Assessment of damages for wrongful birth and consolidation in advance care directives

The recent decision of Waller v James involved a claim by the plaintiff parents for damages for wrongful birth against the defendant doctor, Dr James, a gynaecologist with a practice in infertility and IVF procedures, who had been consulted by the plaintiffs. The second plaintiff, Mr Waller suffered an inherited anti-thrombin deficiency (ATD), a condition which results in a propensity for the blood to clot, at least in adults. Dr James subsequently recommended IVF treatment. The first plaintiff, Mrs Waller became pregnant after the first cycle of IVF treatment. Her son Keeden was born on 10 August 2000 with a genetic anti-thrombin deficiency. Keeden was released from hospital on 14 August 2000. However, he was brought back to the hospital the next day with cerebral thrombosis (CSVT). As a result of the thrombosis, he suffered permanent brain damage, cerebral palsy and related disabilities. The plaintiffs alleged that the defendant was in breach of contract and his common law duty of care to the plaintiffs in failing to inform them, or cause them to be informed, of the hereditary aspects of ATD. They further alleged that, had they been properly informed, they would not have proceeded to conceive a child using the male plaintiff’s sperm and therefore avoided the harm that had befallen them. The plaintiffs claimed damages to compensate them for their losses, including psychiatric and physical injuries and the costs of having, raising and caring for Keeden. The defendant was held to be not liable in negligence by Justice Hislop of the Supreme Court of New South Wales because a finding was made on medical causation which was adverse to the plaintiffs claim.

The state of the art defence : defining the Australian experience in the context of pharmaceuticals

One of the defences within Part 3-5 of the Australian Consumer Law is the state of the art, or development risk defence. This defence, although significant, has often been neglected in Australian jurisprudential analysis and has triggered at most generic academic analysis. However, with the rise of pharmaceutical and medical device litigation in Australia, it could become a vital weapon for Australian manufacturers against product liability claims. This paper will firstly review the two ways this defence could operate. It will also discuss the three types of defects which the defence could apply to. This paper aims to determine exactly when and how this defence should apply in Australia, in the context of pharmaceutical product liability claims.

An analysis of Australia's legal regime for imposing liability on manufacturers of pharmaceutical drugs

Following a trial in June 2009 where the Federal Court heard submissions regarding whether Merck Sharpe and Dohme Australia should be held liable for an increased risk of cardiovascular conditions noted in patients who had taken the anti-inflammatory drug Vioxx, a judgment was handed down against MSDA in March 2010. MSDA appealed to the Full Federal Court, where they were successful. Special leave to appeal to the High Court of Australia was rejected in May 2012. This article will examine the themes raised in the trial judgment and the appropriateness of Australia’s statutory consumer protection regime through the lens of pharmaceutical drug injuries and side effects.

Consequences of introducing mandatory reporting legislation for child sexual abuse

To improve detection of child sexual abuse, many jurisdictions have enacted mandatory reporting laws requiring selected persons to report known and suspected cases. In Ireland, the Child First approach previously incorporated only a policy-based approach to reporting. Due to a perceived lack of efficacy, the Children First Bill was drafted in 2012 to shift this policy guidance to a legislative approach. What effects will the new legislative reporting duties have on numbers of reports, and outcomes of reports, of suspected child sexual abuse? This paper will shed light on these important questions by presenting results of analyses of the introduction of legislative reporting obligations in two Australian States. Three questions will be explored: 1. Does introducing reporting legislation result in enhanced detection of child sexual abuse? 2. Do different reporter groups have different patterns of reporting? 3. What do the patterns of report numbers and outcomes indicate for child protection systems and communities?

Elementary teachers’ knowledge of legislative and policy duties for reporting child sexual abuse

This study examined elementary school teachers’ knowledge of their legislative and policy-based reporting duties with respect to child sexual abuse. Data were collected from 470 elementary school teachers from urban and rural government and nongovernment schools in 3 Australian states, which at the time of the study had 3 different legislative reporting duties for teachers. Teachers completed the 8-part Teacher Reporting Questionnaire (TRQ). Multinomial logistic regression analysis was used to determine factors associated with (a) teachers’ legislation knowledge and (b) teachers’ policy knowledge. Teachers with higher levels of knowledge had a combination of pre- and in-service training about child sexual abuse and more positive attitudes toward reporting, held administration positions in their school, and had reported child sexual abuse at least once during their teaching career. They were also more likely to work in the state with the strongest legislative reporting duty, which had been in place the longest.

Biobanking of blood and bone marrow : emerging challenges for custodians of public resources

The Australian Bone Marrow Donor Registry (ABMDR) is a publicly funded company that is part of an international network that facilitates unrelated bone marrow transplantation. This role means that the ABMDR has access to a large biospecimen repository, therefore making it a highly valuable research resource. Recognising the potential value of these biospecimens for research purposes, the ABMDR is in the process of determining whether, and how, to share its biospecimens with other biobanks. While this would undoubtedly be of value to the scientific community, and ultimately to the wider community, it would also inevitably transform the role of an institution whose primary role is therapeutic, and would compromise the degree of control that a custodian has over donated material. This article describe the challenges confronting the ABMDR, and organisations like it, in balancing their duties to donors, patients, researchers and the general public. These problems have led inevitably to the use of "property" rights language in the discussion of these issues but notions of gift, ownership, trusteeship and transfer might also be considered.

Suicide and the therapeutic coroner : inquests, governance and the grieving family

This study of English Coronial practice raises a number of questions about the role played by the Coroner within contemporary governance. Following observations at over 20 inquests into possible suicides and in-depth interviews with six Coroners, three preliminary issue emerged, all of which pointed to a broader and, in many ways, more significant issue. These preliminary issues are concerned with: (1) the existence of considerable slippages between different Coroners over which deaths are likely to be classified as suicide; (2) the high standard of proof required and immense pressure faced by Coroners from family members at inquest to reach any verdict other than suicide, which significantly depresses likely suicide rates, and; (3) Coroners feeling no professional obligation, either individually or collectively, to contribute to the production of consistent and useful social data regarding suicide, arguably rendering comparative suicide statistics relatively worthless. These concerns lead, ultimately, to the second more important question about the role expected of Coroners within social governance and within an effective, contemporary democracy. That is, are Coroners the principal officers in the public administration of death; or are they, first and foremost, a crucial part of the grieving process, one that provides important therapeutic interventions into the mental and emotional health of the community?

Acting to let someone die

This paper examines the recent prominent view in medical ethics that withdrawing life-sustaining treatment (LST) is an act of killing. I trace this view to the rejection of the traditional claim that withdrawing LST is an omission rather than an act. Although that traditional claim is not as problematic as this recent prominent view suggests, my main claim is that even if we accepted that withdrawing LST should be classified as an act rather than as an omission, it could still be classified as letting die rather than killing. Even though omissions are contrasted with acts, letting die need not be, for one can let die by means of acts. The remainder of the paper is devoted to establishing this claim and addresses certain objections to it.

A therapeutic approach to assessing legal capacity in Australia

Australia lacks a satisfactory, national paradigm for assessing legal capacity in the context of testamentary, enduring power of attorney and advance care directive documents. 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 legal capacity. Miscommunication and lack of understanding between legal and medical professionals involved could impede the development of a satisfactory paradigm. This article will discuss legal capacity assessment in Australia and how to strengthen the relationship between legal and medical professionals involved in capacity assessments. 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.

Honesty about adverse events - more honoured in the breach than in the observance

The medical board of Australia Code of conduct reminds doctors that" "When adverse events occur, you have a responsibility to be open and honest in your communication with your patient, to review what has occurred and to report appropriately." More honoured in the breach rather than the observence may or may not be correct. Faced with the English concerns and the Netherlands research, an evidence based assessment of compliance with the ethical duty to disclose adverse events is warranted.

Australian Medical Liability [Second Edition]

"Australian Medical Liability is a comprehensive handbook focusing on medical liability in the context of the civil liability legislation across Australia. This thoroughly revised second edition provides a detailed and in depth commentary on the elements of medical liability caselaw and legislation."--Libraries Australia

The National Disability Insurance Scheme Handbook

"The National Disability Insurance Scheme (NDIS) was launched on 1 July 2013. The NDIS Act 2013 is an historic piece of legislation that is the foundation for a national scheme which will deliver meaningful change for people with disabilities across Australia. The NDIS seeks to support the independence and social and economic participation of people with a disability, mainly by funding the provision of reasonable and necessary supports, including early intervention supports. The NDIS establishes three main criteria for access to the scheme - age, residence and disability. The National Disability Insurance Scheme Handbook written by Bill Madden, Janine McIlwraith and Ruanne Brell examines the NDIS from the viewpoint of a person seeking to access the NDIS and those advising or assisting them. The three key criteria are examined, along with the powers of the NDIS Chief Executive Officer and the scope for review of adverse decisions. The important area of interplay between the NDIS and compensation entitlements is carefully scrutinised. This handbook provides scheme users, carers, lawyers and health practitioners with an easy to understand guide to this watershed legal development."--Publisher website