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Patients’ decisions to die: The emerging Australian jurisprudence
A series of decisions by McDougall J in Hunter and New England Area Health Service vA (2009) 74 NSWLR 88; Martin CJ in Brightwater Care Group (Inc) v Rossiter (2009) 40WAR 84; Higgins CJ in Australian Capital Territory v JT (2009) 232 FLR 322; andKourakis J in H Ltd v J (2010) 240 FLR 402 has built upon prior decisions in New SouthWales, Queensland and Victoria. The combination of authority hás provided a reasonablyhomogeneous set of principles on the basis of which future decision-making can takeplace by clinicians, institutions and courts. It is apparent that, wherever possible, effectwill be given to competent patients’ wishes in relation to cessation of treatment, nutritionand hydration. However, scrutiny will be applied to patients’ capacity in order to examinenot the rationality or correctness of their decisions per se but their capacity to make them.
It is probable that a rigorous approach will be taken both to whether patients’ mental illhealth deprives them of capacity and to whether they are provided with sufficientinformation to understand the consequences and processes of deprivation of nutrition,hydration and medication. .
Priority-setting processes for medicines: The United Kingdom, Australia and New
Zealand – Joanna Manning
The agencies involved in the assessment and prioritisation of medicines for public subsidypurposes in Australia, England and Wales, and New Zealand are compared in terms oftheir processes; ultimate decision-maker and political involvement in decisions; price-setting processes; decision criteria and inclusion of economic assessment of cost-effectiveness; provision for the rule of rescue and separate treatment of potentiallylife-saving medicines and cancer drugs; levels of access; extent of consumer participationin processes and decisions; and provision for appeal from decisions. All countries face thekey challenge of expanding access to important new treatments, while maintainingcost-effectiveness as a key criterion for public funding and safeguarding the affordabilityand sustainability of their programs into the future. New Zealand’s model may have led toa greater focus on cost-containment and overall affordability than those of the other twoagencies. Despite controversial decisions that have led on occasion to disappointment andchallenge, the Australian and New Zealand agencies have survived and appear to havemanaged to date to maintain public and political support. By contrast, the UnitedKingdom’s National Institute for Healthcare and Clinical Excellence is facing majorchanges to its role that could see it become more of an advisory organisation. .
Death from minor head trauma and alcohol – David Ranson
Sudden death in association with minor or otherwise insignificant head injury isincreasingly being recognised in the forensic medical literature. While the exactmechanism of the cardiorespiratory arrest that appears to occur in these cases is unclear, a number of mechanisms have been postulated. Animal studies have provided evidence thatalcohol can be associated with an increased period of apnoea following minor physicalbrain injury and cardiac changes have also been identified. The limited information in thecommunity about the risk of alcohol in association with minor head injury causing deathmay be relevant in homicide cases where this issue is raised. .
Embracing the new professionalism: Self-regulation, mandatory reporting and their
discontents – Malcolm Parker
In response to perceived failures in medical self-regulation in Australia, first in two States(for doctors) and now under the National Registration and Accreditation Scheme (for allhealth practitioners), mandatory reporting of peer status or practice that poses risks topatients has been introduced. Yet now, in response to the lobbying of State and federalhealth ministers by the medical profession, mainly in relation to the impairmentprovisions, this is to be reviewed. This column argues that claims concerning the negativeconsequences for practitioners of mandatory reporting are illogical and lack supportingevidence. There is, however, evidence that the medical profession does not consistently actin accordance with its professed positions in the area of physician impairment anddeparture from accepted clinical standards. The call for a review of mandatory reportingreflects an outdated model of regulation that does not align with increasing calls for a″new professionalism″. In its own interests, but primarily in the interests of patients, themedical profession should embrace new attitudes and practices that will at first appear tothreaten the privilege of self-regulation, but on proper scrutiny will be seen as necessary toretain it. .
Psychotherapy,
foreseeable
decompensation
vulnerable – Ian Freckelton
Utilising the findings and recommendations in a 2010 coronial inquest in New SouthWales into the death of Rebekah Lawrence, a person who had recently completed apersonal development course incorporating confronting techniques of regression, run bypersons without formal psychotherapeutic skills, this column scrutinises issues arising inrelation to unregistered therapies. The evidentiary bases upon which coronial findings ofsuicide can be made are also examined, along with the effects of the ancient presumptionagainst findings of suicide. In addition, the existence of regulatory controls, asrecommended by the New South Wales Deputy State Coroner, are discussed. The grimconclusion arrived at is that the potential exists for further deaths of vulnerable people inthe aftermath of the wielding of powerful psychological techniques by persons illequipped to do so and to identify and respond to the sequelae of their therapies. .
What makes a real man? Gender norms and Western Australia v AH [2010] WASCA
172 – Ruth Townsend, Danielle Klar and Thomas Faunce
In Western Australia v AH [2010] WASCA 172 the Western Australian Court of Appealdenied two female-to-male applicants for gender reassignment certificates the right to belegally recognised as men. In so doing, an opportunity was lost for Australia to be one ofthe first jurisdictions in the world to legally provide a reassignment of gender withoutrequiring permanent sterilising surgery. This column examines not only the legal issuesconsidered in the case but the broader ethical and human rights issues associated with denying female-to-male gender reassignment applicants who have not undergone apermanent sterilisation or genitalia alteration procedure, the right to be identified as males.
This is the first article in a series of three that examines the legal role of medicalprofessionals in decisions to withhold or withdraw life-sustaining treatment from adultswho lack capacity. This article considers the position in New South Wales. A review of thelaw in this State reveals that medical professionals play significant legal roles in thesedecisions. However, the law is problematic in a number of respects and this is likely toimpede medical professionals’ legal knowledge in this area. The article examines the levelof training medical professionals receive on issues such as advance directives andsubstitute decision-making, and the available empirical evidence as to the state of medicalprofessionals’ knowledge of the law at the end of life. It concludes that there are gaps inlegal knowledge and that law reform is needed in New South Wales. .
This is the second article in a series of three that examines the legal role of medicalprofessionals in decisions to withhold or withdraw life-sustaining treatment from adultswho lack capacity. This article considers the position in Queensland, including the parenspatriae jurisdiction of the Supreme Court. A review of the law in this State reveals thatmedical professionals play significant legal roles in these decisions. However, the law isproblematic in a number of respects and this is likely to impede medical professionals’legal knowledge in this area. The article examines the level of training medicalprofessionals receive on issues such as advance health directives and substitutedecision-making, and the available empirical evidence as to the state of medicalprofessionals’ knowledge of the law at the end of life. It concludes that there are gaps inlegal knowledge and that law reform is needed in Queensland. .
Medical administration is a recognised medical specialty in Australia. Historically, medicaladministrators have rarely been subjected to litigation or disciplinary hearings relatingspecifically to their administrative functions. However, the legal landscape for medicaladministrators in Australia appears to be shifting. In 2009, the Queensland HealthPractitioners Tribunal heard two separate cases involving the professional conduct ofmedical administrators who were implicated in the scandal surrounding Dr Jayant Patel atBundaberg Hospital. In September 2010, judgment in one of those cases was delivered.
This article reviews the tribunal’s decision through the lens of relevant United Kingdomauthorities and recent legislative changes in Australia regulating the health professions. . 545 This article addresses the development of the World Health Organisation’s (WHO)arrangements for accessing viruses and the development of vaccines to respond topotential pandemics (and other lesser outbreaks). It examines the ongoing “conflict” between the United Nations’ Convention on Biological Diversity (CBD) and the WorldTrade Organisation’s Agreement on Trade Related Aspects of Intellectual Property Rights(TRIPS) in the context of the debates about the paramountcy of intellectual property, andthe potential for other (equity and development) imperatives to over-ride respect forintellectual property and TRIPS. The article concludes that the same intellectual propertyfault lines are evident in the WHO forum as those apparent at the CBD and the WTO fora,and an ongoing failure to properly address questions of equity and development. Thisposes a challenge for the Australian Government in guaranteeing a satisfactory pandemicinfluenza preparation and response. .
In February 2010, the Delhi High Court delivered its decision in Bayer Corp v Union ofIndia in which Bayer had appealed against an August 2009 decision of the same court.
Both decisions prevented Bayer from introducing the concept of patent linkage intoIndia’s drug regulatory regime. Bayer appealed to the Indian Supreme Court, the highestcourt in India, which agreed on 2 March 2010 to hear the appeal. Given that India isregarded as a global pharmaceutical manufacturer of generic medications, how itsjudiciary and government perceive their international obligations has a significant impacton the global access to medicines regime. In rejecting the application of patent linkage, thecase provides an opportunity for India to further acknowledge its international humanrights obligations. . 577 The mentally ill are overrepresented in the statistics of individuals killed or injured bypolice and it is understandable that police would seek a weapon, such as a TASER, that isless lethal than a firearm. However, it appears that use of TASERs is not without risk,especially in certain groups, including the mentally ill. The risk of injury to vulnerablepeople with a mental illness from TASER weapons must be weighed against the risk thatescalation to lethal force may cause if a person with an acute mental illness requiresrestraint. When police officers are carrying out their duties under mental health legislationit is recommended that TASERs be used only when an individual is imminently likely tosustain or to cause grievous bodily harm. This article recommends changes to the WesternAustralian Police TASER training programs and proposes mandatory medical assessmentsafter the use of TASER restraint. .
In October 2010 the District Court sitting in Cairns, Queensland, found Tegan Leach notguilty of attempting to procure her own abortion and Sergie Brennan not guilty ofsupplying Leach with the drugs Mifepristone and Misoprostol to procure an abortion.
Brennan obtained the drugs from his sister in the Ukraine through the regular postalsystem. R v Brennan and Leach was the first case in Queensland’s history where a womanwas charged with procuring her own abortion. The drugs are accepted by the medicalprofession worldwide for medical abortions. A prosecution witness gave evidence thatMifepristone is not harmful or injurious to the health of a woman and it is listed as anessential medicine by the World Health Organisation and approved for use by theAustralian Therapeutic Goods Administration. The jury found the defendants not guiltybecause they were not satisfied beyond reasonable doubt that the combination of the drugsMifepristone and Misoprostol was a “noxious” substance under the Criminal Code (Qld).
This article concludes that there is no regulatory miracle which will stop the traffic ofMifepristone and Misoprostol into Australia and therefore an intelligent regulatory response is required which would make it unnecessary for women to seek Mifepristoneand Misoprostol from overseas networks and the internet. Among other things, this wouldinclude the repeal of confusing, inappropriate and ineffective abortion laws. .
Australian surrogacy legislation punishes the pursuit of a commercial surrogacyarrangement as a criminal offence. Such legislation was first introduced in Victoria in 1986and has since been applied in every Australian jurisdiction except for the NorthernTerritory. The current application of criminal law is based upon this 1980s policy whichhas never been subject to public debate. This article argues that the continued applicationof criminal penalties to commercial surrogacy requires review. .
Surrogacy has produced some positive outcomes by creating an opportunity for otherwisechildless couples to realise their dream of parenthood. However, it has also beenproblematic, particularly where the surrogate mother fails to relinquish a child born as aresult of the surrogacy arrangement. This article examines whether a surrogate motherwho is genetically related to the child she delivers is less likely to relinquish the child thanone who has no genetic ties. An examination of empirical evidence provides support forthis argument. Legislation and case law in Australia, the United States and the UnitedKingdom are examined to determine which, if any, of these jurisdictions take into accountthe existence, or otherwise, of a genetic link between the surrogate mother and the childshe bears. The article concludes that surrogacy legislation should, subject to exceptionalcircumstances, encourage surrogacy arrangements where the child and the surrogate arenot genetically related. .
Ethical Issues of Human Genetic Databases: A Challenge to Classical Health ResearchEthics? by Bernice ElgerEthical Nikola Biller-Adorno, Alexandre Mauron and Alexander M Capron .
Terminal Decline by Dr Mohamed Khadra .

Patients’ decisions to die: The emerging Australian jurisprudence

Priority-setting processes for medicines: The United Kingdom, Australia and New Zealand – Joanna Manning

Death from minor head trauma and alcohol – David Ranson

Embracing the new professionalism: Self-regulation, mandatory reporting and their discontents – Malcolm Parker

Psychotherapy, suicide and foreseeable risks of decompensation by the vulnerable – Ian Freckelton

What makes a real man? Gender norms and Western Australia v AH [2010] WASCA 172 – Ruth Townsend, Danielle Klar and Thomas Faunce

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part 1 (New South Wales) – Ben White, Lindy Willmott, Pip Trowse, Malcolm Parker and Colleen Cartwright

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part 2 (Queensland) – Lindy Willmott, Ben White, Malcolm Parker and Colleen Cartwright

Serving two masters? Recent legal developments regarding the professional obligations of medical administrators in Australia – Owen Bradfield

Who shall live when not all can live? Intellectual property in accessing and benefit-sharing influenza viruses through the World Health Organisation – Charles Lawson

Access to medicine and the dangers of patent linkage: Lessons from Bayer Corp v Union of India – Mabel Tsui

Police use of TASERs in the restraint and transport of persons with a mental illness – Jennifer Edinger and Sandra Boulter

Abortion laws and medical developments: A medico-legal anomaly in Queensland – Kerry Petersen

The criminal act of commercial surrogacy in Australia: A call for review – Anita Stuhmcke

Surrogacy: Is it harder to relinquish genes? – Pip Trowse

Ethical Issues of Human Genetic Databases: A Challenge to Classical Health Research Ethics? by Bernice Elger

Ethical Issues in Governing Biobanks: Global Perspectives by Bernice Elger, Nikola Biller-Adorno, Alexandre Mauron and Alexander M Capron

Terminal Decline by Dr Mohamed Khadra

Source: http://sites.thomsonreuters.com.au/journals/files/2011/04/Jnl-Law-and-Med-Vol-18-No-3-Contents-Mar-11.pdf