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Journal of Law and Medicine

Gillian Jean, Alexander C L Holden, Marc Tennant, Estie Kruger
There are established standards for the management of infection control in private dental practices, but there is currently no proactive legislation to oversee correct adherence to those standards. The Australian Health Service Safety and Quality Accreditation Scheme (Scheme) promotes a quality and safety management program that includes attention to the prevention of healthcare acquired infections, but adoption of the Scheme is not compulsory for all. A recent case brought before the NSW Civil and Administrative Tribunal demonstrated the seriousness of breaches of infection control standards and the considerable costs of managing the consequences...
July 2018: Journal of Law and Medicine
Alexander C L Holden
This article seeks to examine and compare the legal and professional positions of tooth whitening of three jurisdictions: the United Kingdom, Australia and New Zealand. Within each jurisdiction, a differing formula of legislation, case law and professional guidance dictates how tooth whitening is regulated and practised. Tooth whitening still holds curiosity as a procedure with regards to whether it does indeed warrant status as a professional activity and whether its practice should be limited to dental professionals...
July 2018: Journal of Law and Medicine
Robert Shiels
No aspect of the law should be neglected, yet it is probably not often within the practice of lawyers or medical doctors that they become involved in litigation over human remains. Yet, within a short period of time, the courts in Britain have been required to adjudicate on such sensitive issues. In two cases public anxiety about the disposal of remains led to litigation and judicial decisions which are likely to remain illustrative of the unique facts and circumstances surrounding such problems.
July 2018: Journal of Law and Medicine
Anna Walsh
This article considers the phenomenon of safe access zone laws in Australia that seek to prohibit certain activities that occur outside abortion facilities during protests. While they are characterised as a reasonable reaction to concerns that certain activities may harm women and infringe their rights to privacy and security, such laws do so at the expense of the protesters' right to freedom of political communication and cover activities such as sidewalk counselling and praying. This article critically examines the content and scope of these laws in each jurisdiction, identifies recent cases involving prosecutions for violations of safe access zone laws and considers the impact of the implied freedom of political communication on their constitutional validity in light of recent High Court decisions...
July 2018: Journal of Law and Medicine
Kathryn Boyd
Through preimplantation genetic diagnosis (PGD), individuals can now reliably choose the sex of their baby. However, PGD is largely prohibited for individuals seeking to sex select for non-medical reasons. This article argues that to protect reproductive autonomy, individuals should be allowed to make reproductive choices, regardless of their motivations, unless those choices would cause serious harms to others. It follows that social sex selection should not be prohibited on the basis of moral objections, only when it will cause serious harm...
July 2018: Journal of Law and Medicine
Paul Stevenson
Risk mitigation practices are essential to protecting patients from harm and reducing medical practitioner exposure to unnecessary reputational damage and economic loss. Despite traditionally being perceived as a low-risk specialty, published data on medico-legal claims against dermatologists in Australia are currently lacking. This article reviews the sources of medico-legal claims against dermatologists in Australia from a single medical indemnity insurer over the most recent three years. The failure to meet patient expectations was the largest source of claims against dermatologists, followed by adverse outcomes...
July 2018: Journal of Law and Medicine
Nicola Cunningham
The modern-day coroner sits uniquely at the interface between health care provision, patient safety and the law, playing an important role in informing health care practices to improve patient safety. In the 21st century, the health care system has rapidly developed in the field of patient safety. First came the Safety-I approach of looking at what went wrong, then the Safety-II approach of understanding why things go right. The advent of Safety-II has flipped the way some health care organisations view their systems and it is now time for the coronial jurisdiction to do the same...
July 2018: Journal of Law and Medicine
Brent Hyslop
The issue of clinical research on adults who are unable to provide consent (non-consensual research - NCR) is a challenging area of law, which has gained prominence in New Zealand and elsewhere. In New Zealand, the legality of such research depends on a best interests test. It has been claimed, however, that a best interests test cannot be satisfied in NCR, and that a new legal standard is required to allow valuable research to appropriately proceed. This article argues that a best interests test can be satisfied in NCR and should be reconsidered as a suitable benefit-harm standard...
July 2018: Journal of Law and Medicine
Anna Cody
Access to the law, and effective justice for people with disability is a growing area of concern for lawyers and law teachers. In clinical legal education, where students work with real clients, working effectively and sensitively with people with disability is crucial. The founding principle in any design process of clinical legal education programs with people with disability is nothing about us without us. Students must also be taught specific skills when working with clients with disability, including the appropriate language to use, communication skills, and the connections between sexism, racism and stigma attached to people with disability...
July 2018: Journal of Law and Medicine
Jacqueline Meredith, Shaun McCarthy, Bronwyn Hemsley
This article explores the legal and ethical issues surrounding the production, storage, retrieval and use of electronic personal health records of children aged 14 years and over. Specifically, we explore: (1) the capacity, consent and competence issues; (2) privacy and confidentiality concerns; (3) the tension between a child's right to autonomy and his or her parent's or guardian's rights and responsibilities; and (4) outline implications of this for the implementation of Australia's My Health Record system, particularly for children with communication disability who are high users of health systems and have high health information exchange needs...
July 2018: Journal of Law and Medicine
Michael Weir
The regulation of registered health practitioners in Australia focuses upon holding out provisions rather than statutory scope of practice provisions. One concern for non-registrant complementary and alternative medicine practitioners and other non-registrants is whether these holding out provisions are breached by simply providing a modality which may also be applied by a registered health practitioner (such as the use of Chinese Massage) and when does a breach of the holding out occur when they use particular words that might in the context of when they are used may be deemed to constitute a holding out...
July 2018: Journal of Law and Medicine
David J Carter, Deborah J Street, Stephen Bush
This article examines the reform of the Health Practitioner National Law to introduce a form of medical registration revalidation. Revalidation is a regulatory performance management practice designed to confirm the competence of medical practitioners regularly and proactively. Its implementation will shift the law's current contribution to constraining dangerous practice from a largely reactive stance onto a more proactive footing. In aid of advancing the case for registration revalidation, we describe the recent history of the National Law, provide analysis of the proposed revalidation reforms and then apply a novel empirical method of a discrete choice experiment to determine the Australian general public's acceptance of and preferred approach to medical registration revalidation regulation...
July 2018: Journal of Law and Medicine
Marina Wainstein, Anna Rose Menzies, Frank Patrick Brennan, Mark Ashley Brown
A doctor has a legal duty to secure the informed consent of a patient prior to performing a medical or surgical procedure. The elements of the legal doctrine of informed consent include capacity, voluntariness and the provision and understanding of relevant information. This article examines the doctrine in the context of renal dialysis. Dialysis is a complex therapy that impacts upon quality of life and has limited survival advantage in some patients. It is likely that informed consent is often not fully integrated into the care of patients commencing dialysis...
July 2018: Journal of Law and Medicine
Teddy Henriksen, Jay Sanderson
In order to understand the relationship between patents and biosimilars in Australia better, this article examines whether, and in what circumstances, biosimilars can be patented under the Patents Act 1990 (Cth). Part II provides the necessary background in discussing the structure and function of biosimilars as well as the regulation of, and key arguments for, biosimilars in Australia. Part III explores the key challenges faced in patenting biosimilars in Australia, particularly the requirements of novelty, inventive step and sufficiency of description...
July 2018: Journal of Law and Medicine
Lindy Willmott, Ben White, Neera Bhatia
Decisions about whether to withdraw or withhold life-sustaining medical treatment from children give rise to complex and value-laden judgments. While recourse to the courts is uncommon, judicial decisions provide an important source of guidance for the children (where they can participate), families and health and medical professionals involved in these decisions. Yet, there has been remarkably little consideration of the Australian jurisprudence on this issue. This article addresses that gap by undertaking the first comprehensive analysis of all publicly available Australian cases that consider whether or not it is in a child's best interests to receive life-sustaining treatment...
July 2018: Journal of Law and Medicine
Chloe Thompson, Thomas Faunce
On 28 March 2018 the Australian Senate Community Affairs References Committee issued its final report on transvaginal mesh devices. It found these devices have caused unnecessary physical and emotional pain and suffering to thousands of women who were not told by their doctors of the objective material risks associated with their use. The Senate Committee concurred with the description by the Public Health Association of Australia of the complications resulting from transvaginal mesh implants as constituting a serious public health issue requiring a response at both an individual and at a population level, including counselling, public education, clinical interventions and long-lasting protective mechanisms...
July 2018: Journal of Law and Medicine
Kim Forrester
The Nursing and Midwifery Board of Australia has developed and approved the new Code of Conduct for Nurses and Code of Conduct for Midwives which applies from 1 March 2018. The primary role of the Nursing and Midwifery Board of Australia (NMBA), is to protect the public by ensuring only those who are suitably qualified and trained to practise in a competent and ethical manner are registered. One mechanism by which this objective is achieved is the registration of practitioners who are required not only to meet the mandatory registration standards but also conduct their practice in accordance with the NMBA's standards, codes and guidelines...
July 2018: Journal of Law and Medicine
Jeremy Feiglin, Julian Savulescu
The current regulation of altruistic surrogacy arrangements in Australia has resulted in a dearth of willing participants and is driving intending parents overseas to unregulated countries. This section contends that the current altruistic surrogacy arrangements in Australia violate a number of ethical principles and fail to protect the interests of all parties. This section then proposes a new ethical model for commercial surrogacy arrangements that includes: fair and just compensation; enforceability of surrogacy agreements; amended parentage presumptions and the ability to obtain pre-birth parenting orders; regulation of surrogacy agencies and brokers; recognition of approved international surrogacy arrangements; and review by a Patient Review Panel with legislative safeguards...
July 2018: Journal of Law and Medicine
Ian Freckelton
The end-of-life litigation involving Alfie Evans (9 May 2016 - 28 April 2018) from Liverpool, England, who suffered from an incurable and degenerative neurological condition was extraordinary. It emerged in the shadow of comparable but not as extensive litigation enabled by crowdfunding in relation to Ashya King and Charlie Gard. Although Alfie's parents lost repeatedly in the High Court, the Court of Appeal and the Supreme Court of England, as well as before the European Court of Human Rights, they persisted in bringing more legal challenges...
July 2018: Journal of Law and Medicine
Bernadette McSherry
Computational modelling is now being used to analyse posts on social media to predict the emergence of mental health conditions. While the aim is to develop tools for early detection and treatment of such conditions, computational modelling raises issues of user consent and privacy. The European Union has moved to regulate automated profiling of large databases and Australia has introduced a data breach notification scheme for cases where personal information held by an organisation is lost or subjected to unauthorised access or disclosure...
July 2018: Journal of Law and Medicine
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