The latest issue of the Journal of Law and Medicine (Volume 19 Part 1) contains the following material:
GUEST EDITORIAL – Belinda Bennett
- Time for a national approach to donor conception in Australia
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.
Fetal alcohol spectrum disorder can occur in children when a mother consumes alcohol while pregnant. It can manifest in a range of both physical and mental impairments and in varying degrees of seriousness. The act of consuming alcohol while pregnant arguably constitutes a breach of the duty of care that a mother owes to her unborn child and may lead to an award of damages for children with the disorder. However, to conclude that a duty is owed to an unborn child may be legally problematic. Further, an award of compensation may be of little utility to the child. It is therefore suggested that intervention strategies should instead be implemented which target relevant population groups and which prevent and assist in the management of the disorder.
Reliance on internal autopsies in coronial investigations: A review of the issues – Michael Barnes and Belinda Carpenter
Internal autopsies are invasive and result in the mutilation of the deceased person’s body. They are expensive and pose occupational health and safety risks. Accordingly, they should only be done for good cause. However, until recently, “full” internal autopsies have usually been undertaken in most coroners’ cases. There is a growing trend against this practice but it is meeting resistance from some pathologists who argue that any decision as to the extent of the autopsy should rest with them. This article examines the origins of the coronial system to place in context the current approach to a death investigation and to review the debate about the role of an internal autopsy in the coronial system.
Disability and the legal profession in the United States – Frances Gibson
There are more people with disabilities than any other minority group in the United States. However, little attention is paid to lawyers and potential lawyers with disabilities. This article examines difficulties faced by people with a disability as law students through to participation in the legal profession. Aspects of discrimination and issues relating to discipline of lawyers and disabilities are canvassed. The legal profession in the United States is taking steps to increase representation of people with a disability in its ranks but it is a slow process.
Is New Zealand’s regulation of nanomedical products adequate? – Jennifer Moore
This article investigates the adequacy of New Zealand’s regulation of medical products produced by nanotechnology and containing nanomaterials. There is concern that the novel and unique properties of some nanoscale chemical substances will bring unforeseen human and environmental health and safety risks. Given the possible market for nanomedicines and the growing evidence of their potential risks, it is important to have adequate regulation of nanomedicines in order to prevent adverse public health ramifications. This article argues that nanoparticles, invisible to the human eye, are illuminating and exacerbating legislative imperfections in the Medicines Act 1981 (NZ). This Act does not include a pre-market approval process for medical devices, nor does it include provisions for combination products. This approach is inconsistent with international norms. The article proposes amendment of the Medicines Act 1981 (NZ) to address these weaknesses and the novel challenges posed by nanomedicines.
This article examines whether responsive regulation has potential to improve the regulatory framework which controls free-to-air television advertising to children, so that the regulatory scheme can be used more effectively as a tool for obesity prevention. It presents two apparently conflicting arguments, the first being that responsive regulation, particularly monitoring and enforcement measures, can be used to refine the regulation of children’s food advertising. The second argument is that there are limits to the improvements that responsive regulation can achieve, since it is trying to achieve the wrong goal, namely placing controls on misleading or deceptive advertising techniques rather than diminishing the sheer volume of advertisements to which children are exposed. These two positions reflect a conflict between public health experts and governments regarding the role of industry in chronic disease prevention, as well as a broader debate about how best to regulate industry.
Australian community pharmacy ownership restrictions have been in place for many years. However, it is timely to review these structures in terms of the Commonwealth Government’s proposed changes to the health care system and the need for flexibility to ensure access of vital medicines to the community. Careful consideration has to be given to the advantages and disadvantages of regulatory structures that limit ownership to pharmacists, compared to non-pharmacist ownership. Other ownership aspects that need to be evaluated include the number of pharmacies one pharmacist should be allowed to own or co-own and the extent of control required on the location of pharmacies.
The ethical obligations of the military medical practitioner – Grant Niemann
International humanitarian law requires medical practitioners to be given “respect and protection” when serving as medical practitioners in the military. A component of this legal assurance is that when military medical personnel base their decisions on their medical code of ethics, that decision will be respected and protected. Although the “respect” that has been afforded by international humanitarian law has been part of the law for a considerable period of time, it is not always clear that military command or the courts are sufficiently aware of the ambit of this prescription.
In Australia, young children who lack decision-making capacity can have regenerative tissue removed to treat another person suffering from a severe or life-threatening disease. While great good can potentially result from this as the recipient’s life may be saved, ethical unease remains over the “use” of young children in this way. This article examines the ethical approaches that have featured in the debate over the acceptability and limits of this practice, and how these are reflected in Australia’s legal regime governing removal of tissue from young children. This analysis demonstrates a troubling dichotomy within Australia’s laws that requires decision-makers to adopt inconsistent ethical approaches depending on where a donor child is situated. It is argued that this inconsistency in approach warrants legal reform of this ethically sensitive issue.
Australian courts and tribunals allow claimants with pleural plaques to “piggy back” compensation claims for mental health problems. This article contends that Australia is open to an era of diagnosis fraud by psychologists similar to that which has been experienced in the United States with radiologists. The courts will continue to reflect Australia’s “compensation culture” unless legislation squarely addresses the compensability of pleural plaques and clarifies when, if at all, the courts should allow mental health claims for asymptomatic “marker” conditions such as pleural plaques.
LEGAL ISSUES – Danuta Mendelson
- Operation of guardianship laws in the emergency ward – Danuta Mendelson and Anne Saunders
MEDICAL ISSUES – David Ranson
- Sexual assault examinations and forensic medical samples – David Ranson
BIOETHICAL ISSUES – Malcolm Parker
- Not so great expectations: Why we should accept and respect hopelessness and futility – Malcolm Parker
MEDICAL LAW REPORTER – Thomas Faunce
- Freedom of information applications as an “evergreening” tactic: Secretary, Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Ltd (2010) 191 FCR 573;  FCA 1442 – Tim Vines and Thomas Faunce
- The Spare Room by Helen Garner
For the pdf version of the table of contents, click here: JLM Vol 19 Pt 1 Contents.