Loss of chance in medical negligence claims now a lost cause?

The question whether the loss of chance of a better medical outcome in cases of medical negligence should be recognised as actionable damage is ‘a question which has divided courts and commentators throughout the common law world.’ In April 2010, the High Court handed down its anticipated decision in the case of Tabet (by her Tutor Sheiban) v Gett (2010) 240 CLR 537. The issue considered by the court was whether the appellant could claim in negligence for the loss of a chance of a better medical outcome. This issue had not been considered by the High Court previously, the most relevant cases being Rufo v Hosking (2004) 61 NSWLR 678 and Gavalas v Singh (2001) 3 VLR 404. Claiming for a loss of chance in a personal injury action raises questions as to recognised damage and causation, and the members of the High Court considered both of these.

Advance directives, autonomy and the refusal of life-sustaining medical treatment

As Australian society 1s agemg, individuals are increasingly concerned about managing their future, including making decisions about the medical treatment they may wish to receive or refuse if they lose decision-making capacity. To date, there has been relatively little research into the extent to which legal regulation allows competent adults to make advance refusals of life-sustaining medical treatment that will bind health professionals and others when a decision needs to be made at a future time. This thesis aims to fill this gap in the research by presenting the results of research into the legal regulation of advance directives that refuse life-sustaining medical treatment. In the five papers that comprise this thesis, the law that governs this area is examined, and the ethical principle of autonomy is used to critically evaluate that law. The principal finding of this research is that the current scheme of regulation is ineffective to adequately promote the right of a competent adult to make binding advance directives about refusal of medical treatment. The research concludes that legislation should be enacted to enable individuals to complete an advance directive, only imposing restrictions to the extent that this is necessary to promote individual autonomy. The thesis first examines the principle of autonomy upon which the common law (and some statutory law) is expressed to be based, to determine whether that principle is an appropriate one to underpin regulation. 1 The finding of the research is that autonomy can be justified as an organising principle on a number of grounds: it is consistent with the values of a liberal democracy; over recent decades, it is a principle that has been even more prominent within the discipline of medical ethics; and it is the principle which underpins the legal regulation of a related topic, namely the contemporaneous refusal of medical treatment. Next, the thesis reviews the common law to determine whether it effectively achieves the goal of promoting autonomy by allowing a competent adult to make an advance directive refusing treatment that will operate if he or she later loses decision-making capacity. 2 This research finds that conunon law doctrine, as espoused by the judiciary, prioritises individual choice by recognising valid advance directives that refuse treatment as binding. However, the research also concludes that the common law, as applied by the judiciary in some cases, may not be effective to promote individual autonomy, as there have been a number of circumstances where advance directives that refuse treatment have not been followed. The thesis then examines the statutory regimes in Australia that regulate advance directives, with a focus on the regulation of advance refusals of life-sustaining medical treatment.3 This review commences with an examination ofparliamentary debates to establish why legislation was thought to be necessary. It then provides a detailed review of all of the statutory regimes, the extent to which the legislation regulates the form of advance directives, and the circumstances in which they can be completed, will operate and can be ignored by medical professionals. The research finds that legislation was enacted mainly to clarify the common law and bring a level of certainty to the field. Legislative regimes were thought to provide medical professionals with the assurance that compliance with an advance directive that refuses life-sustaining medical treatment will not expose them to legal sanction. However, the research also finds that the legislation places so many restrictions on when an advance directive refusing treatment can be made, or will operate, that they have not been successful in promoting individual autonomy.

Refusal of medical treatment : a child's prerogative?

Society has a need for children to be able to make health care decisions. Homeless children need access to health care. Parents may not be accessible or competent to consent to their child’s health care. The familial relationship may have broken down. Children may not want their parents to know about drug, alcohol or pregnancy related issues. There is legal and academic support for the right of children to make autonomous decisions with respect to their health care. However what these decisions cover and who can make them is not clear. Whether or not a minor has capacity and is therefore competent to consent to medical treatment is a question of law. Some states of Australia have enacted legislation, while others rely on the common law to determine this issue. At common law a minor is capable of giving consent to medical treatment when he or she achieves a sufficient understanding and intelligence to be able to understand fully what is proposed. Known as ‘Gillick competence’ this is a well known principle of law. The question posed by this paper is whether the decision of a ‘Gillick competent’ child can and should be overridden by the court?

A prospective cohort study of geriatric syndromes among older medical patients admitted to acute care hospitals

OBJECTIVES: To identify the prevalence of geriatric syndromes in the premorbid for all syndromes except falls (preadmission), admission, and discharge assessment periods and the incidence of new and significant worsening of existing syndromes at admission and discharge. DESIGN: Prospective cohort study. SETTING: Three acute care hospitals in Brisbane, Australia. PARTICIPANTS: Five hundred seventy-seven general medical patients aged 70 and older admitted to the hospital. MEASUREMENTS: Prevalence of syndromes in the premorbid (or preadmission for falls), admission, and discharge periods; incidence of new syndromes at admission and discharge; and significant worsening of existing syndromes at admission and discharge. RESULTS: The most frequently reported premorbid syndromes were bladder incontinence (44%), impairment in any activity of daily living (ADL) (42%). A high proportion (42%) experienced at least one fall in the 90 days before admission. Two-thirds of the participants experienced between one and five syndromes (cognitive impairment, dependence in any ADL item, bladder and bowel incontinence, pressure ulcer) before, at admission, and at discharge. A majority experienced one or two syndromes during the premorbid (49.4%), admission (57.0%), or discharge (49.0%) assessment period.The syndromes with a higher incidence of significant worsening at discharge (out of the proportion with the syndrome present premorbidly) were ADL limitation (33%), cognitive impairment (9%), and bladder incontinence (8%). Of the syndromes examined at discharge, a higher proportion of patients experienced the following new syndromes at discharge (absent premorbidly): ADL limitation (22%); and bladder incontinence (13%). CONCLUSION: Geriatric syndromes were highly prevalent. Many patients did not return to their premorbid function and acquired new syndromes.

Writing the self : the emergence of a dialogic space

While much narrative inquiry is concerned with issues of self and identity, doing study on the processes (the how) of self-making offers ongoing challenges to methodology. This article explores the creation of a dialogic space that assisted young adolescents to write about themselves and their daily lives using email journals as an alternative to face-to-face interviews. With the researcher acting as a listener-responder, and in the absence of researcher-designed questions, a dynamic field was opened up for participant-led self-making to emerge over a six month period of self-reflective written expression. The article describes a shared email relationship based on a dialogic pattern of thinking, writing, listening and response intended to foster participants’ voices as ontological narratives of self. Findings show the use of email journals created a synergy for self-disclosure and a safe space for self-expression where the willingness of participants to be themselves was encouraged. The self-representations of a specific group of gifted young adolescents thus emerged as written versions of “who” they are —offering data that differs from interview approaches and contributing to discussion of the value of ontology narratives.

Abduction : the writing of a historical novel

This is a practice-led project consisting of a historical novel Abduction and related exegesis. The novel is a third person intimate narrative set in the mid-nineteenth century and is based on actual events and persons caught up in, or furthering, the mass dispossession of small farmers in Scotland known as the ‘Clearances’. The narrative focuses on the situation in the Outer Hebrides and northern Scotland. It is based on documented facts leading up to a controversial trial in 1850 that arose because a twenty year old woman of the period (the central protagonist, Jess Mackenzie) eloped with a young farmer to escape her parent’s pressure to marry a rival suitor, himself a powerful lawyer and ‘factor’ at the centre of many of the Clearances. The young woman’s independent ideas were ahead of her time, and the decisions she made under great pressure were crucial in some dramatic events that unfolded in Scotland and later in the colony of Victoria, to which she and her new husband emigrated soon after the trial. The exegesis is composed of two unequal parts. It briefly considers the development of the literary historical fiction genre in the nineteenth century with Walter Scott in particular, a genre found useful in representing women’s issues of the Victorian era by Victorian and contemporary authors. The exegesis also briefly considers the appropriateness of the fiction genre (as opposed to creative nonfiction) in creating the lived experience in a fact-based work. The major part of the exegesis is a detailed, reflective analysis of the problem-solving process involved in writing the novel, structured by reference to Kate Grenville’s Searching for the Secret River – a work of metawriting that explains her creative process in researching and writing historical fiction based on fact.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages through thresholds and caps which has limited the liability of health professionals in medical negligence actions.

After Sex? On Writing since Queer Theory, edited by Janet Halley and Andrew Parker [Review]

In its earliest and simplest form queer theory proposes that sexual identity is not essential, but socially constructed, and understandings of identity, gender and sexuality are constructed differently at different times and in different places. Queer theory aims to challenge normative understandings of sex, sexuality and gender, and also normative concepts of knowledge and being. Since its inception, queer theory has been taken up by a number of disciplines as an analytical framework. These include cultural geography, education studies, film studies and sociology. In the last decade queer theory has been used to consider citizenship, diasporas and post colonial experiences. A queer theoretical perspective has also been used to analyse emotions, the Death Drive, phenomenology, and disability. As queer theory enters its third decade Janet Halley and Andrew Parker ask what is after sex? ‘What has queer theory become now that it has a past?’

Positive emotional responses to hybridised writing about a socio-scientific issue

In order to understand better the role of affect in learning about socio-scientificissues (SSI), this study investigated Year 12 students’ emotional arousal as they participated in an online writing-to-learn science project about the socio-scientific issue of biosecurity. Students wrote a series of hybridised scientific narratives, or BioStories, that integrate scientific information about biosecurity with narrative storylines, and uploaded these to a dedicated website. Throughout their participation in the project, students recorded their emotional responses to the various activities (N=50). Four case students were also video recorded during selected science lessons as they researched, composed and uploaded their BioStories for peer review. Analysis of these data, as well as interview data obtained from the case students, revealed that pride, strength, determination, interest and alertness were among the positive emotions most strongly elicited by the project. These emotions reflected students’ interest in learning about a new socio-scientific issue, and their enhanced feelings of self-efficacy in successfully writing hybridised scientific narratives in science. The results of this study suggest that the elicitation of positive emotional responses as students engage in hybridised writing about SSI with strong links to environmental education, such as biosecurity, can be valuable in engaging students in education for sustainability.

Applications of medical image processing in the diagnosis and treatment of spinal deformity

In Chapter 10, Adam and Dougherty describe the application of medical image processing to the assessment and treatment of spinal deformity, with a focus on the surgical treatment of idiopathic scoliosis. The natural history of spinal deformity and current approaches to surgical and non-surgical treatment are briefly described, followed by an overview of current clinically used imaging modalities. The key metrics currently used to assess the severity and progression of spinal deformities from medical images are presented, followed by a discussion of the errors and uncertainties involved in manual measurements. This provides the context for an analysis of automated and semi-automated image processing approaches to measure spinal curve shape and severity in two and three dimensions.

Bayesian mixtures for modelling complex medical data : a case study in Parkinson’s disease

Mixture models are a flexible tool for unsupervised clustering that have found popularity in a vast array of research areas. In studies of medicine, the use of mixtures holds the potential to greatly enhance our understanding of patient responses through the identification of clinically meaningful clusters that, given the complexity of many data sources, may otherwise by intangible. Furthermore, when developed in the Bayesian framework, mixture models provide a natural means for capturing and propagating uncertainty in different aspects of a clustering solution, arguably resulting in richer analyses of the population under study. This thesis aims to investigate the use of Bayesian mixture models in analysing varied and detailed sources of patient information collected in the study of complex disease. The first aim of this thesis is to showcase the flexibility of mixture models in modelling markedly different types of data. In particular, we examine three common variants on the mixture model, namely, finite mixtures, Dirichlet Process mixtures and hidden Markov models. Beyond the development and application of these models to different sources of data, this thesis also focuses on modelling different aspects relating to uncertainty in clustering. Examples of clustering uncertainty considered are uncertainty in a patient’s true cluster membership and accounting for uncertainty in the true number of clusters present. Finally, this thesis aims to address and propose solutions to the task of comparing clustering solutions, whether this be comparing patients or observations assigned to different subgroups or comparing clustering solutions over multiple datasets. To address these aims, we consider a case study in Parkinson’s disease (PD), a complex and commonly diagnosed neurodegenerative disorder. In particular, two commonly collected sources of patient information are considered. The first source of data are on symptoms associated with PD, recorded using the Unified Parkinson’s Disease Rating Scale (UPDRS) and constitutes the first half of this thesis. The second half of this thesis is dedicated to the analysis of microelectrode recordings collected during Deep Brain Stimulation (DBS), a popular palliative treatment for advanced PD. Analysis of this second source of data centers on the problems of unsupervised detection and sorting of action potentials or "spikes" in recordings of multiple cell activity, providing valuable information on real time neural activity in the brain.

Towards semantic search and inference in electronic medical records : an approach using concept-based information retrieval

For more than a decade research in the field of context aware computing has aimed to find ways to exploit situational information that can be detected by mobile computing and sensor technologies. The goal is to provide people with new and improved applications, enhanced functionality and better use experience (Dey, 2001). Early applications focused on representing or computing on physical parameters, such as showing your location and the location of people or things around you. Such applications might show where the next bus is, which of your friends is in the vicinity and so on. With the advent of social networking software and microblogging sites such as Facebook and Twitter, recommender systems and so on context-aware computing is moving towards mining the social web in order to provide better representations and understanding of context, including social context. In this paper we begin by recapping different theoretical framings of context. We then discuss the problem of context- aware computing from a design perspective.

Re-thinking context and reflexive mediation in the teaching of writing

This paper calls for a renewed focus on the teaching of writing. It proposes a conceptual model, based on a social realist perspective, which takes account of the ways in which teachers reflexively mediate personal, professional and political considerations in enacting their writing pedagogies. This model extends understanding of the factors contextualising the teaching of writing. It also provides a useful guide for research into the teaching of writing and a prompt for reflexivity in professional development.