Doctors’ perspectives on law and life-sustaining treatment: Survey design and recruitment strategies for a challenging cohort

- Background Palliative medicine and other specialists play significant legal roles in decisions to withhold and withdraw life-sustaining treatment at the end of life. Yet little is known about their knowledge of or attitudes to the law, and the role they think it should play in medical practice. Consideration of doctors’ views is critical to optimizing patient outcomes at the end of life. However, doctors are difficult to engage as participants in empirical research, presenting challenges for researchers seeking to understand doctors’ experiences and perspectives. - Aims To determine how to engage doctors involved in end-of-life care in empirical research about knowledge of the law and the role it plays in medical practice at the end of life. - Methods Postal survey of all specialists in palliative medicine, emergency medicine, geriatric medicine, intensive care, medical oncology, renal medicine, and respiratory medicine in three Australian states: New South Wales, Victoria, and Queensland. The survey was sent in hard copy with two reminders and a follow up reminder letter was also sent to the directors of hospital emergency departments. Awareness was further promoted through engagement with the relevant medical colleges and publications in professional journals; various incentives to respond were also used. The key measure is the response rate of doctors to the survey. - Results Thirty-two percent of doctors in the main study completed their survey with response rate by specialty ranging from 52% (palliative care) to 24% (medical oncology). This overall response rate was twice that of the reweighted pilot study (16%). - Conclusions Doctors remain a difficult cohort to engage in survey research but strategic recruitment efforts can be effective in increasing response rate. Collaboration with doctors and their professional bodies in both the development of the survey instrument and recruitment of participants is essential.

Decision-making in a death investigation: Emotions, families and the coroner

The role of the coroner in common law countries such as Australia, England, Canada and New Zealand is to preside over death investigations where there is uncertainty as to the manner of death, a need to identify the deceased, a death of unknown cause, or a violent or unnatural death. The vast majority of these deaths are not suspicious and thus require coroners to engage with grieving families who have been thrust into a legal process through the misfortune of a loved one's sudden or unexpected death. In this research, 10 experienced coroners discussed how they negotiated the grief and trauma evident in a death investigation. In doing so, they articulated two distinct ways in which legal officers engaged with emotions, which are also evident in the literature. The first engages the script of judicial dispassion, articulating a hierarchical relationship between reason and emotion, while the second introduces an ethic of care via the principles of therapeutic jurisprudence, and thus offers a challenge to the role of emotion in the personae of the professional judicial officer. By using Hochschild's work on the sociology of emotions, this article discusses the various ways in which coroners manage the emotion of a death investigation through emotion work. While emotional distance may be an understandable response by coroners to the grief and trauma experienced by families and directed at cleaner coronial decision-making, the article concludes that coroners may be better served by offering emotions such as sympathy, consideration and compassion directly to the family in those situations where families are struggling to accept, or are resistant to, coroners' decisions.

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.

Cultural considerations in will-making in Australia: A case study of Islamic or Sharia-compliant wills

This article explores the influence of cultural and religious beliefs and laws on how individuals make decisions about asset distribution through wills, drawing on a case study of Islamic will makers. Findings highlight diversity in beliefs and practices within Australian Islamic communities. When drafting a will people from culturally diverse backgrounds need to accommodate their religious and cultural values and local law. Implications of research findings for legal policy and practice in Australia are discussed.

Beyond Words : The European Court of Justice and Legal Certainty in Multilingual EU Law

This study addresses the issue of multilingualism in EU law. More specifically, it explores the implications of multilingualism for conceptualising legal certainty, a central principle of law both in domestic and EU legal systems. The main question addressed is how multilingualism and legal certainty may be reconciled in the EU legal system. The study begins with a discussion on the role of translation in drafting EU legislation and its implications for interpreting EU law at the European Court of Justice (ECJ). Uncertainty regarding the meaning of multilingual EU law and the interrelationship between multilingualism and ECJ methods of interpretation are explored. This analysis leads to questioning the importance of linguistic-semantic methods of interpretation, especially the role of comparing language versions for clarifying meaning and the ordinary meaning thesis, and to placing emphasis on other, especially the teleological, purpose-oriented method of interpretation. As regards the principle of legal certainty, the starting-point is a two-dimensional concept consisting of both formal and substantive elements; of predictability and acceptability. Formal legal certainty implies that laws and adjudication, in particular, must be predictable. Substantive legal certainty is related to rational acceptability of judicial decision-making placing emphasis on its acceptability to the legal community in question. Contrary to predictability that one might intuitively relate to linguistic-semantic methods of interpretation, the study suggests a new conception of legal certainty where purpose, telos, and other dynamic methods of interpretation are of particular significance for meaning construction in multilingual EU law. Accordingly, the importance of purposive, teleological interpretation as the standard doctrine of interpretation in a multilingual legal system is highlighted. The focus on rational, substantive acceptability results in emphasising discourse among legal actors among the EU legal community and stressing the need to give reasons in favour of proposed meaning in accordance with dynamic methods of interpretation including considerations related to purposes, aims, objectives and consequences. In this context, the role of ideal discourse situations and communicative action taking the form of interaction among the EU legal community in an ongoing dialogue especially in the preliminary ruling procedure is brought into focus. In order for this dialogue to function, it requires that the ECJ gives persuasive, convincing and acceptable reasons in justifying its decisions. This necessitates transparency, sincerity, and dialogue with the relevant audience.

New Governance and the EU Courts : The Experimentalist Architecture of Judicial Decision-Making

The dissertation examines the role of the EU courts in new governance. New governance has raised unprecedented interest in the EU in recent years. This is manifested in a plethora of instruments and actors at various levels that challenge more traditional forms of command-and-control regulation. New governance and political experimentation more generally is thought to sap the ability of the EU judiciary to monitor and review these experiments. The exclusion of the courts is then seen to add to the legitimacy problem of new governance. The starting point of this dissertation is the observation that the marginalised role of the courts is based on theoretical and empirical assumptions which invite scrutiny. The theoretical framework of the dissertation is deliberative democracy and democratic experimentalism. The analysis of deliberative democracy is sustained by an attempt to apply theoretical concepts to three distinctive examples of governance in the EU. These are the EU Sustainable Development Strategy, the European Chemicals Agency, and the Common Implementation Strategy for the Water Framework Directive. The case studies show numerous disincentives and barriers to judicial review. Among these are questions of the role of courts in shaping governance frameworks, the reviewability of science-based measures, the standing of individuals before the courts, and the justiciability of soft law. The dissertation analyses the conditions of judicial review in each governance environment and proposes improvements. From a more theoretical standpoint it could be said that each case study presents a governance regime which builds on legislation that lays out major (guide)lines but leaves details to be filled out at a later stage. Specification of detailed standards takes place through collaborative networks comprising members from national administrations, NGOs, and the Commission. Viewed this way, deliberative problem-solving is needed to bring people together to clarify, elaborate, and revise largely abstract and general norms in order to resolve concrete and specific problems and to make law applicable and enforceable. The dissertation draws attention to the potential of peer review included there and its profound consequences for judicial accountability structures. It is argued that without this kind of ongoing and dynamic peer review of accountability in governance frameworks, judicial review of new governance is difficult and in some cases impossible. This claim has implications for how we understand the concept of soft law, the role of the courts, participation rights, and the legitimacy of governance measures more generally. The experimentalist architecture of judicial decision-making relies upon a wide variety of actors to provide conditions for legitimate and efficient review.

Diel variation in fig volatiles across syconium development: making sense of scents

Plants produce volatile organic compounds (VOCs) in a variety of contexts that include response to abiotic and biotic stresses, attraction of pollinators and parasitoids, and repulsion of herbivores. Some of these VOCs may also exhibit diel variation in emission. In Ficus racemosa, we examined variation in VOCs released by fig syconia throughout syconium development and between day and night. Syconia are globular enclosed inflorescences that serve as developing nurseries for pollinating and parasitic fig wasps. Syconia are attacked by gallers early in their development, serviced by pollinators in mid phase, and are attractive to parasitoids in response to the development of gallers at later stages. VOC bouquets of the different development phases of the syconium were distinctive, as were their day and night VOC profiles. VOCs such as alpha-muurolene were characteristic of the pollen-receptive diurnal phase, and may serve to attract the diurnally-active pollinating wasps. Diel patterns of release of volatiles could not be correlated with their predicted volatility as determined by Henry's law constants at ambient temperatures. Therefore, factors other than Henry's law constant such as stomatal conductance or VOC synthesis must explain diel variation in VOC emission. A novel use of weighted gene co-expression network analysis (WGCNA) on the volatilome resulted in seven distinct modules of co-emitted VOCs that could be interpreted on the basis of syconium ecology. Some modules were characterized by the response of fig syconia to early galling by parasitic wasps and consisted largely of green leaf volatiles (GLVs). Other modules, that could be characterized by a combination of syconia response to oviposition and tissue feeding by larvae of herbivorous galler pollinators as well as of parasitized wasps, consisted largely of putative herbivore-induced plant volatiles (HIPVs). We demonstrated the usefulness of WGCNA analysis of the volatilome in making sense of the scents produced by the syconia at different stages and diel phases of their development.

Intention and Causation in Medical Non-Killing: The impact of criminal law concepts on euthanasia and assisted suicide

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Legal myth-making: Medea and the legal representation of the feminine ‘other'

The Law operates by, and through, the creation of ideal benchmarks of conduct that are deemed to be representative of the behavioural norm. It is in this sense that it could be contended that the Law utilises, and relies on, myths in the same way as do other disciplines, notably psycho-analysis. It is possible to go even further and argue that the use of a created narrative mythology is essential to the establishment of a defined legal benchmark of behaviour by which the female defendant is assessed, judged and punished. While mythology expresses and symbolizes cultural and political behaviour, it is the Law that embodies and prescribes punitive sanctions. This element represents a powerful literary strand in classical mythology. This may be seen, for instance, in Antigone’s appeal to the Law as justification for her conduct, as much as in Medea’s challenge to the Law though her desire for vengeance. Despite its image of neutral, objective rationality, the Law, in creating and sustaining the ideals of legally-sanctioned conduct, engages in the same literary processes of imagination, reason and emotion that are central to the creation and re-creation of myth. The (re-)presentation of the Medea myth in literature (especially in theatre) and in art, finds its echo in the theatre of the courtroom where wronged women who have refused to passively accept their place, have instead responded with violence. Consequently, the Medea myth, in its depiction of the (un)feminine, serves as a template for the Law’s judgment of ‘conventional’ feminine conduct in the roles of wife and mother. Medea is an image of deviant femininity, as is Lady Macbeth and the countless other un-feminine literary and mythological women who challenge the power of the dominant culture and its ally, the Law. These women stand opposed to the other dominant theme of both literature and Law: the conformist woman, the passive dupe, who are victims of male oppression – women such as Ariadne of Naxos and Tess of the D’Ubervilles – and who are subsequently consumed by the Law, much as Semele is consumed by the fire of Jupiter’s gaze upon her. All of these women, the former as well as the latter, have their real-life counterparts in the pages of the Law Reports. As Fox puts it, “these women have come to bear the weight of the cultural stereotypes and preconceptions about women who kill.”

Becoming private property: custom, law, and the geographies of ‘ownership’ in 18th- and 19th-century England

The making private of hitherto public goods is a central tenet of neoliberalism. From land in Africa, Asia, and South America to the assertion of property rights over genes and cells by corporations, the process(es) of making private property matters more than ever. And yet, despite this importance, we know remarkably little about the spatial plays through which things become private property. In this paper I seek to address this imbalance by focusing upon the formative context of 18th- and early-19th-century England. The specific lens is wood, that most critical of all ‘natural’ things other than land in the transition to market-driven economies. It is shown that the interplay between custom, law, and local practices rendered stable and aspatial definitions of property impossible. Whilst law was the key technology through which property was mediated, the cadence of particular places gave these mediations distinctive forms. I conclude that not only must we take property seriously, but we must also take the conditions and contexts of its making seriously too.

Explicit argumentation as a supervisory tool for decision making in child protection cases involving human rights issues

This paper addresses the problems often faced by social workers and their supervisors in decision making where human rights considerations and child protection concerns collide. High profile court cases in the United Kingdom and Europe have consistently called for social workers to convey more clarity when justifying their reasons for interfering with human rights in child protection cases. The themes emerging from these case law decisions imply that social workers need to be better at giving reasons and evidence in more explicit ways to support any actions they propose which cause interference with Convention Rights. Toulmin (1958, 1985) offers a structured approach to argumentation which may have relevance to the supervision of child protection cases when social workers and managers are required to balance these human rights considerations. One of the key challenges in this balancing act is the need for decision makers to feel confident that any interventions resulting in the interference of human rights are both justified and proportionate. Toulmin’s work has already been shown to have relevance for assisting social workers navigate pathways through cases involving competing ethical and moral demands (Osmo and Landau, 2001) and more recently to human rights and decision making in child protection (Duffy et al, 2006). Toulmin’s model takes the practitioner through a series of stages where any argument or proposed recommendation (claim) is subjected to intense critical analysis involving exposition of its strengths and weaknesses. The author therefore proposes that explicit argumentation (Osmo and Landau, 2001) may help supervisors and practitioners towards safer and more confident decision making in child protection cases involving the interference of the human rights of children and parents. In addition to highlighting the broader context of human rights currently permeating child protection decision making, the paper will include case material to practically demonstrate the application of Toulmin’s model of argumentation to the supervision context. In this way the paper adopts a strong practice approach in helping to assist practitioners with the problems and dilemmas they may come up against in decision making in complex cases.