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Journal of Law and Medicine

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...
March 2016: Journal of Law and Medicine
Wendy Bonython, 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...
March 2016: Journal of Law and Medicine
Liz Bishop, Hana Shahkhan, 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...
March 2016: Journal of Law and Medicine
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...
March 2016: Journal of Law and Medicine
Terry Carney, Fleur Beaupert, Mary Chiarella, Belinda Bennett, Merrilyn Walton, Patrick J Kelly, 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...
March 2016: Journal of Law and Medicine
Mark Johnstone, Stephen Harlamb, 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...
March 2016: Journal of Law and Medicine
Damian H Adams, Shahid Ullah, 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...
March 2016: Journal of Law and Medicine
Stephanie Dartnall, 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...
March 2016: Journal of Law and Medicine
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...
March 2016: Journal of Law and Medicine
Marc Trabsky, 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...
March 2016: Journal of Law and Medicine
Gordon Tait, Belinda Carpenter, Carol Quadrelli, 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...
March 2016: Journal of Law and Medicine
Jennifer Moore, Tim Stokes, 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...
March 2016: Journal of Law and Medicine
Thomas Faunce, Michael McKenna, Johanna Rayner, 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...
March 2016: Journal of Law and Medicine
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...
March 2016: Journal of Law and Medicine
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 situtation 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...
March 2016: Journal of Law and Medicine
Ian Freckelton
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...
March 2016: Journal of Law and Medicine
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...
December 2015: Journal of Law and Medicine
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...
December 2015: Journal of Law and Medicine
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.
December 2015: Journal of Law and Medicine
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...
December 2015: Journal of Law and Medicine
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