Ending the life of the act/omission dispute: Causation in withholding and withdrawing life-sustaining measures

My aim in this paper is to challenge the increasingly common view in the literature that the law on end of life decision making is in disarray and is in need of urgent reform. My argument is that this assessment of the law is based on assumptions about the relationship between the identity of the defendant and their conduct, and about the nature of causation, which, on examination, prove to be indefensible. I then provide a clarification of the relationship between causation and omissions which proves that the current legal position does not need modification, at least on the grounds that are commonly advanced for the converse view. This enables me, in conclusion, to clarify important conceptual and moral differences between withholding, refusing and withdrawing life-sustaining measures on the one hand, and assisted suicide and euthanasia, on the other.

Me and my body : the relevance of the difference for the distinction between withdrawing life support and euthanasia

In this paper I discuss David Shaw’s claim that the body of a terminally ill person can be conceived as a kind of life-support, akin to an artificial ventilator. I claim that this position rests upon an untenable dualism between the mind and the body. Given that dualism continues to be attractive to some thinkers, I attempt to diagnose the reasons why it continues to be attractive, as well as to demonstrate its incoherence, drawing on some recent work in the philosophy of psychology. I conclude that, if my criticisms are sound, Shaw’s attempt to deny the distinction between withdrawal and euthanasia fails.

An evaluation of the sustainability of agreements reached through mediations conducted by the dispute resolution centres of the Department of Justice and Attorney General, Queensland between 1999 to 2003

In 1990 the Dispute Resolution Centres Act, 1990 (Qld) (the Act) was passed by the Queensland Parliament. In the second reading speech for the Dispute Resolution Centres Bill on May 1990 the Hon Dean Wells stated that the proposed legislation would make mediation services available “in a non-coercive, voluntary forum where, with the help of trained mediators, the disputants will be assisted towards their own solutions to their disputes, thereby ensuring that the result is acceptable to the parties” (Hansard, 1990, 1718). It was recognised at that time that a method for resolving disputes was necessary for which “the conventional court system is not always equipped to provide lasting resolution” (Hansard, 1990, 1717). In particular, the lasting resolution of “disputes between people in continuing relationships” was seen as made possible through the new legislation; for example, “domestic disputes, disputes between employees, and neighbourhood disputes relating to such issues as overhanging tree branches, dividing fences, barking dogs, smoke, noise and other nuisances are occurring continually in the community” (Hansard, 1990, 1717). The key features of the proposed form of mediation in the Act were articulated as follows: “attendance of both parties at mediation sessions is voluntary; a party may withdraw at any time; mediation sessions will be conducted with as little formality and technicality as possible; the rules of evidence will not apply; any agreement reached is not enforceable in any court; although it could be made so if the parties chose to proceed that way; and the provisions of the Act do not affect any rights or remedies that a party to a dispute has apart from the Act” (Hansard, 1990, 1718). Since the introduction of the Act, the Alternative Dispute Resolution Branch of the Queensland Department of Justice and Attorney General has offered mediation services through, first the Community Justice Program (CJP), and then the Dispute Resolution Centres (DRCs) for a range of family, neighbourhood, workplace and community disputes. These services have mirrored those available through similar government agencies in other states such as the Community Justice Centres of NSW and the Victorian Dispute Resolution Centres. Since 1990, mediation has become one of the fastest growing forms of alternative dispute resolution (ADR). Sourdin has commented that "In addition to the growth in court-based and community-based dispute resolution schemes, ADR has been institutionalised and has grown within Australia and overseas” (2005, 14). In Australia, in particular, the development of ADR service provision “has been assisted by the creation and growth of professional organisations such as the Leading Edge Alternative Dispute Resolvers (LEADR), the Australian Commercial Dispute Centres (ACDC), Australian Disputes Resolution Association (ADRA), Conflict Resolution Network, and the Institute of Arbitrators and Mediators Australia (IAMA)” (Sourdin, 2005, 14). The increased emphasis on the use of ADR within education contexts (particularly secondary and tertiary contexts) has “also led to an increasing acceptance and understanding of (ADR) processes” (Sourdin, 2005, 14). Proponents of the mediation process, in particular, argue that much of its success derives from the inherent flexibility and creativity of the agreements reached through the mediation process and that it is a relatively low cost option in many cases (Menkel-Meadow, 1997, 417). It is also accepted that one of the main reasons for the success of mediation can be attributed to the high level of participation by the parties involved and thus creating a sense of ownership of, and commitment to, the terms of the agreement (Boulle, 2005, 65). These characteristics are associated with some of the core values of mediation, particularly as practised in community-based models as found at the DRCs. These core values include voluntary participation, party self-determination and party empowerment (Boulle, 2005, 65). For this reason mediation is argued as being an effective approach to resolving disputes, that creates a lasting resolution of the issues. Evaluation of the mediation process, particularly in the context of the growth of ADR, has been an important aspect of the development of the process (Sourdin, 2008). Writing in 2005 for example, Boulle, states that “although there is a constant refrain for more research into mediation practice, there has been a not insignificant amount of mediation measurement, both in Australia and overseas” (Boulle, 2005, 575). The positive claims of mediation have been supported to a significant degree by evaluations of the efficiency and effectiveness of the process. A common indicator of the effectiveness of mediation is the settlement rate achieved. High settlement rates for mediated disputes have been found for Australia (Altobelli, 2003) and internationally (Alexander, 2003). Boulle notes that mediation agreement rates claimed by service providers range from 55% to 92% (Boulle, 2005, 590). The annual reports for the Alternative Dispute Resolution Branch of the Queensland Department of Justice and Attorney-General considered prior to the commencement of this study indicated generally achievement of an approximate settlement figure of 86% by the Queensland Dispute Resolution Centres. More recently, the 2008-2009 annual report states that of the 2291 civil dispute mediated in 2007-2008, 86% reached an agreement. Further, of the 2693 civil disputes mediated in 2008-2009, 73% reached an agreement. These results are noted in the report as indicating “the effectiveness of mediation in resolving disputes” and as reflecting “the high level of agreement achieved for voluntary mediations” (Annual Report, 2008-2009, online). Whilst the settlement rates for the DRCs are strong, parties are rarely contacted for long term follow-up to assess whether agreements reached during mediation lasted to the satisfaction of each party. It has certainly been the case that the Dispute Resolution Centres of Queensland have not been resourced to conduct long-term follow-up assessments of mediation agreements. As Wade notes, "it is very difficult to compare "success" rates” and whilst “politicians want the comparison studies (they) usually do not want the delay and expense of accurate studies" (1998, 114). To date, therefore, it is fair to say that the efficiency of the mediation process has been evaluated but not necessarily its effectiveness. Rather, the practice at the Queensland DRCs has been to evaluate the quality of mediation service provision and of the practice of the mediation process. This has occurred, for example, through follow-up surveys of parties' satisfaction rates with the mediation service. In most other respects it is fair to say that the Centres have relied on the high settlement rates of the mediation process as a sign of the effectiveness of mediation (Annual Reports 1991 - 2010). Research of the mediation literature conducted for the purpose of this thesis has also indicated that there is little evaluative literature that provides an in-depth analysis and assessment of the longevity of mediated agreements. Instead evaluative studies of mediation tend to assess how mediation is conducted, or compare mediation with other conflict resolution options, or assess the agreement rate of mediations, including parties' levels of satisfaction with the service provision of the dispute resolution service provider (Boulle, 2005, Chapter 16).

Teaching English : some remarks on the emergence of the sympathetic teacher in the English classroom

The chapter explores the concept of the teacher-student relationship within the English classroom and proposes that this relationship has a specific purpose in building a civil society by inculcating practices of self-reflection, empathy and ethics. The topic is explored through the example of teaching Australian literature, specifically, Tim Winton’s Lockie Leonard, Human Torpedo to secondary school students. Ian Hunter’s work on literature education and the construction of socio-ethical practices provides a conceptual framework for the chapter.

Practice and procedure : a recent Court of Appeal case examines the meaning of 'third party payer' in terms of Part 3.4 of the Legal Profession Act 2007.

In Legal Services Commissioner v Wright [2010] QCA 321 the Queensland Court of Appeal allowed an appeal from the first instance decision. The decision involved the construction of “third party payer” in Part 3.4 of the Legal Profession Act 2007 (Qld).

Evaluation of the control of carbon emissions of construction facilities in Hong Kong

This paper investigates the policies and instruments adopted in Hong Kong to control the carbon emissions of construction facilities, including the whole building life cycle: production of material stage, construction stage, operation stage and demolition stage. This commences with a literature review comparing activities world-wide to those in Hong Kong to identify the main issues at stake, followed by a report on a series of local interviews to evaluate the present situation in Hong Kong, as well as future opportunities for local carbon mitigation. The interviewees included practitioners from engineering contracting firms, consulting firms, clients and energy provider, together with two university experts and a counsellor. A small case study is also provided of a building project in Hong Kong to illustrate some of the innovative design aspects being incorporated into buildings in Hong Kong as a result of the current emphasis on sustainability. The paper concludes with a summary of main findings and proposals for improvement in policy related to carbon mitigation and building sustainability in Hong Kong.

Identity and genetic origins : an ethical exploration of the late discovery of adoptive and donor-insemination offspring status

This thesis is an ethical and empirical exploration of the late discovery of genetic origins in two contexts, adoption and sperm donor-assisted conception. This exploration has two interlinked strands of concern. The first is the identification of ‘late discovery’ as a significant issue of concern, deserving of recognition and acknowledgment. The second concerns the ethical implications of late discovery experiences for the welfare of the child. The apparently simple act of recognition of a phenomenon is a precondition to any analysis and critique of it. This is especially important when the phenomenon arises out of social practices that arouse significant debate in ethical and legal contexts. As the new reproductive technologies and some adoption practices remain highly contested, an ethical exploration of this long neglected experience has the potential to offer new insights and perspectives in a range of contexts. It provides an opportunity to revisit developmental debate on the relative merit or otherwise of biological versus social influences, from the perspective of those who have lived this dichotomy in practise. Their experiences are the human face of the effects arising from decisions taken by others to intentionally separate their biological and social worlds, an action which has then been compounded by family and institutional secrecy from birth. This has been accompanied by a failure to ensure that normative standards and values are upheld for them. Following discovery, these factors can be exacerbated by a lack of recognition and acknowledgement of their concerns by family, friends, community and institutions. Late discovery experiences offer valuable insights to inform discussions on the ethical meanings of child welfare, best interests, parental responsibility, duty of care and child identity rights in this and other contexts. They can strengthen understandings of what factors are necessary for a child to be able to live a reasonably happy or worthwhile life.

Revising the scope of the copyright "Safe Harbour Scheme"

Submission to the Australian Government Attorney General’s Department consultation paper on Revising the Scope of the Copyright ‘Safe Harbour Scheme’

Appraisal of the quality of care of older people with cognitive impairment presenting to emergency departments

The medical records of 273 patients 75 years and older were reviewed to evaluate quality of emergency department (ED) care through the use of quality indicators. One hundred fifty records contained evidence of an attempt to carry out a cognitive assessment. Documented evidence of cognitive impairment (CI) was reported in 54 cases. Of these patients, 30 had no documented evidence of an acute change in cognitive function from baseline; of 26 patients discharged home with preexisting CI (i.e., no acute change from baseline), 15 had no documented evidence of previous consideration of this issue by a health care provider; and 12 of 21 discharged patients who screened positive for cognitive issues for the first time were not referred for outpatient evaluation. These findings suggest that the majority of older adults in the ED are not receiving a formal cognitive assessment, and more than half with CI do not receive quality of care according to the quality indicators for geriatric emergency care. Recommendations for improvement are discussed.

Exploring the ethical implications of the late discovery of adoptive and donor-insemination offspring status

Some children adopted under the now discredited period of closed adoption were never told of their adoptive status until it was revealed to them in adulthood. Yet to date, this ‘late-discovery’ experience has received little research attention. Now a new generation of ‘late discoverers’ is emerging as a result of (heterosexual couple) donor insemination (DI) practices. This study of 25 late-discovery participants of either adoptive or (heterosexual couple) DI offspring status reveals ethical concerns particular to the lateness of discovery. Most of the participants were Australian, with the remainder from the UK, USA and Canada. All were asked to give an ‘open’ account of their experience, with four themes or suggestions provided on request. These accounts were added to those available in relevant publications. The analysis employed a hermeneutic phenomenological methodology and all accounts were analysed using an ethical perspective developed by Walker (2006, 2007). The main themes that emerged were: disrupted personal autonomy, betrayal of deep levels of trust and feelings of injustice and diminished self-worth. The lack of recognition of concerns particular to late discovery has resulted in late discoverers (i) feeling unable to regain a sense of personal control, (ii) significantly disrupted relationships with those closest to them and others, including community and institutions, and (iii) feelings of diminished value and self-worth.

Lessons from media reporting of natural disasters : a case study of the 2011 flash floods in Toowoomba and the Lockyer Valley

Practice-led journalism research techniques were used in this study to produce a ‘first draft of history’ recording the human experience of survivors and rescuers during the January 2011 flash flood disaster in Toowoomba and the Lockyer Valley in Queensland, Australia. The study aimed to discover what can be learnt from engaging in journalistic reporting of natural disasters. This exegesis demonstrates that journalism can be both a creative practice and a research methodology. About 120 survivors, rescuers and family members of victims participated in extended interviews about what happened to them and how they survived. Their stories are the basis for two creative outputs of the study: a radio documentary and a non-fiction book, that document how and why people died, or survived, or were rescued. Listeners and readers are taken "into the flood" where they feel anxious for those in peril, relief when people are saved, and devastated when babies, children and adults are swept away to their deaths. In undertaking reporting about the human experience of the floods, several significant elements about journalistic reportage of disasters were exposed. The first related to the vital role that the online social media played during the disaster for individuals, citizen reporters, journalists and emergency services organisations. Online social media offer reporters powerful new reporting tools for both gathering and disseminating news. The second related to the performance of journalists in covering events involving traumatic experiences. Journalists are often required to cover trauma and are often amongst the first-responders to disasters. This study found that almost all of the disaster survivors who were approached were willing to talk in detail about their traumatic experiences. A finding of this project is that journalists who interview trauma survivors can develop techniques for improving their ability to interview people who have experienced traumatic events. These include being flexible with interview timing and selecting a location; empowering interviewees to understand they don’t have to answer every question they are asked; providing emotional security for interviewees; and by being committed to accuracy. Survivors may exhibit posttraumatic stress symptoms but some exhibit and report posttraumatic growth. The willingness of a high proportion of the flood survivors to participate in the flood research made it possible to document a relatively unstudied question within the literature about journalism and trauma – when and why disaster survivors will want to speak to reporters. The study sheds light on the reasons why a group of traumatised people chose to speak about their experiences. Their reasons fell into six categories: lessons need to be learned from the disaster; a desire for the public to know what had happened; a sense of duty to make sure warning systems and disaster responses to be improved in future; personal recovery; the financial disinterest of reporters in listening to survivors; and the timing of the request for an interview. Feedback to the creative-practice component of this thesis - the book and radio documentary - shows that these issues are not purely matters of ethics. By following appropriate protocols, it is possible to produce stories that engender strong audience responses such as that the program was "amazing and deeply emotional" and "community storytelling at its most important". Participants reported that the experience of the interview process was "healing" and that the creative outcome resulted in "a very precious record of an afternoon of tragedy and triumph and the bitter-sweetness of survival".

The impact of the built environment on health across the life course : design of a cross-sectional data linkage study

Introduction: The built environment is increasingly recognised as being associated with health outcomes. Relationships between the built environment and health differ among age groups, especially between children and adults, but also between younger, mid-age and older adults. Yet few address differences across life stage groups within a single population study. Moreover, existing research mostly focuses on physical activity behaviours, with few studying objective clinical and mental health outcomes. The Life Course Built Environment and Health (LCBEH) project explores the impact of the built environment on self-reported and objectively measured health outcomes in a random sample of people across the life course. Methods and analysis: This cross-sectional data linkage study involves 15 954 children (0–15 years), young adults (16–24 years), adults (25–64 years) and older adults (65+years) from the Perth metropolitan region who completed the Health and Wellbeing Surveillance System survey administered by the Department of Health of Western Australia from 2003 to 2009. Survey data were linked to Western Australia's (WA) Hospital Morbidity Database System (hospital admission) and Mental Health Information System (mental health system outpatient) data. Participants’ residential address was geocoded and features of their ‘neighbourhood’ were measured using Geographic Information Systems software. Associations between the built environment and self-reported and clinical health outcomes will be explored across varying geographic scales and life stages. Ethics and dissemination: The University of Western Australia's Human Research Ethics Committee and the Department of Health of Western Australia approved the study protocol (#2010/1). Findings will be published in peer-reviewed journals and presented at local, national and international conferences, thus contributing to the evidence base informing the design of healthy neighbourhoods for all residents.

Research participation by people with intellectual disability and mental health issues : an examination of the processes of consent

Balancing the demands of research and ethics is always challenging and even more so when recruiting vulnerable groups. Within the context of current legislation and international human rights declarations, it is strongly advocated that research can and must be undertaken with all recipients of health care services. Research in the field of intellectual disability presents particular challenges in regard to consenting processes. This paper is a critical reflection and analysis of the complex processes undertaken and events that occurred in gaining informed consent from people with intellectual disability to participate in a study exploring their experiences of being an inpatient in mental health hospitals within Aotearoa/New Zealand. A framework based on capacity, information and voluntariness is presented with excerpts from the field provided to explore consenting processes. The practical implications of the processes utilised are then discussed in order to stimulate debate regarding clearer and enhanced methods of gaining informed consent from people with intellectual disability.