The human embryo as property? Cryopreservation and the challenges for law

The development of the new reproductive technologies has presented significant challenges for policy makers and law reformers. This article focuses on the particular challenges posed by cryopreservation of embryos. These issues are analysed through discussion of relevant Australian statutory provisions and United States case law. The article concludes with a consideration of whether the property model provides an appropriate framework for reproductive material.

Review: "Controversies in Health Law" by In Freckelton and Kerry Peterson

During the past couple of decades health law has been transformed. Within that period we have been confronted with advances in medical science, particularly in genetics, reproductive technology and life-sustaining treatments. Health care has become more expensive, more consumer oriented and more litigious. In addition, the ethical implications of these developments, and the role for law, both as a regulator of health care and in its responses to emerging challenges, have occupied policy-makers, law reformers, health professionals, ethicists and the broader community in Australia and overseas. While many issues have emerged from these developments, there have been few easy solutions...

Guest editorial : the body and the law

This issue of the Journal of Law and Medicine seeks to explore the law's relationship with the human body within a broad context of social, cultural and technological considerations. It does this both in terms of the ways in which the law constitutes the body (for example, by labelling it as property or otherwise), and in terms of the legal rules which regulate rights to bodies and body parts.

Medical science and the law

Advances in medical science have presented both law and bioethics with some of the most fascinating questions of our time. As science continues to forge ahead into new frontiers, in fields such as reproductive technology, human genetics, cloning technologies, and stem cell research, questions have arisen over the role for law in regulating this new terrain. The speed with which medical science has advanced, and continues to advance, can make it difficult to formulate appropriate regulatory responses. The rapid pace of scientific change and the increasing complexity of the science can present hurdles and barriers to the engagement of the public with science and the legal and ethical issues raised by it.

LexisNexis Questions and Answers : Medical Law

LexisNexis Questions and Answers: Medical Law is designed to facilitate both continuous review and preparation for assignments and examinations. This book provides a clear and concise revision guide for each of the major topics covered in the typical health law course. It provides an understanding of medical law in each Australian jurisdiction and gives a clear and systematic approach to analysing and answering problem and essay questions. Each chapter commences with an identification of the key issues, including a summary of the relevant cases and legislation. Each question is followed by a suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner. The author also offers advice on common errors to avoid and practical hints and tips on how to achieve higher marks.

Cutting the Gordian knot of futility : a case for law reform on unilateral withholding and withdrawal of potentially life-sustaining treatment

In this paper, we propose law reform with respect to the unilateral withholding or withdrawal of potentially life-sustaining treatment in Australia and New Zealand. That is, where a doctor withholds or withdraws potentially life-sustaining treatment without consent from a patient or a patient’s substitute decision-maker (where the patient lacks capacity), or authorisation from a court or tribunal, or by operation of a statute or justifiable government or institutional policy. Our proposal is grounded in the core values that do (or should) underpin a regulatory framework on an issue such as this; these values are drawn from existing commitments made by Australia and New Zealand through legislation, the common law, and conventions and treaties. It is also grounded in a critical review of the law on unilateral withholding and withdrawal as well as the legal context within which this issue sits in Australasia. We argue that the current law is inconsistent with the core values and develop a proposal for a legal response to this issue that more closely aligns with the core values it is supposed to serve.

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.

Succession law keeping pace with changes in technology and community expectations – informal wills

Purpose - The purpose of this paper is to provide insights into recent developments in the way the law of succession allows people to use new technologies to document their testamentary intentions in an informal way. Design/methodology/approach – This article considers one area in which the law has arguably kept good pace with advances in society’s expectations and technological change – the law of succession. This article examines the legislative reforms in Queensland and other jurisdictions permitting the recognition of informal wills and the decided cases in the area. In particular, the article examines the decision in a Queensland Supreme Court case in which the court recognised the validity of a will made on an iPhone. Research limitations/implications – This is a doctrinal analysis, not an empirical study, and accordingly is limited to providing details specific to the legislation and the court cases selected.

Feminism and Global Justice

This book attempts to persuade a new generation of scholars, criminologists, activists, and policy makers sympathetic to the quest for global justice to open the envelope, to step out of their comfort zones and typical frames of analysis to gaze at a world full of injustice against the female sex, much of it systemic, linked to culture, custom and religion. In some instances the sources of these injustices intersect with those that produce global inequality, imperialism and racism. This book also investigates circumstances where the globalising forces cultivate male on male violence in the anomic spaces of supercapitalism – the border zones of Mexico and the United States, and the frontier mining communities in the Australian desert. However systemic gendered injustices, such as forced marriage of child female brides, sati the cremation of widows, genital cutting, honour crimes, rape and domestic violence against women, are forms of violence only experienced by the female sex. The book does not shirk away from female violence either. Carrington argues that if feminism wants to have a voice in the public, cultural, political and criminological debates about heightened, albeit often exaggerated, social concerns about growing female violence and engagement in terrorism, then new directions in theorising female violence are required. Feminist silences about the violent crimes, atrocities and acts of terrorism committed by the female sex leave anti-feminist explanations uncontested. This allows a discursive space for feminist backlash ideologues to flourish. This book contests those ideologies to offer counter explanations for the rise in female violence and female terrorism, in a global context where systemic gendered violence against women is alarming and entrenched. The world needs feminism to take hold across the globe, now more than ever.

Doctors' knowledge of the law on withholding and withdrawing life-sustaining medical treatment

Objectives To examine the level of knowledge of doctors about the law on withholding and withdrawing life-sustaining treatment from adults who lack decision-making capacity, and factors associated with a higher level of knowledge. Design, setting and participants Postal survey of all specialists in emergency medicine, geriatric medicine, intensive care, medical oncology, palliative medicine, renal medicine and respiratory medicine on the AMPCo Direct database in New South Wales, Victoria and Queensland. Survey initially posted to participants on 18 July 2012 and closed on 31 January 2013. Main outcome measures Medical specialists’ levels of knowledge about the law, based on their responses to two survey questions. Results Overall response rate was 32%. For the seven statements contained in the two questions about the law, the mean knowledge score was 3.26 out of 7. State and specialty were the strongest predictors of legal knowledge. Conclusions Among doctors who practise in the end-of-life field, there are some significant knowledge gaps about the law on withholding and withdrawing life-sustaining treatment from adults who lack decision-making capacity. Significant consequences for both patients and doctors can flow from a failure to comply with the law. Steps should be taken to improve doctors’ legal knowledge in this area and to harmonise the law across Australia.

Rendering to Caesar and God : St Paul, the natural law tradition and the authority of law

The question of the authority of law has occupied and vexed the literature and philosophy of law for centuries. Law is something that characteristically implies obedience, but the precise nature of law’s authority remains contentious. The return to the writings of the Apostle Paul in contemporary philosophy, theology and jurisprudence begs attention in relation to the authority of law, and so this article will consider his analysis and critique of law with a focus on his Epistle to the Romans. It argues that Paul’s conception of the authority of law is explained on the basis that the law is from God, it externally sanctions obedience by virtue of the civil authorities, and it convicts internally in conscience. This triad is justified by the law of love (‘‘love your neighbor as yourself’’), and will be explained in relation to the natural law tradition as well as converse ideas in positivism. Hence, considering the reasoning of Paul in relation to traditional jurisprudential themes and the law of love provides a useful alternative analysis and basis for further investigation regarding the authority of law and the need for its obedience.

Health and guardianship law : guardianship and administration application in the matter of MDC [2014] QCAT 338

The recent decision of the Queensland Civil and Administrative Tribunal (QCAT) in Guardianship and administration application in the matter of MDC [2014] QCAT 338, provides an important ruling on the limits of who can be appointed as an enduring power of attorney under the Powers of Attorney Act 1998 (Qld). In particular, the tribunal adopted a broad interpretation of the term "health provider" when considering the limits on who can be appointed as an enduring power of attorney under the legislation...

Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

Class participation as a learning and assessment strategy in law : facilitating students’ engagement, skills development and deep learning

Assessment has widely been described as being ‘at the centre of the student experience’. It would be difficult to conceive of the modern teaching university without it. Assessment is accepted as one of the most important tools that an educator can deploy to influence both what and how students learn. Evidence suggests that how students allocate time and effort to tasks and to developing an understanding of the syllabus is affected by the method of assessment utilised and the weighting it is given. This is particularly significant in law schools where law students may be more preoccupied with achieving high grades in all courses than their counterparts from other disciplines. However, well-designed assessment can be seen as more than this. It can be a vehicle for encouraging students to learn and engage more broadly than with the minimums required to complete the assessment activity. In that sense assessment need not merely ‘drive’ learning, but can instead act as a catalyst for further learning beyond what a student had anticipated. In this article we reconsider the potential roles and benefits in legal education of a form of interactive classroom learning we term assessable class participation (‘ACP’), both as part of a pedagogy grounded in assessment and learning theory, and as a platform for developing broader autonomous approaches to learning amongst students. We also consider some of the barriers students can face in ACP and the ways in which teacher approaches to ACP can positively affect the socio-emotional climates in classrooms and thus reduce those barriers. We argue that the way in which a teacher facilitates ACP is critical to the ability to develop positive emotional and learning outcomes for law students, and for teachers themselves.

‘Works well with others’ : examining the different types of small group learning approaches and their implications for law student learning outcomes

In the current regulatory climate, there is increasing expectation that law schools will be able to demonstrate students’ acquisition of learning outcomes regarding collaboration skills. We argue that this is best achieved through a stepped and structured whole-of-curriculum approach to small group learning. ‘Group work’ provides deep learning and opportunities to develop professional skills, but these benefits are not always realised for law students. An issue is that what is meant by ‘group work’ is not always clear, resulting in a learning regime that may not support the attainment of desired outcomes. This paper describes different types of ‘group work', each associated with distinct learning outcomes. It suggests that ‘group work’ as an umbrella term to describe these types is confusing, as it provides little indication to students and teachers of the type of learning that is valued and is expected to take place. ‘Small group learning’ is a preferable general descriptor. Identifying different types of small group learning allows law schools to develop and demonstrate a scaffolded, sequential and incremental approach to fostering law students’ collaboration skills. To support learning and the acquisition of higherorder skills, different types of small group learning are more appropriate at certain stages of the program. This structured approach is consistent with social cognitive theory, which suggests that with the guidance of a supportive teacher, students can develop skills and confidence in one type of activity which then enhances motivation to participate in another.