Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

Loss of chance in medical negligence claims now a lost cause?

The question whether the loss of chance of a better medical outcome in cases of medical negligence should be recognised as actionable damage is ‘a question which has divided courts and commentators throughout the common law world.’ In April 2010, the High Court handed down its anticipated decision in the case of Tabet (by her Tutor Sheiban) v Gett (2010) 240 CLR 537. The issue considered by the court was whether the appellant could claim in negligence for the loss of a chance of a better medical outcome. This issue had not been considered by the High Court previously, the most relevant cases being Rufo v Hosking (2004) 61 NSWLR 678 and Gavalas v Singh (2001) 3 VLR 404. Claiming for a loss of chance in a personal injury action raises questions as to recognised damage and causation, and the members of the High Court considered both of these.

Influencing pre-service teachers, skills and attitudes towards diversity. Is DOL the Answer?

Abstract: This paper reports on a preliminary investigation into the success of an undergraduate course, in helping preservice teachers at a regional university develop the skills and attitudes necessary to design inclusive learning environments that cater for, and celebrate, difference. The study is particularly relevant given recommendations by the Education Queensland Ministerial Taskforce (Queensland Government, 2004) that all pre-service teacher education programs must ensure that inclusive education is a pervasive theme. The paper starts by providing an overview of inclusive contexts and a rationale for inclusive education including critical elements. This leads into an overview of the undergraduate course EDED11400 Managing Diversity and discussion, based on feedback from the teaching team, on the capacity for the course to help pre-service teachers develop inclusive curriculum and pedagogical practices. The pedagogical framework Dimensions of Learning* is then discussed, with consideration given to whether this framework with its focus on critical thinking and habits of mind, might improve future learning outcomes in the course EDED11400 Managing Diversity. (*Dimensions of Learning is a pedagogical framework designed to teach thinking skills (Marzano et al., 1988). It explores five types of thinking represented in the framework by five dimensions of learning.)

Palliative care, double effect and the law in Australia

Care and decision-making at the end of life that promotes comfort and dignity is widely endorsed by public policy and the law. In ethical analysis of palliative care interventions that are argued potentially to hasten death, these may be deemed to be ethically permissible by the application of the doctrine of double effect, if the doctor’s intention is to relieve pain and not cause death. In part because of the significance of ethics in the development of law in the medical sphere, this doctrine is also likely to be recognized as part of Australia’s common law, although hitherto there have been no cases concerning palliative care brought before a court in Australia to test this. Three Australian States have, nonetheless, created legislative defences that are different from the common law with the intent of clarifying the law, promoting palliative care, and distinguishing it from euthanasia. However, these defences have the potential to provide less protection for doctors administering palliative care. In addition to requiring a doctor to have an appropriate intent, the defences insist on adherence to particular medical practice standards and perhaps require patient consent. Doctors providing end-of-life care in these States need to be aware of these legislative changes. Acting in accordance with the common law doctrine of double effect may not provide legal protection. Similar changes are likely to occur in other States and Territories as there is a trend towards enacting legislative defences that deal with the provision of palliative care.

Conceptualising climate change in rural Australia : community perceptions, attitudes and (in) actions

Public engagement and support is essential for ensuring adaptation to climate change. The first step in achieving engagement is documenting how the general public currently perceive and understand climate change issues, specifically the importance they place on this global problem and identifying any unique challenges for individual communities. For rural communities, which rely heavily on local agriculture industries, climate change brings both potential impacts and opportunities. Yet, to date, our knowledge about how rural residents conceptualise climate change is limited. Thus, this research explores how the broader rural community – not only farmers – conceptualise climate change and responsive activities, focussing on documenting the understandings and risk perceptions of local residents from two small Australian rural communities. Twenty-three semi-structured interviews were conducted in communities in the Eden/Gippsland region on the border of New South Wales and Victoria, and the North-East of Tasmania. There are conflicting views on how climate change is conceptualised, the degree of concern and need for action, the role of local industry, who will 'win' and 'lose', and the willingness of rural communities to adapt. In particular, residents who believed in anthropogenic or human-induced factors described the changing climate as evidence of 'climate change', whereas those who were more sceptical termed it 'weather variability', suggesting that there is a divide in rural Australia that, unless urgently addressed, will hinder local and national policy responses to this global issue. Engaging these communities in the 21st century climate change debate will require a significant change in terminology and communication strategies.

Advance directives, autonomy and the refusal of life-sustaining medical treatment

As Australian society 1s agemg, individuals are increasingly concerned about managing their future, including making decisions about the medical treatment they may wish to receive or refuse if they lose decision-making capacity. To date, there has been relatively little research into the extent to which legal regulation allows competent adults to make advance refusals of life-sustaining medical treatment that will bind health professionals and others when a decision needs to be made at a future time. This thesis aims to fill this gap in the research by presenting the results of research into the legal regulation of advance directives that refuse life-sustaining medical treatment. In the five papers that comprise this thesis, the law that governs this area is examined, and the ethical principle of autonomy is used to critically evaluate that law. The principal finding of this research is that the current scheme of regulation is ineffective to adequately promote the right of a competent adult to make binding advance directives about refusal of medical treatment. The research concludes that legislation should be enacted to enable individuals to complete an advance directive, only imposing restrictions to the extent that this is necessary to promote individual autonomy. The thesis first examines the principle of autonomy upon which the common law (and some statutory law) is expressed to be based, to determine whether that principle is an appropriate one to underpin regulation. 1 The finding of the research is that autonomy can be justified as an organising principle on a number of grounds: it is consistent with the values of a liberal democracy; over recent decades, it is a principle that has been even more prominent within the discipline of medical ethics; and it is the principle which underpins the legal regulation of a related topic, namely the contemporaneous refusal of medical treatment. Next, the thesis reviews the common law to determine whether it effectively achieves the goal of promoting autonomy by allowing a competent adult to make an advance directive refusing treatment that will operate if he or she later loses decision-making capacity. 2 This research finds that conunon law doctrine, as espoused by the judiciary, prioritises individual choice by recognising valid advance directives that refuse treatment as binding. However, the research also concludes that the common law, as applied by the judiciary in some cases, may not be effective to promote individual autonomy, as there have been a number of circumstances where advance directives that refuse treatment have not been followed. The thesis then examines the statutory regimes in Australia that regulate advance directives, with a focus on the regulation of advance refusals of life-sustaining medical treatment.3 This review commences with an examination ofparliamentary debates to establish why legislation was thought to be necessary. It then provides a detailed review of all of the statutory regimes, the extent to which the legislation regulates the form of advance directives, and the circumstances in which they can be completed, will operate and can be ignored by medical professionals. The research finds that legislation was enacted mainly to clarify the common law and bring a level of certainty to the field. Legislative regimes were thought to provide medical professionals with the assurance that compliance with an advance directive that refuses life-sustaining medical treatment will not expose them to legal sanction. However, the research also finds that the legislation places so many restrictions on when an advance directive refusing treatment can be made, or will operate, that they have not been successful in promoting individual autonomy.

Sociopathic attitudes to road safety

Injuries and deaths due to unsafe driving practices are a substantial health and socioeconomic burden to the community. Young socially disadvantaged males who are involved in a lifestyle of risky behaviour, crime and motor vehicle accidents seem unaffected by educational campaigns to improve safer driving. The aim is to develop a driving and social behavioural profile that may explain the lack of effectiveness of road safety advertising and suggest ways to refine educational strategies to reduce the risky lifestyle and associated harms among those most vulnerable, the 15-25 year olds. The procedure involved a quantitative and qualitative analysis through questionnaires, surveys and focus groups involving a comparison of populations (n = 668) by age, gender and socioeconomic status in three discrete Australian sites. Information gathered included issues related to road safety awareness, knowledge of advertising, personal and peer group attitudes as well as driving and life style history. The results indicate that within the community a highly visible profile of strong anti-social road safety activities by an educationally and economically disadvantaged sub-culture exists and this group seem impervious to road safety advertising and education initiatives. As the overall unsafe driving and risky antisocial behaviour is significant among 15-25 year olds within the community the solution is seen to be community based. A long-term (five to ten year) program has been posited; promoting community partnerships through consultative and local action committees at all levels creating locally designed formal and informal educational and mutual support programs.

Refusal of medical treatment : a child's prerogative?

Society has a need for children to be able to make health care decisions. Homeless children need access to health care. Parents may not be accessible or competent to consent to their child’s health care. The familial relationship may have broken down. Children may not want their parents to know about drug, alcohol or pregnancy related issues. There is legal and academic support for the right of children to make autonomous decisions with respect to their health care. However what these decisions cover and who can make them is not clear. Whether or not a minor has capacity and is therefore competent to consent to medical treatment is a question of law. Some states of Australia have enacted legislation, while others rely on the common law to determine this issue. At common law a minor is capable of giving consent to medical treatment when he or she achieves a sufficient understanding and intelligence to be able to understand fully what is proposed. Known as ‘Gillick competence’ this is a well known principle of law. The question posed by this paper is whether the decision of a ‘Gillick competent’ child can and should be overridden by the court?

Associations between perception of wellness and health-related quality of life, comorbidities, modifiable lifestyle factors and demographics in older Australians

Aim: The associations between perceived wellness and health-related quality of life, comorbidities and modifiable lifestyle factors in older adults were explored. Methods: Self-administered questionnaires including the Perceived Wellness Survey and the 36-Item Short Form of the Medical Outcomes Study version two were distributed to 328 community-living adults aged 65 years and over. Results: Results showed positive associations between perception of wellness and health-related quality of life. General health (r(249) = 0.66, P < 0.01), vitality (r(249) = 0.59, P < 0.01) and mental health (r(249) = 0.52, P < 0.01) had the strongest association; and social functioning (r(249) = 0.3, P < 0.01) and pain (r(249) = 0.36, P < 0.01) the lowest. Perceived wellness was influenced by hearing, mobility, memory, chronic disease, exercise, gambling and single status. Conclusion: The study identified that perceived wellness in older adults is a multidimensional construct.

A prospective cohort study of geriatric syndromes among older medical patients admitted to acute care hospitals

OBJECTIVES: To identify the prevalence of geriatric syndromes in the premorbid for all syndromes except falls (preadmission), admission, and discharge assessment periods and the incidence of new and significant worsening of existing syndromes at admission and discharge. DESIGN: Prospective cohort study. SETTING: Three acute care hospitals in Brisbane, Australia. PARTICIPANTS: Five hundred seventy-seven general medical patients aged 70 and older admitted to the hospital. MEASUREMENTS: Prevalence of syndromes in the premorbid (or preadmission for falls), admission, and discharge periods; incidence of new syndromes at admission and discharge; and significant worsening of existing syndromes at admission and discharge. RESULTS: The most frequently reported premorbid syndromes were bladder incontinence (44%), impairment in any activity of daily living (ADL) (42%). A high proportion (42%) experienced at least one fall in the 90 days before admission. Two-thirds of the participants experienced between one and five syndromes (cognitive impairment, dependence in any ADL item, bladder and bowel incontinence, pressure ulcer) before, at admission, and at discharge. A majority experienced one or two syndromes during the premorbid (49.4%), admission (57.0%), or discharge (49.0%) assessment period.The syndromes with a higher incidence of significant worsening at discharge (out of the proportion with the syndrome present premorbidly) were ADL limitation (33%), cognitive impairment (9%), and bladder incontinence (8%). Of the syndromes examined at discharge, a higher proportion of patients experienced the following new syndromes at discharge (absent premorbidly): ADL limitation (22%); and bladder incontinence (13%). CONCLUSION: Geriatric syndromes were highly prevalent. Many patients did not return to their premorbid function and acquired new syndromes.

Apps and attitudes : towards an understanding of the m-librarian’s professional make-up

This chapter will discuss a research project that identifies the skills, knowledge and attitudes of the m-librarian. Six library and information professionals engaged in the provision of m-library services throughout Australia were interviewed. Six themes emerged as being critical for the m-librarian: technology, personal traits, user focus, communication, collaboration, research and development. The research is significant because it establishes an open dialogue between current industry professionals, library science educators and the professional association on the evolving skills and knowledge required by information professional in a world of rapidly changing technology. This dialogue will guide the development of current and future education of library and information professionals.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages through thresholds and caps which has limited the liability of health professionals in medical negligence actions.

Applications of medical image processing in the diagnosis and treatment of spinal deformity

In Chapter 10, Adam and Dougherty describe the application of medical image processing to the assessment and treatment of spinal deformity, with a focus on the surgical treatment of idiopathic scoliosis. The natural history of spinal deformity and current approaches to surgical and non-surgical treatment are briefly described, followed by an overview of current clinically used imaging modalities. The key metrics currently used to assess the severity and progression of spinal deformities from medical images are presented, followed by a discussion of the errors and uncertainties involved in manual measurements. This provides the context for an analysis of automated and semi-automated image processing approaches to measure spinal curve shape and severity in two and three dimensions.