Advance Directives Refusing Treatment as an Expression of Autonomy: Do the Courts Practise What They Preach?

The principle of autonomy is at the heart of the right of a competent individual to make an advance directive that refuses life-sustaining medical treatment, and to have that directive complied with by medical professionals. That right is protected by both the common law and, to an extent, by legislation that has been enacted in the United Kingdom and many jurisdictions in Australia. The courts have a critical role in protecting that autonomy, both in those jurisdictions in which the common law continues to operate, and in those jurisdictions which are now governed by statute, and in which judicial determinations will need to be made about legislative provisions. The problem explored in this article is that while the judiciary espouses the importance of autonomy in its judgments, that rhetoric is frequently not reflected in the decisions that are reached. In the United Kingdom and Australia, there is a relatively small number of decisions that consider the validity and applicability of advance directives that refuse life-sustaining medical treatment. This article critically evaluates all of the publicly available decisions and concludes that there is cause for concern. In some cases, there has been an unprincipled evolution of common law principles, while in others there has been inappropriate adjudication through operational irregularities or failure to apply correct legal principles. Further, some decisions appear to be based on a strained interpretation of the facts of the case. The apparent reluctance of some members of the judiciary to give effect to advance directives that refuse treatment is also evidenced by the language used in the judgments. While the focus of this article is on common law decisions, reference will also be made to legislation and the extent to which it has addressed some of the problems identified in this article.

Dragline automation - a decade of development : shared autonomy for improving mining equipment productivity

Draglines are massive machines commonly used in surface mining to strip overburden, revealing the targeted minerals for extraction. Automating some or all of the phases of operation of these machines offers the potential for significant productivity and maintenance benefits. The mining industry has a history of slow uptake of automation systems due to the challenges contained in the harsh, complex, three-dimensional (3D), dynamically changing mine operating environment. Robotics as a discipline is finally starting to gain acceptance as a technology with the potential to assist mining operations. This article examines the evolution of robotic technologies applied to draglines in the form of machine embedded intelligent systems. Results from this work include a production trial in which 250,000 tons of material was moved autonomously, experiments demonstrating steps towards full autonomy, and teleexcavation experiments in which a dragline in Australia was tasked by an operator in the United States.

The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

The role of the rule of law in virtual communities

There is a severe tendency in cyberlaw theory to delegitimize state intervention in the governance of virtual communities. Much of the existing theory makes one of two fundamental flawed assumptions: that communities will always be best governed without the intervention of the state; or that the territorial state can best encourage the development of communities by creating enforceable property rights and allowing the market to resolve any disputes. These assumptions do not ascribe sufficient weight to the value-laden support that the territorial state always provides to private governance regimes, the inefficiencies that will tend to limit the development utopian communities, and the continued role of the territorial state in limiting autonomy in accordance with communal values. In order to overcome these deterministic assumptions, this article provides a framework based upon the values of the rule of law through which to conceptualise the legitimacy of the private exercise of power in virtual communities. The rule of law provides a constitutional discourse that assists in considering appropriate limits on the exercise of private power. I argue that the private contractual framework that is used to govern relations in virtual communities ought to be informed by the values of the rule of law in order to more appropriately address the governance tensions that permeate these spaces. These values suggest three main limits to the exercise of private power: that governance is limited by community rules and that the scope of autonomy is limited by the substantive values of the territorial state; that private contractual rules should be general, equal, and certain; and that, most importantly, internal norms be predicated upon the consent of participants.

Local autonomy, tax morale, and the shadow economy

Policymakers often propose strict enforcement strategies to fight the shadow economy and to increase tax morale. However, there is an alternative bottom-up approach that decentralises political power to those who are close to the problems. This paper analyses the relationship with local autonomy. We use data on tax morale at the individual level and macro data on the size of the shadow economy to analyse the relevance of local autonomy and compliance in Switzerland. The findings suggest that there is a positive (negative) relationship between local autonomy and tax morale (size of the shadow economy).

Law autonomy and advance directives

The principle of autonomy underpins legal regulation of advance directives that refuse life-sustaining medical treatment. The primacy of autonomy in this domain is recognised expressly in the case law, through judicial pronouncement, and implicitly in most Australian jurisdictions, through enactment into statute of the right to make an advance directive. This article seeks to justify autonomy as an appropriate principle for regulating advance directives and relies on three arguments: the necessity of autonomy in a liberal democracy; the primacy of autonomy in medical ethics discourse; and the uncontested importance of autonomy in the law on contemporaneous refusal of medical treatment. This article also responds to key criticisms that autonomy is not an appropriate organising principle to underpin legal regulation of advance directives.

Increasing underwater vehicle autonomy by reducing energy consumption

In this paper, we concern ourselves with finding a control strategy that minimizes energy consumption along a trajectory connecting two given configurations. We develop an algorithm, based on our previous work with the time optimal problem, which provides implementable control strategies that are energy efficient. We find an interesting correlation between the duration of these trajectories and the optimal duration. We present the algorithm, control strategy and experimental results from our test-bed vehicle.

Constitutional legitimacy : an international ill and gap in the literature?

The central argument of this work is that “democratic constitutional legitimacy”[2] probably does not currently exist in the politics of any country internationally. This inherent problem in constitutionalism is an endemic governance problem most citizenries should be dealing with, only that we are not in a large extent doing so and haven’t been historically. This position was ascertained using a form of Beck and Grande’s (2010) cosmopolitan methodology in my doctoral thesis (which we shall return to). It is argued that every constitution is in need of considerable rethinking so as to bring its statutes in line with the interests of the plurality of individuals it oversees. Finally, this work attempts to show that research in this area of democratic constitutional legitimacy is lacking in the literature as only a few scholars presently engage the issue (namely Simone Chambers).

Student autonomy enhancing science learning : Observations from a Primary Connections implementation

This case study involved a detailed analysis of the changes in beliefs and teaching practices of teachers who adopted the Primary Connections program as a professional development initiative. When implementing an inquiry-based learning model, teachers observed that their students learnt more when they intervened less. By scaffolding open-ended nquiries they achieved more diverse, complex and thorough learning outcomes than previously achieved with teacher-led discussions or demonstrations. Initially, student autonomy presented erceived threats to teachers, including possible selection of topics outside the teachers’ science knowledge. In practice, when such issues arose, resolving them became a stimulating part of the earning for both teachers and students. The teachers’ observation of enhanced student learning became a powerful motivator for change in their beliefs and practices. Implications for developers of PD programs are (1) the importance of modeling student-devised inquiries, and (2) recognising the role of successful classroom implementation in facilitating change.

Towards learner autonomy : an assessment for learning approach

Using Assessment for Learning (AfL) may develop learner autonomy however, very often AfL is reduced to a set of strategies that do not always achieve the desired outcome. This research adopted a different approach that examined AfL as a cultural practice, situated within influential social relationships that shape learner identity. The study addressed the question “What are the qualities of the teacher-student relationship that support student learning autonomy in an AfL context?” Three case studies of the interactions of Queensland middle school teachers and their classes of Year 7, 8 and 9 were developed over one year. Data were collected from field notes and video recordings of classroom interactions and individual and focus group interviews with teachers and students. The analysis began with a close look at the field data. Interpretations that emerged from a sociocultural theoretical understanding were helpful in informing the process of analysis. Themes and patterns of interrelationships were identified through thematic coding using a constant comparative approach. Validation was achieved through methodological triangulation. Four findings that inform an understanding of AfL and the development of learner autonomy emerged. Firstly, autonomy is theorised as a context-specific identity mediated through the teacher-student relationship. Secondly, it was observed that learners negotiated their identities as knowers through AfL practices in various tacit, explicit, group and individual ways in a ‘generative dance’ of knowing in action (Cook & Brown, 2005). Thirdly, teachers and learners negotiated their participation by drawing from identities in multiple communities of practice. Finally it is proposed that a new participative identity or narrative for assessment is needed. This study contributes to understandings about teacher AfL practices that can help build teacher assessment capacity. Importantly, autonomy is understood as an identity that is available to all learners. This study is also significant as it affirms the importance of teacher assessment to support learners in developing autonomy, a focus that challenges the singular assessment policy focus on measuring performance. Finally this study contributes to a sociocultural theoretical understanding of AfL.

Advance directives, autonomy and the refusal of life-sustaining medical treatment

As Australian society 1s agemg, individuals are increasingly concerned about managing their future, including making decisions about the medical treatment they may wish to receive or refuse if they lose decision-making capacity. To date, there has been relatively little research into the extent to which legal regulation allows competent adults to make advance refusals of life-sustaining medical treatment that will bind health professionals and others when a decision needs to be made at a future time. This thesis aims to fill this gap in the research by presenting the results of research into the legal regulation of advance directives that refuse life-sustaining medical treatment. In the five papers that comprise this thesis, the law that governs this area is examined, and the ethical principle of autonomy is used to critically evaluate that law. The principal finding of this research is that the current scheme of regulation is ineffective to adequately promote the right of a competent adult to make binding advance directives about refusal of medical treatment. The research concludes that legislation should be enacted to enable individuals to complete an advance directive, only imposing restrictions to the extent that this is necessary to promote individual autonomy. The thesis first examines the principle of autonomy upon which the common law (and some statutory law) is expressed to be based, to determine whether that principle is an appropriate one to underpin regulation. 1 The finding of the research is that autonomy can be justified as an organising principle on a number of grounds: it is consistent with the values of a liberal democracy; over recent decades, it is a principle that has been even more prominent within the discipline of medical ethics; and it is the principle which underpins the legal regulation of a related topic, namely the contemporaneous refusal of medical treatment. Next, the thesis reviews the common law to determine whether it effectively achieves the goal of promoting autonomy by allowing a competent adult to make an advance directive refusing treatment that will operate if he or she later loses decision-making capacity. 2 This research finds that conunon law doctrine, as espoused by the judiciary, prioritises individual choice by recognising valid advance directives that refuse treatment as binding. However, the research also concludes that the common law, as applied by the judiciary in some cases, may not be effective to promote individual autonomy, as there have been a number of circumstances where advance directives that refuse treatment have not been followed. The thesis then examines the statutory regimes in Australia that regulate advance directives, with a focus on the regulation of advance refusals of life-sustaining medical treatment.3 This review commences with an examination ofparliamentary debates to establish why legislation was thought to be necessary. It then provides a detailed review of all of the statutory regimes, the extent to which the legislation regulates the form of advance directives, and the circumstances in which they can be completed, will operate and can be ignored by medical professionals. The research finds that legislation was enacted mainly to clarify the common law and bring a level of certainty to the field. Legislative regimes were thought to provide medical professionals with the assurance that compliance with an advance directive that refuses life-sustaining medical treatment will not expose them to legal sanction. However, the research also finds that the legislation places so many restrictions on when an advance directive refusing treatment can be made, or will operate, that they have not been successful in promoting individual autonomy.

Affiliation, autonomy and assessment for learning

Assessment for Learning (AfL) is an international assessment area of interest, yet, during 20 years of AfL research, the desired outcome of increased learner autonomy remains elusive. This article analyses AfL practices in classrooms as students negotiated identities as autonomous learners within a classroom community of practice. A sociocultural theoretical framework in formed the analysis of three case studies conducted in Queensland middle school classrooms. Key findings include the importance of the teacher–student relationship, viewing AfL as patterns of participation that develop expertise, and learner autonomy as a negotiated learner identity within each classroom context.