Medical negligence, causation and liability for non-disclosure of risk : a post-wallace framework and critique

Through an examination of Wallace v Kam, this article considers and evaluates the law of causation in the specific context of a medical practitioner’s duty to provide information to patients concerning material risks of treatment. To supply a contextual background for the analysis which follows, Part II summarises the basic principles of causation law, while Part III provides an overview of the case and the reasoning adopted in the decisions at first instance and on appeal. With particular emphasis upon the reasoning in the courts of appeal, Part IV then examines the implications of the case in the context of other jurisprudence in this field and, in so doing, provides a framework for a structured consideration of causation issues in future non-disclosure cases under the Australian civil liability legislation. As will become clear, Wallace was fundamentally decided on the basis of policy reasoning centred upon the purpose behind the legal duty violated. Although the plurality in Rogers v Whitaker rejected the utility of expressions such as ‘the patient’s right of self-determination’ in this context, some Australian jurisprudence may be thought to frame the practitioner’s duty to warn in terms of promoting a patient’s autonomy, or right to decide whether to submit to treatment proposed. Accordingly, the impact of Wallace upon the protection of this right, and the interrelation between it and the duty to warn’s purpose, is investigated. The analysis in Part IV also evaluates the courts’ reasoning in Wallace by questioning the extent to which Wallace’s approach to liability and causal connection in non-disclosure of risk cases: depends upon the nature and classification of the risk(s) in question; and can be reconciled with the way in which patients make decisions. Finally, Part V adopts a comparative approach by considering whether the same decision might be reached if Wallace was determined according to English law.

Book review - Richard Goldberg, Medicinal Product Liability and Regulation (Hart Publishing, Oxford, 2013) 214pp

In December 2013, settlement was reached between approximately 100 Australian and New Zealand Thalidomide victims and the company which had acted as the Australian distributor of the infamous drug, thus putting to rest the possibility of litigation. Around the same time, Thalidomide victims in the United Kingdom (UK) launched a similar bid for compensation against the manufacturer and distributor. It is clear that despite a lengthy amount of time having passed ever since the thalidomide disaster commenced in 1962, the controversy over compensation continues. Indeed, the author of Medicinal Product Liability and Regulation (published before the announcement of the British legal claim), Professor Goldberg, notes that claims for resulting birth defects continue to emerge right into the present day. His prescient insight into the contemporary relevance of compensation for pharmaceutical injuries thus makes Medicinal Product Liability and Regulation a very relevant addition to the small body of scholarship that is available on this rather specific and complex issue.

Criminal Justice Ethics : Cultivating the Moral Imagination

It is essential for those employed within the justice system to be able to competently and confidently work at the borders between ethics and the law. Criminal Justice Ethics offers a fresh new approach to considering ethical issues in a criminal justice context. Rather than simply offering a range of ethical dilemmas specific to various justice professionals, it provides extensive discussion of how individuals develop their 'moral imaginations' using ethical perspectives and practices, both as citizens of the world and as practitioners of justice. Starting from a consideration of the major ethical theories, this book sets the framework for an expansive discussion of ethics by moving from theory to consider the just society and the role of the justice professional within it. Each chapter provides detailed analysis of relevant ethical issues, and activities to engage students with the content, as well as review questions, which can be used for revision or examination. This book will help students to: • understand the various theoretical approaches to ethics, • apply these understandings to issues in society and the justice process, • assist in developing the ability to investigate, discuss, and analyse current ethical issues in criminal justice, • appreciate the diverse nature of ethical systems across cultures, • outline strategies for detecting and resolving ethical dilemmas. Rich with examples and ethical dilemmas from a broad range of contexts, this book's multicultural approach will appeal not only to criminal justice educators, but also to academics, students and practitioners approaching criminal justice from sociological, psychological or philosophical perspectives.

Criminal profiling

One of the more widely recognized and practiced subspecialities within forensic criminology is that of criminal profiling. It has a long history, as detailed in Turvey (2008a). It also boasts a small library of distinct literature, with different methods and subspecialities all its own. Criminal profiling is a practice that has seen increasing popular and media attention over the past several decades. It has been depicted in popular fiction such as films like Silence of the Lambs (1991) and television programs like Criminal Minds (2005– present). It has also been applied in a number of high profile cases, including the “Washington Snipers” (see Turvey and McGrath, 2005, for an extended discussion of profiling and the media in the D.C. Sniper case). As a result, students of criminology commonly express an interest in studying criminal profiling with a view to becoming profilers themselves.

Criminal profiling : behavioural consistency, the homology assumption and case linkage

Criminal profiling is an investigative tool used around the world to infer the personality and behavioural characteristics of an offender based on their crime. Case linkage, the process of determining discreet connections between crimes of the same offender, is a practice that falls under the general banner of criminal profiling and has been widely criticized. Two theories, behavioural consistency and the homology assumption, are examined and their impact on profiling in general and case linkage specifically is discussed...

Duty and control in intermediary copyright liability: An Australian perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This article argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Valuers, liability and insurance obligations revisited

- Overview of negligence from the valuer’s perspective - Consideration of defences - Impact of lender conduct - Insurance obligations and impact for the valuer

Relationships between biophysical and psychosocial outcomes following minor stroke

This descriptive correlational study examined relationships between mild stroke functional and psychosocial outcomes over the early post-discharge period among dyads of mild stroke patients (n=38) and their spousal caregivers (n=38). We measured patients' functional scores using the modified Rankin Scale; patients' and caregivers' quality of life (QoL) using Stroke Impact Scale and Short-Form 36 respectively, mood using the Beck Depression Inventory-II, and marital function scores using the Family Assessment Device. Spousal caregivers also completed the Bakas Caregiving Outcomes Scale as a measure of caregiver strain. The average age of stroke patients was 64 years and of spousal caregivers 58 years. All stroke patients were male; all spousal caregivers female. At three months post discharge, patient functional status scores had significantly improved from discharge (p=0.026) with a corresponding increase in QoL scores (p=0.012). Functional status was significantly correlated with patient perceptions of QoL at three months (r=.014, p=0.024) and spousal caregiver perceptions of physical domain QoL (r=.-.397, p=0.014). Spousal caregivers' mood at three months post discharge was strongly correlated with their perceptions of marital satisfaction (r=.578, p=0.000) and caregiver strain (r=-.620, p=0.000). In preparing patients for discharge following mild stroke, nurses must consider the psychological and social implications of the recovery process over time for both the patient with stroke and their spousal caregivers.

Experiences of male patients and wife-caregivers in the first year post-discharge following minor stroke: A descriptive qualitative study

Background Most patients with minor stroke are discharged directly home from acute care, under the assumption that little will be required in the way of adaptation and adjustment because informal caregivers will manage the stroke recovery process. We explored male patients with minor stroke and their wife-caregivers' perceptions of factors affecting quality of life and caregiver strain encountered during the first year post-discharge. Methods Data were obtained from responses to two open-ended questions, part of quality of life and caregiver strain scales administered to participants in a larger descriptive study. Conventional content analysis was used to assess narrative accounts of living with minor stroke provided by 26 male patients and their wife-caregivers over a period of 1-year post-discharge. Results Two major themes that emerged from these data were 'being vulnerable' and 'realization'. Subthemes that arose within the vulnerability theme included changes to patients' masculine image and wife-caregivers' assumption of a hyper-vigilance role. In terms of 'realization' patients and their wife-caregivers shared 'loss' as well as 'changing self and relationships'. Patients in this study focused primarily on their physical recovery and their perceptions of necessary changes. Wife-caregivers were actively involved in managing the day-to-day demands that stroke placed on individual, family and social roles. Conclusions We conclude that patients and wife-caregivers expend considerable time and energy reestablishing control of their lives following minor stroke in an attempt to incorporate changes to self and their relationship into the fabric of their lives.

Smell and taste dysfunction following minor stroke: A case report

Smell (olfactory) and taste (gustatory) are key senses in the regulation of nourishment and individual safety. Olfactory and gustatory dysfunctions have been infrequently reported together in patients following stroke (Landis et al., 2006; Leopold et al., 2006). This case report details two patients who experienced smell and taste dysfunction following minor stroke events. Symptoms reported included hyposmia (diminished sense of smell) and anosmia (complete loss of smell), and dysgeusia (distorted taste). Patients' sense of smell and taste were assessed in an ambulatory care stroke prevention clinic eight months following their strokes. Patient A presented with minor stroke due to a lesion in the anterior circulation, patient B with a lesion in the posterior circulation. Both patients reported intense olfactory and gustatory dysfunction immediately following their strokes. Examination revealed a general inability to detect subtle odours and the ability to identify only 'sweet' tastes for both patients. In addition, both patients reported heavily salting or sweetening their food to mask the distorted and unpleasant taste, which also impacted comorbid conditions such as hypertension and diabetes. Patients and their spouses reported a decrease in their appreciation of family-related activities due to the patients' olfactory and gustatory dysfunction. Patients reported weight loss, lack of energy and strength, likely due to poor nutrition. Olfactory and gustatory dysfunctions are potentially deleterious outcomes following minor stroke and should be assessed by health care professionals prior to patient discharge. Assistance may be required to promote the health and well-being of patients and their carers if smell and taste are impacted by the stroke event.

Receivers' future liability for costs

In Juniper Property Holdings No.15 Pty Ltd v Caltabiano [2015] QSC 95, Jackson J considered what he described as a 'novel point' as to whether the court had jurisdiction to make a determination of the liability of receivers and managers appointed to the plaintiff to pay any costs orders that may be made in favour of the defendant.

The trajectory of minor stroke recovery for men and their female spousal caregivers: Literature review

Title The trajectory of minor stroke recovery for men and their female spousal caregivers: literature review Aim This paper is a report of a narrative review to examine the current state of knowledge regarding the impact of minor stroke on male patients and their female spousal caregivers’ recovery trajectory and quality of life. Background Minor stroke survivors are often discharged early in the recovery process. The perception of the healthcare community that these patients and their female spousal caregivers will experience an uneventful recovery may lead to inadequate preparation for the postdischarge period. Methods A range of databases was searched to identify papers addressing ‘minor stroke’, ‘transitions’, ‘quality of life’, ‘chronic disease’, ‘caregivers’ and ‘spouse caregivers’, including AARP Ageline, AMED, CINAHL, Evidence Based Medicine Reviews, MEDLINE and PsychInfo. Papers published in English from 1990 to December 2006 were included. Thirty-four papers were in the final data set. Results Minor stroke survivors and their female spousal caregivers may experience major challenges in adaptations postdischarge. The trajectory of minor stroke recovery may necessitate a re-evaluation of life plans, rethinking of priorities and integration of resulting disabilities into current and emerging life situations for both stroke survivors and their female spousal caregivers. In many cases these adaptations are compounded by transitions associated with the normal ageing process. Conclusion While there is extensive literature on stroke recovery and the role of caregivers in general, there is little available describing the recovery of minor stroke survivors in relation to the normal ageing process. Further research is needed examining recovery from a transitional perspective, to support nurses and other health professionals discharge planning.

‘Not a criminal in the classic sense': @DrRimmer on the sentencing of Jono Moylan #leardblockade #standwithjono

On July 25, 2014, Justice David Davies sentenced Jonathan Moylan at the Supreme Court of New South Wales for a breach of section 1041E (1) of the Corporations Act 2001 (Cth). The ruling is a careful and deliberate decision, showing equipoise. Justice Davies has a reputation for being a thoughtful and philosophical adjudicator. The judge convicted and sentenced Moylan to imprisonment for 1 year and 8 months. The judge ordered that Moylan be “immediately released upon giving security by way of recognisance in the sum of $1000 to be of good behaviour for a period of 2 years commencing today”.

Sexual harassment in the medical profession: Legal and ethical responsibilities

Sexual harassment of women in medicine in the Australian medical profession is a serious problem which presents substantial legal, ethical and cultural questions for the medical profession. Women have enforceable legal rights to gender equality and freedom from sexual harassment in the workplace. Both individual offenders and their employers face significant legal consequences for sexual harassment. Individual medical practitioners and employers need to understand their legal and ethical responsibilities in this context. This article analyses four areas of legal liability in every State and Territory which apply to individual offenders and employers: criminal law, discrimination law, civil law, and contract law. It also analyses ethical duties owed by doctors towards their colleagues under professional regulatory schemes. The analysis shows that individual doctors and their employers have clear legal and ethical obligations to prevent sexual harassment. On legal and ethical grounds, medical employers, professional colleges and associations, and regulators need to improve gender equality and professional culture in medicine. A five-step model for cultural change is proposed.

Trick or treaty?: The Australian debate over the Anti-Counterfeiting Trade Agreement

The secretive 2011 Anti-Counterfeiting Trade Agreement – known in short by the catchy acronym ACTA – is a controversial trade pact designed to provide for stronger enforcement of intellectual property rights. The preamble to the treaty reads like pulp fiction – it raises moral panics about piracy, counterfeiting, organised crime, and border security. The agreement contains provisions on civil remedies and criminal offences; copyright law and trademark law; the regulation of the digital environment; and border measures. Memorably, Susan Sell called the international treaty a TRIPS Double-Plus Agreement, because its obligations far exceed those of the World Trade Organization's TRIPS Agreement 1994, and TRIPS-Plus Agreements, such as the Australia-United States Free Trade Agreement 2004. ACTA lacks the language of other international intellectual property agreements, which emphasise the need to balance the protection of intellectual property owners with the wider public interest in access to medicines, human development, and transfer of knowledge and technology. In Australia, there was much controversy both about the form and the substance of ACTA. While the Department of Foreign Affairs and Trade was a partisan supporter of the agreement, a wide range of stakeholders were openly critical. After holding hearings and taking note of the position of the European Parliament and the controversy in the United States, the Joint Standing Committee on Treaties in the Australian Parliament recommended the deferral of ratification of ACTA. This was striking as representatives of all the main parties agreed on the recommendation. The committee was concerned about the lack of transparency, due process, public participation, and substantive analysis of the treaty. There were also reservations about the ambiguity of the treaty text, and its potential implications for the digital economy, innovation and competition, plain packaging of tobacco products, and access to essential medicines. The treaty has provoked much soul-searching as to whether the Trick or Treaty reforms on the international treaty-making process in Australia have been compromised or undermined. Although ACTA stalled in the Australian Parliament, the debate over it is yet to conclude. There have been concerns in Australia and elsewhere that ACTA will be revived as a ‘zombie agreement’. Indeed, in March 2013, the Canadian government introduced a bill to ensure compliance with ACTA. Will it be also resurrected in Australia? Has it already been revived? There are three possibilities. First, the Australian government passed enhanced remedies with respect to piracy, counterfeiting and border measures in a separate piece of legislation – the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth). Second, the Department of Foreign Affairs and Trade remains supportive of ACTA. It is possible, after further analysis, that the next Australian Parliament – to be elected in September 2013 – will ratify the treaty. Third, Australia is involved in the Trans-Pacific Partnership negotiations. The government has argued that ACTA should be a template for the Intellectual Property Chapter in the Trans-Pacific Partnership. The United States Trade Representative would prefer a regime even stronger than ACTA. This chapter provides a portrait of the Australian debate over ACTA. It is the account of an interested participant in the policy proceedings. This chapter will first consider the deliberations and recommendations of the Joint Standing Committee on Treaties on ACTA. Second, there was a concern that ACTA had failed to provide appropriate safeguards with respect to civil liberties, human rights, consumer protection and privacy laws. Third, there was a concern about the lack of balance in the treaty’s copyright measures; the definition of piracy is overbroad; the suite of civil remedies, criminal offences and border measures is excessive; and there is a lack of suitable protection for copyright exceptions, limitations and remedies. Fourth, there was a worry that the provisions on trademark law, intermediary liability and counterfeiting could have an adverse impact upon consumer interests, competition policy and innovation in the digital economy. Fifth, there was significant debate about the impact of ACTA on pharmaceutical drugs, access to essential medicines and health-care. Sixth, there was concern over the lobbying by tobacco industries for ACTA – particularly given Australia’s leadership on tobacco control and the plain packaging of tobacco products. Seventh, there were concerns about the operation of border measures in ACTA. Eighth, the Joint Standing Committee on Treaties was concerned about the jurisdiction of the ACTA Committee, and the treaty’s protean nature. Finally, the chapter raises fundamental issues about the relationship between the executive and the Australian Parliament with respect to treaty-making. There is a need to reconsider the efficacy of the Trick or Treaty reforms passed by the Australian Parliament in the 1990s.