Operation of guardianship laws in the emergency ward

Enduring and workable legislative schemes typically include (a) a balanced approach to the rights and duties of all parties under their purview; and (b) consideration of all major consequences that may flow from the codification of underpinning doctrines. This column examines the 1999 amendments to the Guardianship and Administration Act 1986 (Vic) regulating patients' consent to medical treatment focusing on their application in modern emergency departments. The legislation needs to reconcile the human rights principle that humane and appropriate treatment is a fundamental right of all those who suffer from ill health and disease, with the principle that all patients (including those with impaired, but not totally absent, decisional capacity) have an absolute right to refuse life-saving treatment. Consent and refusal of treatment provisions should be based on the notion of reasonableness, including recognition that the mental and emotional states experienced by physically ill people may, in the short-term, adversely affect their decision-making capacity. Unless the consent legislation factors in the realities of modern emergency practice and resources, statutory thresholds for decisional competence, instead of affording protection, may result in much worse outcomes for vulnerable patients.     

Patterns of Intimate Partner Violence in Mothers At-Risk for Child Maltreatment

Using three interviews spanning 3 years, we identified intimate partner violence (IPV) classes and determined how class membership changed over time amongst a sample of 217 mothers at-risk for child maltreatment that were enrolled in an early childhood home visitation evaluation study. Data on perpetration/victimization, IPV type (verbal, physical, and sexual abuse and injury) and severity were used to conduct latent class analyses at each time point. Latent transition analyses established the proportion of mothers who changed classes over time. A three-class solution (minimal, moderate, and high IPV) was indicated at each time point. All classes included mutual IPV. Partners used minor verbal abuse in the minimal class, minor and severe verbal abuse and minor physical abuse in the moderate class, and all IPV categories in the high class. At each transition, 40 % or more women moved from minimal to moderate or high IPV. This movement emphasizes the need to screen women frequently and develop interventions recognizing the dynamic nature of IPV.     

Why we should eliminate personal belief exemptions to vaccine mandates

We argue that personal belief exemptions to the mandate for childhood immunizations should not be allowed. Parents who choose not to immunize their children put both their own children and other children at risk. Other children are at risk because unimmunized children go to school or day care when they are contagious but asymptomatic, exposing many more children to potentially dangerous infections. The risks to children from disease are much higher than the risks of vaccines. There are, of course, some bona fide reasons why children should not be immunized. Some children have known allergies or other medical contraindications to certain immunizations. Immunization refusals based on parental beliefs, however, do not fall into this category. In those cases, children are denied the protection of immunizations without any medical or scientific justification. By eliminating personal belief exemptions to those childhood vaccines associated with contagious diseases that have high rates of childhood mortality, we would better protect children and would more fairly spread the burdens of this important public health program.     

Law, Diagram, Film: Critique Exhausted

What potential can be found in the work of Deleuze and Guattari for critical legal scholarship? The authors argue that their work can be deployed to re-think ??critique?? by directly addressing the place and role of the ??critic??. It is argued that the continued commitment to a stance of ??resistance?? in CLS is underpinned by never-ending dualisms which, if not confronted and replaced, can only make CLS ever more redundant. The authors ask: ??what is critique beyond the dualism of power and resistance, of state and nomad??? This question arises from a belief that critique is still capable of being effective, but only if there is the courage to experiment, and to think creatively. In this sense, the ??exhaustion?? of critique is framed as an opportunity to re-think and re-engage with the politics of law. The paper diagrams, through image and film, a critical thought: the potential of the artisan. Film is utilised not as representation, nor as illustration, but as a thinking mind in its own right, through which questions relating to the state, political action, and creative thinking can be (re)framed. Such a re-framing is essential, it is argued, for an engagement with the emergence of societies of control.     

Keeping mum about dad: "contracts" to protect gamete donor anonymity

This article considers the legal status of so-called contracts for anonymity between fertility clinics and donors of gametes that were made in the period before legislation authorising disclosure. It notes that while clinics frequently cite the existence of these "contracts" to argue against retrospective legislation authorising disclosure of the donor's identity, they may be nothing more than one-sided statements of informed consent. However, the article notes that even if an agreement between a donor and a clinic is not contractual, it does not follow that a person conceived through assisted reproductive technology has any right of access to the identity of the donor. The writer has not been able to locate examples of written promises by the clinics promising anonymity. There are written promises by the donors not to seek the identity of the recipients. These promises do not bind the resulting offspring nor do they appear to be supported by consideration. The article suggests that the basis for any individual donor to restrain a clinic from revealing their identity may be found in promissory estoppel. Nevertheless, there is no real issue in Australia concerning clinics revealing these details absent legislative authority. The issue is whether parliaments will legislate to authorise the disclosure. The article notes that it would be rare for parliaments to legislate to overturn existing legal contracts but suggests that the contract argument may not be as strong as has been thought.