Health Care and the Law [Fifth Edition]

"Fully updated to reflect the rapid pace of change in the health law areas. Explains the legal process as it relates to the health care professional."--Libraries Australia. Table of Contents Part I. Introductory concepts -- 1. What is law -- 2. The legal structure -- 3. The legal process -- Part II. Patient relationships -- 4. Consent to health care by a competent adult -- 5. Consent to health care by a legally incompetent person -- 6. Negligence -- 7. Patient information and privacy -- 8. Patients' property -- 9. Contract -- Part III. Employment -- 10. Contracts to provide health care services -- 011. Accidents and injuries related to health care --12. Registration and practice --13. Drugs --14. Criminal law and health care --15. State involvement in birth and death: registration and coronial inquiries --16. State involvement in threats to health or welfare --17. Human tissue transplants and reproductive technology --18. Expanding recognition of human rights --19. Decision making, law and ethics: a discussion.

Contemporary comments: The limited benefit of prison in controlling crime

A number of recent developments in the United State (US), United Kingdom (UK) and Australia suggest that conditions may be ripe for a political shift in the reliance on escalating rates of imprisonment as a default criminal justice strategy for responding to crime. The default position is illustrated by the Yabsleyite response of former New South Wales (NSW) Premier Nathan Rees’s to questioning over the cost of prison building and NSW’s high recidivism rate: ‘[t]he advice to me is we have still got 500 cells empty, I don't mind if we fill them up, and if we fill them up and have to build another jail, we'll build another jail’ (Knox and Tadros 2008)...

'Too high in human terms' : the costs of high security imprisonment. Review of Imprisoning Resistance by Bree Carlton and Intractable by Bernie Matthews.

The article discusses the issues of resistance; that is resistance by prisoners to the various manifestations of power operating in high security prisons, as well as that of attempted shifts in the regime from physical to psychological control. Other topics highlighted include legitimacy and 'official discourse', mourning and the construction of 'ungrievable lives' and the importance of finding a way out of the cycle of violence, which high security regimes perpetuate.

The use of headings and marginal notes in interpreting Queensland legislation : appearances can be deceptive

This article considers the rules relating to the use of marginal notes and headings in interpreting Queensland legislation, both in its original form and in reprinted legislation. It also examines the application of the principles of construction as to the use of section headings in the interpretation of provisions of the Criminal Code 1899 (Qld). Finally, it suggests that amendments should be made to the Acts Interpretation Act 1954 (Qld) in order to clarify the position as to the status of marginal notes and headings in statutory interpretation.

Near knowledge : inductive learning systems in law

Induction is an interesting model of legal reasoning, since it provides a method of capturing initial states of legal principles and rules, and adjusting these principles and rules over time as the law changes. In this article I explain how Artificial Intelligence-based inductive learning algorithms work, and show how they have been used in law to model legal domains. I identify some problems with implementations undertaken in law to date, and create a taxonomy of appropriate cases to use in legal inductive inferencing systems. I suggest that inductive learning algorithms have potential in modeling law, but that the artificial intelligence implementations to date are problematic. I argue that induction should be further investigated, since it has the potential to be an extremely useful mechanism for understanding legal domains.

In conversation with the Honourable Ian Callinan AC

When, in 1977, the Australian electorate provided a double majority to effect a change of section 72 of the Commonwealth Constitution requiring judges of the High Court of Australia to retire at the age of 70 years old, I doubt we understood the continuing capacity of these esteemed members of the judiciary. For the opportunity to sit and talk with Ian Callinan AC who, in compliance with that amendment, retired from the High Court in September 2007, I needed to wait until he returned from The Hague where he was sitting as a Judge ad hoc on the International Court of Justice. Although a native of Casino, New South Wales, Mr Callinan is regarded as a Queenslander. Indeed, he grew up in Brisbane, finished high school at Brisbane Grammar and graduated in law at The University of Queensland. Appointed in 1978 as a Queen’s Counsel, Mr Callinan enjoyed this period of his legal career and we discussed an aspect of the Christopher Skase case, which reinforced my belief that Mr Callinan is an incredibly skilful advocate. On 14 September 1998, ABC Four Corners broadcasted the views of some prominent Australians on the appointment of Mr Callinan to the High Court. In assessing the type of person Mr Callinan is, Tony Morris QC said: “Ian Callinan isn't a coward”, while former Commonwealth Attorney-General, Michael Lavarch, said: “He was regarded as an absolutely outstanding criminal lawyer within the Queensland legal profession, I mean really a top-notch advocate”. I was not interested in raising any of the controversial issues that Mr Callinan has encountered as an advocate in high profile matters. I wanted to know how he felt about his time on the High Court, what his thoughts are on the operation of the High Court, the IP cases he decided, the real life issues that he feels impact on counsel who are appearing before the High Court and the people he regarded as role models. During our conversation, Mr Callinan laughed often and when he did his eyes lit up, revealing his passion for life. He is an incredibly genuine Australian who loved his time as a barrister, enjoyed his role on the High Court, enjoys his current job as mediator, loves writing novels, has a great desire for continual improvement in the quality of legal education and legal advocacy and sees a need for change in IP law. When I asked: “So, what might the future hold for you?”, he laughed and said: “Well, at my age I don’t have a long horizon time”. I said: “Just enjoy the journey?”, to which Mr Callinan responded: “Exactly”.

Electron transport across magnetic field in low-temperature plasmas : an alternative approach for obtaining evidence of Bohm mechanism

A comparative study involving both experimental and numerical investigations was made to resolve a long-standing problem of understanding electron conductivity mechanism across magnetic field in low-temperature plasmas. We have calculated the plasma parameters from experimentally obtained electric field distribution, and then made a 'back' comparison with the distributions of electron energy and plasma density obtained in the experiment. This approach significantly reduces an influence of the assumption about particular phenomenology of the electron conductivity in plasma. The results of the experiment and calculations made by this technique have showed that the classical conductivity is not capable of providing realistic total current and electron energy, whereas the phenomenological anomalous Bohm mobility has demonstrated a very good agreement with the experiment. These results provide an evidence in favor of the Bohm conductivity, thus making it possible to clarify this pressing long-living question about the main driving mechanism responsible for the electron transport in low-temperature plasmas.

Health Law in Australia [Second Edition]

Health Law in Australia is the country’s leading text in this area and was the first book to deal with health law on a comprehensive national basis. In this important field that continues to give rise to challenges for society Health Law in Australia takes a logical, structured approach to explain the breadth of this area of law across all Australian jurisdictions. By covering all the major areas in this diverse field, Health Law in Australia enhances the understanding of the discipline as a whole. Beginning with an exploration of the general principles of health law, including chapters on “Negligence”, “Children and Consent to Medical Treatment”, and “Medical Confidentiality and Patient Privacy”, the book goes on to consider beginning-of-life and end-of-life issues before concluding with chapters on emerging areas in health law, such as biotechnology, genetic technologies and medical research. The contributing authors are national leaders who are specialists in these areas of health law and who can share with readers the results of their research. Health Law in Australia has been written for both legal and health audiences and is essential reading for undergraduate and postgraduate students, researchers and scholars in the disciplines of law, health and medicine, as well as health and legal practitioners, government departments and bodies in the health area, and private health providers.

Health law : scope, sources and forces

• For the purposes of this chapter, “health law” encapsulates regulation of the medical and health professions, the administration of health services and the maintenance of public health to the extent that it is connected to the provision of health services. • There are diverging views as to whether health law can be regarded as a discrete “area of law”. • Health law draws on other areas of law such as tort law, criminal law and family law. It also draws upon other disciplines, most notably medical and health ethics. • Social and economic forces have influenced the development and direction of health law, and these forces may become even more influential in the future. • The increasingly globalised world has implications for Australia's health systems and raises questions and creates commitments in respect of the international community. • Technological developments, including in respect of treatment, diagnosis and information management, create ongoing challenges for health law. • Patient rights, human rights and consumerism are increasingly key drivers in the development of health law. • Health law is significant to contemporary Australian society because of the gravity of the topics that fall within its ambit, its social relevance to so many aspects of human existence and endeavour, the important role it plays in protecting the vulnerable, and the extent to which it engages with fundamental principles of justice.

Integrated chronic disease management in primary-secondary care : a systematic literature review of the evidence

Introduction: Diabetes has traditionally been managed as a single chronic disease state, but it exists with co-morbidities such as depression and metabolic syndrome. Treatment is multifaceted, requiring both primary and secondary care, however, the delivery of diabetes care is often fragmented. Integrated chronic disease management is a growing model of interest, and is underpinned by the chronic care model (CCM), devised as a guide for primary care management of patients with chronic conditions. The model identifies six key elements for effective care, and has shown promise in improving the management of diabetes. Aim: To find empirical evidence of integrated care interventions targeted at co-morbidities including diabetes, across primary/secondary care. Method: A systematic review of peer reviewed literature from PubMed, CINAHL, Embase, Cochrane Library and Joanna Briggs was performed. Studies were reviewed according to inclusion criteria- studies published in English, between 2004-2014, empirical studies, studies with evidence of primary/secondary implementation, and those dealing with chronic co-morbid disease states. Results: 51 studies met the inclusion criteria. Included studies were mostly from the US (38), with five from Australia, UK (2), Canada (2), Netherlands (1), Norway (1), Ireland (1), and one multi-country study. It was found that all interventions adopted at least one (average 3-4) of the chronic care model, with the majority implementing delivery system redesign activities within the primary care practice/s. We found evidence of interventions which significantly reduced emergency department and hospital admissions, improved processes of care, patient health outcomes such as HbA1c, improved patient satisfaction, and reduced costs. Conclusion/Implications for practice: Diabetes exists as a co-morbid disease, requiring both primary and secondary care. We found that integrated care interventions adopting elements of the chronic care model positively impacted on patient outcomes, service utilisation, as well as costs. This review has highlighted that it may not be necessary to adopt all CCM elements to improve clinical outcomes, patient satisfaction and costs.

Improving criteria and feedback in student assessment in law

Spurred on by both the 1987 Pearce Report1 and the general changes to higher education spawned by the “Dawkins revolution” from 1988, there has been much critical self-evaluation leading to profound improvements to the quality of teaching in Australian law schools.2 Despite the changes there are still areas of general law teaching practice which have lagged behind recent developments in our understanding of what constitutes high quality teaching. One such area is assessment criteria and feedback. The project Improving Feedback in Student Assessment in Law is an attempt to remedy this. It aims to produce a manual containing key principles for the design of assessment and the provision of feedback, with practical yet flexible ideas and illustrations which law teachers may adopt or modify. Most of the examples have been developed by teachers at the University of Melbourne Law School. The project was supported in 1996 by a Committee for the Advancement of University Teaching grant and the manual will be published late in 1997.3 This note summarises the core principles which are elaborated further in the manual.

Exploring the re-criminalising of OHS breaches in the context of industrial death

Since the 1980s the calls for further criminalisation of organisational conduct causing harm to workers, the public and the environment have intensified in Australia, Canada and England and Wales.' One focal point of this movement has been the criminal law's response to organisations (and their personnel) failing to comply with occupational health and safety ('OHS') standards, particularly when physical harm (death and serious injury) has resulted from those breaches. Some governments have responded with proposals to enable manslaughter prosecutions to be initiated 'more effectively' against organisations causing the deaths of workers or, in some cases, members of the public (Archibald et al, 2004; Haines and Hall, 2004; Hall et al, 2004; Tombs and Whyte, 2003). In Australia governments have also increased monetary penalties for regulatory OHS offences, a few have introduced other contemporary organisational sanctions, and some have initiated OHS prosecutions more vigorously and with larger fines.

Safety, courts and crime: occupational safety and health prosecutions in the Magistrates' courts

This paper reports on an empirically based study of occupational safety and health prosecutions in the Magistrates' courts in the State of Victoria, Australia. It examines the way in which the courts construct occupational safety and health issues during prosecutions against alleged offenders, and then theorises the role of the criminal law in health and safety regulation. The paper argues that courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping occupational safety and health issues during the prosecution process, both pre-trial and in court. An analysis of the pattern of investigation of health and safety offences shows that they are constructed by focusing on 'events', in most cases incidents resulting in injury or death. This 'event focus' ensures that the attention of the parties is drawn to the details of the incident and away from the broader context of the event. This broader context includes the way in which work is organised at the workplace and the quality of occupational safety and health management (the micro context), and the pressures within capitalist production systems for occupational safety and health to be subordinated to production imperatives (the macro context). In particular, during the court-based sentencing process, defence counsel is able to adopt a range of 'isolation' techniques that isolate the incident from its micro and macro contexts, thereby individualising and decontextualising the incident. The paper concludes that the legal system plays a key role in decontextualising and individualising health and safety issues, and that this process is part of the 'architecture' of the legal system, and a direct consequence of the 'form of law'.

Competition paper. Prostitution and public health in New South Wales

Using historical and contemporary resources, this paper provides a critical account of the contemporary governance of prostitution in New South Wales. A Foucauldian approach is used to analyse the ways in which prostitution has been problematized as a health issue and managed as a public health problem. The analysis differs from other critical studies of prostitution in that it examines specific techniques of power, the operations of which have not been confined to the workings of a repressive criminal justice system. It is shown that there currently co-exists two broad understandings of prostitution in New South Wales, Australia, which have informed current initiatives to manage prostitution. Prostitutes working in public spaces have been presented as sexual agents wilfully engaged in criminal conduct and the spread of contagion. They have been subject to intense official scrutiny and regulated through criminal sanctions. In contrast, prostitutes working in private spaces have been presented as victims of adverse circumstance, deserving of protection and compassion. They have been made subject to strategic interventions that have attempted to normalize prostitution and render the prostitute a hygienic subject.

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.