Evolution and innovation in guardianship laws: Assisted decision-making

Guardianship laws in most Western societies provide decision-making mechanisms for adults with impaired capacity. Since the inception of these laws, the principle of autonomy and recognition of human rights for those coming within guardianship regimes has gained prominence. A new legal model has emerged, which seeks to incorporate ‘assisted decision-making’ models into guardianship laws. Such models legally recognise that an adult’s capacity may be maintained through assistance or support provided by another person, and provide formal recognition of the person in that ‘assisting’ role. This article situates this latest legal innovation within a historical context, examining the social and legal evolution of guardianship laws and determining whether modern assisted decision-making models remain consistent with guardianship reform thus far. It identifies and critically analyses the different assisted decision-making models which exist internationally. Finally, it discusses a number of conceptual, legal and practical concerns that remain unresolved. These issues require serious consideration before assisted decisionmaking models are adopted in guardianship regimes in Australia.

Assessing testamentary and decision-making competence/capacity in the Australian context

Australia lacks a satisfactory, national paradigm for assessing competence and capacity in the context of testamentary, enduring power of attorney and advance care directive documents. Competence/capacity assessments are currently conducted on an ad hoc basis by legal and/or medical professionals. The reliability of the assessment process is subject to the skill set and mutual understanding of the legal and/or medical professional conducting the assessment. There is a growth in the prevalence of diseases such as dementia. Such diseases impact upon cognition which increasingly necessitates collaboration between the legal and medical professions when assessing the effect of mentally disabling conditions upon competency/capacity. Miscommunication and lack of understanding between legal and medical professionals involved could impede the development of a satisfactory paradigm. A qualitative study seeking the views of legal and medical professionals who practise in this area has been conducted. This incorporated surveys and interviews of 10 legal and 20 medical practitioners. Some of the results are discussed here. Practitioners were asked whether there is a standard approach and whether national guidelines were desirable. There was general agreement that uniform guidelines for the assessment of competence/capacity would be desirable. The interviews also canvassed views as to the state of the relationship between the professions. The results of the empirical research support the hypothesis that relations between the professions could be improved. The development of a national paradigm would promote consistency and transparency of process, helping to improve the professional relationship and maximising the principles of autonomy, participation and dignity.

Restorative justice: Making amends, repairing relationships and healing

Since the late 1970s, there has been a significant expansion in techniques for using mediated interactions between offenders and those affected by their behaviour. This trend began with juvenile justice conferencing, family group conferencing and Indigenous sentencing circles. The umbrella term used to describe these techniques and processes is ‘restorative justice’ (‘RJ’ to its fans and practitioners).Two important catalysts for this expansion were an increased awareness of the marginalisation of victims in the criminal justice system, and concerns over climbing recidivism rates.

Making sense of purpose, direction and innovation : an embedded design led innovation case study in the Australian mining industry

The mining equipment technology services sector is driven by a reactive and user-centered design approach, with a technological focus on incremental new product development. As Australia moves out of its sustained mining boom, companies need to rethink their strategic position, to become agile to stay relevant in an enigmatic market. This paper reports on the first five months on an embedded case study within an Australian, family-owned mining manufacturer. The first author is currently engaged in a longitudinal design led innovation project, as a catalyst to guide the company’s journey to design integration. The results find that design led innovation could act as a channel for highlighting and exploring company disconnections with the marketplace and offer a customer-centric catalyst for internal change. Data collected for this study is from 12 analysed semistructured interviews, a focus group and a reflective journal, over a five-month period. This paper explores limitations to design integration, and highlights opportunities to explore and leverage entrepreneurial characteristics to stay agile, broaden innovation and future-proof through the next commodity cycle in the mining industry.

Ethics, Law and Health Care : a Guide for Nurses and Midwives

Understanding ethics and law in health care is an essential part of nurses’ and midwives’ professional standards. Ethics, Law and Health Care focuses on teaching applied ethics and law in a manner that illustrates the real world applications of these core components of the nursing and midwifery curriculum and practice. It equips readers with the ability to recognise and address legal and ethical issues that will arise in their professional practice. The book uses the four principles of biomedical ethics (autonomy, non-maleficence, beneficence and justice) together with the use of both the Nursing and Midwifery Codes of Ethics and Codes of Professional Conduct, issued by the Nursing and Midwifery Board of Australia, as a central means through which to analyse and approach ethical and legal issues. Ethics, Law and Health Care is scaffolded to assist readers in understanding legal and ethical principles, to integrate them in the context of a particular issue within professional practice, and provide them with a decision-making framework to take action in a professional context by utilising the Codes as well as state and federal law. Aided by pedagogical features such as case studies, review questions, further reading and a glossary of common terms, this book is an essential resource for students, academics and practitioners.

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.

Teaching and using analogy in law

Analogy plays a central role in legal reasoning, yet how to analogize is poorly taught and poorly practiced. We all recognize when legal analogies are being made: when a law professor suggests a difficult hypothetical in class and a student tentatively guesses at the answer based on the cases she read the night before, when an attorney advises a client to settle because a previous case goes against him, or when a judge adopts one precedent over another on the basis that it better fits the present case. However, when it comes to explaining why certain analogies are compelling, persuasive, or better than the alternative, lawyers usually draw a blank. The purpose of this article is to provide a simple model that can be used to teach and to learn how analogy actually works, and what makes one analogy superior to a competing analogy. The model is drawn from a number of theories of analogy making in cognitive science. Cognitive science is the “long-term enterprise to understand the mind scientifically.” The field studies the mechanisms that are involved in cognitive processes like thinking, memory, learning, and recall; and one of its main foci has been on how people construct analogies. The lessons from cognitive science theories of analogy can be applied to legal analogies to give students and lawyers a better understanding of this fundamental process in legal reasoning.

What aspects of demographic, personality, attitudes, and perceptions of law enforcement influence self-reported likelihood of drink driving?

The aim of the current study was to examine the associations between a number of individual factors (demographic factors (age and gender), personality factors, risk-taking propensity, attitudes towards drink driving, and perceived legitimacy of drink driving enforcement) and how they influence the self-reported likelihood of drink driving. The second aim of this study was to examine the potential of attitudes mediating the relationship between risk-taking and self-reported likelihood of drink driving. In total, 293 Queensland drivers volunteered to participate in an online survey that assessed their self-reported likelihood to drink drive in the next month, demographics, traffic-related demographics, personality factors, risk-taking propensity, attitudes towards drink driving, and perceived legitimacy of drink driving enforcement. An ordered logistic regression analysis was utilised to evaluate the first aim of the study; at the first step the demographic variables were entered; at step two the personality and risk-taking were entered; at the third step, the attitudes and perceptions of legitimacy variables were entered. Being a younger driver and having a high risk-taking propensity were related to self-reported likelihood of drink driving. However, when the attitudes variable was entered, these individual factors were no longer significant; with attitudes being the most important predictor of self-reported drink driving likelihood. A significant mediation model was found with the second aim of the study, such that attitudes mediated the relationship between risk-taking and self-reported likelihood of drink driving. Considerable effort and resources are utilised by traffic authorities to reducing drink driving on the Australian road network. Notwithstanding these efforts, some participants still had some positive attitudes towards drink driving and reported that they were likely to drink drive in the future. These findings suggest that more work is needed to address attitudes regarding the dangerousness of drink driving.

Freedom to choose? Embryo selection, reproductive decision-making and the role of the state

Involving the biopsy of an eight-cell embryo, PGD has been hailed as a means of making reproductive decisions without having to face the heart-wrenching decision to abort an affected foetus. However, controversy around the kinds of traits for which testing can be done, and who has access to the technology, has led to questions about the way in which the technology is developing. Women who are allowed to access in vitro fertilisation (IVF) services can currently also access PGD in limited circumstances.

Genetic technologies and the regulation of reproductive decision-making in Australia

This article provides a critical analysis of the current Australian regulatory landscape at the interface between genetics and reproductive decision- making. The authors argue that a comparative analysis with other countries and international law and a contextual examination of the way law regulates concepts such as disease and health, abnormality and normality is necessary before we can develop appropriate policy and legislative responses in this area. Specific genetic testing technologies are considered including prenatal genetic testing, preimplantation genetic diagnosis and inheritable genetic modification. An increasing number of members of the Australian community are using genetic testing technologies when they decide to have a baby. The authors argue that as concepts of disease and health vary among members of the community and the potential to test for traits other than illness increases, a new tension arises between an ethic of individual choice and a role for government in regulating reproductive decision-making.