Journal of Law and Medicine最新文献

The unprecedented scale of the pelvic mesh litigation in Australia highlights the devastating consequences of gendered health harm. Of the multiple class actions, only Ethicon Sàrl v Gill (2021) 288 FCR 338; [2021] FCAFC has run to final judgment. This decision validated the harm experienced by the representative plaintiffs and drew attention to the inherent misogyny associated with health conditions which affect women differently, disproportionately or uniquely. It is increasingly apparent that women's health has always been understudied and underfunded, and this contributes to a gender bias in medical education. Consequently, women suffer higher rates of misdiagnosis, undertreatment, unsafe stereotyping and preventable harm compared to men. Moreover, substandard health care for women arguably becomes most pronounced when considering female-specific pathology. This harm can be exacerbated by inadequate legal remedies and adversarial legal processes that risk reinforcing gendered harm.

This article analyses Australian case law exercising the parens patriae jurisdiction. Specifically, this article considers the application of the best interests test, focusing on those cases involving non-Gillick competent children. Despite judicial hesitancy to identify relevant factors comprising the best interests expressly test, this article examines the case law to identify the key factors said to be weighed when determining best interests. Analysis of the cases reveals significant reliance on expert medical evidence in such cases. The article then considers the case law from the perspective of the four key theories of health law and posits that the current best interests test predominantly aligns with the health law principle of beneficence, which often results in the demotion of autonomy. This stands in contrast to a global paradigm shift towards greater recognition of individual autonomy. The article briefly considers alternative approaches, advocating for increased weight to be given to autonomy when determining best interests within the parens patriae jurisdiction to better reflect contemporary ethical perspectives.

The 2025 Australian Law Reform Commission (ALRC) Inquiry into Human Tissue presents an opportunity for the Australian public to discuss the legal definition of death. Questions about death are not simply medical questions - they are deeply inscribed with legal, ethical and sociocultural concerns. In thinking through these concerns, it is crucial that we do not simply reiterate current practices or norms. We need to reach a position that is biologically accurate, clinically appropriate, culturally informed and philosophically and ethically sound. In doing so we should also not presume what the public may or may not accept without clear evidence to support any assertion made. Given the definition of death is teleological we must recognise that there may be other public goods worth pursuing apart from organ and tissue donation. This column posits several truths that we believe it is necessary to recognise for the current debate to proceed on a sure footing.

In Albania, end-of-life decisions are a "hot" bioethical topic since the legal framework is unclear. While physician-assisted suicide and euthanasia are considered criminal offences, the Albanian Parliament has allowed the withholding of or withdrawing medical treatment by conscious patients without establishing precise rules regarding advance directives. This article focuses on physician-assisted suicide in Albania. While other Western European countries have allowed assisted suicide by physicians through legal rules or constitutional interpretation, physician-assisted suicide remains a criminal offence in Albania punishable under the Albanian Code of Medical Ethics. After uncovering the constitutional approach to physician-assisted suicide in Italy, Germany, and Austria, this article answers the following research question: "If the Albanian Constitutional Court were called upon to discuss the constitutionality of physician-assisted suicide, what would be its response?" This article also examines the advantages and disadvantages of allowing physician-assisted suicide by referring to the role of national Constitutional Courts of other Western European countries.

Despite the excitement surrounding Artificial Intelligence (AI) in health care, one of the key concerns is the lack of transparency, which is essential for ensuring quality, safety, and trust around AI technologies. This article examines the notion of AI transparency and its traditional role in health care. It examines its ambiguous meaning and identifies the emerging consensus in recent policy documents to distinguish it from related concepts such as AI explainability. The article explores the rationales underlying the AI transparency principle for different stakeholders and investigates potential challenges for enhancing transparency to users of AI-based medical devices. It concludes that, although the need for transparency around AI-based medical devices is widely recognised, the main hurdle is a lack of clarity about the level of information to be provided across different contexts and stakeholders, and how best to provide this information to achieve transparency goals.

Over the past 50 years, third-party agents have played an increasingly important role in making medical decisions for patients lacking decisional capacity. While these agents often protect patient autonomy, concerns sometimes arise regarding their fitness to serve. Unlike the well-established criteria for assessing patient capacity, guidelines for evaluating agent fitness remain limited. This article explores factors - both voluntary and involuntary - that may impair an agent's ability to represent a patient's wishes. It also emphasises the need for clinicians to address these concerns during emergencies and proposes a novel model to guide the assessment of third-party agent fitness in clinical settings.

Risk assessment is an important component of many areas of the law, including criminal law. Forensic psychologists and psychiatrists are sometimes called upon to provide evidence of the risk of future criminal activity through identifying and measuring risk factors with the aid of tools that use scales based on statistical or actuarial risk prediction. At present, there is an emphasis on "structured professional judgment" which combines the use of risk assessment tools with clinical judgment. However, the development of risk assessment tools by private companies using algorithms that are not released to the public raises both ethical and legal issues that are highlighted in this column.

The creation of an Australian national genomic repository relies on the voluntary contribution of genomic data. However, the possible commercial use of donated data is a significant concern for many members of the public which, if unaddressed, may limit a national repository's success. This column examines the extent to which Australian legislation and common law address public concerns identified through previous work, concluding that in many areas the law falls short of appropriately controlling commercial use. It then argues that contractual terms are well-placed to fill gaps in the law using examples of publicly available clauses. It therefore provides guidance as to what a national set of standard contractual clauses might usefully cover to address public concerns with the commercial use of genomic data.

This article seeks to identify what constitutes successful advance care planning. It begins by examining the variety of often-interrelated reasons given for the promotion of advance care planning, which include ethical considerations, as well as instrumental and pragmatic elements. Thus, advance care planning can variously be promoted as an opportunity for the expression of personal autonomy; as the chance to document future wishes; as a method to avoid unwanted medical interventions; and as a way to reduce a family's distress at the end of a loved one's life. The article then explores key ethical, human rights and legal questions that are engaged by these various aims, when weight is sought to be given to a person's thinking about future events. The article concludes by identifying the core criteria for successful advance care planning.

Evidence that a health practitioner, on some other occasion, engaged in conduct similar to the conduct alleged in current disciplinary proceedings, is both prejudicial to the practitioner and potentially highly probative. The admissibility of such evidence (usually referred to as "tendency evidence") is highly prescribed in criminal and civil court proceedings pursuant to statutory rules and common law cases. These rules attempt to achieve a reasonable balance between prejudicial effect and probative value. However, tribunals are not bound to follow rules of evidence and tribunal disciplinary proceedings have different objectives and functions than court proceedings. Further, it has generally been understood that tribunals are not expected to make complex legal rulings concerning the admissibility of disputed evidence. There is some evidence that national boards are becoming more willing to attempt to adduce tendency evidence in cases involving sexual misconduct on the part of health practitioners. This article examines how tribunals have dealt with applications by national boards to adduce tendency evidence and how such evidence is used by tribunals given that tribunals are not bound to follow statutory rules of evidence which apply in the courts.