Health governance : law, regulation and policy

This special issue of Public Health is devoted to health governance, examining the role of law, regulation and policy in safeguarding the public's health. Each of us has devoted a career to thinking carefully about the role of law as a tool to prevent injury and disease and to promote the population's health and wellbeing. 1, 2, 3 and 4 In this Guest Editorial we first explain what we mean by the term ‘governance’, as well as the role of law in a well-regulated society. Next, we explore the increasingly important, and challenging, concept of what we call national and global federalism—the inter-relationships among the various levels of governance (local, national, supranational and transnational) and among various actors in national and global health. Third, we explain the origins of this journal symposium, which arises from three conferences on the topic in Hong Kong and Sydney. Finally, we offer a brief introduction to the articles that follow.

Health, Rights and Globalisation

Draws together essays from leading scholars on the challenges that arise for health, law, policy and ethics at the intersections of health, rights and globalization. This book addresses global issues in public health, globalization and bioethics, and globalization and biotechnology.

LexisNexis Questions and Answers : Medical Law

LexisNexis Questions and Answers: Medical Law is designed to facilitate both continuous review and preparation for assignments and examinations. This book provides a clear and concise revision guide for each of the major topics covered in the typical health law course. It provides an understanding of medical law in each Australian jurisdiction and gives a clear and systematic approach to analysing and answering problem and essay questions. Each chapter commences with an identification of the key issues, including a summary of the relevant cases and legislation. Each question is followed by a suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner. The author also offers advice on common errors to avoid and practical hints and tips on how to achieve higher marks.

Pressure placed on paediatric haematopoietic stem cell donors: Views from health professionals

Aim Paediatric haematopoietic stem cell donors undergo non-therapeutic procedures and endure known and unknown physical and psychosocial risks for the benefit of a family member. One ethical concern is the risk they may be pressured by parents or health professionals to act as a donor. This paper adds to what is known about this topic by presenting the views of health professionals. Methods This qualitative study involved semi-structured interviews with 14 health professionals in Australasia experienced in dealing with paediatric donors. Transcripts were analysed using established qualitative methodologies. Results Health professionals considered that some paediatric donors experience pressure to donate. Situations were identified that were likely to increase the risk of pressure being placed on donors and views were expressed about the ethical ‘appropriateness’ of these practices within the family setting. Conclusions Children may be subject to pressure from family and health professionals to be tested and act as donors, Therefore, our ethical obligation to these children extends to implementing donor focused processes – including independent health professionals and the appointment of a donor advocate – to assist in detecting and addressing instances of inappropriate pressure being placed on a child.

Medical education and law: Withholding/withdrawing treatment from adults without capacity

BACKGROUND Law is increasingly involved in clinical practice, particularly at the end of life, but undergraduate and postgraduate education in this area remains unsystematic. We hypothesised that attitudes to and knowledge of the law governing withholding/withdrawing treatment from adults without capacity (the WWLST law) would vary and demonstrate deficiencies among medical specialists. AIMS We investigated perspectives, knowledge and training of medical specialists in the three largest (populations and medical workforces) Australian states, concerning the WWLST law. METHODS Following expert legal review, specialist focus groups, pre-testing and piloting in each state, seven specialties involved with end-of-life care were surveyed, with a variety of statistical analyses applied to the responses. RESULTS Respondents supported the need to know and follow the law. There were mixed views about its helpfulness in medical decision-making. Over half the respondents conceded poor knowledge of the law; this was mirrored by critical gaps in knowledge that varied by specialty. There were relatively low but increasing rates of education from the undergraduate to continuing professional development (CPD) stages. Mean knowledge score did not vary significantly according to undergraduate or immediate postgraduate training, but CPD training, particularly if recent, resulted in greater knowledge. Case-based workshops were the preferred CPD instruction method. CONCLUSIONS Teaching of current and evolving law should be strengthened across all stages of medical education. This should improve understanding of the role of law, ameliorate ambivalence towards the law, and contribute to more informed deliberation about end-of-life issues with patients and families.

Is there such a thing as a love drug?

This paper considers recent discussion of the possible use of ‘love drugs’ and ‘anti-love drugs’ as a way of enhancing or diminishing romantic relationships. The primary focus is on the question of whether the idea of using such products commits its proponents to an excessively reductionist conception of love, and on whether the resulting ‘love’ in the use of ‘love drugs’ would be authentic, to the extent that it would be brought about artificially.

Non-medical prescribing in Australia

The announcement in the 2009 federal budget to allow nurse practitioners and midwives access to the Pharmaceutical Benefits Scheme (PBS) and the Medicare Benefits Scheme,1and the subsequent announcement of a November 2010 start date,2has brought non-medical prescribing into the public arena. Non-medical prescribing is not a new concept in Australia as nurse practitioners, podiatrists and optometrists have been authorised to prescribe under various state legislations for some time. However, state legislation is not uniform in relation to authorisation or formulary. Midwives are currently seeking prescribing rights,3and other groups such as physiotherapists and pharmacists are likely to seek them in the future.

Futility and the law: Knowledge, practice and attitudes of doctors in end of life care

Despite the potential harm to patients (and others) and the financial cost of providing futile treatment at the end of life, this practice occurs. This article reports on empirical research undertaken in Queensland that explores doctors’ perceptions about the law that governs futile treatment at the end of life, and the role it plays in medical practice. The findings reveal that doctors have poor knowledge of their legal obligations and powers when making decisions about withholding or withdrawing futile treatment at the end of life; their attitudes towards the law were largely negative; and the law affected their clinical practice and had or would cause them to provide futile treatment.

Regulation of human stem cell research in Australia

Australia is currently well placed to contribute to the global growth of human stem cell research. However, as the science has progressed, authorities have had to deal with the ongoing challenges of regulating such a fast moving field of scientific endeavour. Australia’s past and current approach to regulating the use of embryos in human embryonic stem cell research provides an insight into how Australia may continue to adapt to future regulatory challenges presented by human stem cell research. In the broader context, a number of issues have been identified that may impact upon the success of future human stem cell research in Australia.

Stem cell technologies : regulation, patents and problems

Human embryonic stem cell research promises to deliver in the future a whole range of therapeutic treatments, but currently governments in different jurisdictions must try to regulate this burgeoning area. Part of the problem has been, and continues to be, polarised community opinion on the use of human embryonic stem cells for research. This article compares the approaches of the Australian, United Kingdom and United States governments in regulating human embryonic stem cell research. To date, these governments have approached the issue through implementing legislation or policy to control research. Similarly, the three jurisdictions have viewed the patentability of human embryonic stem cell technologies in their own ways with different policies being adopted by the three patent offices. This article examines these different approaches and discusses the inevitable concerns that have been raised due to the lack of a universal approach in relation to the regulation of research; the patenting of stem cell technologies; and the effects patents granted are having on further human embryonic stem cell research.

The legal framework of the Australian health system

This chapter is about the role of law in the creation and operation of Australian health systems. Accordingly, this chapter discusses how law regulates the way in which health services in Australia are funded, organised, regulated, managed, operated and governed. (The question of how health professionals are regulated is discussed in Chapter 15.) Although the focus of much of health law is on legal mechanisms for the resolution of disputes or disagreements between the state, health providers, professionals, patients and families and friends, and through dispute resolutions processes setting standards for practice, these are only some of the “jobs” that health law performs. In health systems where the state undertakes a significant role in regulating, funding, managing and providing health services, health law also performs an important constitutive function. Health law declares the values upon which the health system is based, shapes social processes to achieve public ends and provides a structure for the complex interactions that occur within a modern health system. Health law regulates decision-makers in health systems by establishing who has the power to participate in decisions and in what circumstances, establishing processes through which decisions are made and creating mechanisms for decision-makers to be held publicly accountable. It is this broader constitutive function of health law that is a primary focus of much of this chapter — how and why governments use their legislative powers to structure and shape the health system.

Recent developments : loss of chance in medical litigation : Tabet v Gett [2010] HCA 12.

Following the judgement of the High Court in Tabet v Gett [2010]HCA 12 handed down on 21 April 2010 it appears that in Australia there is now very limited scope for recovery in negligence for the loss of a chance of a better medical outcome.

Law autonomy and advance directives

The principle of autonomy underpins legal regulation of advance directives that refuse life-sustaining medical treatment. The primacy of autonomy in this domain is recognised expressly in the case law, through judicial pronouncement, and implicitly in most Australian jurisdictions, through enactment into statute of the right to make an advance directive. This article seeks to justify autonomy as an appropriate principle for regulating advance directives and relies on three arguments: the necessity of autonomy in a liberal democracy; the primacy of autonomy in medical ethics discourse; and the uncontested importance of autonomy in the law on contemporaneous refusal of medical treatment. This article also responds to key criticisms that autonomy is not an appropriate organising principle to underpin legal regulation of advance directives.