Health and guardianship law : the decision of X v the Sydney Children's Hospitals Network [2013] NSWCA 320 : mature minors and the refusal of blood products

This recent decision of the New South Wales Court of Appeal considers the scope of the parens patriae jurisdiction in cases where the jurisdiction is invoked for the protection of a Gillick competent minor. As outlined below, in certain circumstances the law recognises that mature minors are able to make their own decisions concerning medical treatment. However, there have been a number of Commonwealth decisions which have addressed the issue of whether mature minors are able to refuse medical procedures in circumstances where refusal will result in the minor dying. Ultimately, this case confirms that the minor does not necessarily have a right to make autonomous decisions; the minor’s right to exercise his or her autonomous decision only exists when such decision accords with what is deemed to be in his or her best interests.

The inherent equitable jurisdiction and the plenary power of the Supreme Court of New South Wales to order the winding up of companies

Not all companies in Australia are amenable to a winding up order pursuant to the Corporations Act 2001 (Cth). The Supreme Court of New South Wales has previously dealt with such winding up applications by apparently focusing on the inherent jurisdiction of the court to consider whether the court has jurisdiction to firstly consider the winding up application. This article proposes an original alternative paradigm: the plenary power provided to the court by s 23 of the Supreme Court Act 1970 (NSW) can be utilised to initially attract the jurisdiction of the court and subsequently the inherent jurisdiction specifically utilising the equitable “just and equitable” ground is available to the court to consider and make such a winding up order if appropriate. Variation of such a paradigm may also be available to the court when considering the inherent jurisdiction in relation to corporation matters more generally.

Pre-sentence Report, Magisterial Discourse and Agency in Youth Courts in England

This article draws on interviews with Youth Court magistrates to examine if and how discourses, strategies and technologies of risk governance have affected Youth Court magistrates in England and Wales. The aim of the article is to detail the complex relationship between magisterial agency in decision making and youth justice policies which focus on risk control and management. The article demonstrates that, contrary to what might be assumed from the youth and risk governance theoretical literature, Youth Offending Team risk assessments form only one part of the information used by magistrates to explain young people’s presence in courts. This article concludes that magisterial decision making is framed not by formal, expert assessments of risk, but by magistrates’ claims that they are ‘knowing outsiders’, who through judicious use of information presented to them and their own life experiences are able to make objective judgements about both the risk assessments authored by Youth Offending Teams and the young lawbreakers before them.

Duty of police and ambulance services : what happens when the plaintiff refuses treatment?

In a recent case the New South Wales Court of Appeal considered the duty of care owed by ambulance and police officers, issues concerning breach and causation and the practical effect of the exclusion of the plaintiff's evidence.

Questions of English : ethics, aesthetics, rhetoric, and the formation of the subject in England, Australia and the United States

The impact and content of English as a subject on the curriculum is once more the subject of lively debate. Questions of English sets out to map the development of English as a subject and how it has come to encompass the diversity of ideas that currently characterise it. Drawing on a combination of historical analysis and recent research findings Robin Peel, Annette Patterson and Jeanne Gerlach bring together and compare important new insights on curriculum development and teaching practice from England, Australia and the United States. They also discuss the development of teacher training, highlighting the variety of ways in which teachers build their own beliefs and knowledge about English.

Foreseeability of pure economic loss and causation

In Bonny Glen Pty Ltd v Country Energy [2009] NSWCA 26 (24 February 2009) the New South Wales Court of Appeal held that the pure economic loss suffered by the appellant was recoverable. However, rather than arguments as to whether the appellant was vulnerable and a member of an ascertainable class, whether the respondent had knowledge of the risk to the appellant and was in a position of control and considerations as to indeterminate liability as in Perre v Apand Pty Ltd (1999) 198 CLR 180, the arguments raised related to the foreseeability of the loss and causation.

Everyday life and the edges of existence : wrongs with no name or the wrong name?

Actions for wrongful life, as they have come unfortunately to be styled, encompass various types of claim. These include claims for alleged negligence after conception, those based on negligent advice or diagnosis prior to conception concerning possible effects of treatment given to the child's mother, contraception or sterilisation, or genetic disability. This distinguishes such claims from those for so called wrongful birth, which are claims by parents for the cost of raising either a healthy or a disabled child where the unplanned birth imposes costs on the parents as a result of clinical negligence. Two of the more controversial cases to have reached the High Court of Australia which are if interest to us here in the past decade are Cattanach v Melchior where the court, by a narrow majority (McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon dissenting) acknowledged recovery for wrongful birth. In the second joined appeals of Harriton v Stephens and Waller v James; Waller v Hoolahan the court overwhelmingly precluded a ‘wrongful life’ claim (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ; Kirby J dissenting). Both cases raised issues around the sanctity and value of life and the nature of harm and the assessment of damages, and this brief note affords us the opportunity to consider the way in which the ‘life as legal loss’ arguments were treated by the various judges in both cases.

The source of the good faith obligation in the performance and enforcement of commercial contracts

There are many issues associated with good faith that will ultimately confront the Australian High Court and a number of these have been well canvassed. However, one significant issue has attracted relatively little comment. To date, a number of Australian courts (lower in the judicial hierarchy) have been prepared to hold directly, tacitly accept or assume (without making a final determination) that good faith is implied (as a matter of law) in the performance and enforcement of a very broad class of contract, namely commercial contracts per se. This broad approach is demonstrated in decisions from the Federal Court, the New South Wales Court of Appeal, the Supreme Courts of Victoria and Western Australia and has crept into pleadings in commercial matters in Queensland

Screening, isolation, and decolonisation strategies in the control of meticillin resistant Staphylococcus aureus in intensive care units : cost effectiveness evaluation

Objective: To assess the cost-effectiveness of screening, isolation and decolonisation strategies in the control of methicillin-resistant Staphylococcus aureus (MRSA) in intensive care units (ICUs). Design: Economic evaluation. Setting: England and Wales. Population: ICU patients. Main outcome measures: Infections, deaths, costs, quality adjusted life years (QALYs), incremental cost-effectiveness ratios for alternative strategies, net monetary benefits (NMBs). Results: All strategies using isolation but not decolonisation improved health outcomes but increased costs. When MRSA prevalence on admission to the ICU was 5% and the willingness to pay per QALY gained was between £20,000 and £30,000, the best such strategy was to isolate only those patients at high risk of carrying MRSA (either pre-emptively or following identification by admission and weekly MRSA screening using chromogenic agar). Universal admission and weekly screening using polymerase chain reaction (PCR)-based MRSA detection coupled with isolation was unlikely to be cost-effective unless prevalence was high (10% colonised with MRSA on admission to the ICU). All decolonisation strategies improved health outcomes and reduced costs. While universal decolonisation (regardless of MRSA status) was the most cost-effective in the short-term, strategies using screening to target MRSA carriers may be preferred due to reduced risk of selecting for resistance. Amongst such targeted strategies, universal admission and weekly PCR screening coupled with decolonisation with nasal mupirocin was the most cost-effective. This finding was robust to ICU size, MRSA admission prevalence, the proportion of patients classified as high-risk, and the precise value of willingness to pay for health benefits. Conclusions: MRSA control strategies that use decolonisation are likely to be cost-saving in an ICU setting provided resistance is lacking, and combining universal PCR-based screening with decolonisation is likely to represent good value for money if untargeted decolonisation is considered unacceptable. In ICUs where decolonisation is not implemented there is insufficient evidence to support universal MRSA screening outside high prevalence settings.

Comparing the cost-effectiveness of MRSA control strategies between ICU and non-ICU settings

Introduction / objectives Many strategies are used to control MRSA in hospitals. Only a few have been assessed in clinical trials and it is not obvious how findings should be generalised between settings. Uncertainty remains about which strategies represent the most appropriate use of scarce resources. We assess the cost-effectiveness of alternative MRSA screening and infection control strategies in England and Wales and discuss international relevance. Methods Models of MRSA transmission in ICUs and general medical (GM) wards were developed and used to evaluate different screening methods combined with decolonisation or isolation. Strategies were compared in terms of costs and health benefits (quality adjusted life years, QALYs). Different prevalences, proportions of high risk patients and ward sizes were investigated, and probabilistic sensitivity analyses (PSA) conducted. Results Decolonisation strategies were cost-saving in ICUs at a 5% admission prevalence, with admission and weekly PCR screening the most cost-effective (£3,929/QALY). In ICUs, screening and isolation reduced infection rates by ~10%. With admission prevalence ≤5%, targeting screening and isolation to high risk patients was optimal. In GM wards decolonisation and isolation strategies, though able to reduce MRSA infection rates up to ~50%, were not cost-effective. Conclusion The largest reductions in MRSA infection were achieved by screening and decolonisation strategies, and were cost-effective in ICU settings. In comparison, there is limited potential for screening and control strategies to be cost-effective in GM wards due to lower infection and mortality rates.

The politicization of youth crime in Scotland and the rise of the 'Burberry Court'

In 2003, the youth justice system in Scotland entered a new phase with the introduction of a pilot youth court. The processing of persistent 16 and 17 year old (and serious 15 year olds) represented a stark deviation from a ‘child centred’ and needs-oriented state apparatus for dealing with young offenders to one based on deeds and individual responsibility. This article, based on an evaluation funded by the Scottish Executive, is the first to provide a critical appraisal of this youth justice reform. It examines the views of the judiciary and young offenders and reveals that the pilot youth court in Scotland represents a punitive excursion that poses serious concerns for due process, human rights and net widening.