Human rights and health law

Important statutory and common law developments are changing the landscape of health law in Australia. Human rights considerations are formally included amongst the factors to be applied in the interpretation of statutory provisions and evaluating the lawfulness of actions on the part of government instrumentalities. The Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) create limited bills of rights at State/Territory level in two Australian jurisdictions. Although neither is entrenched, they have the potential to make it more difficult for government to promulgate laws that are inconsistent with human rights, as defined. They will have important repercussions for the evolution of health law in these jurisdictions. The decision of Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 by the Victorian Court of Appeal has also provided a legitimation for parties to incorporate human rights perspectives in submissions about the interpretation of statutory provisions where health rights are in conflict.     

The regulation of traditional Chinese medicine practitioners in Australia

The Australian Government has recently recommended that all jurisdictions regulate Traditional Chinese Medicine practitioners along the lines of the Chinese Medicine Registration Act 2000 (Vic). In light of this recommendation, this article examines whether the Victorian legislation is an effective means of regulating a group of practitioners who operate under an alternative health care system. While the main focus is on the challenges of regulating of Traditional Chinese Medicine practitioners, the article also considers the broader issue of whether a statutory approach is the appropriate method of regulating unregistered complementary and alternative medicine practitioners.     

Regulating assisted reproductive technologies in Victoria: the impact of changing policy concerning the accessibility of in vitro fertilisation for preimplantation tissue-typing

On 1 January 2010, the Assisted Reproductive Treatment Act 2008 (Vic) came into force. The legislation was the outcome of a detailed review and consultation process undertaken by the Victorian Law Reform Commission. Arguably, the change to the regulatory framework represents a significant shift in policy compared to previous regulatory approaches on this topic in Victoria. This article considers the impact of the new legislation on eligibility for reproductive treatments, focusing on the accessibility of such services for the purpose of creating a "saviour sibling". It also highlights the impact of the Victorian regulatory body's decision to abolish its regulatory policies on preimplantation genetic diagnosis and preimplantation tissue-typing, concluding that the regulatory approach in relation to these latter issues is similar to other Australian jurisdictions where such practices are not addressed by a statutory framework.     

Regulation for the enforcement of federal health care provider conscience protection laws. Final rule

The Department of Health and Human Services issues this final rule which provides that enforcement of the federal statutory health care provider conscience protections will be handled by the Department's Office for Civil Rights, in conjunction with the Department's funding components. This Final Rule rescinds, in part, and revises, the December 19, 2008 Final Rule entitled "Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law" (the "2008 Final Rule"). Neither the 2008 final rule, nor this final rule, alters the statutory protections for individuals and health care entities under the federal health care provider conscience protection statutes, including the Church Amendments, Section 245 of the Public Health Service Act, and the Weldon Amendment. These federal statutory health care provider conscience protections remain in effect.     

Tricare; Civilian Health and Medical Program of the Uniformed Services (CHAMPUS); nonavailability statement requirement for maternity care. Office of the Secretary, DoD. Interim final rule

This interim final rule implements Section 712(c) of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. No. 106-65), which requires that a nonavailability-of-health-care statement shall be required for a non-enrolled beneficiary for TRICARE cost-share of maternity care services related to outpatient prenatal, outpatient or inpatient delivery, and outpatient post-partum care subsequent to the visit which confirms the pregnancy. The Act reestablishes a requirement which was previously eliminated under the broad direction of The National Defense Authorization Act of FY 1997, section 734, which removed authority for nonavailability statements (NASs) for outpatient services. Therefore, the Act changes the existing provisions require an NAS for inpatient delivery but do not require an NAS for outpatient prenatal and post-partum care. The change will significantly contribute to continuity of care for maternity patients. In furtherance of that principle, and consistent with the previous policy, an NAS for maternity care shall not be required when a beneficiary has other health insurance for primary coverage. This is being issued as an interim final rule in order to comply with the statutory mandate. Public comments, however, are invited and will be considered in connection with possible revisions to this rule.     

Contractual Limitations on the Auditor's Liability: An Uneasy Combination of Law and Accounting

Operative as from 6 April 2008, sections 532–538 of the Companies Act 2006 create a new liability limitation regime in contractual relationships between audit firms and companies in relation to the statutory audit function which overturns an almost eighty years old fundamental principle of company law. This new regime is the product of continuing pressure by the audit profession for liability reform and concern by Government regarding the market structure for audit services. This commentary critically evaluates the regime from law and accounting perspectives. It concludes by reflecting on its longer term implications for audit quality, perceptions of the audit profession and the evolution of a future research agenda.     

Gardner; Re BWV: resolved and unresolved issues at end of life

The Medical Treatment Act 1988 (Vic) gives statutory recognition to a patient's (or their agent or guardian if incompetent) right to refuse medical treatment. The case of Gardner; Re BWV confirmed that medical treatment as defined under the Act included artificial nutrition and hydration and as such could be withdrawn, notwithstanding that this would result in the patient's death. This article analyses Gardner; Re BWV and argues that, by deliberately dealing narrowly with the issues at hand, both the Victorian Civil and Administrative Tribunal at first instance and the Victorian Supreme Court knowingly left BWV to die from dehydration over a period of weeks. By not addressing these issues, the tribunal, and more particularly the Supreme Court, lost an opportunity for a reform of the law, so urgently needed at end of life, which would have allowed for "mercy killing", thus sparing BWV and her family the lingering death she was given.     

Tribal child welfare. Interim final rule

The Administration for Children and Families (ACF) is issuing this interim final rule to implement statutory provisions related to the Tribal title IV-E program. Effective October 1, 2009, section 479B(b) of the Social Security Act (the Act) authorizes direct Federal funding of Indian Tribes, Tribal organizations, and Tribal consortia that choose to operate a foster care, adoption assistance and, at Tribal option, a kinship guardianship assistance program under title IV-E of the Act. The Fostering Connections to Success and Increasing Adoptions Act of 2008 requires that ACF issue interim final regulations which address procedures to ensure that a transfer of responsibility for the placement and care of a child under a State title IV-E plan to a Tribal title IV-E plan occurs in a manner that does not affect the child's eligibility for title IV-E benefits or medical assistance under title XIX of the Act (Medicaid) and such services or payments; in-kind expenditures from third-party sources for the Tribal share of administration and training expenditures under title IV-E; and other provisions to carry out the Tribal-related amendments to title IV-E. This interim final rule includes these provisions and technical amendments necessary to implement a Tribal title IV-E program.     

Advance directives in action in a regional palliative care service: "road testing" the provisions of the Medical Treatment Act 1988 (VIC)

In order to explore the usefulness and acceptability of the provisions of the Medical Treatment Act 1988 (Vic) for palliative care patients in a rural region in Victoria, Australia, between July and December 2004 patients were given information explaining the Act and the opportunity to discuss it with the research officer. Grounded theory methodology was used to evaluate client responses. Findings suggested that palliative care patients are willing to engage in advance care planning but they have to be well enough and need skilled, practical, face-to-face assistance to complete the required legal forms. Written materials alone are not adequate, but provide the opportunity for medical staff to have conversations about death and dying. Doctors and nurses should understand the provisions of the Act to assist patients and families. It is recommended that advance care planning, appropriate to the jurisdiction, be an integral part of the palliative care assessment process.     

"Permanent discharge": deaths of people under 50 years of age in residential aged care in Victoria

In June 2007 there were 210 people under 50 years of age living in residential aged care in Victoria, Australia, most of whom had acquired brain injuries. There are an average of 21 deaths per year in this group yet very little is known about the causes of such deaths. While the Coroners Act 2008 (Vic) requires mandatory reporting of "unexpected" and "accidental" deaths, anecdotal evidence and data from the Coroner's Office suggest that most deaths of people under 50 years of age in residential aged care are not reported. This research presents the cases of three "preventable" deaths, none of which was reported to the coroner and all of which have implications for systemic reform. It concludes that cross-sectoral solutions to meet the complex needs of people under 50 years of age with disabilities in residential aged care are urgently needed as well as monitoring to help us to understand better the needs of young people in residential aged care.     

Medicare program; hospital inpatient prospective payment systems for acute care hospitals and the long-term care hospital prospective payment system and FY 2012 rates; hospitals' FTE resident caps for graduate medical education payment. Final rules

We are revising the Medicare hospital inpatient prospective payment systems (IPPS) for operating and capital-related costs of acute care hospitals to implement changes arising from our continuing experience with these systems and to implement certain statutory provisions contained in the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 (collectively known as the Affordable Care Act) and other legislation. We also are setting forth the update to the rate-of-increase limits for certain hospitals excluded from the IPPS that are paid on a reasonable cost basis subject to these limits. We are updating the payment policy and the annual payment rates for the Medicare prospective payment system (PPS) for inpatient hospital services provided by long-term care hospitals (LTCHs) and implementing certain statutory changes made by the Affordable Care Act. In addition, we are finalizing an interim final rule with comment period that implements section 203 of the Medicare and Medicaid Extenders Act of 2010 relating to the treatment of teaching hospitals that are members of the same Medicare graduate medical education affiliated groups for the purpose of determining possible full-time equivalent (FTE) resident cap reductions.     

Choosing to limit choice: Self-binding directives in Dutch mental health care

In certain cases of chronic mental illness (for example bipolar disorder) a self-binding directive or Ulysses contract may be a helpful intervention to prevent harm to the person him- or herself and/or others. By choosing such an arrangement, the patient can indicate when and how mental health professionals may intervene against his or her will and provide indicated care which may lead to an improvement of the patient's mental condition. In the Netherlands, since 2008 the Compulsory Admissions Act has been amended and now includes a paragraph on self-binding. Starting from the Dutch debate and statutory regulation of self-binding in mental health care, a number of issues with broader relevance are discussed, particularly as these pertain to the legal regulation and juridification of self-binding. It is argued that too many detailed rules are a threat to increasing patient empowerment.     

Opening the Door to Complementary and Alternative Medicine: Self–Regulation in Ontario

This paper examines the steps that three complementary and alternative medicine (CAM) groups – naturopaths, acupuncturists/traditional Chinese medicine practitioners, and homeopaths – are taking to achieve statutory self–regulation in the province of Ontario. The regulatory framework created by the Regulated Health Professions Act of 1991 is outlined, and the differing approaches taken by each of the three groups to gain inclusion under its umbrella are compared and contrasted. The paper assesses the influence of current regulatory and socio–political environments, and queries the extent to which the paradigms of health and health care of these different groups can be accommodated in a regulatory regime heavily reliant on the conventional medical model.     

Technical revisions to conform to the Caregivers and Veterans Omnibus Health Services Act of 2010. Final rule

This final rule amends Department of Veterans Affairs (VA) medical regulations to incorporate statutory amendments. Certain statutes authorizing VA health care benefits were amended by the Caregivers and Veterans Omnibus Health Services Act of 2010. The statutory amendments affect enrollment in certain health care priority categories and exempt catastrophically disabled veterans from copayment requirements.     

A bad trip for health-related human rights: implications of Momcilovic v The Queen (2011) 85 ALJR 957

Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.     

"Chartering" the limits of involuntary psychiatric treatment in Victoria: interpreting the Mental Health Act 1986 (Vic) in the age of the Charter of Human Rights and Responsibilities Act 2006 (Vic)

The Mental Health Act 1986 (Vic) allows for individuals with a serious mental illness to be treated on an involuntary basis either in a psychiatric hospital (on an involuntary treatment order) or in the community (on a community treatment order). The Act also establishes the Mental Health Review Board with the authority to review these orders within eight weeks of those orders being made and at least once every 12 months thereafter. This article analyses a recent decision of the board, Re Appeal of 09-085 [2009] VMHRB 1, in which the appellant challenged a decision of a psychiatrist to extend his community treatment order for a further 12 months. The appellant argued that aspects of his involuntary treatment under the Act amounted to "cruel, inhuman or degrading" treatment and therefore breached his right to freedom from "cruel, inhuman or degrading" treatment under s 10(b) of Victoria's recently enacted Charter of Human Rights and Responsibilities Act 2006 (Vic). Thus, the board was asked to consider whether the definition of "treatment" under the Act was compatible with the rights and freedoms enacted by the Charter. This was the first time that a Victorian court or tribunal had considered the impact of the Charter on involuntary psychiatric treatment. The decision was also a prelude to the Victorian Government's announcement that it would comprehensively review its mental health legislation, now the oldest in Australia. As this case highlights, in determining the future direction of mental health legislation and policy in Victoria, the Charter has been crucial.     

美国涉外侵权冲突法的最新发展——俄勒冈州《侵权与其他非合同请求的法律选择法》评介

俄勒冈《侵权与其他非合同请求的法律选择法》是美国第一部由普通法传统的州颁布的成文侵权冲突法，代表了美国侵权冲突法的最新成就。这部法律在实证分析的基础上准确定位自身特点，将冲突法的立法和研究工作引向纵深发展；在比较法基础上构建最适合自己的规则体系，体现出平衡、独立和理性的特点。与此同时，该法放弃灵活方法，采取规则形式，基于预防损害和填补损害的实体功能在侵权冲突法上的不同要求，确立了行为规制规则和损失分摊规则的分割原则，并通过侵权行为地法原则、意思自治原则、共同住所地法原则以及“最适当”原则的设置，将实质正义因素融入对冲突正义的追求中，力求实现法的确定性与灵活性的最佳平衡。     

Notes and comments "High and dry?" The Public Readiness and Emergency Preparedness Act and liability protection for pharmaceutical manufacturers

In an era filled with fears of bioterrorism, Congress approved the Public Readiness and Emergency Preparedness Act (PREPA) to encourage development of vaccines and other countermeasures. By providing pharmaceutical manufacturers with protection from liability for potential side effects, Congress has attempted to motivate manufacturers to produce a national stockpile of countermeasures. As part of PREPA, the government established a compensatory system intended to provide compensation to persons injured by countermeasures used during a public health emergency. Although the Act provides for a compensation fund, it fails to allocate monies for that fund. Thus, in the absence of further congressional action, PREPA will not provide compensation to those injured by countermeasures. Failing to assure the American public of a compensation program constitutes bad public policy and risks inspiring potential vaccinees to refuse necessary drugs. Additionally, arguments as to the constitutionality of the Act exist should Congress fail to adequately fund the program, and the existence of those arguments undermines the purpose of the Act--namely to assure pharmaceutical manufacturers that they will not be sued into oblivion should they attempt to aid national pandemic protection. In addition to detailing both the Act and the statutory precedent for congressional attempts to spur biodefense, this Article addresses important issues of healthcare, tort, and constitutional law that will continue to manifest themselves in this new era of bioterrorism.     

Health care fraud and abuse data collection program: reporting of final adverse actions--Office of Inspector General (OIG), HHS. Notice of proposed rulemaking

This proposed rule would establish a new 45 CFR part 61 to implement the statutory requirements of section 1128E of the Social Security Act, as added by section 221(a) of the Health Insurance Portability and Accountability Act (HIPAA) of 1996. Section 221(a) of HIPAA specifically directed the Secretary to establish a national health care fraud and abuse data collection program for the reporting and disclosing of certain final adverse actions taken against health care providers, suppliers, or practitioners, and maintain a data base of final adverse actions taken against health care providers, suppliers and practitioners.     

Health care fraud and abuse data collection program: reporting of final adverse actions. Office of Inspector General (OIG), HHS. Final rule

This final rule establishes a new CFR part to implement the statutory requirements of section 1128E of the Social Security Act, as added by section 221(a) of the Health Insurance Portability and Accountability Act (HIPAA) of 1996. Section 221(a) of HIPAA specifically directs the Secretary to establish a national health care fraud and abuse data collection program for the reporting and disclosing of certain final adverse actions taken against health care providers, suppliers and practitioners, and to maintain a data base of final adverse actions taken against health care providers, suppliers and practitioners.