Adults who lack capacity : substitute decision-making

• Mechanisms to facilitate consent to healthcare for adults who lack capacity are necessary to ensure that these adults can lawfully receive appropriate medical treatment when needed. • In Australia, the common law plays only a limited role in this context, through its recognition of advance directives and through the parens patriae jurisdiction of superior courts. • Substitute decision-making for adults who lack capacity is facilitated primarily by guardianship and other related legislation. This legislation, which has been enacted in all Australian States and Territories, permits a range of decision-makers to make different types of healthcare decisions. • Substitute decision-makers can be appointed by the adult or by a guardianship or other tribunal. Where there is no appointed decision-maker, legislation generally empowers those close to the adult to make the relevant decision. Most Australian jurisdictions have also provided for statutory advance directives. • For the most serious of decisions, such as non-therapeutic sterilisations, consent can only be provided by a Tribunal. Other decisions can generally be made by a range of substitute decision-makers. Some treatment, such as very minor treatment or that which is needed in an emergency, can be provided without consent. • Guardianship legislation generally establishes a set of principles and/or other criteria to guide healthcare decisions. Mechanisms to resolve disputes as to who is the appropriate decision-maker and how a decision should be made have also been established.

Making use of pedagogic models as reflective catalysts for investigating pedagogic practice

The notion of pedagogy for anyone in the teaching profession is innocuous. The term itself, is steeped in history but the details of the practice can be elusive. What does it mean for an academic to be embracing pedagogy? The problem is not limited to academics; most teachers baulk at the introduction of a pedagogic agenda and resist attempts to have them reflect on their classroom teaching practice, where ever that classroom might be constituted. This paper explores the application of a pedagogic model (Education Queensland, 2001) which was developed in the context of primary and secondary teaching and was part of a schooling agenda to improve pedagogy. As a teacher educator I introduced the model to classroom teachers (Hill, 2002) using an Appreciative Inquiry (Cooperrider and Srivastva 1987) model and at the same time applied the model to my own pedagogy as an academic. Despite being instigated as a model for classroom teachers, I found through my own practitioner investigation that the model was useful for exploring my own pedagogy as a university academic (Hill, 2007, 2008). Cooperrider, D.L. and Srivastva, S. (1987) Appreciative inquiry in organisational life, in Passmore, W. and Woodman, R. (Eds) Research in Organisational Changes and Development (Vol 1) Greenwich, CT: JAI Press. Pp 129-69 Education Queensland (2001) School Reform Longitudinal Study (QSRLS), Brisbane, Queensland Government. Hill, G. (2002, December ) Reflecting on professional practice with a cracked mirror: Productive Pedagogy experiences. Australian Association for Research in Education Conference. Brisbane, Australia. Hill, G. (2007) Making the assessment criteria explicit through writing feedback: A pedagogical approach to developing academic writing. International Journal of Pedagogies and Learning 3(1), 59-66. Hill, G. (2008) Supervising Practice Based Research. Studies in Learning, Evaluation, Innovation and Development, 5(4), 78-87

Socially responsible investment in market downturns : implications for the fiduciary responsibilities of investment fund trustees

This paper investigates whether Socially Responsible Investment (SRI) is more or less sensitive to market downturns than conventional investment, and examines the legal implications for fund managers and trustees. Using a market model methodology, we find that over the past 15 years, the beta risk of SRI, both in Australia and internationally, increased more than that of conventional investment during economic downturns. This implies that companies acting as fund trustees, managed investment schemes and traditional institutional fund managers risk breaching their fiduciary or statutory duties if they go long - or remain long - in SRI funds during market downturns, unless perhaps relevant legislation is reformed. If reform is viewed as desirable, possible reforms could include explicitly overriding the common law to allow all traditional funds to invest in SRI; granting immunity to directors of trustee companies from potential personal liability under sections 197 or 588G et seq of the Corporations Act; allowing companies acting as trustees, managed investment schemes and traditional institutional fund managers and trustees to invest in SRI without triggering a substantial capital gains tax liability through trust resettlement; tax concessions for SRI (eg. introducing a 150% tax deduction or investment allowance for SRI); and allowing SRI sub-funds to obtain “deductible gift recipient” status or the equivalent from relevant taxation authorities. The research is important and original insofar as the assessment of risk in SRIs during market downturns is an area which has hitherto not been subjected to rigorous empirical investigation, despite its serious legal implications.

Tendering ethics : a study of collusive tendering from a marketing perspective

This thesis provides a behavioural perspective to the problem of collusive tendering in the construction market by examining the decision making factors of individuals potentially involved in such agreements using marketing ethics theory and techniques. The findings of a cross disciplinary literature review were synthesised into a model of factors theoretically expected to determine the individual's behavioural intent towards a set of collusive tendering agreements and the means of reaching them. The factors were grouped as internal cognitive (the individuals' value systems) and affective (demographic and psychographic characteristics) as well as external environmental (legal, industrial and organisational codes and norms) and situational (company, market and economic conditions). The model was tested using empirical data collected through a questionnaire survey of estimators employed in the largest Australian construction firms. All forms of explicit collusive tendering agreements were considered as having a prohibitive moral content by the majority of respondents who also clearly differentiated between agreements and discussions of contract terms (which they found to be a moral concern but not prohibitive) or of prices. The comparisons between those of the respondents that would never participate in a collusive agreement and the potential offenders clearly showed two distinctly different groups. The law abiding estimators are less reliant on situational factors, happier and more comfortable in their work environments and they live according to personal value and belief systems. The potential offenders on the other hand are mistrustful of colleagues, feel their values are not respected, put company priorities above principles and none of them is religious or a member of a professional body. The research results indicate that Australian estimators are, overall law abiding and principled and accept the existing codification of collusion as morally defensible and binding. Professional bodies' and organisational codes of conduct as well as personal value and belief systems that guide one's own conduct appear to be deterrents to collusive tendering intent and so are moral comfort and work satisfaction. These observations are potential indicators of areas where intervention and behaviour modification can increase individuals' resistance to collusion.