Journal of Law and Medicine最新文献

The article engages with the nature of medical consent in the context of a patient's proxy granted in case of decision-making capacity. It argues that based on the general legal provisions on proxy, the patient cannot make medical decisions by a representative. Therefore, informed consent is of a personal nature. The thesis is supported by a comparative-legal analysis of selected continental and common law systems, Kant's and Mill's concept of autonomy, and functional reasoning.

The ethical challenges of artificial intelligence (AI) in health require guardrails to mitigate and address them including: regulation, practice standards, duty of care, training and professional development for those using AI in clinical care. A key safeguard for AI in clinical care will be the medical workforce. This article illustrates a pathway for the Australian medical workforce to upskill to use AI safely and ethically stemming from existing regulatory requirements and professional duties. As AI applications become more widespread, medical and other health care practitioners must become competent users of these technologies in patient care.

This column discusses whether desktop legal research must be reviewed by a human research ethics committee (HREC). We have been made aware that some HRECs have interpreted the National Statement on Ethical Conduct in Human Research as compelling legal researchers to seek ethics review for desktop legal research. We argue that this literal interpretation of the National Statement erroneously treats desktop legal research as "human research". Including desktop legal research in the definition of "human research" damages the public interest. We call on the Council of Australian Law Deans and the authors of the National Statement to make it clear that HREC review is not required for desktop legal research.

The integration of artificial intelligence (AI) into health care presents significant challenges for traditional informed consent practices. This review examines the legal and ethical implications of using AI in clinical decision-making, with a focus on maintaining transparency and respecting patient autonomy. While the legal framework for informed consent remains clear - requiring clinicians to provide sufficient information on material risks and likely outcomes - the complexity of AI introduces nuances that demand adaptation. Unlike surgical consent, where decisions are directly tied to human judgment, AI systems analyse vast datasets and identify patterns beyond human comprehension, complicating clinicians' ability to provide clear explanations. However, this does not necessitate a complete overhaul of informed consent but, rather, careful reassessment. Practical approaches include tiered consent protocols tailored to AI complexity and enhanced clinician education to bridge the communication gap. By addressing these challenges, informed consent can evolve to support ethical AI integration while preserving patient trust and decision-making.

This editorial contextualises by reference to prior appellate case law the important decision of the Australian High Court in Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 in relation to the admissibility of expert opinion evidence. It chronicles the convergence of statutory and common law requirements for the reception of evidence by experts and analyses the requirement for clear delineation of the bases of expert evidence, assumptions made and reasoning utilised. This approach prioritises presentation of expert opinions in such a way that they can be evaluated effectively by the trier of fact. However, it does not incorporate the yardstick of reliability of expert opinions as a precondition for expert evidence to be admitted, in spite of international precedents for not just requiring such a precondition but providing useful indicia for evaluating reliability. There are good reasons for following precedents such as those existing in the United States, England and Wales and Canada. However, it appears that such a reform to Australian evidence law is only likely after a clear miscarriage of justice that provides an irresistible fillip to statutory amendment to admissibility criteria.

Australian age-related anti-discrimination laws prevent discrimination in the workplace on grounds of age alone. However, the ageing surgeon can face physical and cognitive challenges which may threaten patient safety. In 2023 8.4% of Australian surgeons and 8.8% of general practitioners were aged 70 years or older. On 7 August 2024, the Medical Board of Australia (MBA) released a consultation paper seeking comment from the medical profession and the wider community on health checks for late career doctors (aged 70 years and older) to consider whether additional safeguards are needed. The MBA's preferred option is to introduce general health checks by a general practitioner for doctors aged 70 and older, to support early detection of concerns with the opportunity for management before the public is at risk. The proposal would require doctors from the age of 70 years to undergo general health checks with their general practitioner (GP) or another doctor every three years, and yearly from 80 years of age. Other options are to compel extensive and detailed "fitness to practise" assessment for all doctors aged 70 and older, to be conducted by specialist occupational physicians, or to maintain the status quo, which is essentially a self-reporting requirement.

The Voluntary Assisted Dying Act 2019 (WA) was passed in December 2019, and came into effect on 1 July 2021. The legislation requires that the Act is reviewed at set intervals with the first review occurring as soon as practicable after the second anniversary of the Act's operation. An independent three-person panel was appointed to carry out the review. This article reports on one aspect of the review process which involved carrying out semi-structured interviews and focus groups with key stakeholders and formulating recommendations based on the data collected (and other evidence). Thematic analysis resulted in the identification of six main themes: awareness of Voluntary Assisted Dying (VAD); accessing and navigating the VAD system; eligibility assessment; prescription, administration, disposal and post-death; VAD workforce; and VAD system design. Overall, the findings reveal that the WA VAD system is working well; however, several issues with the current system remain.

The regulation of genomic data in Australia remains unwieldy. Effective laws that protect genomic data and regulate their accessibility will be increasingly important in order to ensure the Australian population receives the individual and collective benefits of genomics. This article begins the discussion of a new model for regulating genomics in Australia - one that can reform the patchwork with a national approach that addresses the fundamental issue of data security. It argues that the security issues associated with genomic data can lead to national reform, and ultimately, an improved Australian regulatory model. It seeks to initiate discussion of how this might be achieved in practice, considering necessary Constitutional law reforms. Finally, it outlines administrative arrangements that could facilitate a national approach, and the responsibilities of a national agency for regulating genomics.

The legalisation of cannabis in Australia is attracting significant political support at the moment. Medicinal cannabis has already been legalised, and is regulated, at the national level in Australia. Given the strength of support for political parties that are focused on this issue, it is not fanciful to suggest that political pressure to allow non-medical use of cannabis oil in Australia, or States of Australia, will rise in the near future to the point where legislative action will take place. The purpose of this article is instead to explore how a very rarely considered provision, s 113 of the Australian Constitution, might operate to guide or restrict the choices that can be made by Australian parliaments if they decide to legalise and regulate non-medical use of cannabis oil. We also discuss s 113 of the Constitution in the context provided by other constitutional provisions. This inquiry is important, because (of course) any attempt to legalise adult use of cannabis oil must be supported on constitutional grounds.

The Australian regulatory framework for abortion shifted recently from criminalisation to a health model. Decriminalisation is only one step towards the realisation of full reproductive rights for pregnant people. Numerous barriers persist. Legal barriers include inconsistent abortion laws, medical oversight, variable gestational cut-offs, and conscientious objection provisions. Non-legal hurdles (such as financial and geographical barriers) also persist despite the reforms. These barriers were amplified during the COVID-19 pandemic. This article uses empirical data to illustrate the barriers to abortion access faced by Australian pregnant people during the pandemic. The data illustrate the need for further abortion law reform in Australia that fully realises reproductive rights for pregnant people. We argue that pregnant people's experiences of abortion services during COVID-19 demonstrate that a non-restrictive regulatory approach to abortion law (combined with affordable, accessible and safe abortion services) is essential to provide equal access to abortion to all pregnant people in Australia.