Competency and capacity : the legal and medical interface

Balancing the competing interests of autonomy and protection of individuals is an escalating challenge confronting an ageing Australian society. Legal and medical professionals are increasingly being asked to determine whether individuals are legally competent/capable to make their own testamentary and substitute decision-making, that is financial and/or personal/health care, decisions. No consistent and transparent competency/capacity assessment paradigm currently exists in Australia. Consequently, assessments are currently being undertaken on an ad hoc basis which is concerning as Australia’s population ages and issues of competency/capacity increase. The absence of nationally accepted competency/capacity assessment guidelines and supporting principles results in legal and medical professionals involved with competency/capacity assessment implementing individual processes tailored to their own abilities. Legal and medical approaches differ both between and within the professions. The terminology used also varies. The legal practitioner is concerned with whether the individual has the legal ability to make the decision. A medical practitioner assesses fluctuations in physical and mental abilities. The problem is that the terms competency and capacity are used interchangeably resulting in confusion about what is actually being assessed. The terminological and methodological differences subsequently create miscommunication and misunderstanding between the professions. Consequently, it is not necessarily a simple solution for a legal professional to seek the opinion of a medical practitioner when assessing testamentary and/or substitute decision-making competency/capacity. This research investigates the effects of the current inadequate testamentary and substitute decision-making assessment paradigm and whether there is a more satisfactory approach. This exploration is undertaken within a framework of therapeutic jurisprudence which promotes principles fundamentally important in this context. Empirical research has been undertaken to first, explore the effects of the current process with practising legal and medical professionals; and second, to determine whether miscommunication and misunderstanding actually exist between the professions such that it gives rise to a tense relationship which is not conducive to satisfactory competency/capacity assessments. The necessity of reviewing the adequacy of the existing competency/capacity assessment methodology in the testamentary and substitute decision-making domain will be demonstrated and recommendations for the development of a suitable process made.

Do drinking and riding mix? Effects of legal doses of alcohol on balance ability in experienced motorcyclists

The appropriateness of applying drink driving legislation to motorcycle riding has been questioned as there may be fundamental differences in the effects of alcohol on these two activities. For example, while the distribution of blood alcohol content (BAC) levels among fatally injured male drivers compared to riders is similar, a greater proportion of motorcycle fatalities involve levels in the lower (0 to .10% BAC) range. Several psychomotor and higher-order cognitive skills underpinning riding performance appear to be significantly influenced by low levels of alcohol. For example, at low levels (.02 to .046% BAC), riders show significant increases in reaction time to hazardous stimuli, inattention to the riding task, performance errors such as leaving the roadway and a reduced ability to complete a timed course. It has been suggested that alcohol may redirect riders’ focus from higher-order cognitive skills to more physical skills such as maintaining balance. As part of a research program to investigate the potential benefits of introducing a zero, or reduced, BAC for all riders in Queensland regardless of their licence status, the effects of low doses of alcohol on balance ability were investigated in a laboratory setting. The static balance of ten experienced riders was measured while they performed either no secondary task, a visual search task, or a cognitive (arithmetic) task following the administration of alcohol (0; 0.02, and 0.05% BAC). Subjective ratings of intoxication and balance impairment increased in a dose-dependent manner; however, objective measures of static balance were negatively affected only at the .05% BAC dose. Performance on a concurrent secondary visual search task, but not a purely cognitive (arithmetic) task, improved postural stability across all BAC levels. Finally, the .05% BAC dose was associated with impaired performance on the cognitive (arithmetic) task, but not the visual search task, when participants were balancing, but neither task was impaired by alcohol when participants were standing on the floor. Implications for road safety and future ‘drink riding’ policy considerations are discussed.

Enabling open access to and re-use of publicly funded research data in Malaysian public universities : a legal and policy analysis

Numerous statements and declarations have been made over recent decades in support of open access to research data. The growing recognition of the importance of open access to research data has been accompanied by calls on public research funding agencies and universities to facilitate better access to publicly funded research data so that it can be re-used and redistributed as public goods. International and inter-governmental bodies such as the ICSU/CODATA, the OECD and the European Union are strong supporters of open access to and re-use of publicly funded research data. This thesis focuses on the research data created by university researchers in Malaysian public universities whose research activities are funded by the Federal Government of Malaysia. Malaysia, like many countries, has not yet formulated a policy on open access to and re-use of publicly funded research data. Therefore, the aim of this thesis is to develop a policy to support the objective of enabling open access to and re-use of publicly funded research data in Malaysian public universities. Policy development is very important if the objective of enabling open access to and re-use of publicly funded research data is to be successfully achieved. In developing the policy, this thesis identifies a myriad of legal impediments arising from intellectual property rights, confidentiality, privacy and national security laws, novelty requirements in patent law and lack of a legal duty to ensure data quality. Legal impediments such as these have the effect of restricting, obstructing, hindering or slowing down the objective of enabling open access to and re-use of publicly funded research data. A key focus in the formulation of the policy was the need to resolve the various legal impediments that have been identified. This thesis analyses the existing policies and guidelines of Malaysian public universities to ascertain to what extent the legal impediments have been resolved. An international perspective is adopted by making a comparative analysis of the policies of public research funding agencies and universities in the United Kingdom, the United States and Australia to understand how they have dealt with the identified legal impediments. These countries have led the way in introducing policies which support open access to and re-use of publicly funded research data. As well as proposing a policy supporting open access to and re-use of publicly funded research data in Malaysian public universities, this thesis provides procedures for the implementation of the policy and guidelines for addressing the legal impediments to open access and re-use.

An analysis of Australia's legal regime for imposing liability on manufacturers of pharmaceutical drugs

Following a trial in June 2009 where the Federal Court heard submissions regarding whether Merck Sharpe and Dohme Australia should be held liable for an increased risk of cardiovascular conditions noted in patients who had taken the anti-inflammatory drug Vioxx, a judgment was handed down against MSDA in March 2010. MSDA appealed to the Full Federal Court, where they were successful. Special leave to appeal to the High Court of Australia was rejected in May 2012. This article will examine the themes raised in the trial judgment and the appropriateness of Australia’s statutory consumer protection regime through the lens of pharmaceutical drug injuries and side effects.

Review: "Health service frameworks for small rural and remote communities: issues and options" by J. Humphreys, S. Mathews-Cowey, F. Rolley 1996

This monograph is a welcome investigation of current issues in rural health service delivery in smaller communities. The underlying assumption is that existing health service frameworks for rural and remote communities with populations of less than 230 are simply- not appropriate for their needs. With this in mind, the authors identify the strengths and weaknesses of frameworks presently utilised, and offer viable alternatives. They have made information accessible to those who wish to improve the delivery of rural health care, and have provided a catalyst for further research and dialogue on rural health issues...

Towards growing Indigenous culturally competent legal professionals in Australia

The Review of Australian Higher Education (Bradley Review: 2008) identified the need for tertiary institutions to incorporate Indigenous knowledges into curriculum to improve educational outcomes for Indigenous Australians and to increase the cultural competency of all students. It recommended that higher education providers ensure that the institutional culture, the cultural competence of staff and the nature of the curriculum supports the participation of Indigenous students, and that Indigenous knowledge be embedded into curriculum so that all students have an understanding of Indigenous culture. While cultural competency has been recognised as an essential element of professional practice in health services internationally, and legal practice in the United States, very little work has been done to promote the cultural competency of legal professionals in the Australian context. This paper will discuss a pilot cultural competency professional development program for legal academics at Queensland University of Technology (Brisbane) developed with the assistance of a Faculty of Law Teaching and Learning Grant in 2011-2012, and tell one Murri’s journey to foster Indigenous cultural competency in an Australian law school.

Legal Reasoning in Environmental Law : a Study of Structure, Form and Language

This book analyses the structure, form and language of a selected number of international and national legal instruments and reviews how an illustrative range of international and national judicial institutions have responded to the issues before them and the processes of legal reasoning engaged by them in reaching their decisions. This involves a very detailed discussion of these primary sources of international and national environmental law with a view to determining their jurisprudential architecture and the processes of reasoning expected of those responsible for implementing these architectural arrangements. This book is concerned not with the effectiveness or the quality of an environmental legal system but only with its jurisprudential characteristics and their associated processes of legal reasoning.

Democracy and the Project of Liberal Inclusion

Democracy is a multi-dimensional concept, ranging from definitions based exclusively on institutional frameworks (for example, Held, 2005, Przeworski, Alvarez, Cheibub and Limongi, 2000) to complex and integrated measures that include political and civil rights, democratic practices, values and, finally, a diverse set of institutional arrangements in society, including welfare, education, industrial relations and the legal system (Inglehart and Welzel, 2005, Jaggers and Gurr, 1995, O'Donnell, Cullel and Iazetta, 2004). This reflects the range of and distinction between merely formal electoral democracy and genuinely 'effective liberal democracy' (Inglehart and Welzel, 2005: 149), where democracy is firmly embedded not only in its institutions but in the values of its citizenry. Evidence from cross-national research confirms that formal democratic institutions, different dimensions of effective democracy, and democratic values are indeed strongly linked (Inglehart and Welzel, 2005: 154, Jaggers and Gurr, 1995: 446). Democracy is more than just a set of institutions, rules and mechanisms: it is a set of core values engrained in the 'lived experience' of its citizens. Core values of democracies are individual autonomy and egalitarianism, tolerance of diversity, and freedom from oppression for both individuals and institutions. Democracies restrain their governments by the rule of law and grant its citizens equal access to and equal treatment by legal institutions. Among these institutions, criminal justice and the treatment of those who violated rules and regulations represent sensitive seismographs for the quality of effective democracies, and the ways how democracies realise their core values.

Building distributed leadership for effective supervision of creative practice higher research degrees : final report 2014

Building distributed leadership for effective supervision of creative practice higher research degrees is an Office for Learning and Teaching (OLT) funded project, conducted in partnership between Queensland University of Technology, The University of Melbourne, Auckland University of Technology, University of New South Wales and University of Western Sydney. The project was initiated to develop a cooperative approach to establishing an understanding of the contextual frameworks of the emergent field of creative practice higher degrees by research (HDRs); capturing early insights of administrators and supervisors; gathering exemplars of good practices; and establishing an in-common understanding of effective approaches to supervision. To this end, the project has produced: • A literature review, to provide a research foundation for creative practice higher research degree supervision (Chapter 3). • A contextual review of disciplinary frameworks for HDR programs, produced through surveys of postgraduate research administrators (Section 4.1), and an analysis of institutional materials and academic development programs for supervisors (Section 4.2). • A National Symposium, Effective Supervision of Creative Arts Research Degrees (ESCARD), at QUT in Brisbane in February 2013, with 62 delegates from 20 Australasian Universities, at which project findings were disseminated, and delegates presented case studies and position papers, and participated in discussions on key issues for supervisors (Appendix 1). • Resources, including a booklet for supervisors: 12 Principles for the Effective Supervision of Creative Practice Higher Research Degrees, which encapsulates attitudes, insights and good practices of experienced and new supervisors. It was produced through a content analysis of interviews with twenty-five supervisors in creative disciplines (visual and performing arts, music, new media, creative writing and design) (Printed booklet, PDF, Appendix 3). • A project website to disseminate project outcomes , which holds project findings, relevant references, and a repository of case studies and position papers by supervisors and program administrators. • A call for papers for a special issue ‘Supervising Practice: Perspectives on the Supervision of Creative Practice Research Higher Degrees’ of ACCESS Journal: Critical Perspectives on Communication, Cultural & Policy Studies (ERA ranked A quality) in 2014 (Appendix 2). • A community of supervisory practice initiated through project partnerships, a national symposium where supervisors from across Australasia met in dialogue for the first time, resource sharing, and joint publishing opportunities. • A set of recommendations for supervision capacity building and academic development, produced through the triangulation of literature and contextual reviews, analysis of institutional frameworks, interviews with supervisors and national dialogues. It is anticipated that the project’s outcomes will support experienced and new supervisors in this emergent field, and so benefit HDR students, and will enable creative disciplines to build supervision capacity, and so to accommodate growth in postgraduate enrolments. Funded as a pilot project, the project set out to establish a robust research base to provide a foundation for future work involving sharing good practices, resource building, and designing effective approaches to academic development for supervisors. Recommendations that were produced out of this project include the need to extend beyond generic, formal training for supervisors to academic development that harnesses and extends distributed leadership; focuses on local, disciplinary contexts; has a strong emphasis on case studies; provides diverse resources; and facilitates dialogue between supervisors. Recommendations also include developing frameworks for mentoring new supervisors and building a national network to facilitate cross-institutional discourse, disseminate good practices, and share insights into the management of risk factors, ethical issues, and preparing candidates for examination. As a pilot investigation, the outcomes of this project lay the ground for this future work.

12 principles for the effective supervision of creative practice higher research degrees, dispatches from the field

In late 2012 and early 2013 we interviewed 25 experienced and early career supervisors of creative practice higher research degrees. This journey spanned five universities and a broad range of disciplines including visual art, music, performing art, new media, creative writing, fashion, graphic design, interaction design and interior design. Some of the supervisors we interviewed were amongst the first to complete and supervise practice-led and practice-based PhDs; some have advocated for and defined this emergent field; and some belong to the next generation of supervisors who have confidently embarked on this exciting and challenging path. Their reflections have brought to light many insights gained over the past decade. Here we have drawn together common themes into a collection of principles and best practice examples. We present them as advice rather than rules, as one thing that the supervisors were unanimous about is the need to avoid proscriptive models and frameworks, and to foster creativity and innovation in what is still an emergent field of postgraduate supervision. It is with thanks to all of the supervisors who contributed to these conversations, and their generosity in sharing their practices, that we present their advice, exemplars and case studies.

A therapeutic approach to assessing legal capacity in Australia

Australia lacks a satisfactory, national paradigm for assessing legal capacity in the context of testamentary, enduring power of attorney and advance care directive documents. Capacity assessments are currently conducted on an ad hoc basis by legal and/or medical professionals. The reliability of the assessment process is subject to the skill set and mutual understanding of the legal and/or medical professional conducting the assessment. There is a growth in the prevalence of diseases such as dementia. Such diseases impact upon cognition which increasingly necessitates collaboration between the legal and medical professions when assessing the effect of mentally disabling conditions upon legal capacity. Miscommunication and lack of understanding between legal and medical professionals involved could impede the development of a satisfactory paradigm. This article will discuss legal capacity assessment in Australia and how to strengthen the relationship between legal and medical professionals involved in capacity assessments. The development of a national paradigm would promote consistency and transparency of process, helping to improve the professional relationship and maximising the principles of autonomy, participation and dignity.

Academic legal research and academic research capacity enhancement working topic : "purposes and objectives of law schools beyond educating students (research, capacity building,community service and outreach)"

One of the main objectives of law schools beyond educating students is to produce viable legal research. The comments in this paper are basically confined to the Australian context, and to examine this topic effectively, it is necessary to briefly review the current tertiary research agenda in Australia. This paper argues that there is a need for recognition and support for an expanded legal research framework along with additional research training for legal academics. There also needs to be more effective methods of measuring and recognising quality in legal research. This method needs to be one that can engender respect in an interdisciplinary context.

Examining fan attitudes toward sponsor brands using social identity frameworks

The majority of academic research has attempted to explain the effectiveness of sponsorship activities by focusing on individual outcomes (Cornwell, Weeks, & Roy, 2005). The current research builds upon the limited empirical studies that examine sponsorship outcomes using group behaviour theories (Cornwell & Coote, 2005; Gwinner & Swanson, 2003; Madrigal, 2000, 2001). Specifically, this study closely examines tenets of social identity theory (Brewer, 1991; Tajfel & Turner, 1979) within the context of sports sponsorship to test effects of team identification on attitudes toward associated sponsor brands. 1,840 unique surveys were collected from fans of the Queensland Maroons and New South Wales Blues rugby clubs over four timepoints during the 2012 State of Origin series. The results suggest that social identity effects were present regarding ingroup bias toward sponsor brands. Local sponsors were rated higher than non-local sponsors, suggesting that local brands may benefit more from sponsorship.

A tapestry of identity-based encryption : practical frameworks compared

This paper surveys the practical benefits and drawbacks of several identity-based encryption schemes based on bilinear pairings. After providing some background on identity-based cryptography, we classify the known constructions into a handful of general approaches. We then describe efficient and fully secure IBE and IBKEM instantiations of each approach, with reducibility to practice as the main design parameter. Finally, we catalogue the strengths and weaknesses of each construction according to a few theoretical and many applied comparison criteria.