Unresolved legal issues pertaining to the native residential school

“The research paper considers the legal issues arising from the Canadian Native Residential Schools and the Australian ‘stolen generation’. The paper compares and contrasts the approaches taken by the respective courts and governments in these Nations to the various causes of actions stemming from such. Building on this, the paper will focus on the legal issues that are yet to be considered by the courts including breaches of domestic and international treaties, liability for loss of culture and language intergenerational claims.”

Legal issues: minors' decision-making capacity to refuse life-saving and life-sustaining treatment: legal and psychiatric perspectives

Laws in Belgium and the Netherlands permit euthanasia and assisted suicide for seriously ill children who experience "constant and unbearable suffering" – they have the capacity to request death by lethal injection if they convey a "reasonable understanding of the consequences" of that request. The child's capacity to understand death is therefore a prerequisite to the implementation of the request. However, modern neuro-psychological and fMRI (functional Magnetic Resonance Imaging) studies of the relationship between the neuro-anatomical development of the brain in human beings and their emotional and experiential capacity, demonstrates that both are not fully developed until the early 20s for girls and mid-20s for boys. Unlike Belgium and the Netherlands, the clinical and legal implications of the immaturity of the brain on medical decision-making of minors, in particular life and death decisions, have been implicit in the Australian courts' approach to the refusal of life-saving and life-sustaining treatment by minors. This approach is exemplified by X v Sydney Children's Hospitals Network [2013] NSWCA 320 (and a series of earlier cases).

Legal issues: Disciplinary proceedings for inappropriate prescription of opioid medications by medical practitioners in Australia (2010-2014)

An analysis of 32 cases reported between July 2010 and September 2014 byprofessional disciplinary tribunals in New South Wales and Victoria againstmedical practitioners found guilty of inappropriately prescribing Sch 8 medications(mainly opioids) and Sch 4 drugs (mainly benzodiazepines) demonstrated, among others, a lengthy delay between the occurrence of the miscreant conduct and the conclusion of disciplinary proceedings. The study also raised questions about the appropriateness of utilising common criminal law theories of punishment and deterrence by non-judicial tribunals.

Family carers: ethical and legal issues

This chapter examines the ethical and legal issues related to family caregiving in palliative care. The result suggests that death per se is not an ethical issue, and false perceptions of what the law and ethics require have the capacity to obstruct good care and decision-making at the end of life. The findings also indicate that ethics in palliative care is mainly about good process rather than theory and that effective, appropriate and sensitive work with families is necessary for good palliative care to be delivered.

Confidentiality and disclosure : assessment and intervention issues

This portfolio addresses the moral, ethical and legal issues that impact upon decisions to maintain or disclose confidential communications. The tensions and moral dilemmas that are created when a conflict between these aspects arises are considered. Risk assessment procedures that inform decisions to maintain or disclose confidential information are discussed, as are issues related to the practical implementation of planned interventions. The topic is addressed by firstly reviewing professional codes of conduct and legal requirements to maintain confidentiality. The limits of confidentiality and privileged communication are then reviewed together with legal requirements of “duty to warn” or “duty of care”. These requirements are then related to risk assessment procedures and relevant interventions. Four case studies that illustrate the practical application of assessment techniques in the decision process and planned interventions are presented. They cover such diverse topics as disclosure and suicidal intent, threat of harm to a third party, risk of transmission of the AIDS virus and “duty to warn” and maintenance of a minor’s confidential communications. The ways in which these issues were addressed and the outcome is presented. NOTE: All names and details that have the potential to identify the people whose cases are presented here have been changed to protect their anonymity.

Principals and legal risk : complacency or concern?

There has been an increasing awareness across many jurisdictions of potential legal issues that might arise in schools. These issues range from bullying to sexual misconduct, from injury to negligence. In a recent study in Singapore, despite the increased attention to such issues, school principals displayed a range of attitudes toward legal risk and a diverse range of strategies to minimise it. The findings were compared to those from a small scale study of senior educators in Queensland in order to ascertain commonalities and differences of view. This paper summarises those views and suggests some basic principles to help those in positions of leadership to avert unwanted legal attention.

Principals and legal risks: contrasting perspectives

There has been an increasing awareness across many jurisdictions of potential legal issues that might arise in schools. These issues range from bullying to sexual misconduct, from injury to negligence. In a recent study in Singapore, despite the increased attention to such issues, school principals displayed a range of attitudes toward legal risk and a diverse range of strategies to minimise it. The findings were compared to those from a small scale study of senior educators in Australia in order to ascertain commonalities and differences of view. This paper summarises those views and suggests some basic principles to help those in positions of leadership to avert unwanted legal attention.

Medical-legal partnerships: the role of mental health providers and legal authorities in the development of a coordinated approach to supporting mental health clients' legal needs in regional and rural settings

INTRODUCTION: Medical-legal partnerships (MLP) are a model in which medical and legal practitioners are co-located and work together to support the health and wellbeing of individuals by identifying and resolving legal issues that impact patients' health and wellbeing. The aim of this article is to analyse the benefits of this model, which has proliferated in the USA, and its applicability in the context of rural and remote Australia.

METHODS: This review was undertaken with three research questions in mind: What is an MLP? Is service provision for individuals with mental health concerns being adequately addressed by current service models particularly in the rural context? Are MLPs a service delivery channel that would benefit individuals experiencing mental health issues?

RESULTS: The combined searches from all EBSCO Host databases resulted in 462 citations. This search aggregated academic journals, newspapers, book reviews, magazines and trade publications. After several reviews 38 papers were selected for the final review based on their relevance to this review question: How do MLPs support mental health providers and legal service providers in the development of a coordinated approach to supporting mental health clients' legal needs in regional and rural Australia?

CONCLUSIONS: There is considerable merit in pursuing the development of MLPs in rural and remote Australia particularly as individuals living in rural and remote areas have far fewer opportunities to access support services than those people living in regional and metropolitan locations. MLPS are important channels of service delivery to assist in early invention of legal problems that can exacerbate mental health problems.

Legal risk impact in Public Private Partnerships (PPPs): the case of the Chinese water sector

China is currently experiencing a rising demand for water, combined with limited funding availability for water project procurement. Consequently, local Chinese governments have sought procurement solutions by experimenting with public private partnerships (PPPs). However, the legal risk in PPPs, particularly in the water sector, remains high. Legal risk refers to risk arising from the legal and regulatory systems surrounding PPPs. Past research have identified legal risk in PPP projects in China as critical, however the stages at which they are significant have not been studied. This paper examines the legal risk associated with PPPs in the water sector in China and measures the degree of risk across three key stages; 1) Procurement, 2) Construction and 3) Operation. The interrelationship between legal risk at these three stages is also investigated. The significance of the risk was measured by determining the probability and severity of the risk. Correlation analysis was used to investigate the relationship between legal risks across the three stages. Our findings are that legal risk is present at all three stages, at close to moderate levels, with risk significance greatest at the operational stage. Moreover, while no correlation was identified for legal risk at the operational stage with those of earlier stages, it was found that legal issues arising during the procurement stage significantly exacerbated any further legal issues that emerged during the construction stage of water projects. The findings from this study will be significant in providing practitioners with the information to manage this risk at different stages of PPP projects.

Case comment: Cubillo and Gunner V The Commonwealth: a denial of the stolen generation?

In the recent Australian decision in Cubillo and Gunner v The Commonwealth ( ‘Cubillo 3’ ), the Full Court of the Federal Court dismissed an appeal by the Aboriginal claimants seeking damages for, inter alia, their removal from their families and detention at certain Aboriginal institutions. The removal and detention of the plaintiffs was held to be lawful in the earlier determination of O’Loughlin J because it was, inter alia, believed to be in the [then] child’s best interests and, as the plaintiffs bore the onus of proof, they had failed to show that they were taken without the consent of their parents/guardians. This decision was based upon the factual finding that ‘at the relevant times, there was no general policy in force in the Northern Territory supporting the indiscriminate removal and detention of part-Aboriginal children, irrespective of the personal circumstances of each child’. The Full Court did not comment on O’Loughlin J’s assertion that the policy of removing part-Aboriginal children, as asserted by the plaintiffs, could not be maintained. Moreover, the Full Court in fact joined O’Loughlin J in trying to distance their findings from the broader issue of the legal rights of members of the Stolen Generation, emphasising that they were only concerned with the particular circumstances of the two plaintiffs/appellants. This case comment is not aimed at evaluating the specific legal issues raised by the plaintiffs’ claims in this case or reviewing the history of the Stolen Generation, but rather seeks to examine O’Loughlin J’s comment as to the absence of a policy of indiscriminate removal and detention of part-Aboriginal children in a bid to determine the parameters intended by the court. It will be seen that, at its broadest, the statement is quite inflammatory and may be seen as a denial of the Stolen Generation. It will be submitted that this was not intended by the court. At its narrowest, the statement is merely an assertion that the particular plaintiffs failed to prove their cases. It will be submitted that, whilst this clearly was the view of the court, O’Loughlin J’s statement does have broader implications which, it will be contended, are not warranted.

Specialisation within specialisation? Thoughts on the content of contemporary forensic psychology programs

This paper provides details of, and the rationale for, a Doctorate of Forensic Psychology recently developed at Deakin University, Melbourne, Australia. The course prioritises training in psycho-legal issues with children and young people. In discussing this program, the presenters identify two issue  that guided the development of the program. The first concerns the need to delineate forensic content from that in clinical programs, while still maintaining appropriate focus on the skills needed to work effectively in forensic settings. The second addresses the need for courses to acknowledge the marked diversity among forensic clientele and to develop competencies that lead to effective work practices with these sub-groups. In constructing the Deakin forensic program, it was noted that forensic psychologists required an increasing degree of expertise in the procedural and substantive aspects of the legal system. The authors propose that as forensic psychology gains momentum as a discrete area of expertise, there is an increasing need for practitioners to have a sound understanding of the legal institutions and practices they work under, as well as being able to apply specialist knowledge to particular sub-groups. This paper discusses these issues, and outlines how the authors sought to address them in their course curriculum.