La responsabilité civile des conseillers en génétique au Québec et les conséquences juridiques de la non-reconnaissance : vers un encadrement juridique?

Depuis maintenant quelques décennies, les conseillers en génétique jouent un rôle de plus en plus important dans le domaine de la génétique médicale. Leur apport ainsi que l’importance de leur rôle sont aujourd’hui incontestables. Leur statut juridique, cependant, demeure incertain et requiert une analyse approfondie. En effet, n’étant pas reconnue par le Code des professions du Québec, la pratique du conseil génétique se trouve conséquemment privée de la protection octroyée par ce Code aux autres professionnels, notamment celle ayant trait au titre et à l’exclusivité des actes. Devant ce statu quo et dans l’optique de la protection du public, l’étude de la responsabilité civile du conseiller en génétique s’avère nécessaire. Trois obligations principales ressortent de cette analyse, soit les obligations de compétence, de renseignement et de confidentialité. En ce qui a trait aux conséquences juridiques de la non-reconnaissance, elles ne sont pas négligeables. En vérité, l’inertie du législateur québécois floue la relation qu’a le conseiller en génétique avec les autres membres de son équipe multidisciplinaire, et ce, surtout en ce qui a trait à la délimitation des actes qu’il peut prodiguer. En effet, ce dernier risque d’empiéter sur certains aspects de la pratique médicale et infirmière, engendrant ainsi sa responsabilité pénale. Finalement, il s’est avéré important de chercher des pistes de solutions étrangères pouvant se transposer au Québec. Le cas de la France se trouve à être un exemple pertinent, puisque le législateur français a reconnu législativement le conseiller en génétique en tant que professionnel et a protégé tant le titre que l’exclusivité des actes de ce dernier.

Duties and discretions in banking law

Duties owed in banker customer relationships, with reference to Greenwood duty, duty to inform customers of new accounts and services, duty of confidentiality, drawing cheques on insufficient funds and restricting lender's discretion.

Court finds solicitor in breach of fiduciary duty owed to client but loss not caused by the breach

A solicitor owes fiduciary obligations to his or her client including the obligations of loyalty and disclosure. The Court of Appeal in Mantonella Pty Ltd v Thompson (2009) 255 ALR 367; [2009] QCA 80; BC200902311 recently considered when the fiduciary duty owed by a solicitor to a client is breached and the consequent liability of the solicitor...

The use of e-mail in the therapy process

The therapeutic letter has a long history, with roots in psychoanalytic work and continuing application in family therapy. The advent of e-mail has allowed another form for therapeutic written communication which, while incorporating the benefits of therapeutic letters, adds to these. It has also opened up some potential risks. This article incorporates a brief review of the literature covering therapeutic written communication and offers a case example where e-mail was used as an adjunct in face-to-face therapy with a client who experienced attachment difficulties. This therapy was informed by systemic and psychoanalytic traditions. The authors explore a variety of technical matters including the timing and Crafting of e-mail responses, the integration of written communication with face-to-face therapy, impact on the therapeutic relationship and management of crisis. Ethical issues such as confidentiality and duty of care are also considered.

Teacher induction in Australia : a sample of what’s really happening

Retention rates and stress levels of beginning teachers are of concern. Well-planned induction programs can assist beginning teachers to make the transition successfully into the profession, which may increase retention rates. This qualitative, year-long study aims to explore and describe the induction experiences of eight beginning teachers as they negotiated their first year of teaching. Data gathered through interviews and emails indicated that these teachers required further development on: catering for individual differences, assessing in terms of outcomes, relating to parents, relating to the wider community, and understanding school policies; however, relating to students and understanding legal responsibilities and duty of care were not issues. At the conclusion of their first year only one beginning teacher was assisted by a mentor (veteran teacher) on whole-school programming, and planning for improving teaching with opportunities to visit other classrooms. This was also the only beginning teacher who received a reduced workload in order to meet with the mentor to discuss pedagogical developments. The inadequate support provided to beginning teachers in this study highlights the need for principals and school staff to reassess induction processes, which includes providing time, funding, mentoring support and clear guidelines for a quality induction program.

Cyberbullying : the new face of workplace bullying?

While the subject of cyberbullying of children and adolescents has begun to be addressed, there has been less attention or research on cyberbullying in the workplace. Whilst male-dominated workplaces such as manufacturing settings have been found to have an increased risk of workplace bullying, the prevalence of cyberbullying in this sector is not known. This exploratory study investigated the prevalence and methods of face-to-face bullying and cyberbullying of males at work. One hundred and three surveys (a modified version of the NAQ-R1), were returned from randomly selected members of the Australian Manufacturing Worker’s Union (AMWU). The results showed that 34% of the respondents were bullied face-to-face, and 10.7% were cyberbullied. All victims of cyberbullying also experienced face-to-face bullying. The implications for organisations of their “duty of care” in regards to this new form of bullying are indicated.

Contrasting views and experiences of health professionals on the management of comorbid substance misuse and mental disorders

Objectives: To determine opinions and experiences of health professionals concerning the management of people with comorbid substance misuse and mental health disorders. Method: We conducted a survey of staff from mental health services and alcohol and drug services across Queensland. Survey items on problems and potential solutions had been generated by focus groups. Results: We analysed responses from 112 staff of alcohol and drug services and 380 mental health staff, representing a return of 79% and 42% respectively of the distributed surveys. One or more issues presented a substantial clinical management problem for 98% of respondents. Needs for increased facilities or services for dual disorder clients figured prominently. These included accommodation or respite care, work and rehabilitation programs, and support groups and resource materials for families. Needs for adolescent dual diagnosis services and after-hours alcohol and drug consultations were also reported. Each of these issues raised substantial problems for over 70% of staff. Another set of problems involved coordination of client care across mental health and alcohol and drug services, including disputes over duty of care. Difficulties with intersectoral liaison were more pronounced for alcohol and drug staff than for mental health. A majority of survey respondents identified 13 solutions as practical. These included routine screening for dual diagnosis at intake, and a range of proposals for closer intersectoral communication such as exchanging client information, developing shared treatment plans, conducting joint case conferences and offering consultation facilities. Conclusions: A wide range of problems for the management of comorbid disorders were identified. While solution of some problems will require resource allocation, many may be addressed by closer liaison between existing services.

Liability of principal contractor for independent subcontractor considered by the High Court

Case note of Leighton Contractors Pty Ltd v Fox (2009) 258 ALR 673 ----- In Leighton Contractors Pty Ltd v Fox (2009) 83 ALJR 1086 ; 258 ALR 673 the High Court considered the liability of a principal contractor for the negligence of independent subcontractors on a building site. In its decision, the court considered the nature and the scope of the duty owed by principals to independent contractors.

Foreseeability of pure economic loss and causation

In Bonny Glen Pty Ltd v Country Energy [2009] NSWCA 26 (24 February 2009) the New South Wales Court of Appeal held that the pure economic loss suffered by the appellant was recoverable. However, rather than arguments as to whether the appellant was vulnerable and a member of an ascertainable class, whether the respondent had knowledge of the risk to the appellant and was in a position of control and considerations as to indeterminate liability as in Perre v Apand Pty Ltd (1999) 198 CLR 180, the arguments raised related to the foreseeability of the loss and causation.

High Court changes position on standard of care of learner drivers

Since the High Court decision of Cook v Cook (1986) 162 CLR 376, a person who voluntarily undertakes to instruct a learner driver of a motor vehicle is owed a lower standard of care than that owed to other road users. The standard of care was still expressed to be objective; however, it took into account the inexperience of the learner driver. Therefore, a person instructing a learner driver was owed a duty of care the standard being that of a reasonable learner driver. This ‘special relationship’ was said to exist because of the passenger’s knowledge of the driver’s inexperience and lack of skill. On 28 August 2008 the High Court handed down its decision in Imbree v McNeilly [2008] HCA 40, overruling Cook v Cook.

High Court decision on duty owed by licensee to patron

In a previous column of Queensland Lawyer,1 the case of Scott v CAL No 14 Pty Ltd (No 2) (2009) 256 ALR 512 was discussed. Special leave to appeal against the decision of the Full Court of the Supreme Court of Tasmania was granted and on 10 November 2009 the High Court handed down its decision.

Reducing high levels of communication apprehension among primary school students

This study focused on a group of primary school teachers as they implemented a variety of intervention actions within their class programs aimed towards supporting the reduction of high levels of communication apprehension (CA) among students.Six teachers and nine students, located across three primary schools, four year levels,and six classes, participated in this study. For reasons of confidentiality the schools,principals, parents, teachers, teacher assistants, and students who were involved in this study were given fictitious names. The following research question was explored in this study: What intervention actions can primary school teachers implement within their class programs that support the reduction of high CA levels among students? Throughout this study the term CA referred to "an individual's level of fear or anxiety associated with either real or anticipated (oral) communication with another person or persons" (McCroskey, 1984, p. 13). The sources of CA were explained with reference to McCroskey's state-trait continuum. The distinctions between high and appropriate levels of CA were determined conceptually and empirically. The education system within which this study was conducted promoted the philosophy of inclusion and the practices of inclusive schooling. Teachers employed in this system were encouraged to create class programs inclusive of and successful for all students. Consequently the conceptual framework within which this study was conducted was based around the notion of inclusion. Action research and case study research were the methodologies used in the study. Case studies described teachers' action research as they responded to the challenge of executing intervention actions within their class programs directed towards supporting the reduction of high CA levels among students. Consequently the teachers and not the researcher were the central characters in each of the case studies. Three principal data collection instruments were used in this study: Personal Report of Communication Fear (PRCF) scale, semistructured interviews, and dialogue journals. The PRCF scale was the screening tool used to identify a pool of students eligible for the study. Data relevant to the students involved in the study were gathered during semistructured interviews and throughout the dialogue journaling process. Dialogue journaling provided the opportunity for regular contact between teachers and the researcher, a sequence to teacher and student intervention behaviours, and a permanent record of teacher and student growth and development. The majority of teachers involved in this study endeavoured to develop class programs inclusive of all students.These teachers acknowledged the importance of modifying aspects of their class programs in response to the diverse and often multiple needs of individual students with high levels of CA. Numerous conclusions were drawn regarding practical ways that the teachers in this study supported the reduction of high CA levels among students. What this study has shown is that teachers can incorporate intervention actions within their class programs aimed towards supporting students lower their high levels of CA. Whilst no teacher developed an identical approach to intervention, similarities and differences were evident among teachers regarding their selection, interpretation, and implementation of intervention actions. Actions that teachers enacted within their class programs emerged from numerous fields of research including CA, inclusion, social skills, behaviour teaching, co-operative learning, and quality schools. Each teacher's knowledge of and familiarity with these research fields influenced their preference for and commitment to particular intervention actions. Additional factors including each teacher's paradigm of inclusion and exclusion contributed towards their choice of intervention actions. Possible implications of these conclusions were noted with reference to teachers,school administrators, support personnel, system personnel, teacher educators, parents, and researchers.

Good nutrition for good surgery: clinical and quality of life outcomes

Undernutrition is common in patients admitted for surgery and is often unrecognised, untreated and worsens in hospital. The complex synergistic relationship between nutritional status and the physiological responses to surgery puts patients at high nutritional risk. There are clear prospective associations between inadequate nutritional status and the risk of poorer outcomes for surgical patients, including infection, complications and length of stay. However, practically and ethically evidence that nutritional interventions can significantly reduce these poor outcomes is difficult to obtain. Nevertheless health professionals have a duty of care to ensure our patients are properly fed, by whatever means, to meet their physiological requirements.

Vulnerability, insurance and policy: The learner driver's standard of care

In Cook v Cook the Australian High Court held that the standard of reasonable care owed by a learner driver to an instructor, conscious of the driver’s lack of experience, was lower than that owed to other passengers and road users. Recently, in Imbree v McNeilly, the High Court declined to follow this principle, concluding that the driver’s status or relationship with the claimant should no longer influence or alter the standard of care owed. The decision therefore provides an opportunity to re-examine the rationale and policy behind current jurisprudence governing the standard of care owed by learner drivers. In doing so, this article considers the principles relevant to determining the standard and Imbree’s implications for other areas of tort law and claimant v defendant relationships. It argues that Imbree was influenced by changing judicial perceptions concerning the vulnerability of driving instructors and the relevance of insurance to tortious liability.