Addressing a Human Rights Crisis: Health Care for Prisoners in Australia.

People are sent to prison as punishment and not to experience additional punishment. Nevertheless, this principle is habitually violated in Australia: prisoners frequently receive health care that is inferior to health care that is available in the general community. Numerous official inquiries have identified deficiencies in prisoner health services, notwithstanding the apparent intention of legislative provisions and non-statutory guidelines and policies in various jurisdictions to ensure prisoners receive appropriate health care. This article proposes law reforms to address this human rights crisis. It recommends the passage of uniform legislation in all Australian jurisdictions that stipulates minimum prison health care service standards, as well as mechanisms for ensuring they are implemented. The article also suggests that, in the short-term, until prison health care is significantly improved, substandard health care for prisoners should be treated as a potentially mitigating sentencing factor that can reduce the length of a defendant's prison term.

Legal Implications of Personal Protective Equipment Use When Treating Patients for COVID-19 (SARS-CoV-2).

Front-line health care personnel, including anaesthetists, otolaryngologists, and other health professionals dealing with acute cases of coronavirus, face a high risk of infection and thus mortality. The scientific evidence establishes that to protect them, hospital protocols should require that wearing of the highest levels of personal protective equipment (PPE) be available for doctors and nurses performing aerosol-generating procedures, such as intubation, sputum induction, open suctioning of airways, bronchoscopy, etc. of COVID-19 patients. Although several international bodies have issued recommendations for a very high-level PPE to be used when these procedures are undertaken, the current PPE guidelines in Australia have tended to be more relaxed, and hospital authorities relying on them might not comply with legal obligations to their employee health care workers. Failure to provide high-level PPE in many hospitals is of concern for a large number of health care workers; this article examines the scientific literature on the topic and provides a legal perspective on hospital authorities' possible liability in negligence.

Assisted suicide through the prism of the right to life.

Part of the reason for the ongoing confusion regarding the status of assisted suicide is the cluttered moral and legal matrix that is normally invoked to evaluate the practice. It results in a calculus that is impossible to coherently unravel, allowing commentators to tenably assert any position. The authors attempt to inject clarity into the debate by focusing on the issue through the lens of the most important interest at stake: the right to life. It is arguable that while there are well-established exceptions to the right to life, they only apply where the right to life is itself at stake (such as self-defence). There is no sound argument for suggesting that the circumstances underpinning suicide constitute another exception to the right to life. Thus, suicide and assisted suicide are unjustifiable. An analysis of the empirical data in jurisdictions where assisted suicide has been legalised suggests that legalisation leads to an increase in assisted suicides. The adverse indirect consequences of the often ostensibly compassionate act of assisted suicide outweigh any supposed benefits from the practice. It follows that assisted suicide should lead to criminal sanctions. At the same time, it is important to acknowledge that, paradoxically, the right to life arguments against assisted suicide mandate greater community measures to eliminate or reduce the causes of suicide.

Causation in negligence: from anti-jurisprudence to principle--individual responsibility as the cornerstone for the attribution of liability.

Causation is one of the most esoteric and poorly defined legal principles. The common law standards of the "but for" test and common sense are, in reality, code for unconstrained judicial choice. This leads to a high degree of unpredictability in negligence cases. Changes to the causation standard following the torts reforms have done nothing to inject principle into this area of law: the concept of "appropriateness" is no more illuminating than common sense. Despite this, the trend of recent High Court decisions offers some prospect of clarifying the test for causation. Key themes to emerge are an increased emphasis on individual responsibility and the associated concept of coherency with other legal standards. This article examines the doctrinal reasons underpinning the increasingly important role of these ideals and suggests how they can be accommodated into the test for causation to inject greater coherence and predictability into this area of law.

Fat and the law: who should take the blame?

The incidence of obesity in both adults and children is rising at a rapid rate in most developed countries, including in Australia. Some obese people are seeking to place the blame for their condition on the fast-food industry, as demonstrated by the recent litigation in the United States brought by two obese plaintiffs against McDonald's. This litigation was unsuccessful, and on existing Australian negligence principles any similar litigation commenced here is likely to suffer the same fate. Principles of personal responsibility, autonomy and free will should prevail to deny a negligence claim. The risk of obesity and concomitant health problems from eating fast food to excess is an obvious risk which the plaintiff should not have ignored and which he or she has voluntarily assumed. It is for the Australian Government, not the courts, to regulate the behaviour of the fast-food industry. The government should take action by requiring all major fast-food chains to label their products with nutritional information, and by imposing restrictions on the advertising of food to children.

Moving from voluntary euthanasia to non-voluntary euthanasia: equality and compassion.

The recent Dutch law legalising active voluntary euthanasia will reignite the euthanasia debate. An illuminating method for evaluating the moral status of a practice is to follow the implications of the practice to its logical conclusion. The argument for compassion is one of the central arguments in favour of voluntary active euthanasia. This argument applies perhaps even more forcefully in relation to incompetent patients. If active voluntary euthanasia is legalised, arguments based on compassion and equality will be directed towards legalising active non-voluntary euthanasia in order to make accelerated termination of death available also to the incompetent. The removal of discrimination against the incompetent has the potential to become as potent a catch-cry as the right to die. However, the legalisation of non-voluntary euthanasia is undesirable. A review of the relevant authorities reveals that there is no coherent and workable "best interests" test which can be invoked to decide whether an incompetent patient is better off dead. This provides a strong reason for not stepping onto the slippery path of permitting active voluntary euthanasia.

Why wrongful birth actions are right.

A wrongful birth action is a claim in negligence brought by parents of a child against a doctor who has "wrongfully" caused their child to be born. These claims can be divided into two categories: those where a doctor performs a failed sterilisation procedure that leads to a healthy child being born; and those where a doctor fails to provide sufficient information to allow parents to choose to abort a handicapped child. The recent decision of the High Court of Australia in Cattanach v Melchior (2003) 77 ALJR 1312 falls into the former category. The decision to allow the parents to receive damages for the costs of raising and maintaining their child has generated much public debate. Despite the endorsement of this "wrongful birth" action, there are indications that the legislature will overturn the decision. This article examines whether there is a sound doctrinal basis for recognising wrongful birth actions.

The moral status of wrongful life claims.

A wrongful life action is a claim brought by a disabled child who asserts that but for a physician's negligence he or she would not have been born, thereby being spared the suffering of life. The action is inherently controversial because the alternative to an impaired life is non-existence. Lord Griffiths has described such claims as 'utterly offensive; there should be rejoicing that the hospital's mistake bestowed the gift of life upon the child.' This paper cuts through the rhetoric that the debate has generated and analyses whether there is a sound doctrinal basis for recognizing wrongful life actions.

Euthanasia: why it doesn't matter (much) what the doctor thinks and why there is no suggestion that doctors should have a duty to kill.

A major reason that The Netherlands has taken a different approach to the rest of the world on such a fundamental moral issue is that the courts and legislature in that country have accorded the interests of doctors a cardinal role in the euthanasia debate. This article argues that the interests of doctors are of only incidental and peripheral relevance in relation to the moral status of euthanasia. The moral status of euthanasia has little to do with the preparedness of doctors to administer the lethal injection or their general attitude towards the practice. Euthanasia is principally about the interests of the patient and the impact that the practice may have on the community in general, not preserving the conscience or improving the working life of doctors.