Competency and capacity : the legal and medical interface

Balancing the competing interests of autonomy and protection of individuals is an escalating challenge confronting an ageing Australian society. Legal and medical professionals are increasingly being asked to determine whether individuals are legally competent/capable to make their own testamentary and substitute decision-making, that is financial and/or personal/health care, decisions. No consistent and transparent competency/capacity assessment paradigm currently exists in Australia. Consequently, assessments are currently being undertaken on an ad hoc basis which is concerning as Australia’s population ages and issues of competency/capacity increase. The absence of nationally accepted competency/capacity assessment guidelines and supporting principles results in legal and medical professionals involved with competency/capacity assessment implementing individual processes tailored to their own abilities. Legal and medical approaches differ both between and within the professions. The terminology used also varies. The legal practitioner is concerned with whether the individual has the legal ability to make the decision. A medical practitioner assesses fluctuations in physical and mental abilities. The problem is that the terms competency and capacity are used interchangeably resulting in confusion about what is actually being assessed. The terminological and methodological differences subsequently create miscommunication and misunderstanding between the professions. Consequently, it is not necessarily a simple solution for a legal professional to seek the opinion of a medical practitioner when assessing testamentary and/or substitute decision-making competency/capacity. This research investigates the effects of the current inadequate testamentary and substitute decision-making assessment paradigm and whether there is a more satisfactory approach. This exploration is undertaken within a framework of therapeutic jurisprudence which promotes principles fundamentally important in this context. Empirical research has been undertaken to first, explore the effects of the current process with practising legal and medical professionals; and second, to determine whether miscommunication and misunderstanding actually exist between the professions such that it gives rise to a tense relationship which is not conducive to satisfactory competency/capacity assessments. The necessity of reviewing the adequacy of the existing competency/capacity assessment methodology in the testamentary and substitute decision-making domain will be demonstrated and recommendations for the development of a suitable process made.

Assessing testamentary capacity – who does it better? Lawyers or doctors?

The effects of mentally disabling conditions on legal capacity are escalating, particularly given the ageing Australian demographic. Wills, enduring powers of attorney, and advance health directives are coming to the fore as a means of ensuring that the wishes of people with regard to their property, finances and health care needs are respected should they become legally incapable of making their own decisions. Assessing when a person has lost legal capacity in this context is an ever-increasing concern facing society as a whole but, in particular, the legal and medical professionals conducting the assessments. Empirical and doctrinal research has been undertaken which canvassed legal and medical opinions about the relationship between members of these professions when assessing legal capacity. This research supports the hypothesis that tensions exist when assessing capacity, especially testamentary capacity. One source of tension is the effect of conflicting evidence about the loss of legal capacity given by legal and medical professionals in court, which raises questions such as: which evidence is, and should be, preferred; and who should be responsible? The exploration of these issues will be conducted with reference to the empirical data collected, and a review of the relevant Australian case law.

Female genital cutting : An overview of Australian legal principles, ethical controversies, and medical, legal and social challenges

Female genital cutting (also often called female genital mutilation, or female circumcision) is a cultural practice that originated thousands of years ago. Female genital cutting has various forms, some of which are more invasive than others, but all of which produce health, legal and social consequences for those involved. Due to patterns of immigration in Australia, especially since the 1990s, there are women in Australia who have experienced female genital cutting. There may be some families, or some parents, who still hold a cultural commitment to female genital cutting. As a result, female genital cutting presents complex legal, ethical, medical and social challenges in contemporary Australian society. Medical practitioners and other health and welfare workers may encounter women who have experienced genital cutting and who require treatment for its sequelae. Currently, legislative frameworks for female genital cutting vary across states and territories, including the penalties for conducting it, and for removing a child for the purpose of conducting it outside Australia. This presentation provides an overview of the history, nature and consequences of the various forms of female genital cutting, and of the major Australian legal principles, ethical controversies, and medical, legal and social challenges in this field.

Sexual harassment in the medical profession: Legal and ethical responsibilities

Sexual harassment of women in medicine in the Australian medical profession is a serious problem which presents substantial legal, ethical and cultural questions for the medical profession. Women have enforceable legal rights to gender equality and freedom from sexual harassment in the workplace. Both individual offenders and their employers face significant legal consequences for sexual harassment. Individual medical practitioners and employers need to understand their legal and ethical responsibilities in this context. This article analyses four areas of legal liability in every State and Territory which apply to individual offenders and employers: criminal law, discrimination law, civil law, and contract law. It also analyses ethical duties owed by doctors towards their colleagues under professional regulatory schemes. The analysis shows that individual doctors and their employers have clear legal and ethical obligations to prevent sexual harassment. On legal and ethical grounds, medical employers, professional colleges and associations, and regulators need to improve gender equality and professional culture in medicine. A five-step model for cultural change is proposed.

Bioethics and medical/legal considerations on cochlear implants in children

Cochlear implants are the best treatment for congenital profound deafness. Pediatric candidates to implantation are seen as vulnerable citizens, and the decision of implanting cochlear devices is ultimately in the hands of their parents/guardians. The Brazilian Penal Code dictates that deaf people may enjoy diminished criminal capacity. Many are the bioethical controversies around cochlear implants, as representatives from the deaf community have seen in them a means of decimating their culture and intrinsic values. Objective: This paper aims to discuss, in bioethical terms, the validity of implanting cochlear hearing aids in children by analyzing their vulnerability and the social/cultural implications of the procedure itself, aside from looking into the medical/legal aspects connected to their criminal capacity. Materials and Methods: The topic was searched on databases Medline and Lilacs; ethical analysis was done based on principialist bioethics. Results: Cochlear implants are the best therapeutic option for people with profound deafness and are morally justified. The level of criminal capacity attributed to deaf people requires careful analysis of the subject's degree of understanding and determination when carrying out the acts for which he/she has been charged. Conclusion: Cochlear implants are morally valid. Implantations must be analyzed on an each case basis. ENT physicians bear the ethical responsibility for indicating cochlear implants and must properly inform the child's parents/guardians and get their written consent before performing the procedure.

Candida spp. isolated from inpatients, the environment, and health practitioners in the Pediatric Unit at the Universitary Hospital of the Jundiai Medical College, State of Sao Paulo, Brazil

Introduction: This study aimed to isolate and identify Candida spp. from the environment, health practitioners, and patients with the presumptive diagnosis of candidiasis in the Pediatric Unit at the Universitary Hospital of the Jundiai Medical College, to verify the production of enzymes regarded as virulence factors, and to determine how susceptible the isolated samples from patients with candidiasis are to antifungal agents. Methods: Between March and November of 2008 a total of 283 samples were taken randomly from the environment and from the hands of health staff, and samples of all the suspected cases of Candida spp. hospital-acquired infection were collected and selected by the Infection Control Committee. The material was processed and the yeast genus Candida was isolated and identified by physiological, microscopic, and macroscopic attributes. Results: The incidence of Candida spp. in the environment and employees was 19.2%. The most frequent species were C. parapsilosis and C. tropicalis among the workers, C. guilliermondii and C. tropicalis in the air, C. lusitanae on the contact surfaces, and C. tropicalis and C. guilliermondii in the climate control equipment. The college hospital had 320 admissions, of which 13 (4%) presented Candida spp. infections; three of them died, two being victims of a C. tropicalis infection and the remaining one of C. albicans. All the Candida spp. in the isolates evidenced sensitivity to amphotericin B, nystatin, and fluconazole. Conclusions: The increase in the rate of hospital-acquired infections caused by Candida spp. indicates the need to take larger measures regarding recurrent control of the environment.

Candida spp. isolated from inpatients, the environment, and health practitioners in the pediatric unit at the Universitary Hospital of the Jundiaí Medical College, state of São Paulo, Brazil

INTRODUCTION: This study aimed to isolate and identify Candida spp. from the environment, health practitioners, and patients with the presumptive diagnosis of candidiasis in the Pediatric Unit at the Universitary Hospital of the Jundiaí Medical College, to verify the production of enzymes regarded as virulence factors, and to determine how susceptible the isolated samples from patients with candidiasis are to antifungal agents. METHODS: Between March and November of 2008 a total of 283 samples were taken randomly from the environment and from the hands of health staff, and samples of all the suspected cases of Candida spp. hospital-acquired infection were collected and selected by the Infection Control Committee. The material was processed and the yeast genus Candida was isolated and identified by physiological, microscopic, and macroscopic attributes. RESULTS: The incidence of Candida spp. in the environment and employees was 19.2%. The most frequent species were C. parapsilosis and C. tropicalis among the workers, C. guilliermondii and C. tropicalis in the air, C. lusitanae on the contact surfaces, and C. tropicalis and C. guilliermondii in the climate control equipment. The college hospital had 320 admissions, of which 13 (4%) presented Candida spp. infections; three of them died, two being victims of a C. tropicalis infection and the remaining one of C. albicans. All the Candida spp. in the isolates evidenced sensitivity to amphotericin B, nystatin, and fluconazole. CONCLUSIONS: The increase in the rate of hospital-acquired infections caused by Candida spp. indicates the need to take larger measures regarding recurrent control of the environment.

A practical treatise on medical jurisprudence : with so much of anatomy, physiology, pathology, and the practice of medicine and surgery, as are essential to be known by members of Parliament, lawyers, coroners, magistrates, officers in the army and navy, and private gentlemen ; and all the laws relating to medical practitioners /

No more published.

International medical annual and practitioner's index : a work of reference for medical practitioners.

American edition of: Medical annual and practitioner's index.

Regulation of trade in drugs: hearings, Ninety-first Congress, second session, on S. 1575, to regulate trade in drugs and devices by prohibiting the dispensing of drugs or devices by medical practitioners and their participation in profits from the dispensing of such products, except under certain circumstances, and for other purposes, June 16 and 17, 1970.

"Serial no. 91-81."

Double standards in special medical research : questioning the discrepancy between requirements for medical research involving incompetent adults and medical research involving children

Medical research represents a substantial departure from conventional medical care. Medical care is patient-orientated, with decisions based on the best interests and/or wishes of the person receiving the care. In contrast, medical research is future-directed. Primarily it aims to contribute new knowledge about illness or disease, or new knowledge about interventions, such as drugs, that impact upon some human condition. Current State and Territory laws and research ethics guidelines in Australia relating to the review of medical research appropriately acknowledge that the functions of medical care and medical research differ. Prior to a medical research project commencing, the study must be reviewed and approved by a Human Research Ethics Committee (HREC). For medical research involving incompetent adults, some jurisdictions require an additional, independent safeguard by way of tribunal or court approval of medical research protocols. This extra review process reflects the uncertainty of medical research involvement, and the difficulties surrogate decision-makers of incompetent adults face in making decisions about others, and deliberating about the risks and benefits of research involvement. Parents of children also face the same difficulties when making decisions about their child’s research involvement. However, unlike the position concerning incompetent adults, there are no similar safeguards under Australian law in relation to the approval of medical research involving children. This column questions why this discrepancy exists with a view to generating further dialogue on the topic.