In whose interests? The best interests principle under ethical scrutiny

This paper critically examines the best interests principle and its role in making decisions about intensive care treatment. In current practice the best interests principle is sometimes relied upon to guide decision making in circumstances when the patient is incompetent, although it is intrinsically linked to inconsistent assumptions about what is meant by quality of life. This situation means that there is potential that moral errors will be made that may result in an unwanted extension of life for some individuals or the premature death of others.

It is difficult to justify such decision making on ethical grounds. A greater understanding of the best interests principle, and consequently the concept of quality of life, is needed in order to ensure that decision making about intensive care is ethically defensible. It is argued that an ideal theory of quality of life provides an appropriate framework for best interests decisions, and that the decision making process ought to, whenever possible, involve the patient's close family.

The best interests of the child? The stolen generation in Canada and Australia

Key cases in Australia and Canada dealing with litigation undertaken by members of the stolen generations - considers vicarious liability, non-delegable duties and duty of care - while plaintiffs in leading Canadian cases were successful under at least one of their heads of claim, there were inconsistencies - Crown's liability for the Aboriginal residential school experience is unresolved - key Australian decisions where plaintiffs' claims against the Crown for vicarious liability and breaches of duty of care were rejected.

Foucauldian analysis and 'the best interests of the child'

In this thesis I have developed a theoretical framework using Michel Foucault’s metaphor of the panopticon and applied the resulting discursive methodology to prominent risk assessment texts in Tasmanian Government child protection services. From the analysis I have developed an innovation poststructural practice of discursive empathy for use in child protection social work. Previous research has examined discourses such as madness, mothering, the family and masculinity using Foucault’s ideas and argued that each is a performance of social government. However my interest is in ‘the best interests of the child’ as governmentality; risk as the apparatus through which it is conducted and child abuse its social effect. In applying a discursive analysis, practices of risk assessment are therefore understood to actually produce intellectual and material conditions favourable to child abuse, rather than protect children from maltreatment. The theoretical framework produces in this thesis incorporates three distinct components of Foucault’s interpretive analytics of power: archaeology, genealogy and ethics. These components provide a structure for discourse analysis that is also a coherent methodical practice of Foucault’s notion of ‘parrhesia’. The practice of parrhesia involves social workers recognised that social power is subjectively dispersed yet also hierarchical. Using this notion I have analysed ‘the best interest of the child’ as a panopticon and argued that child abuse is a consequence. This thesis therefore demonstrates how child protection social workers can expose the political purpose involved in the discourse ‘the best interests of the child’, and in doing so challenge the hostile intellectual and material conditions that exist for children in our community. In concluding, I identify how discursive empathy is a readily accessible skill that social workers can use to practice parrhesia in a creative way.

Family breakdown, the best interests of the child concept, and the legal system

It appears that the legal system's response to the issues relating to family breakdown and "the best interests of the child" concept can sometimes be inadequate. There also appears to a lack of consistency with regards to enforcing the best interests of the child concept in legal proceedings concerning children.

Pediatric donation after circulatory determination of death: Respecting the interests of children through routine consideration of donation opportunities

Overby and colleagues (2015) highlight the complexities of consent to or authorization for organ procurement in the setting of controlled donation after circulatory determination of death (cDCDD). They note that decision making about cDCDD is complicated by clinical uncertainties and ethical controversies regarding protocols for the determination of death by circulatory criteria and the use of perimortem interventions to support organ procurement, and that these uncertainties and controversies may be exacerbated in the pediatric context. Suggesting that parents and clinicians may “unconsciously” compromise the best interests of their own children and patients in order to achieve organ procurement goals, Overby and colleagues argue that children are at risk of instrumentalization when the option of cDCDD is presented. This claim is further grounded in their belief that children lack autonomy and can have no interest in becoming organ donors. In this commentary, we contest these assumptions, the implications of which extend beyond cDCDD and threaten to undermine programs of pediatric deceased donation, including donation after the neurologic determination of death (DNDD). We argue that routine consideration of the possibility of organ donation by critically ill children is consistent with respect for children’s best interests and, most importantly, their human dignity.

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.

RE Patrick & the rights and responsibilities of sperm donor fathers in Australian family law

In the matter of Re Patrick, Guest J of the Family Court of Australia held that a sperm donor, known to the lesbian mother of the child, had a right under Australian law to regular contact with the child to the extent that this was in the child's best interests. However, his Honour also held that due to the way in which particular provisions of the Family Law Act 1975 (Cth) are drafted, a sperm donor cannot be regarded as the "parent" of the child, and accordingly called for legislative reform to recognise the rights of known sperm donors wanting involvement with the child. In this article, the authors will first explore the facts and decision in Re Patrick, and then outline a proposal to amend the Family Law Act 1975 so that sperm donors can apply for an order to be a 'parent' under the Act.

Family law in Australia: re Patrick and the matter of Child A

In Re Patrick, Guest J of the Family Court of Australia dealt with the issue of whether a gay sperm donor, known to the lesbian mother of the child, had a right under Australian law to regular contact with the child. Justice Guest held that the sperm donor was allowed contact with the child to the extent that this was in the child's best interests. His Honour did, however, find that due to the way in which particular provisions of Australia's Family Law Act 1975 (Cth) are drafted, a sperm donor cannot be regarded as the 'parent' of the child, and accordingly called for legislative reform to recognise the rights of known sperm donors wanting involvement with the child. In this article, we discuss the matter of Re Patrick, comparing it with the strikingly similar matter of Pursuer Against Defender in the Case of Child A, decided recently by Sheriff Laura Duncan in the Glasgow Sheriff Court. We will then outline a proposal to amend the Family Law Act 1975 so that sperm donors can apply for an order to be a 'parent' for the purposes of the law, and therefore have the same rights and responsibilities as any other parent. In response to the tragic ending to the matter of Re Patrick, we conclude by stressing the need for an educational programme to be established, so that lesbian women who are considering parenthood may do so in the knowledge that the sperm donor does have the status of 'father', and in some jurisdictions 'parent', rather than merely being a 'donor'.

Why all directors should be shareholders in the company: the case against "independence"

It is argued that the shift towards more 'independent' directors, in the wake of corporate collapses, is a fundamentally bad move, undermining the rights and powers of minority shareholders - entrenches a second-rate corporate governance model, separation of ownership and control, in company law - rather than suggest cosmetic reform in an attempt to address the problem, it is proposed that all directors must have significant interest in the company they serve - directors' self-interests and the best interests of the company become intertwined - this is a more effective way of tackling the problem of separation of ownership and control

Directors' duties to stakeholders : a reform proposal based on three false assumptions

The Corporations and Markets Advisory Committee has been asked to consider whether the duties of directors under the Corporations Act 2001 (Cth) should be broadened to require directors to take into account the interests of stakeholder groups other than shareholders when making corporate decisions. In this article, the author argues that the existing statutory duties of directors in Australia should remain unchanged. The existing duties of directors, in particular the overriding duty of directors to act in the best interests of the company, already accommodates consideration of stakeholder interests by directors if the decision is justifiable as being in the company's best interests. Furthermore, corporate culture and norms are moving towards embracing stakeholder engagement, again with the implicit recognition that integrating stakeholder considerations within the decision-making processes of companies is integral to achieving long-term sustainable growth.

The separation of ownership and control under a happiness-based theory of the corporation

Explores the happiness-based theory of the corporation, suggesting that there is no conflict between the pursuance of economic and social objectives on the basis that their interplay is required to facilitate shareholder happiness. Considers: (1) the Berle-Means hypothesis and the separation of ownership and control, the dominant governance structure for large companies; (2) a happiness-based perspective on the separation; and (3) law reform applicable to a happiness-based theory. Argues that the separation of ownership and control is not in shareholders' best interests because the structure is not conducive to the happiness of individual shareholders and should be reformed.

Defuturing an architecture of destruction: a reconciliation of Van Berkel and Bos to the new design philosophy of Tony Fry

For some time now Tony Fry has promoted the idea of 'The Sustainment', an idea that asserts a paradigm shift in attitudes to consumption. 'The Sustainment' recognises that increasingly human futures are products of self-determination and not chance. Fry’s hypothesis can be understood through his concept of Defuturing, a philosophy that questions the role of design and the responsibility of designers to facilitating the ability to sustain (Fry 1999).
Central to Fry’s philosophy is an awareness that it is in the best interests of designers and their clients, as inhabitants of cultures increasingly driven by technology, to be aware of the relationships between the products and theories of design and the processes and implications of technological change. This is an awareness that is central to the concepts, work, and methodologies of the ‘UN Studio’ of Van Berkel and Bos described and elaborated upon in Move – Imagination, Techniques, and Effects (Van Berkel & Bos 1999). Here, Ben Van Berkel defines the parameters and methodologies employed by UN Studio in an environment of technological and socio-economic change. The Dutch practice could be said to exemplify something of a zeitgeist in current architectural design that sees architects, as Van Berkel and Bos view them, as “fashion designers of the future, dressing events to come and holding up a mirror to the world (Van Berkel & Bos 1999, back cover).” It is a zeitgeist that Fry might see as aligned to the resilient hype of ‘new creativity’, ‘globalisation’ the ‘romance with technology’, and the vacuous-ness of the world of fashion. (Fry The Voice of Sustainment: on Design Intelligence 2005).
A source of breaking down such design propaganda is identified by Fry in the notion of ‘scenarios,’ which “provide a mechanism for politico-practice assemblage in which dialogues and narratives of change can be rehearsed in ways that enable participants to re-educate themselves via critical confrontations” (Fry The Voice of Sustainment: on Design Intelligence 2005). From such a perspective this paper aims to practically illustrate and ground the Defuturing of Fry by establishing a dialogue between his writings and the theories that have generated the architectural designs of Van Berkel and Bos and there UN Studio. This will be a ‘scenario’ that examines therefore an appropriation and transformation of the applied intellectual practice of Van Berkel and Bos. Through this confrontation we shall explore the question of why sustainability appears to be so low in the agenda of many pre-eminent contemporary architects, and how we might refocus therefore practice and theory on the ability to sustain.