Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

Parental responsibility and Australian legislative attempts to curb truancy

Statistical and anecdotal evidence suggests that truancy is a significant problem for Australian schools. This paper considers the efficacy of legislative attempts to curb truancy, focussing in particular on the Queensland experience. Both Queensland legislation and the Commonwealth Improving School Enrolment and Attendance Through Welfare reform Measure (SEAM) pilot program are explained and evaluated. The paper considers in particular the utility of parental responsibility strategies as a response to truancy - under the Education (General Provisions) Act 12006 (Queensland) parents of persistent truants may be prosecuted and fined; under the SEAM initiative parents may have their social security payments suspended. Despite the availability of these seemingly draconian penalties, there is a reluctance, in practice, to hold parents accountable. The paper attempts to explain this reluctance and asks whether parental responsibility legislation can deliver a solution to truancy.

Reasonable adjustment and the assessment of students with disabilities: Australian legal issues and trends

Student assessment is particularly important, and particularly controversial, because it is the means by which student achievement is determined. Reasonable adjustment to student assessment is of equal importance as the means of ensuring the mitigation, or even elimination, of disability related barriers to the demonstration of student achievement. The significance of reasonable adjustment is obvious in the later years of secondary school, and in the tertiary sector, because failure to adjust assessment may be asserted as the reason a student did not achieve as well as anticipated or as the reason a student was excluded from a course and, as a result, from future study and employment opportunities. Even in the early years of schooling, however, assessment and its management are a critical issue for staff and students, especially in an education system like Australia’s with an ever increasing emphasis on national benchmarks testing. This paper will explain the legislation which underpins the right to reasonable adjustment in education in Australian schools. It will give examples of the kinds of adjustment which may be made to promote equality of opportunity in the area of assessment. It will also consider some of the controversies which have confronted, or which, it may be speculated, are likely to confront Australian education institutions as they work towards compliance with reasonable adjustment laws.

Palliative care, double effect and the law in Australia

Care and decision-making at the end of life that promotes comfort and dignity is widely endorsed by public policy and the law. In ethical analysis of palliative care interventions that are argued potentially to hasten death, these may be deemed to be ethically permissible by the application of the doctrine of double effect, if the doctor’s intention is to relieve pain and not cause death. In part because of the significance of ethics in the development of law in the medical sphere, this doctrine is also likely to be recognized as part of Australia’s common law, although hitherto there have been no cases concerning palliative care brought before a court in Australia to test this. Three Australian States have, nonetheless, created legislative defences that are different from the common law with the intent of clarifying the law, promoting palliative care, and distinguishing it from euthanasia. However, these defences have the potential to provide less protection for doctors administering palliative care. In addition to requiring a doctor to have an appropriate intent, the defences insist on adherence to particular medical practice standards and perhaps require patient consent. Doctors providing end-of-life care in these States need to be aware of these legislative changes. Acting in accordance with the common law doctrine of double effect may not provide legal protection. Similar changes are likely to occur in other States and Territories as there is a trend towards enacting legislative defences that deal with the provision of palliative care.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages through thresholds and caps which has limited the liability of health professionals in medical negligence actions.

Safeguarding rural Australia : addressing masculinity and violence in rural settings : suicide and other violent self-harm in an Australian rural context : analysis of secondary data

This report is an update of an earlier one produced in September 2009 (see Carrington et al. 2009) which remains as an ePrint through the project’s home page. The report focuses on our examination of extant data which have been sourced with respect to self-harm and suicide among males living in regional and remote Australia and which were available in public data bases at production time. Moreover, specific areas of concern regarding elevated rates of suicide for rural males and data anomalies which emerged during our examination of these data are discussed.

Safeguarding rural Australia: addressing masculinity and violence in rural settings : intentional violent harm to others in an Australian rural context: analysis of secondary data analysis

This report is an update of an earlier one produced in January 2010 (see Carrington et al. 2010) which remains as an ePrint through the project’s home page. This report focuses on our examination of extant data which have been sourced with respect to intentional violence perpetrated or experienced by males living in regional and remote Australia . and which were available in public data bases at production. The nature of intentional violent acts can be physical, sexual or psychological or involve deprivation or neglect.

Safeguarding rural Australia: addressing masculinity and violence in rural settings : unintentional violent harm including injuries in an Australian rural context : analysis of secondary data analysis

This report is an update of an earlier one produced in January 2010 (see Carrington et al. 2010) which remains as an ePrint through the project’s home page. This report focuses on our examination of extant data which have been sourced with respect to unintentional serious and violent harm, including injuries, to males living in regional and remote Australia . and which were available in public data bases at production. Such harm typically might be caused by, for example, transport accidents, occupational exposures and hazards, burns and so on. Thus unintentional violent harm can cause physical trauma the consequences of which can lead to chronic conditions including psychological harm or substance abuse.

Safeguarding rural Australia : addressing masculinity and violence in rural settings : risky behaviour in a rural Australian context : analysis of secondary data analysis

This report is an update of an earlier one produced in January 2010 (see Carrington et al. 2010) which remains as an ePrint through the project’s home page. The report focus on our examination of extant data which have been sourced with respect to personally and socially risky behaviour associated with males living in regional and remote Australia and which were available in public data bases at production.

Safeguarding rural Australia : addressing masculinity and violence in rural settings : consequences of violent harm in a rural Australian context : analysis of secondary data analysis

This report is an update of an earlier one produced in January 2010 (see Carrington et al. 2010) which remains as an ePrint through the project’s home page. The report considers extant data which have been sourced with respect to some of the consequences of violent acts, incidents, harms and risky behaviour involving males living in regional and remote Australia and which were available in public data bases at production.

Charity law, advocacy and the aid/watch decision : compatibility of charitable purposes and political objects — the view from Australia

Introduction In 1952 the Nathan report stated that: Some of the most valuable activities of voluntary societies consist, however, in the fact that they may be able to stand aside from and criticize State action or inaction, in the interests of the inarticulate man in the street. Some 60 years later it remained the case that if a voluntary society wanted to gain or retain charitable status then, contrary to the Nathan report, the one thing it could not do was set itself up with the purpose of criticizing State action or inaction. This legal position was adopted by the authorities in Australia with the Australian Taxation Office (ATO) noting in Taxation Ruling TR2005/21: 102. An institution or fund is not charitable if its purpose is advocating a political party or cause, attempting to change the law or government policy, or propagating or promoting a particular point of view. So, why, if it is such a valuable activity, have governments steadfastly refused to allow charities to have as their purpose the freedom to advocate in this way and how has this situation been affected by the recent High Court of Australia decision in Aid/Watch v Commissioner of Taxation? This article proposes to address such questions. Beginning with some background history, it explains that, initially, the current constraints did not apply. Then it looks at the nature of these constraints: how does the law define what constitutes the type of political activity that a charity must not undertake? What is the rationale for prohibition? How has the judiciary contributed to the development of the law in this area in recent years? This will lead into a consideration of the Aid/Watch case and the implications arising from the recent final decision. The article concludes by reflecting on what has changed and why the view on this contentious matter now looks different from Australia.

Mapping intermedia news flows : topical discussions in the Australian and French political blogospheres

The growth of technologies and tools branded as =new media‘ or =Web 2.0‘ has sparked much discussion about the internet and its place in all facets of social life. Such debate includes the potential for blogs and citizen journalism projects to replace or alter journalism and mainstream media practices. However, while the journalism-blog dynamic has attracted the most attention, the actual work of political bloggers, the roles they play in the mediasphere and the resources they use, has been comparatively ignored. This project will look at political blogging in Australia and France - sites commenting on or promoting political events and ideas, and run by citizens, politicians, and journalists alike. In doing so, the structure of networks formed by bloggers and the nature of communication within political blogospheres will be examined. Previous studies of political blogging around the world have focussed on individual nations, finding that in some cases the networks are divided between different political ideologies. By comparing two countries with different political representation (two-party dominated system vs. a wider political spectrum), this study will determine the structure of these political blogospheres, and correlate these structures with the political environment in which they are situated. The thesis adapts concepts from communication and media theories, including framing, agenda setting, and opinion leaders, to examine the work of political bloggers and their place within the mediasphere. As well as developing a hybrid theoretical base for research into blogs and other online communication, the project outlines new methodologies for carrying out studies of online activity through the analysis of several topical networks within the wider activity collected for this project. The project draws on hyperlink and textual data collected from a sample of Australian and French blogs between January and August 2009. From this data, the thesis provides an overview of =everyday‘ political blogging, showing posting patterns over several months of activity, away from national elections and their associated campaigns. However, while other work in this field has looked solely at cumulative networks, treating collected data as a static network, this project will also look at specific cases to see how the blogospheres change with time and topics of discussion. Three case studies are used within the thesis to examine how blogs cover politics, featuring an international political event (the Obama inauguration), and local political topics (the opposition to the =Création et Internet‘, or HADOPI, law in France, the =Utegate‘ scandal in Australia). By using a mixture of qualitative and quantitative methods, the study analyses data collected from a population of sites from both countries, looking at their linking patterns, relationship with mainstream media, and topics of interest. This project will subsequently help to further develop methodologies in this field and provide new and detailed information on both online networks and internet-based political communication in Australia and France.

Governing depression in Australian legal education : power, psychology and advanced liberal government

Legal educators in Australia have increasingly become concerned with the mental health of law students. The apparent risk posed by legal education to a student’s mental health has led to the deployment of a variety of measures to address these problems. By exploring these measures as productive power relations attempting to shape law students, this paper outlines how this government of depression is achieved, and the potential costs of these power relations. It examines one central Australian text offering advice about how students and law student societies can address depression, and argues that doing so not only involves students adopting particular practices of self-government to shape their legal personae, but also relies on an extension of the power relations of legal education. In addition, this paper will link this advice — which privatises the issue of depression, responsibilises individuals and communities, privileges psychological expertise, and seeks to govern ‘at a distance’ — to broader forms of social administration that presently characterise many Western societies. Doing so allows legal educators to reflect on the effects of their attempts to govern depression, and to consider new ways of altering the power relations of legal education.