Journal of Law and Medicine最新文献

This section examines the recent decision of the New South Wales Court of Appeal in Dean v Pope [2022] NSWCA 260. The decision settles a long-running dispute in New South Wales about the test for the standard of care under s 5O of the Civil Liability Act 2002 (NSW). That provision was introduced following the medical indemnity crisis of the early 2000s and provided for a modified Bolam test to protect professionals from claims in negligence when they had acted in accordance with a standard of "competent professional practice". In recent years there has been controversy regarding whether that section required the practice to be one already established to satisfy the section. This section examines the decision, how it fits into the history of the Ipp reforms and what it means for other jurisdictions in Australia.

Sugar-sweetened beverages (SSBs) are associated with overweight/obesity and linked to chronic diseases. A levy or tax on SSBs has been introduced in many jurisdictions globally as a way to lower sugar consumption and/or reformulate lower sugar levels in order to address increasing rates of overweight and obesity. In this article we describe the various approaches to SSB taxation in these jurisdictions. We then explore the legal and policy landscape relevant to the introduction of an SSB levy in Australia. We argue that there is a mandate for the Australian government to introduce such a tax given the clear evidence that consumption, and therefore the adverse associated health outcomes, have a disproportionate impact upon those from lower socio-economic communities. We ultimately recommend that the tax take the form of an excise which focuses on changing industry practice, based on the success achieved by the United Kingdom tax.

Coroners' inquests in Australia and New Zealand are no longer formally part of the criminal justice process. However, they can take place after the resolution of criminal charges and, although coroners' findings cannot be expressed in terms of persons' criminality, inquests can also result in referrals to prosecuting authorities. In addition, referrals to professionals' disciplinary regulators can be made by coroners. The potential for such adverse outcomes for the individuals affected makes it essential for those representing parties or witnesses at coronial hearings to consider carefully the forensic strategies that they deploy and, in particular, the advice that they provide, including in relation to claims to the privilege against self-incrimination. By reason of the partial abolition of the doctrine of autrefois acquit in a number of Australian jurisdictions, the potential for new and compelling evidence to emerge during an inquest takes on additional significance for persons who have been found not guilty of offences such as a murder at a previous trial.

Once someone is diagnosed with a genetic abnormality or disorder, that information can be extremely valuable to their biological relatives. It may allow them to access preventive treatment or make informed decisions, such as whether to have a biological child or not. However, when the original family member refuses to disclose that information to at-risk relatives, a conflict arises between their right to patient confidentiality and their relatives' right to know. Aotearoa New Zealand lacks a specific, workable mechanism for disclosing genetic information to at-risk relatives. This article traverses the theoretical and practical issues involved in non-consensual disclosure of genetic information to suggest a new path for Aotearoa. It argues that the current, Western attitude of autonomy as an individual right free from obligations to others is no longer an appropriate justification for confidentiality over genetic information. Instead, patients diagnosed with a genetic abnormality or disorder should only be entitled to confidentiality where they have a reasonable expectation of privacy - determined by weighing the objective interests for and against disclosure. This approach recognises that we ought to consider our close relationships with others when we exercise autonomy over what is ultimately shared family information.

An employer owes every employee a duty to take all reasonable steps to provide a safe place and system of work. Whether an employer will be liable for psychological harm suffered by an employee will depend on the particular circumstances of the case. In Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12 (Kozarov), the High Court considered whether the Victorian Office of Public Prosecutions had been placed on notice of a risk of "vicarious trauma" to a solicitor employed in the Special Sexual Offenders Unit and whether it was required to make a response by taking active steps including offering a rotation to another section where the solicitor did not to have to manage cases of child rape and other sexual offences of gross depravity. The High Court also considered whether by failing to advise her employer of her developing mental illness in a timely way and not accessing the Employee Assistance Program, the solicitor had failed to take reasonable care of her mental health. The article argues that the Kozarov decision is likely to prove a landmark in terms of employers' occupational health and safety responsibilities in respect of exposure to vicarious trauma.

This article examines the United Kingdom Supreme Court decision in Whittington Hospital NHS Trust v XX [2020] UKSC 14. The case centred on whether damages could be awarded for the cost of a commercial surrogacy arrangement in California, following clinical negligence by the hospital that left the plaintiff unable to carry her own children. After examination of this case, the article outlines and compares the United Kingdom and Australian surrogacy laws. It then discusses how a similar case would be decided in Australia and argues that the result would be the same in some Australian States. It also discusses the concept of reproductive autonomy and the importance of this concept when considering cases involving the loss of fertility.

Victoria is the first Australian jurisdiction to enact legislation establishing a regulatory framework specifically to guide government management of the COVID-19 pandemic and future pandemics. The Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic) inserts Pt 8A into the Public Health and Wellbeing Act 2008 (Vic). The worthwhile stated objective of Pt 8A is to ensure that decision-making in response to an existing or emergent pandemic is "proactive and responsive", "informed by public health advice and other relevant information", and transparent and accountable. This column analyses sections of Pt 8A related to this aim, which grant decision-making powers, require various matters to inform this decision-making, and provide measures for oversight of decision-making. The column argues that Pt 8A constitutes a useful model on which Victoria and other jurisdictions could build and recommends further legislative amendments to help achieve its objective.

A new type of research has emerged with United States and European Union pediatric laws that request/demand separate clinical studies for vaccines and drugs in minors less than 18 years of age. Physiologically, minors mature before their 18th birthday. Medicine treats the body, not the administrative status. Many "pediatric" studies are performed in minors that bodily are no longer children, which makes them pointless. Traditional malpractice litigation in clinical research involves patients that were harmed in clinical studies. In the new type of "pediatric" studies, drugs known to work in humans are retested, pretending that "children" are uniquely different, which is incorrect. Minors are not another species. Patients are not treated at all (placebo group) or below standard-of-care (comparison to outdated treatment). Pediatric laws are the law, but not a free pass for harming patients. Where "pediatric" studies violate accepted norms of medical practice, lawyers should be aware of this challenge at the interface of medicine and law.

The deliberate killing of a child by its mother is abhorrent and is associated in the minds of many with mental illness and in particular with postnatal depression. However, at least 50% of perpetrators are neither "mad" nor "bad", and mothers who kill children are not "unhinged" by pregnancy or childbirth. We propose a different explanation: "blind rage" or "overwhelmed syndrome", whereby parents, stressed to breaking point by sleep deprivation or incessant baby crying, respond by lethally harming their child contrary to previous behaviour. The roots of this blind rage may be found in psychosocial disturbances, including the mother's own unsatisfactory experience of parenting which has caused attachment disorders. The legal framework guiding decisions to prosecute and structuring sentencing decision-making following conviction should acknowledge the exceptional stress experienced by such mothers postnatally. Health professionals including midwives and obstetricians should increase their vigilance and arrange referrals for mothers at risk of causing harm or committing infanticide.

Controversy has existed since the 1960s on the difficult issue of the subject matter upon which psychologists should be permitted to offer expert opinions to the courts. A particularly problematic aspect of the controversy has been evidence by psychologists about diagnoses which generally is given by reference to the two main taxonomies of diagnosis, the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders and the World Health Organization's International Classification of Diseases. This column reviews the leading decisions on the issue in the United States, the United Kingdom and Australia, including a 2021 Queensland Court of Appeal decision. It argues that the trend of recent case law is in favour of psychologists being permitted to give such evidence but only, on a case-by-case basis, when sufficient specialised knowledge is established in relation to the specific diagnosis proposed by a psychologist.