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The latest issue of the Journal of Law and Medicine (Volume 21 Part 3) contains the following material:

EDITORIALIan Freckelton SC

  • The ethics and regulation of overcharging: Issues in the commerciality of the health practitioner-patient relationship – Ian Freckelton SC


Intake rigour: Ensuring only “reportable deaths” become coroners’ cases – Michael Barnes, Ainslie Kirkegaard and Belinda Carpenter

The failure of medical practitioners to discharge their obligation consistently to report sudden or unnatural deaths to coroners has rightly prompted concern. Following recent public scandals, coroners and health authorities have increasingly developed procedures to ensure that concerning deaths are reported to coroners. However, the negative consequences of deaths being unnecessarily reported have received less attention: unnecessary intrusion into bereavement; a waste of public resources; and added delay and hindrance to the investigation of matters needing a coroner’s attention. Traditionally, coroners have largely unquestioningly assumed jurisdiction over any deaths for which a medical practitioner has not issued a cause of death certificate. The Office of the State Coroner in Queensland has recently trialled a system to assess more rigorously whether deaths apparently resulting from natural causes, which have been reported to a coroner, should be investigated by the coroner, rather than being finalised by a doctor issuing a cause of death certificate. This article describes that trial and its results.

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Coronial law and practice: A human rights perspective – Ian Freckelton SC and Simon McGregor

Coronial law and practice inevitably impact upon the human rights of those affected by deaths. It is important that such rights be incorporated in how death investigations, up to and including coronial inquests, take place. This article explores the significant impact of the jurisprudence emanating from the European Court of Human Rights, as well as the application of such law by the courts of the United Kingdom and potentially in other countries. It argues that viewing the work of coroners through the lens of human rights is a constructive approach and that, although in the coronial legislation of Australia and New Zealand, many human rights, especially those of family members, and civil liberties are explicitly protected, there remain real advantages in reflecting upon compliance with human rights by death investigation procedures and decision-making.

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An empirical approach to the New Zealand government’s review of the coronial jurisdiction – Jennifer Moore

Given the public profile of New Zealand coroners, it is surprising that there has been limited empirical research about coroners’ decision-making. This article uses evidence from New Zealand’s first empirical study of coroners’ recommendations to discuss the New Zealand government’s recent review of the coronial jurisdiction. In June and October 2013, New Zealand’s Courts Minister announced proposed changes to the coronial system. Several of the Minister’s proposals are consistent with the empirical evidence, but there are also significant gaps in the review. The Minister’s review acknowledges the importance of coroners’ preventive function, but will the proposals enable New Zealand’s coronial law to achieve its full preventive potential? The empirical evidence suggests that the prophylactic potential of coroners’ recommendations is not being maximised.

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An absurd inconsistency in law: Nicklinson’s case and deciding to die – Michael Douglas

R (Nicklinson) v Ministry of Justice [2012] EWHC 2381 was a tragic case that considered a perennial question: whether voluntary, active euthanasia is murder. The traditional position was affirmed, that is, it is indeed murder. The law’s treatment of decisions to refuse treatment resulting in death is a stark contrast to the position in respect of voluntary, active euthanasia. In cases of refusing treatment, principles of individual autonomy are paramount. This article presents an overview of the legal distinction between refusing medical treatment and voluntary, active euthanasia. It questions the purported differences between what are described as acts of “active” or “passive” euthanasia. It also highlights the inconsistency of the law’s treatment of different ways that people decide to die.

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Consent versus scrutiny: Restricting liberties in post-Bournewood Victoria – Michael Williams, John Chesterman and Richard Laufer

The article considers the problem of people with impaired capacity who face restrictions on their liberty but who are compliant with such practices. The issue has bedevilled courts and law reform commissions throughout the common law world since HL v United Kingdom [2004] ECHR 471 exposed the legal “gap” in which such people were languishing. Proposals to address it have either been excessively complex, or largely concerned with the mechanism for lawful consent to restrictive practices rather than scrutinising the practices themselves. The article critically discusses these proposals and argues that a suitable, if not ideal, regime for regulating the problem already exists in the Victorian Disability Act 2006.

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Safety, risk and mental health: Decision-making processes prescribed by Australian mental health legislation – Jennifer Smith-Merry and Andrew Caple

Adverse events in mental health care occur frequently and cause significant distress for those who experience them, derailing treatment and sometimes leading to death. These events are clustered around particular aspects of care and treatment and are therefore avoidable if practices in these areas are strengthened. The research reported in this article takes as its starting point coronial recommendations made in relation to mental health. We report on those points and processes in treatment and discharge where coronial recommendations are most frequently made. We then examine the legislative requirements around these points and processes in three Australian States. We find that the key areas that need to be strengthened to avoid adverse events are assessment processes, communication and information transfer, documentation, planning and training. We make recommendations for improvements in these key areas.

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Medical practitioner regulation: Is it all about protecting the public? – Katie Elkin

This article explores the purpose of professional regulation as it applies to medical practitioners in Australia and New Zealand. Purpose is considered in terms of regulatory theory, legislative statement, judicial commentary, and the realities of who and what is regulated and by whom. It is considered both in relation to the regulatory framework as a whole, and more specifically in relation to the disciplinary system that operates as a critical component of that framework. The author concludes that the dominant purpose of medical practitioner regulation should be the protection of the public, particularly when it comes to disciplinary decision-making. While it may be reasonable for broader public interest considerations, such as workforce supply, to be taken into account when it comes to making registration decisions, extreme caution should be exercised in allowing such considerations to influence disciplinary decisions.

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An analysis of Australia’s legal regime for imposing liability on manufacturers of pharmaceutical drugs – Mabel Tsui

Following a trial in June 2009 where the Federal Court heard submissions regarding whether Merck Sharpe and Dohme Australia (MSDA) should be held liable for an increased risk of cardiovascular conditions noted in patients who had taken the anti-inflammatory drug Vioxx, a judgment was handed down against MSDA in March 2010. MSDA then appealed to the Full Federal Court, where it was successful. A subsequent special leave to appeal application to the High Court of Australia was rejected in May 2012. This article examines the themes raised in the trial judgment and the appropriateness of Australia’s statutory consumer protection regime through the lens of pharmaceutical drug injuries and side effects.

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The art of apportionment: Working out responsibility for health care misadventures – Timothy Bowen

When something goes wrong in the provision of health care, it is often unclear who might be at fault, and whether they actually are at fault. A necessity and strength of modern health care is the variety of professionals who participate in it, who differ in their respective roles and expertise. Trying to work out who did what can be difficult, and whether they did something wrong often more so. So when one arrives at the task of working out whether one party is more to blame than the other, it is rarely a straightforward exercise. Arriving at a percentage figure to identify a party’s blameworthiness might seem superficially simple, but it often requires the balancing of a bewildering array of various factors, over which different minds are commonly at odds.

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Ethical, legal and social issues to consider when designing a surrogacy law – Merryn Elizabeth Ekberg

The aim of this article is to address the ethical, legal and social issues that arise when a woman becomes pregnant and gives birth to a child with the intention of surrendering this child to another woman or couple. The secondary aim is to offer some recommendations that will be beneficial for the lawmakers, policymakers and regulators who design and enforce the rules and regulations that govern surrogacy arrangements. The article considers both commercial and altruistic surrogacy and highlights some of the similarities and differences between the two. Beginning with the initial question of whether surrogacy should be legal, the controversial questions raised relate to the time before conception, during the pregnancy and after the birth of the child. The article concludes that surrogacy arrangements are ethical and should be legal because they enable the medically and socially infertile, including singles and same-sex couples, the opportunity to become parents and to enjoy the lifelong pleasures of parenthood. For many, this will be the strongest argument for the legalisation of surrogacy and the greatest benefit to arise from surrogacy arrangements.

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LEGAL ISSUESJoanna Manning

  • Changing disciplinary responses to sexual misconduct by health practitioners in New Zealand – Joanna Manning


  • The Australian National Disability Insurance Scheme for cerebral palsy: An end to the “forensic lottery”? – Mike O’Connor
  • Sexual violence in armed conflict: The least condemned of war crimes – Mike O’Connor


  • “See you next week – Unless I’m dead” – Malcolm Parker


  • Aboriginal and Torres Strait Islander health practitioner regulation – Ian Freckelton SC


  • Commissions of audit in Australia: Health system privatisation directives and civil conscription protections – Caroline Colton and Thomas Faunce


  • Damned If I Do by Philip Nitschke with Peter Corris

For the pdf version of the table of contents, click here: WAU – JLM Vol 21 Pt 3 Contents.

Click here to access this Part on Westlaw AU