The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: part 2 (Queensland)

This is the second article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in Queensland, including the parens patriae jurisdiction of the Supreme Court. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic 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 medical professionals receive on issues such as advance health directives and substitute decision-making, and the available empirical evidence as to the state of medical professionals' knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in Queensland.     

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part 3 (Victoria)

This is the final article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in Victoria. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic 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 that medical professionals receive on issues such as refusal of treatment certificates and substitute decision-making, and the available empirical evidence as to the state of medical professionals' knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in Victoria. The article also draws together themes from the series as a whole, including conclusions about the need for more and better medical education and about law reform generally.     

The ‘illegal sentences which magistrates were daily passing’: The Backstory to Governor Richard Bourke's 1832 Punishment and Summary Jurisdiction Act in Convict New South Wales

Recent literature has recast the history of the British empire as a vast project of intervention in and reordering of colonial legal administrations. Closer inspection of local moments of legal reform, however, reveals substantial complications and contradictions in that project. This article re-considers Governor Richard Bourke's Punishment and Summary Jurisdiction Act 1832, the most celebrated legal intervention in the history of the ‘convict colony’ of New South Wales by a governor whose liberalism and humanitarianism epitomized the spirit of imperial reform agendas. The nature and objectives of Bourke's so-called Fifty Lashes Act are widely misunderstood. This article shows that while Bourke positioned his Act as a matter of legal urgency, its core aim was to render convict punishment more useful and economical. Moreover, Bourke's reforms were less innovative than is commonly assumed, being mostly required to re-assert and refine existing law that was being disregarded. Nevertheless, Bourke's reforms did address long-contested legal issues surrounding the summary jurisdiction of colonial magistrates and the local application of English transportation law. The backstory to the Act reveals the remarkably complicated and truly disordered state of the law in New South Wales, but this article also shows how the implementation of legal reform was seasoned with confusion and caution.     

‘Mr Peel’s Amendments’ in New South Wales: Imperial Criminal Reform in a Distant Penal Colony

This article investigates the difficult interface between metropolitan legal reform and empire in the late 1820s. In 1828, the Supreme Court of New South Wales sentenced dozens of men to death under legislation that had been repealed in Britain. It then insisted that every one of them be set free. This mess raised a fundamental question agitated in different ways around the empire in that decade: to what degree should colonial subjects enjoy the benefits of modernized metropolitan criminal law? Even as successive local and metropolitan Acts imposed new constraints on the civil rights of convicts in New South Wales, the Supreme Court insisted that even the most notorious recidivists in the colony should be protected against the Bloody Code from the moment it was reformed at home. In doing so, the court ignored the terms of section 1 of the Criminal Statutes Repeal Act passed at the request of a former East India Company officer to preserve the operation of the Code in India. Thus the peculiar reception controversy in New South Wales shows not only how disruptive metropolitan reform could be for colonies, it performed a growing racial gap in the imagination of legal subjecthood in different corners of empire.     

Is there a need to regulate mediation? The English and Welsh case study

The use of mediation in England and Wales is nowadays an accepted and common practice within the alternative dispute resolution industry. Credited professionals have been performing the duties of a mediator in different fields of legal disputes; however, despite the positive perception of mediation, this area remains unregulated. So far, the rules applying to mediation in England and Wales originate from case law and contract between the parties. Such a scenario is not shared by other countries in which mediation has been regulated through an Act covering either private or judicial mediation. This article examines the current mediation scenario in England and Wales to assess whether there is a need to give it a statutory character in a similar manner to other jurisdictions.     

Water rights and correlative duties in New South Wales

This article discovers how the development of water rights in New South Wales might have been changed. This is important because, one publicly listed company has amassed ownership of water rights, while using no water and owning no land. Some rivers have ceased flowing after the building of privately owned dams. The article identifies five signifant judicial changes to the law, decoupling water rights from correlative duties. Its research paradigm is meta-legal historiography, because it occurs as historical significations, so that the research methodology is legal narrative analysis. Discussion favors a review of industrial priorities in water rights.     

Legal education in the training of health professionals in Ghana: the need for legislative and curricular reforms

The present paper critically analyses the essence of legal education in the training of medical professionals in Ghana. It argues that health professionals lack the requisite knowledge in law, especially the legal implications of medical malpractice, and calls for legislative and curricular reforms in institutions engaged in the training of health professionals to reflect a legal education component. The authors opine that the basic medical law curriculum should be focused on the kinds of legal problems that physicians encounter most frequently in practice rather than on sensational cases. The authors are of the view that the curriculum should address the clarification of central concepts in law, the ability to apply the concepts, decision‐making procedures, acquisition of legal knowledge in tortuous and criminal matters relevant to the medical profession. This view sets objectives for teaching medical law to medical students and young doctors.     

Bracket creep in Australian abortion indications: when did rubella arrive?

This article highlights a common misconception about abortion law that is apparent from reading Harriton v Stephens (2006) 226 CLR 52; namely, that fetal abnormality forms a prima facie case for lawful abortion across Australia. This fallacy stems from the legacy of British law drafted in the aftermath of the thalidomide crisis of the early 1960s, and continues to shape beliefs about Australian abortion law in society and within the judiciary. The article notes the fundamental contradictions between British-style law that provides for abortion on the ground of fetal abnormality and New South Wales case law that provides for lawful abortion in regard to the health and wellbeing of the woman. The author concludes that it is misguided and erroneous to configure abortion law in terms of the fetus inconsistent with the tradition of abortion law, and New South Wales authority.     

The co-regulation of medical discipline: challenging medical peer review

The medical profession has always fiercely defended its right to self-regulation on the basis of peer review. However, in New South Wales, Australia, the profession has willingly surrendered these rights in favour of a disciplinary system known as co-regulation or collaborative regulation, under which disciplinary processes are shared with a "lay" body, the Health Care Complaints Commission. The system constitutes a unique situation in the history of medical regulation. This article examines the origin and operations of co-regulation and comes to the conclusion that its successful operation over the last decade raises questions about whether peer review is indispensable as the basis of medical regulation.     

Passing it on: should health care professionals be permitted to disclose patients' genetic information to their reproductive partners?

This article considers whether Australian law should permit health care professionals to disclose patients' genetic information to their reproductive partners without the patients' consent. The issue is addressed with reference to four genetic disorders (Huntington Disease, Familial Adenomatous Polyposis, Multiple Endocrine Neoplasia Type 2A and Cystic Fibrosis) which illustrate differences in inheritance traits and availability of effective treatments. The article explores the familial nature of these disorders and the notion that genetic information has implications which extend beyond the individual patient to third parties such as reproductive partners. It addresses the opinions of legal academics and regulatory bodies regarding the potential amendment of Australian laws to permit such disclosure. Ultimately, it is submitted that the application of current laws regarding medical information to the needs of genetics is unlikely to generate adequate results. To allow for a more appropriate response to this debate, health care professionals' duties to patients should be qualified when it concerns reproductive partners.     

Legal Change on Contraceptive Sterilisation

New and controversial medical procedures such as contraceptive sterilisation are often thought, at least initially, to be prohibited by the criminal law. This article examines how – without any formal legal intervention – contraceptive sterilisation for a consenting patient eventually became accepted as lawful in the United Kingdom. A prominent role was played by the medical profession, its organisations and its journals. A significant role was played by a little-known campaigning organisation in ensuring this legal change.     

Expert evidence and medical manslaughter: vagueness in action

This article examines the reliance placed on expert evidence in prosecutions of health professionals for gross negligence manslaughter, where juries must decide whether conduct goes beyond civil negligence and constitutes the crime of involuntary manslaughter. It argues that the test for liability is vague and examines some of the consequences of this. Given the vagueness of the offence, jurors are likely to place great reliance on expert medical evidence. Little is known about how experts negotiate the legal process, empirically speaking: how they approach their task, how they view their role as expert witnesses, and the attitudes, biases, and beliefs that may underpin their testimony. Drawing on the experiences and perceptions often medical experts, this article explores how experts manage the vagueness inherent in the task of interpreting and applying gross negligence. Experts appear to go beyond offering purely medical opinion and enjoy engaging with law and the legal process.     

Case Baiting

In 2014, New Jersey passed the Sports Wagering Act, permitting sports betting at state casino and racetrack venues, in direct conflict with the federal Professional and Amateur Sports Protection Act. In 2017, South Dakota passed Senate Bill 106, requiring that certain e-commerce retailers collect and remit sales tax, in violation of federal law. The two U.S. Supreme Court decisions arising from challenges to these state statutes—South Dakota v. Wayfair and Murphy v. NCAA—exemplify U.S. Supreme Court “case baiting.” Case baiting is a tactic states implement to challenge federal directives by passing state legislation that directly conflicts with federal law to lure the Court into granting certiorari and ruling in their favor. This article argues that South Dakota's and New Jersey's triumphs pave the way for other jurisdictions to pursue similar strategies across multiple legal issues such as abortion restrictions and immigration law. In addition, this article suggests that case baiting invites further scholarly exploration of important policy considerations, including the use of this tactic as a novel approach to the application of law and strategy, whether case baiting promotes the Court's progression toward a more quasi-legislative role, and whether passing conflict legislation violates state legislators’ oaths of office.     

Preferential Treatment, Social Justice, and the Part-time Law Student – The Case for the Value-added Part-time Law Degree

There has been growing pressure to increase diversity in legal education and the legal profession in England and Wales. While this has focused upon the absence of certain groups such as women, ethnic minorities, and the disabled, there has been no specific discussion of part-time law students. Drawing on questionnaires and focus groups with part-time law students across England and Wales, this article examines how their background and experiences may hamper their ability to participate and succeed in higher education and legal practice. In response to the consistent omission of part-time students' needs from attempts to enhance social diversity in universities and the legal profession, it also argues that affirmative action is now necessary and justified in respect of these students. Pragmatic suggestions are made for a contextual approach to affirmative action for part-time law students which adds value to their degree. Finally, the potential effects of affirmative action on part-time law students themselves and upon the gatekeepers to the legal profession are explored.     

Harriton, Waller And Australian negligence law: is there a place for wrongful life?

Following the decision by the Supreme Court of New South Wales in Harriton and Waller, the controversial action for wrongful life has been thrown back into the public spotlight. This article examines the legal and public policy dilemmas arising from a wrongful life claim in light of the Court of Appeal's reasons for its decision in the jointly heard cases of Harriton (by her tutor) v Stephens; Waller (by his tutor) v James; Waller (by his tutor) v Hoolahan (2004) 59 NSWLR 694 and analyses whether there is a sound doctrinal basis for recognising the claim within the Australian tort system. It will be argued that each of the legal elements comprising the claim fall squarely within the traditional tort framework and that public policy considerations favouring recognition of the claim outweigh those raised against it.     

Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Control

In October 2010, provocation was abolished as a partial defence to murder in England and Wales. Through the introduction of the Coroners and Justice Act 2009, a new partial defence of loss of control was implemented. This sought to overcome problems associated with the provocaton defence and the gendered operation of the law of homicide, particularly in relation to male‐perpetrated intimate homicides, and the inadequate response of the law to the contexts in which battered women kill. This article first provides an account of these developments, and then examines legal stakeholders' perceptions of them. Drawing from in‐depth interviews with criminal justice professionals, it considers their perceptions of the operation of the law of homicide during a period of transition, specifically considering the formulation of the new partial defence, the initial effects of its implementation, and the significant differences between the Law Commission's recommendations and the reforms implemented by the government.     

Laws to detain individuals with substance dependency: breaching human rights or restoring health?

At the turn of the 20th century in the United Kingdom and Australia, legislation was introduced to detain and treat "inebriates". Since that time, variations of such laws have continued to exist. This column examines current laws in Australia and New Zealand with a particular focus on recent law reform efforts in New South Wales and Victoria. The column raises some of the issues with these laws in relation to breaching human rights for the purpose of treatment.     

Judicial responses to the protected confidential communications legislation in Australia

The article examines the background, aims and scope of recent legislation enacted in New South Wales, Victoria and South Australia to protect from disclosure in court of "confidential communications" generated in the context of counselling persons who allege that they were victims of sexual offenses. In drafting the "confidential communications" legislation, the legislators undertook a difficult task of balancing the public interest in therapeutic confidentiality that would encourage victims of sexual assaults to report these offenses and seek psychological and psychiatric care on the one hand, and the public interest in fairness of the trial, which may be prejudiced by exclusion of evidence pertinent to the forensic process on the other. In South Australia this task was fulfilled with greater success than in New South Wales and Victoria.     

Regulating Law Firm Ethics Management: An Empirical Assessment of an Innovation in Regulation of the Legal Profession in New South Wales

The Australian state of New South Wales (NSW) was the first jurisdiction to fully deregulate law firm structure and allow alternative business structures in the legal profession. At the same time it also introduced an innovation in regulation of the legal profession, requiring that incorporated legal practices implement ‘appropriate management systems’ for ensuring the provision of legal services in compliance with professional ethical obligations. This paper presents a preliminary empirical evaluation of the impact of this attempt at ‘management‐based regulation’. We find that the NSW requirement that firms self‐assess their ethics management leads to a large and statistically significant drop in complaints. The (self‐assessed) level of implementation of ethics management infrastructure, however, does not make any difference. The relevance of these findings to debates about deprofessionalization, managerialism, and commercialism in the legal profession is discussed, and the NSW approach is distinguished from the more heavy‐handed English legal aid approach to regulating law firm quality management.     

Psychological effects of criminal proceedings through contact with the judge: the moderating effect of legal system structure

Psychological effects of criminal proceedings on victims have often been the focus of victimological research. The criminal justice system is repeatedly acknowledged as a source of additional harm for victims. Such a generalization, however, cannot be made to all legal systems universally to the same degree. This article compares the adversarial and inquisitorial structures of criminal justice and examines how the latter may in fact be beneficial to victim's well-being. More specifically, contact with the judge and presence at trial may be one positive form of victim participation in its most informal sense. Hierarchical regression analysis is conducted using victims of serious crimes in the Netherlands and New South Wales (NSW), Australia, to test this hypothesis. The type of legal system (i.e., inquisitorial versus adversarial) is used as a moderating variable on the relationship between contact with the judge and psychological effects. The findings indicate that victims in the Netherlands report a significant relationship, where contact with the judge is predictive of a less negative impact on psychological effects, while a non-significant relationship is found for victims in NSW.