This study examines the entire bank of published HPDT decisions from 2004 to 2014 relating to nurses’ misconduct in the aged residential care setting, and explores systemic issues in residential care that may contribute to elder neglect and abuse. By using a mixed-method approach to examine accumulative HPDT data, this research seeks to contribute to the educative and preventive value of professional discipline decisions concerning care for some of society’s most vulnerable members.

The Legal System and the Legitimacy of Clinical Guidelines – Fiona McDonald

Clinical guidelines have proliferated in the last 20 years, with thousands created by a variety of groups for a variety of purposes. This proliferation has seen the legitimacy of some guidelines being called into question and has resulted in an increase of self-regulatory mechanisms (meta-guidelines) that aim to regulate the processes through which clinical guidelines are developed and hence to provide standards against which a user can measure the legitimacy of a guideline. However, clinical guidelines are also subject to forms of regulation by other actors, including the courts, and these actors have their own norms. This article examines the norms established by the courts concerning the legitimacy of clinical guidelines, and the factors considered when assessing the legitimacy of such guidelines, including expertise, consensus, consultation, evidence, bias and conflicts of interest, and compliance with relevant law.

Wastewater Analysis of Substance Use: Implications for Law, Policy and Research – Jeremy Prichard, Foon Yin Lai, Emma van Dyken, Phong Thai, Raimondo Bruno, Wayne Hall, Paul Kirkbride, Coral Gartner, Jake O’Brien and Jochen F Mueller

This article seeks to encourage informed cross-disciplinary discourse about wastewater analysis (WWA) – a method of estimating substance use in very large populations via the analysis of samples of sewage water. It examines Australia’s policy platform for responding to substance use, the National Drug Strategy (NDS), and considers the evidence base underpinning it, particularly the metrics that are provided by national drug-monitoring systems. The article discusses the strengths of WWA and suggests the method could usefully augment existing monitoring systems. To demonstrate the flexibility, efficiency and scope of WWA, key findings are presented from the first national WWA study, which encapsulated sewage samples from approximately 40% of the Australian population. Opportunities for WWA to inform time-sensitive issues in particular communities are also explored. The article encourages health and criminal justice portfolios to engage with WWA to ensure it is put to best effect for policy purposes.

Abortion Law in New South Wales: Shifting from Criminalisation to the Recognition of the Reproductive Rights of Women and Girls – Christine Forster and Vedna Jivan

This article considers the legislative framework governing abortion in New South Wales and argues that the decriminalisation of abortion with no restrictions would more effectively support, recognise and facilitate the fulfilment of women’s and girls’ reproductive rights. It recommends mandating exclusion zones, placing a duty on medical practitioners to perform surgical terminations or to prescribe medical (chemical) abortions or refer a client to medical practitioners who will, and the establishment of accessible, culturally appropriate facilities for surgical abortions across urban and rural areas. It begins by evaluating two models of abortion legislation that have been introduced in Australia, the first created by the Abortion Law Reform Act 2000 (Vic) and the second created by amendments to the Health Act 1993 (ACT) in 2002. While both models are praiseworthy for striving to balance the interests of varying interest groups, this article argues neither model fully recognises the reproductive rights of women and girls. Both models create differing regimes of medicalisation in which medical practitioners are given paternalistic gatekeeping responsibilities in relation to women’s access to abortion. In these models and in the criminalisation model currently in place in New South Wales, women in marginalised communities such as Aboriginal and Torres Strait Islander women, immigrant women and those living in rural, remote and low socio-economic areas are further marginalised and afforded less access to abortion.

Proprietary Rights in Stored Semen: “Roblin v Public Trustee” and the Commonsense Approach to Stored Human Tissue of Significance – Madeline Baker

This article discusses the development of the law of property as applicable to stored semen through the lens of Roblin v Public Trustee (2015) 10 ACTLR 300, and considers broadly the future of this area of law and the authority for a possible new exception to the historic “no property in the human body” rule for tissue with a “significance beyond its mere existence”, such as semen. Roblin is the most recent case in a line of common law development affirming the principle that stored semen is property belonging to the originator, the rights to which may be passed to his spouse or domestic partner upon his death. The decision in Roblin is additionally reflective of the development of a “commonsense” approach to recognising property in stored tissue of special significance, which seeks to avoid the legal fiction that would be created in denying property to significant tissue which has a clear physical presence.

“Treatment” of Intersex Children as a Special Medical Procedure – Skye O’Dwyer

In Australia each year intersex children undergo invasive, identity-affecting, life-changing medical procedures. While some of these procedures are essential to save the child’s life, most are simply to ensure that the intersex child’s genitals are philologically either male or female. This article argues that this practice is wrong for the following reasons: these procedures should be recognised as Special Medical Procedures that require the oversight of the Family Court; psycho-social motivation, based on a binary conception of sex, is outdated and discriminatory; and the Family Court does not approve this sort of invasive surgery when asked to do so for transgender teens. Medical practitioners who perform these operations on intersex children expose themselves to criminal and civil liability. The best approach is to leave intersex children’s bodies alone and allow them to make decisions about their sexual morphology when they attain competence.

Life on the Liminal Bridge Spanning Fertility and Infertility: A Time to Dream and a Time to Decide – Pamela M White

Embryo cryopreservation is frequently characterised as providing in vitro fertilisation (IVF) patients with a reassuring fertility insurance benefit. However, this description fails to encompass the field of dreams that frozen embryo storage and retention creates for many infertile couples and individuals. This article uses qualitative interview data collected in 2013 from 45 Canadian fertility treatment patients to explore how these women and men negotiated liminal spatial and temporal reproductive boundaries as they made decisions about their stored embryos. It sheds light on the investments made by patients in “hope technologies”, examines the destabilisation and category mixing that fertility preservation can generate, and investigates the liminal places in which patients and their stored embryos dwell and experience time. Canada imposes no embryo storage retention time limits. This article argues that to do so confuses notions of embryo storage time with that of reproductive purpose and would lead to further ambiguity and liminality.

Coercive Community Treatment in Mental Health: An Idea Whose Time Has Passed? – Sascha Callaghan and Giles Newton-Howes

Community treatment orders (CTOs) emerged in the 1970s as an innovative, “less restrictive” alternative to involuntary inpatient orders for people with chronic and severe mental illness. Now, after three decades of practice, numerous studies have concluded that CTOs do not achieve their main clinical aims, while involuntary orders in mental health continue to be strongly criticised in light of the requirements of the Convention on the Rights of Persons with Disabilities. The question now arises whether CTOs are still a justifiable option for treatment. This article reviews the history and features of community treatment orders in Australia and New Zealand, concluding that the CTO system was based on goals that were both normatively and epistemically flawed. In light of these facts, the article argues that CTOs can no longer be justified if the goals of non-discrimination and supported decision-making enshrined in the Convention are to be taken seriously by states parties.

Blood Libel: An Analysis of Blood Donation Policy As It Affects Gay Men in Australia – Edward Davis

The Red Cross’ donor selection policy dictates that a man cannot donate blood if he has had sex with another man in the preceding 12 months. This policy is entrenched by legislation at the State, Territory and federal level. This article argues that the policy reproduces a homophobic discourse that was borne out of the “AIDS crisis” and instils a negative self-conception within homosexual subjects themselves. It examines whether the policy is supported by the scientific evidence and the exact way in which the policy is mandated by the law. A queer theory framework is used to critically interpret these findings. As an alternative, this article advocates for a gender and sexuality neutral selection policy based on the risk of certain sexual behaviours. This is supported by the experience of foreign jurisdictions that have implemented similar policies. Such a reform would include homosexual men in an important field of social participation and help reverse the negative perception of homosexuality to which the current policy contributes.

Stigma, Homosexuality and the Homosexual Advance Defence – Anthony Gray and Kerstin Braun

This article considers developments in the law regarding homosexuality through the prism of stigma, which retains an important role in psychology theory. It explores the role of law in perpetuating, or tackling, stigma. While the decriminalisation of homosexual practice between consenting adults has been important in reducing the stigma attached to homosexual activity, it is evident that stigma, and its associated serious psychological effects, persists in relation to sexuality. The recent High Court of Australia decision permitting a “homosexual advance defence” to be used by an offender accused of murdering the person making the unwanted advance is argued to reflect and perpetuate the continued stigmatisation of homosexual practice. There is reason to doubt whether the High Court would view an unwanted heterosexual advance in the same way as it apparently views an unwanted homosexual advance. The law must be careful in apparently excusing, or partly excusing, extremely violent (sometimes deadly) behaviour, and the message it sends when it does so.

The Role of Legal Proxies in End-of-Life Decisions in Italy: A Comparison with Other Western European Countries – Denard Veshi and Gerald Neitzke

Since 2009, when the Italian Parliament first discussed Bill 2350 regarding advance directives, Italy has become increasingly enthusiastic about passing legislation where the ethical principle of autonomy and the legal norms needed to safeguard it are recognised. After giving arguments for the importance of a legal proxy (surrogate or guardian) in end-of-life decisions, this article offers a critical analysis of the legal situation in Italy by taking into consideration the Mental Capacity Act 2005 (UK). Moreover, the jurisprudential interpretation of amended Arts 404-413 of the Italian Civil Code – which introduced to Italy the legal role of guardian (amministratore di sostegno) – are examined.

BOOK REVIEWS

• Patients with Passports: Medical Tourism, Law and Ethics by I Glenn Cohen – Reviewed by Ian Freckelton QC
• Stem Cell Tourism and the Political Economy of Hope by Alan Petersen, Megan Munsie, Claire Tanner, Casimir MacGregor and Jane Brophy – Reviewed by Ian Freckelton QC

For the PDF version of the table of contents, click here: JLM Vol 24 No 4 Contents.

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