Withholding and withdrawing life-sustaining treatment : criminal responsibility for established medical practice?

The law recognises the right of a competent adult to refuse medical treatment even if this will lead to death. Guardianship and other legislation also facilitates the making of decisions to withhold or withdraw life-sustaining treatment in certain circumstances. Despite this apparent endorsement that such decisions can be lawful, doubts have been raised in Queensland about whether decisions to withhold or withdraw life-sustaining treatment would contravene the criminal law, and particularly the duty imposed by the Criminal Code (Qld) to provide the “necessaries of life”. This article considers this tension in the law and examines various arguments that might allow for such decisions to be made lawfully. It ultimately concludes, however, that criminal responsibility may still arise and so reform is needed.

Theoretical critique of the work of art : co-producers in research

The ways in which the "traditional" tension between words and artwork can be perceived has huge implications for understanding the relationship between critical or theoretical interpretation, art and practice, and research. Within the practice-led PhD this can generate a strange sense of disjuncture for the artist-researcher particularly when engaged in writing the exegesis. This paper aims to explore this tension through an introductory investigation of the work of the philosopher Andrew Benjamin. For Benjamin criticism completes the work of art. Criticism is, with the artwork, at the centre of our experience and theoretical understanding of art – in this way the work of art and criticism are co-productive. The reality of this co-productivity can be seen in three related articles on the work of American painter Marcia Hafif. In each of these articles there are critical negotiations of just how the work of art operates as art and theoretically, within the field of art. This focus has important ramifications for the writing and reading of the exegesis within the practice-led research higher degree. By including art as a significant part of the research reporting process the artist-researcher is also staking a claim as to the critical value of their work. Rather than resisting the tension between word and artwork the practice-led artist-researcher need to embrace the co-productive nature of critical word and creative work to more completely articulate their practice and its significance as research. The ideal venue and opportunity for this is the exegesis.

Determination of burn criterion for promoted combustion testing

Promoted ignition testing [1–3] is used to determine the relative flammability of metal rods in oxygen-enriched atmospheres. In these tests, a promoter is used to ignite each metal rod to start the sample burning. Experiments were performed to better understand the promoted ignition test by obtaining insight into the effect a burning promoter has on the preheating of a test sample. Test samples of several metallic materials were prepared and coupled to fast-responding thermocouples along their length. Various ignition promoters were used to ignite the test samples. The thermocouple measurements and test video were synchronized to determine temperature increase with respect to time and length along each test sample. A recommended length of test sample that must be consumed to be considered a flammable material was determined based on the preheated zone measured from these tests. This length was determined to be 30 mm (1.18 in.). Validation of this length and its rationale are presented.

The increased flammability of metallic materials burning in reduced gravity

Data generated in a normal gravity environment is often used in design and risk assessment for reduced gravity applications. It has been clearly demonstrated that this is a conservative approach for non-metallic materials which have been repeatedly shown to be less flammable in a reduced gravity environment. However, recent work has demonstrated this is not true for metallic materials. This work, conducted in a newly completed drop tower observed a significant increase in both lowest burn pressure and burn rate in reduced gravity. Hence the normal gravity qualification of a metallic materials’ lowest burn pressure or burn rate for reduced-gravity or space-based systems is clearly not conservative. This paper presents a summary of this work and the results obtained for several metallic materials showing an increased flammability and burn rate for a range of oxygen pressures, and discusses the implications of this work on the fire-safety of space-based systems.

Rephrasing voice : art, practice-led research and the limits and sites of articulacy

While my PhD is practice-led research, it is my contention that such an inquiry cannot develop as long as it tries to emulate other models of research. I assert that practice-led research needs to account for an epistemological unknown or uncertainty central to the practice of art. By focusing on what I call the artist's 'voice,' I will show how this 'voice' is comprised of a dual motivation—'articulate' representation and 'inarticulate' affect—which do not even necessarily derive from the artist. Through an analysis of art-historical precedents, critical literature (the work of Jean-François Lyotard and Andrew Benjamin, the critical methods of philosophy, phenomenology and psychoanalysis) as well as of my own painting and digital arts practice, I aim to demonstrate how this unknown or uncertain aspect of artistic inquiry can be mapped. It is my contention that practice-led research needs to address and account for this dualistic 'voice' in order to more comprehensively articulate its unique contribution to research culture.

The vernacular terrain : Songzhang Art Museum, Beijing, China

The field was the curation of cross-cultural new media/ digital media practices within large-scale exhibition practices in China. The context was improved understandings of the intertwining of the natural and the artificial with respect to landscape and culture, and their consequent effect on our contemporary globalised society. The research highlighted new languages of media art with respect to landscape and their particular underpinning dialects. The methodology was principally practice-led. --------- The research brought together over 60 practitioners from both local and diasporic Asian, European and Australian cultures for the first time within a Chinese exhibition context. Through pursuing a strong response to both cultural displacement and re-identification the research forged and documented an enduring commonality within difference – an agenda further concentrated through sensitivities surrounding that year’s Beijing’s Olympics. In contrast to the severe threats posed to the local dialects of many of the world’s spoken and written languages the ‘Vernacular Terrain’ project evidenced that many local creative ‘dialects’ of the environment-media art continuum had indeed survived and flourished. --------- The project was co-funded by the Beijing Film Academy, QUT Precincts, IDAProjects and Platform China Art Institute. A broad range of peer-reviewed grants was won including from the Australia China Council and the Australian Embassy in China. Through invitations from external curators much of the work then traveled to other venues including the Block Gallery at QUT and the outdoor screens at Federation Square, Melbourne. The Vernacular Terrain catalogue featured a comprehensive history of the IDA project from 2000 to 2008 alongside several major essays. Due to the reputation IDA Projects had established, the team were invited to curate a major exhibition showcasing fifty new media artists: The Vernacular Terrain, at the prestigious Songzhang Art Museum, Beijing in Dec 07-Jan 2008. The exhibition was designed for an extensive, newly opened gallery owned by one of China's most important art historians Li Xian Ting. This exhibition was not only this gallery’s inaugural non-Chinese curated show but also the Gallery’s first new media exhibition. It included important works by artists such as Peter Greenway, Michael Roulier, Maleonn and Cui Xuiwen. --------- Each artist was chosen both for a focus upon their own local environmental concerns as well as their specific forms of practice - that included virtual world design, interactive design, video art, real time and manipulated multiplayer gaming platforms and web 2.0 practices. This exhibition examined the interconnectivities of cultural dialogue on both a micro and macro scale; incorporating the local and the global, through display methods and design approaches that stitched these diverse practices into a spatial map of meanings and conversations. By examining the contexts of each artist’s practice in relationship to the specificity of their own local place and prevailing global contexts the exhibition sought to uncover a global vernacular. Through pursuing this concentrated anthropological direction the research identified key themes and concerns of a contextual language that was clearly underpinned by distinctive local ‘dialects’ thereby contributing to a profound sense of cross-cultural association. Through augmentation of existing discourse the exhibition confirmed the enduring relevance and influence of both localized and globalised languages of the landscape-technology continuum.

The Federal circuit in Bilski : the machine-or-transformation test

In a much anticipated judgment, the Federal Circuit has sought to clarify the standards applicable in determining whether a claimed method constitutes patent-eligible subject matter. In Bilski, the Federal Circuit identified a test to determine whether a patentee has made claims that pre-empt the use of a fundamental principle or an abstract idea or whether those claims cover only a particular application of a fundamental principle or abstract idea. It held that the sole test for determining subject matter eligibility for a claimed process under § 101 is that: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. The court termed this the “machine-or-transformation test.” In so doing it overruled its earlier State Street decision to the extent that it deemed its “useful, tangible and concrete result” test as inadequate to determine whether an alleged invention recites patent-eligible subject matter.

Health law in Australia

Health Law in Australia is the first book to deal with health law on a comprehensive national basis. In a field of law that is becoming increasingly important and where the demand for expertise is rapidly expanding, Health Law in Australia takes a logical, structured approach to an examination of the law in all Australian jurisdictions. By covering all the major areas in this diverse field of law, 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 “Medical Negligence”, “Children and Consent”, and “Confidentiality, Privacy, and Access to Health Records”, 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 and medical research. The contributing authors include national leaders in the field who are specialists in these areas of health law and who can therefore reveal to readers the results of their research. Health Law in Australia has been written for those with a legal background and is essential reading for undergraduate law students, postgraduate law students, researchers and scholars in the disciplines of law, health and medicine, as well as 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 is 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 as the century develops. • 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.

Adults who lack capacity : substitute decision-making

• Mechanisms to facilitate consent to healthcare for adults who lack capacity are necessary to ensure that these adults can lawfully receive appropriate medical treatment when needed. • In Australia, the common law plays only a limited role in this context, through its recognition of advance directives and through the parens patriae jurisdiction of superior courts. • Substitute decision-making for adults who lack capacity is facilitated primarily by guardianship and other related legislation. This legislation, which has been enacted in all Australian States and Territories, permits a range of decision-makers to make different types of healthcare decisions. • Substitute decision-makers can be appointed by the adult or by a guardianship or other tribunal. Where there is no appointed decision-maker, legislation generally empowers those close to the adult to make the relevant decision. Most Australian jurisdictions have also provided for statutory advance directives. • For the most serious of decisions, such as non-therapeutic sterilisations, consent can only be provided by a Tribunal. Other decisions can generally be made by a range of substitute decision-makers. Some treatment, such as very minor treatment or that which is needed in an emergency, can be provided without consent. • Guardianship legislation generally establishes a set of principles and/or other criteria to guide healthcare decisions. Mechanisms to resolve disputes as to who is the appropriate decision-maker and how a decision should be made have also been established.

Withholding and withdrawing life-sustaining medical treatment

• At common law, a competent adult can refuse life-sustaining medical treatment, either contemporaneously or through an advance directive which will operate at a later time when the adult’s capacity is lost. • Legislation in most Australian jurisdictions also provides for a competent adult to complete an advance directive that refuses life-sustaining medical treatment. • At common law, a court exercising its parens patriae jurisdiction can consent to, or authorise, the withdrawal or withholding of life-sustaining medical treatment from an adult or child who lacks capacity if that is in the best interests of the person. A court may also declare that the withholding or withdrawal of treatment is lawful. • Guardianship legislation in most jurisdictions allows a substitute decision-maker, in an appropriate case, to refuse life-sustaining medical treatment for an adult who lacks capacity. • In terms of children, a parent may refuse life-sustaining medical treatment for his or her child if it is in the child’s best interests. • While a refusal of life-sustaining medical treatment by a competent child may be valid, this decision can be overturned by a court. • At common law and generally under guardianship statutes, demand for futile treatment need not be complied with by doctors.

The doctrine of double effect

• The doctrine of double effect is an exception to the general rule that taking active steps that end life is unlawful. • The essence of the doctrine at common law is intention. • Hastening a patient’s death through palliative care will be lawful provided the primary intention is to relieve pain, and not cause death, even if that death is foreseen. • Some States have enacted legislative excuses that deal with the provision of palliative care. • These statutory excuses tend to be stricter than the common law as they impose other requirements in addition to having an appropriate intent, such as adherence to some level of recognised medical practice.

Everyday life and the edges of existence : wrongs with no name or the wrong name?

Actions for wrongful life, as they have come unfortunately to be styled, encompass various types of claim. These include claims for alleged negligence after conception, those based on negligent advice or diagnosis prior to conception concerning possible effects of treatment given to the child's mother, contraception or sterilisation, or genetic disability. This distinguishes such claims from those for so called wrongful birth, which are claims by parents for the cost of raising either a healthy or a disabled child where the unplanned birth imposes costs on the parents as a result of clinical negligence. Two of the more controversial cases to have reached the High Court of Australia which are if interest to us here in the past decade are Cattanach v Melchior where the court, by a narrow majority (McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon dissenting) acknowledged recovery for wrongful birth. In the second joined appeals of Harriton v Stephens and Waller v James; Waller v Hoolahan the court overwhelmingly precluded a ‘wrongful life’ claim (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ; Kirby J dissenting). Both cases raised issues around the sanctity and value of life and the nature of harm and the assessment of damages, and this brief note affords us the opportunity to consider the way in which the ‘life as legal loss’ arguments were treated by the various judges in both cases.

The legal framework of the Australian health system

This chapter is about the role of law in the creation and operation of Australian health systems. Accordingly, this chapter discusses how law regulates the way in which health services in Australia are funded, organised, regulated, managed, operated and governed. (The question of how health professionals are regulated is discussed in Chapter 15.) Although the focus of much of health law is on legal mechanisms for the resolution of disputes or disagreements between the state, health providers, professionals, patients and families and friends, and through dispute resolutions processes setting standards for practice, these are only some of the “jobs” that health law performs. In health systems where the state undertakes a significant role in regulating, funding, managing and providing health services, health law also performs an important constitutive function. Health law declares the values upon which the health system is based, shapes social processes to achieve public ends and provides a structure for the complex interactions that occur within a modern health system. Health law regulates decision-makers in health systems by establishing who has the power to participate in decisions and in what circumstances, establishing processes through which decisions are made and creating mechanisms for decision-makers to be held publicly accountable. It is this broader constitutive function of health law that is a primary focus of much of this chapter — how and why governments use their legislative powers to structure and shape the health system.

The regulation of health professionals

This chapter is about the role of law in the management of the health workforce in Australia. Health professionals play an important role in the health system as the providers of treatment and care — without health professionals health systems would not function. The relationship between health professionals and patients has always been complex and is often subject to some form of regulation by the state. The first surviving written reference to such legal regulation dates from 1795-1750 BCE when the Babylonian Code of Hammurabi stated: “If a physician make a large incision with the operating knife, and kill him, or open a tumor with the operating knife, and cut out the eye, his hands shall be cut off.” Alexander the Great recommended the crucifixion of health professionals who killed their patients. Fortunately, the law in Australia prescribes lesser penalties for erring health professionals, but at the heart of modern regulation are similar concerns to those that underpinned the ancient Babylonian Code — to create conditions to ensure the safety of patients and the provision of quality services by health professionals.