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Journal of Law and Medicine

Catherine Anne Sharp, Jennifer Sarah Schulz Moore, Mary-Louise McLaws
The prevention of elder abuse is a health priority around the globe. The Australian Law Reform Commission's 2017 report on Australian residential aged care facilities found that neglect may constitute elder abuse and that painful pressure ulcers (PUs) fall into this category. The purpose of this article is to examine deaths from PUs in elders 65 years and older. A database search of Australian cases identified four coroner's court cases. This article considers the role and potential of coroners' recommendations to prevent PUs...
December 2018: Journal of Law and Medicine
Davide Golinelli, Fabrizio Toscano, Andrea Bucci, Gherardo Carullo
The main objective of this article is to describe the legal principles governing the selection by European public authorities, such as National Health Services (NHS) of third parties, when entering into agreements for the transfer of health data. According to Directive 2003/98/EC, and in light of the provisions of the Treaties of the European Union, the choice as to how a public authority makes its data available to third parties needs to be transparent, non-discriminatory and may not in any case benefit a specific company at the expense of others...
December 2018: Journal of Law and Medicine
Grace Bramwell, Felicity Wilson, Thomas Faunce
This article explores the benefits likely to arise from Australia's ratification of the Minamata Convention on Mercury with regard to reducing public health risks from mercury emissions from coal-fired power plants. The current legislative frameworks regulating mercury pollution are critiqued, an exploration of the international approaches is undertaken, and recommendations are made aiming to produce a stronger, more stringent and long-term mercury protection policy for Australian communities.
December 2018: Journal of Law and Medicine
Jacqueline Horan, Daniel Thomas
There is growing community concern that methamphetamine (commonly known as Ice) is fuelling violent, erratic and criminal behaviour. Criminal prosecutions of Ice-fuelled defendants are on the rise. Scientific and medical expert evidence is being called upon in such criminal trials, to present the results of the defendant's blood-drug concentration and provide an opinion as to the effects of Ice on the defendant at the time of the alleged crime. Based on an analysis of recent case law and a summary of what science knows about the issue, the authors contend that any expert opinion about an accused person's likely behaviour, based on interpretations of blood-drug concentrations, are speculative and potentially prejudicial to the defendant...
December 2018: Journal of Law and Medicine
Carolyn Johnston, James Cameron
One challenge for the legal provision of voluntary assisted dying is to ensure that the person requesting it is not coerced and has made the decision voluntarily. In the State of Victoria, Australia, s 8 of the Voluntary Assisted Dying Act 2017 (Vic) provides that a health practitioner is prevented from initiating a discussion about voluntary assisted dying in the course of providing health services to a person. The aim of the provision was to avoid coercion or undue influence by a health practitioner. In this article we address the meaning and application of s 8 and consider whether in practice this provision might have the effect of excluding access for individuals who may have been interested in voluntary assisted dying but were never aware that this was an option for them...
December 2018: Journal of Law and Medicine
Carolyn Adams, Judy Allen, Felicity Flack
The empirical research presented in this article was prompted by concerns expressed by researchers about the decision-making processes of government data custodians. Data custodians are responsible for the collection, use and disclosure of vast collections of personal information, including the release of data from these collections for research. Researchers were concerned that the decision-making processes were time-consuming, complex and not transparent. The authors sought the views of data custodians in response, exploring the issues from the other side of the data divide...
December 2018: Journal of Law and Medicine
Ian Freckelton
The phenomenon of unqualified persons dishonestly holding themselves out as registered health practitioners has a lengthy and colourful history. Many notorious examples of such conduct have been exposed only after significant periods of successful deception by the perpetrators. However, there is a very limited scholarly literature on the phenomenon. A number of explanations have been proffered for such examples of deceptive conduct, including the commercial, the pathological and even the socially and sexually opportunist...
December 2018: Journal of Law and Medicine
Victoria Lambropoulos, Robert Guthrie
The no-fault principle is one of the pillars of workers' compensation schemes operating in the States, Territories and the Commonwealth in Australia. This article examines the strength of this principle having regard to provisions common to all jurisdictions which disentitle workers where there is evidence of serious and wilful misconduct or self-inflicted injury. It examines the legislative framework of these provisions in detail noting some differences in approach and effect. The article also traces the origins of these provisions and how they have been applied since enacted...
December 2018: Journal of Law and Medicine
James Cameron
Victorian laws limit who may be a surrogate in an arrangement that uses assisted reproductive treatment and so restrict infertile people's ability to create a family. These restrictions arose because of concern about protecting surrogates from harm. The restrictions are inconsistent with other laws and with the principles on which a harm-based approach to regulation relies. The harm-based approach fails to describe surrogacy accurately because it fails to account for the interdependence of those involved. An ethics of care approach allows recognition of this interdependence and provides a more appropriate framework for regulation...
December 2018: Journal of Law and Medicine
Michelle Taylor-Sands, Christopher Gyngell
The CRISPR-cas9 genome editing system (CRISPR) has been used to make precise and heritable changes to a diverse range of animals. The use of CRISPR to edit embryonic cells initially raised widespread criticism and calls for an international ban. However, the rapid development of genome editing has prompted governments around the world to review the regulatory frameworks that oversee genetic technologies. In Australia, the Prohibition of Human Cloning for Reproduction Act 2002 (Cth) and the Research Involving Human Embryos Act 2002 (Cth) expressly regulate the use of genome editing in early human embryos...
December 2018: Journal of Law and Medicine
Heather Douglas, Katherine Kerr
While sexual abuse is increasingly well recognised as a form of domestic and family violence in Australian legal responses, the recognition and response to reproductive coercion is understudied and under-recognised. This article maps the behaviours and concepts associated with reproductive coercion. Focusing on civil protection orders and family law responses, two of the most commonly accessed responses to domestic and family violence, this article considers whether current legislative definitions and case law recognise reproductive coercion as a form of domestic and family violence...
December 2018: Journal of Law and Medicine
Natalie A MacCormick
Mandatory reporting of child abuse and neglect was first introduced into Tasmania in 1974. Over the following years most of the other Australian States followed suit to varying degrees. Despite widespread introduction of mandatory reporting laws, concepts such as child protection, children's rights and even childhood are relatively new. The first part of this article discusses the social evolution of the role of the child and the concept of childhood throughout Western history. This gives historical context for the emergence of child protection as a public health concern and responsibility of the state and the subsequent introduction of mandatory reporting legislation...
December 2018: Journal of Law and Medicine
Sonia Allan, Debra Gook, Yasmin Jayasinghe
Children diagnosed with cancer who require treatment with chemotherapy and/or radiation therapy have ever-increasing survival rates. However, as a result of such treatment they face the added, and significant, burden of infertility into their futures. Options for fertility preservation and future reproduction for such children do exist, but some such options continue to be considered experimental. Collaborative multidisciplinary teams support children and their families to make decisions about such options in the treatment environment...
December 2018: Journal of Law and Medicine
Angela Gock, Edward Dale, Lucina Ou-Yang, Sally Wheeler, Thomas Faunce
The 2018 export ban of recyclables to China provides an additional important reason for Australia in particular to act internationally and domestically to reduce its plastic waste. The problems Australia faces from single-use non-biodegradable plastics are replicated in every nation on Earth. Focusing on the Australian context, this article examines regulatory approaches to the problem of plastic production, consumption and disposal and its negative impact on public and ecosystem health. It scrutinises the current legal framework for managing plastic waste at Commonwealth, State and international levels, advocating greater regulation...
December 2018: Journal of Law and Medicine
David Ranson
The Gosport Independent Panel was established to review the care of older patients at the Gosport War Memorial Hospital in England over some 20 years. There had been a number of internal and external investigations that included police investigations, clinical care audits, GMC investigations and inquests. The Panel provided a means of public disclosure of much of the contents of the prior investigations and resulted in the creation of a catalogue of all relevant information. The report indicated that many of the investigative processes had failed to address the concerns of family and staff...
December 2018: Journal of Law and Medicine
Piers Gooding, Bernadette McSherry
Informed consent to medical treatment is generally presumed to be central to the provision of good quality health care. Despite this presumption, legislation exists in many countries that enables the compulsory detention and treatment of people with severe mental health conditions regardless of their wishes. This column discusses global efforts to reduce, prevent and end compulsory detention, treatment and coercive practices in mental health and community settings. It summarises the current state of research, identifying overarching themes in the search for effective non-coercive practices, before focusing on hospital and community-based initiatives...
December 2018: Journal of Law and Medicine
Ian Freckelton
Much that is constructive can be achieved from analysis of death investigations that have failed to achieve desirable outcomes in terms of learning lessons about risks to health and safety and in terms of gaining an understanding as to how further tragedies can be avoided. This article reviews an "inquest" into the sinking in 1628 of the pride of the Swedish Navy, the Vasa, and the factors that led to the inquest failing to come to grips with the various design, building, oversight, subcontracting, communication, and co-ordination flaws that contributed to the vessel being foreseeably unstable and thus unseaworthy...
December 2018: Journal of Law and Medicine
Justine E Rogers, Morris S Odell, Jason R Schreiber
When treating unconscious patients believed to have been victims of sexual assault, forensic physicians must decide whether to conduct physical examinations in order to collect evidence while patients are unconscious and cannot consent. The choice is urgent: potential evidence may be lost before the patient regains the ability to consent. The physician's choice affects not only the patient's bodily integrity, but also their ability to pursue criminal and potentially civil justice remedies if they were assaulted...
October 2018: Journal of Law and Medicine
Jodhi Rutherford
The Voluntary Assisted Dying Act Vic will commence operation on 19 June 2019. Doctors were highly visible in the debate which informed the recent law reform process, and Victorian legislators relied considerably on the diverse views of the medical profession. It is important to pay attention to the role played by doctors in the legalisation of assisted dying in Victoria, not only because the current political environment suggests that further reforms may be likely in other Australian jurisdictions, but also because doctors' knowledge and expertise visibly contributed to the outcome of that process in Victoria...
October 2018: Journal of Law and Medicine
Lindy Willmott, Ben White, Donella Piper, Patsy Yates, Geoffrey Mitchell, David Currow
Anecdotal evidence from Australia and abroad suggests that health professionals may fear potential legal and/or professional repercussions if their patient dies after receiving pain relieving medication at the end of life. As a result, patients may be under-medicated and their pain and other symptoms not adequately relieved. The regulatory repercussions from inappropriate administration of medications are potentially broad and include criminal charges, civil negligence claims, coronial investigations and disciplinary proceedings...
October 2018: Journal of Law and Medicine
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