The difficulty of establishing causation in medical negligence cases : two recent Australian decisions

This editorial on health and guardianship law provides an overview of the causation issues that precluded the recovery of two medical negligence claims in the cases of Wallace v Kam [2013] HCA 19 and Waller v James [2013] NSWSC 497.

Pleading intention

This article considers the scope of the application of the civil liability legislation, an issue which is still being clarified by the courts, despite the passage of some ten years since the enactment of the non-uniform civil liability legislation across Australia. The introduction of the civil liability legislation has made more important the pleading of intention, in addition to negligence, so as to maximise damages awards. This involves pleading torts traditionally referred to as intentional torts – particularly trespass to the person. Such an approach is attractive for plaintiffs because, in several jurisdictions, tort claims which plead intention have been excluded from the operation of the legislative restrictions on the quantum of damages awards, and prohibitions on exemplary and aggravated damages. This approach reflects the policy that those who intend the harmful consequences of their actions should be held fully responsible.

Assisted suicide where the "assistor" is a beneficiary under the deceased's will and/or attorney under a power of attorney granted by the deceased : what are the potential consequences?

The recent criminal conviction 1 of Queensland teacher, Merin Nielsen, for aiding the suicide of an elderly acquaintance, Frank Ward, raises some timely issues, particularly for succession lawyers. This is the second time in recent years that there has been a conviction of a person who participated in a scheme

Equity in estate litigation : setting aside inter vivos transactions post mortem on the grounds of undue influence and unconscionable bargains

Where the value of an estate of a deceased person has been diminished by intervivos transfers of property, equitable doctrines provide powerful tools for practitioners advising those who are seeking to claim benefits under wills (or an intestacy) and those seeking further and better provision from the deceased estate.

Honesty about adverse event : more honoured in the breach than in the observance?

Part of the chapter: "Sale of Sperm, Health Records, Minimally Conscious States, and Duties of Candour" Although ethical obligations and good medical practice guidelines clearly contemplate open disclosure, there is a dearth of authority as to the nature and extent of a legal duty on Australian doctors to disclose adverse events to patients.

Evolution and innovation in guardianship laws: Assisted decision-making

Guardianship laws in most Western societies provide decision-making mechanisms for adults with impaired capacity. Since the inception of these laws, the principle of autonomy and recognition of human rights for those coming within guardianship regimes has gained prominence. A new legal model has emerged, which seeks to incorporate ‘assisted decision-making’ models into guardianship laws. Such models legally recognise that an adult’s capacity may be maintained through assistance or support provided by another person, and provide formal recognition of the person in that ‘assisting’ role. This article situates this latest legal innovation within a historical context, examining the social and legal evolution of guardianship laws and determining whether modern assisted decision-making models remain consistent with guardianship reform thus far. It identifies and critically analyses the different assisted decision-making models which exist internationally. Finally, it discusses a number of conceptual, legal and practical concerns that remain unresolved. These issues require serious consideration before assisted decisionmaking models are adopted in guardianship regimes in Australia.

What the plaintiff would have done in informed consent cases

Both at common law and under the various civil liability acts, in deciding liability for breach of duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. For plaintiffs in medical negligence claims founded on negligent failure to provide sufficient information (informed consent cases), this onus involves persuading the court to make a favourable determination as to what a particular patient would have done (from a subjective perspective) in the hypothetical situation of the defendant not being negligent (that is, in the event that the medical practitioner had provided sufficient information to the patient)

Accountable-eHealth systems : the next step forward for privacy

eHealth systems promise enviable benefits and capabilities for healthcare delivery. However, the technologies that make these capabilities possible introduce undesirable drawbacks such as information security related threats, which need to be appropriately addressed. Lurking in these threats are information privacy concerns. Addressing them has proven to be difficult because they often conflict with information access requirements of healthcare providers. Therefore, it is important to achieve an appropriate balance between these requirements. We contend that information accountability (IA) can achieve this balance. In this paper, we introduce accountable-eHealth (AeH) systems, which are eHealth systems that utilise IA as a measure of information privacy. We discuss how AeH system protocols can successfully achieve the aforementioned balance of requirements. As a means of implementation feasibility, we compare characteristics of AeH systems with Australia’s Personally Controlled Electronic Health Record (PCEHR) sys-tem and identify similarities and highlight the differences and the impact those differences would have to the eHealth domain.

Double standards in special medical research : questioning the discrepancy between requirements for medical research involving incompetent adults and medical research involving children

Medical research represents a substantial departure from conventional medical care. Medical care is patient-orientated, with decisions based on the best interests and/or wishes of the person receiving the care. In contrast, medical research is future-directed. Primarily it aims to contribute new knowledge about illness or disease, or new knowledge about interventions, such as drugs, that impact upon some human condition. Current State and Territory laws and research ethics guidelines in Australia relating to the review of medical research appropriately acknowledge that the functions of medical care and medical research differ. Prior to a medical research project commencing, the study must be reviewed and approved by a Human Research Ethics Committee (HREC). For medical research involving incompetent adults, some jurisdictions require an additional, independent safeguard by way of tribunal or court approval of medical research protocols. This extra review process reflects the uncertainty of medical research involvement, and the difficulties surrogate decision-makers of incompetent adults face in making decisions about others, and deliberating about the risks and benefits of research involvement. Parents of children also face the same difficulties when making decisions about their child’s research involvement. However, unlike the position concerning incompetent adults, there are no similar safeguards under Australian law in relation to the approval of medical research involving children. This column questions why this discrepancy exists with a view to generating further dialogue on the topic.

Fresh frozen cadavers as a tool to educate student paramedics in procedural skills

Objectives – To describe the development of an educational workshop to develop procedural skills in undergraduate Paramedic students using fresh frozen cadavers and to report the student’s assessment of the program. Methods – A six-hour anatomy based workshop was developed using fresh frozen cadavers to teach a range of airway and invasive procedural skills to second year undergraduate paramedic students. Embedded QUAN (qual) methodology will be utilised to evaluate the student’s satisfaction, perception and quality of teaching as compared to other existing clinical teaching techniques such as high fidelity simulation. Students will be asked to complete an anonymous validated survey (10 questions formulated on a 5 point Likert scale) and provide a qualitative feedback pre and post the six-hour workshop. Results – This is a prospective study planned for September 2013. Low-risk human research ethics are being sought. Teaching evaluation results from the inaugural 2012 workshop (undergraduate and postgraduate Paramedic students) and interim results for 2013 will be presented. Conclusions – Clinical teaching using fresh frozen cadavers thus far has predominately been used in the education of medical and surgical trainees. A number of studies have found them to be effective and in some cases superior to traditional high fidelity simulation teaching strategies. Fresh frozen cadavers are said to provide perfect anatomy, normal tissue consistency and a realistic operative training experience (Lloyd, Maxwell-Armstrong et al. 2011). The authors believe that this study will show that the use of fresh frozen cadavers offers a safe and effective mode to teach procedural skills to student paramedics that will help bridge the skills gap and increase confidence prior to students undertaking such interventions on living patients. A modified training program may be formulated for general practitioners undertaking Emergency Medicine Advanced Rural Skills.

Assessing testamentary and decision-making competence/capacity in the Australian context

Australia lacks a satisfactory, national paradigm for assessing competence and capacity in the context of testamentary, enduring power of attorney and advance care directive documents. Competence/capacity assessments are currently conducted on an ad hoc basis by legal and/or medical professionals. The reliability of the assessment process is subject to the skill set and mutual understanding of the legal and/or medical professional conducting the assessment. There is a growth in the prevalence of diseases such as dementia. Such diseases impact upon cognition which increasingly necessitates collaboration between the legal and medical professions when assessing the effect of mentally disabling conditions upon competency/capacity. Miscommunication and lack of understanding between legal and medical professionals involved could impede the development of a satisfactory paradigm. A qualitative study seeking the views of legal and medical professionals who practise in this area has been conducted. This incorporated surveys and interviews of 10 legal and 20 medical practitioners. Some of the results are discussed here. Practitioners were asked whether there is a standard approach and whether national guidelines were desirable. There was general agreement that uniform guidelines for the assessment of competence/capacity would be desirable. The interviews also canvassed views as to the state of the relationship between the professions. The results of the empirical research support the hypothesis that relations between the professions could be improved. The development of a national paradigm would promote consistency and transparency of process, helping to improve the professional relationship and maximising the principles of autonomy, participation and dignity.

Competency and capacity : the legal and medical interface

Balancing the competing interests of autonomy and protection of individuals is an escalating challenge confronting an ageing Australian society. Legal and medical professionals are increasingly being asked to determine whether individuals are legally competent/capable to make their own testamentary and substitute decision-making, that is financial and/or personal/health care, decisions. No consistent and transparent competency/capacity assessment paradigm currently exists in Australia. Consequently, assessments are currently being undertaken on an ad hoc basis which is concerning as Australia’s population ages and issues of competency/capacity increase. The absence of nationally accepted competency/capacity assessment guidelines and supporting principles results in legal and medical professionals involved with competency/capacity assessment implementing individual processes tailored to their own abilities. Legal and medical approaches differ both between and within the professions. The terminology used also varies. The legal practitioner is concerned with whether the individual has the legal ability to make the decision. A medical practitioner assesses fluctuations in physical and mental abilities. The problem is that the terms competency and capacity are used interchangeably resulting in confusion about what is actually being assessed. The terminological and methodological differences subsequently create miscommunication and misunderstanding between the professions. Consequently, it is not necessarily a simple solution for a legal professional to seek the opinion of a medical practitioner when assessing testamentary and/or substitute decision-making competency/capacity. This research investigates the effects of the current inadequate testamentary and substitute decision-making assessment paradigm and whether there is a more satisfactory approach. This exploration is undertaken within a framework of therapeutic jurisprudence which promotes principles fundamentally important in this context. Empirical research has been undertaken to first, explore the effects of the current process with practising legal and medical professionals; and second, to determine whether miscommunication and misunderstanding actually exist between the professions such that it gives rise to a tense relationship which is not conducive to satisfactory competency/capacity assessments. The necessity of reviewing the adequacy of the existing competency/capacity assessment methodology in the testamentary and substitute decision-making domain will be demonstrated and recommendations for the development of a suitable process made.

Surrogacy : competing interests or a tangled web?

Overseas commercial surrogacy is a legally challenging but commonly utilised form of assisted reproductive technology. Not only does it raise complex and competing policy issues, but it tests the relevant Family Law legislation which underpins parenting orders. Decisions handed down by the judiciary are inconsistent. Legislation is inadequate. But still the surge in surrogacy continues as surrogacy destinations such as India and Thailand continue to increase in popularity. Part one of this article addresses the competing interests of the illegality of overseas commercial surrogacy arrangements with the welfare of the child born as a result of such arrangements, and the inconsistent approaches taken by the judiciary. Part two concerns the interpretation of Family Law legislation by the courts in an attempt to provide intended couples and their children with certainty and finality, again resulting in inconsistent judicial decisions. Overseas commercial surrogacy is legally problematic, and intended parents need to be aware of its limitations.