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1.
J Law Med ; 27(1): 7-19, 2019 Oct.
Artigo em Inglês | MEDLINE | ID: mdl-31682337

RESUMO

Debates have taken place for many years internationally, including in Australia, about the therapeutic effectiveness and safety of complementary/alternative medicine (CAM). The issues raised in such disputation go beyond the capacity for patients to make choices informed by contemporary knowledge about the status of such disciplines and the accuracy of claims made by the various stakeholders. As government subsidises rebates under private health insurance for a number of modalities of health care, the entitlements of CAM disciplines to such rebates have become controversial. This editorial traces Australian reports since 2010 about the eligibility for insurance rebates of a number of CAM disciplines and calls for the current 2019-2020 review by the Chief Medical Officer to engage in a fair, rigorous and conclusive evaluative process, utilising as its yardstick contemporary evidence about treatment efficacy. Such a process has the potential to bring to an end disputation that has only served to confuse patient decision-making, cater to vested interests and incur for government costs that cannot properly be justified.


Assuntos
Terapias Complementares , Seguro Saúde , Austrália , Custos e Análise de Custo , Humanos
2.
J Law Med ; 27(1): 20-28, 2019 Oct.
Artigo em Inglês | MEDLINE | ID: mdl-31682338

RESUMO

In three judgments in favour of New South Wales medical practitioners between 2017 and 2019 the Supreme Court awarded ordinary and aggravated damages for harm done to professional reputations. The decisions in Al Muderis v Duncan (No 3) [2017] NSWSC 726, O'Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655 and Tavakoli v Imisides (No 4) [2019] NSWSC 7 are considered in the context of international decisions and analysis of doctors taking defamation action arising from online publications. Reflections are provided about the repercussions of the phenomenon, its commercial justification and the inhibitions that should be experienced before defamation and injurious falsehood actions are taken by medical practitioners.


Assuntos
Difamação , Médicos , Humanos , New South Wales
3.
J Law Med ; 27(1): 50-54, 2019 Oct.
Artigo em Inglês | MEDLINE | ID: mdl-31682341

RESUMO

In R (on the application of British Homeopathic Association) v National Health Service Commissioning Board [2018] EWHC 1359 (Admin) Supperstone J of the High Court of England and Wales delivered an internationally significant judgment on the processes required to be engaged in when guidance is given to medical practitioners about their involvement in homeopathic prescribing. This column explores the bases upon which the challenge by the British Homeopathic Association was lost and the repercussions of the judgment for the practice of non-evidence-based modalities, such as homeopathy.


Assuntos
Homeopatia , Legislação Médica , Inglaterra , Programas Nacionais de Saúde , País de Gales
4.
J Law Med ; 27(1): 55-65, 2019 Oct.
Artigo em Inglês | MEDLINE | ID: mdl-31682342

RESUMO

Ringside doctors play a vital public health role in protecting fighters from the deleterious effects of concussive and other injuries which are reasonably foreseeable from the contests in which they engage. This column reviews a landmark action for defamation taken by a ringside doctor against a media organisation that published a critique of his performance of his role in a high-profile boxing bout in Sydney, Australia. It reviews the judgment of McCallum J in O'Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655 (O'Neill) and reflects on the broader significance of the decision for the role played by ringside doctors while boxing and other martial arts contests continue to be permitted by law.


Assuntos
Traumatismos em Atletas , Boxe , Concussão Encefálica , Difamação , Austrália , Humanos
5.
J Law Med ; 26(4): 719-731, 2019 Jul.
Artigo em Inglês | MEDLINE | ID: mdl-31682351

RESUMO

There are many pressures that militate against work colleagues "blowing the whistle" or "ringing the bell" on each other in respect of research misconduct. These pressures result in a significant proportion of such conduct not coming to light at all or coming to light later or less straightforwardly than is desirable. There need to be meaningful incentives for colleagues to draw to the attention of authorities concerns that they have about adherence by others to their obligations in relation to research integrity. The United States has a distinctive process under the False Claims Act which provides significant financial encouragement to such persons, known as "relators" under the qui tam scheme, including in the context of proven research misconduct. This editorial reviews prominent occasions on which qui tam actions have been taken and considers the ramifications of a US$112.5 million settlement arrived at in 2019 involving research misconduct at Duke University. It discusses the advantages and disadvantages of the incentives that lie at the heart of the United States False Claims Act and canvasses whether it should be emulated in other countries.


Assuntos
Má Conduta Científica , Denúncia de Irregularidades , Fraude , Motivação , Estados Unidos
6.
J Law Med ; 26(3): 519-534, 2019 Apr.
Artigo em Inglês | MEDLINE | ID: mdl-30958645

RESUMO

This editorial addresses the jurisdictional challenges for decision-making about which coroners should exercise jurisdiction over a dead body, when more than one has the potential to do so, including when a tragedy has occurred involving deceased persons ordinarily residing in diverse jurisdictions. It considers the criteria that are applied and should be applied by coroners to assumption of jurisdiction in relation to overseas deaths and reflects on considerations relevant to the exercise of such decision-making. It reviews significant cases, including appellate case law, in relation to coroners' investigations of overseas deaths and concludes by reflecting upon the need for consistent legislation throughout Australia and New Zealand on exercise of jurisdiction by coroners. It considers the expedient of a federal coroner for Australia.


Assuntos
Médicos Legistas/legislação & jurisprudência , Morte , Austrália , Causas de Morte , Humanos , Nova Zelândia
7.
J Law Med ; 26(2): 285-299, 2018 Dec.
Artigo em Inglês | MEDLINE | ID: mdl-30574717

RESUMO

Much that is constructive can be achieved from analysis of death investigations that have failed to achieve desirable outcomes in terms of learning lessons about risks to health and safety and in terms of gaining an understanding as to how further tragedies can be avoided. This article reviews an "inquest" into the sinking in 1628 of the pride of the Swedish Navy, the Vasa, and the factors that led to the inquest failing to come to grips with the various design, building, oversight, subcontracting, communication, and co-ordination flaws that contributed to the vessel being foreseeably unstable and thus unseaworthy. It argues that Reason's Swiss cheese analysis of systemic contributions to risk and modern principles of Anglo-Australasian-Canadian death investigation shed light on how a better investigation of the tragedy that cost 30 lives and a disastrous loss of a vessel of unparalleled cost to the Kingdom of Sweden could have led to more useful insights into the multifactorial causes of the sinking of the Vasa than were yielded by the inquest.


Assuntos
Médicos Legistas/história , Morte , Navios/história , Causas de Morte , História do Século XVII , Humanos , Suécia
8.
J Law Med ; 26(2): 407-432, 2018 Dec.
Artigo em Inglês | MEDLINE | ID: mdl-30574727

RESUMO

The phenomenon of unqualified persons dishonestly holding themselves out as registered health practitioners has a lengthy and colourful history. Many notorious examples of such conduct have been exposed only after significant periods of successful deception by the perpetrators. However, there is a very limited scholarly literature on the phenomenon. A number of explanations have been proffered for such examples of deceptive conduct, including the commercial, the pathological and even the socially and sexually opportunist. Pseudologia fantastica is a term coined by Delbrück in 1891 for compulsive lying and has been mooted as an explanation for at least some impersonators of health practitioners. It may be that in many scenarios the explanation lies more closely in personality disorders, especially those featuring grandiosity, including Antisocial Personality Disorder and Narcissistic Personality Disorder. This article instances a variety of current and historical examples of impostor health practitioners. It provides 12 recent Australian and New Zealand case studies across the broad spectrum of general medical practice, gynaecology and obstetrics, psychiatry, psychology, paramedics, orthodontics, and general dentistry. It identifies that it is persons coming from overseas who disproportionately have utilised the opportunity to engage in premeditatedly fabricating and misrepresenting their qualifications. Such conduct endangers the wellbeing of patients, undermines the health regulatory system and can have both criminal and disciplinary consequences. In spite of a general tightening of checking of asserted qualifications, persons determined to fake their credentials and to create fictional professional lives continue to make their way through the regulatory net. This article seeks to understand better the phenomenon of impostor health practitioners, to consider how the criminal and disciplinary law should respond to their conduct, and to emphasise the importance of regulatory processes that will reduce the prospects of success for persons minded to engage in such dangerous misrepresentations.


Assuntos
Decepção , Imperícia , Austrália , Comportamento Perigoso , Humanos , Nova Zelândia , Psiquiatria
9.
J Law Med ; 26(1): 7-22, 2018 Oct.
Artigo em Inglês | MEDLINE | ID: mdl-30302969

RESUMO

The hearing rule of procedural fairness applies to coroners' investigations and the findings made by coroners. Decisions by Australian and New Zealand appellate courts starting from the 1980s and early 1990s suggest that this will require interested parties to be accorded the opportunity to respond to any adverse findings, and probably comments, which a coroner is minded to make by being alerted in advance to what is proposed by the coroner. This editorial scrutinises decisions by the Victorian Supreme Court and Court of Appeal on the issue between 2016 and 2018 against the backdrop of appellate decisions in South Australia and New Zealand, as well as in the context of the development of modern administrative law in both Australia and New Zealand. It identifies conceptual challenges that exist as a result of the recent case law for coroners' courts, pointing to the uncertainty of what are "adverse" findings and comments for these purposes, a lack of clarity as to who is entitled to procedural fairness in the inquisitorial context of a coronial investigation, the uncertain parameters of reputation for such purposes, vagueness as to what is required for coroners to discharge their obligations, and the logistical difficulties that compliance with such obligations will pose for timeliness of coronial findings.


Assuntos
Médicos Legistas/legislação & jurisprudência , Austrália , Tomada de Decisões , Nova Zelândia
10.
J Law Med ; 25(2): 293-314, 2018 Feb.
Artigo em Inglês | MEDLINE | ID: mdl-29978637

RESUMO

Opposition to vaccination has a lengthy history dating back to shortly after the discoveries by Jenner in relation to smallpox. In recent years though governments have sought to counter the concerns of anti-vaccinationists in a variety of ways, including legislatively in Australia, in an effort to protect against childhood diseases and to maintain herd immunity. However, cases continue to make their way through the courts where parents oppose the vaccination of their children, often inspired by the views of both registered and unregistered health practitioners, including homeopaths and chiropractors. This article catalogues recent decisions by the courts in Australia, New Zealand, the United Kingdom and Canada, most of which are in favour of vaccination and have dismissed the arguments of those opposed to vaccination as unscientific. It argues that Australia should give serious consideration to emulating the model existing in multiple countries, including the United States, and should create a no-fault vaccination injury compensation scheme.


Assuntos
Vacinação/efeitos adversos , Vacinação/legislação & jurisprudência , Austrália , Canadá , Humanos , Nova Zelândia , Reino Unido , Recusa de Vacinação
11.
J Law Med ; 25(3): 603-625, 2018 Apr.
Artigo em Inglês | MEDLINE | ID: mdl-29978656

RESUMO

The regulation of substandard or dangerous clinical work by medical practitioners is one of the most challenging areas of medical regulation. There is an important conceptual distinction between poor or suboptimal clinical conduct and the outcome of such conduct. It is also important that harsh sanctions are not imposed by reason of a tragic result for a patient or a perception that no other regulatory response will be acceptable to the community. The line needs to be straddled between maintaining public confidence with stern and robust action being taken to protect the public and maintain standards, on the one hand, and, on the other hand, informed and realistic evaluation of conduct, taking into account the pressures that exist in the real world of clinical practice and the reality that all practitioners are fallible. Debate has been reignited by the decision of the High Court in General Medical Council v Bawa-Garba [2018] WLR (D) 52; [2018] EWHC 76 (Admin) about whether and when gross negligence manslaughter charges constitute a constructive way of rendering doctors accountable and how draconian the regulatory sanctions should be that are imposed when clinical conduct has been found to be truly exceptionally bad. Such evaluations need to be conducted in humane recognition of systemic and colleagues' deficiencies but principally by reference to what needs to be done to ensure responsible, caring and competent medical practice.


Assuntos
Homicídio , Imperícia/legislação & jurisprudência , Tomada de Decisões , Humanos , Médicos
12.
J Law Med ; 25(4): 869-893, 2018 Jul.
Artigo em Inglês | MEDLINE | ID: mdl-29978672

RESUMO

In the first 25 years of the Journal of Law and Medicine issues relating to abortion, euthanasia, turning off of life support, pandemics, cloning, surrogacy, technological change, patenting of DNA, regulation of health practitioners, health services in the Information and Genomic eras, mental health law, elder law, and medical negligence have figured prominently in the published scholarly contributions. This editorial reflects on the evolution of health law in its many aspects, contrasting issues that were contentious in 1993 with those that are in 2018 and reflecting on what is likely to continue to attract interdisciplinary analysis and the need for critical evaluation in the decades ahead.


Assuntos
Aborto Induzido/legislação & jurisprudência , Eutanásia/legislação & jurisprudência , Feminino , Humanos , Jurisprudência , Imperícia , Gravidez
13.
J Law Med ; 25(4): 899-918, 2018 Jul.
Artigo em Inglês | MEDLINE | ID: mdl-29978674

RESUMO

The end-of-life litigation involving Alfie Evans (9 May 2016 - 28 April 2018) from Liverpool, England, who suffered from an incurable and degenerative neurological condition was extraordinary. It emerged in the shadow of comparable but not as extensive litigation enabled by crowdfunding in relation to Ashya King and Charlie Gard. Although Alfie's parents lost repeatedly in the High Court, the Court of Appeal and the Supreme Court of England, as well as before the European Court of Human Rights, they persisted in bringing more legal challenges. The public relations campaign on their behalf at times was threatening and accusatory of the clinicians and of Alder Hey Hospital. Both persons employed at the Christian Legal Centre, which represented the parents at times, and medical practitioners from Europe who participated in forensic assessments behaved unethically. There are many lessons to be learned from the Alfie Evans saga. If we are to maintain morale and commitment among those who provide paediatric clinical services to the very ill and the dying, they must be protected from the public relations and litigation campaigns deployed by those purporting to represent the Alfie Evans family, and better non-adversarial methods need to be constructed as a matter of urgency to resolve matters involving disagreements about the treatment of terminally ill children.


Assuntos
Direitos Humanos , Pais , Assistência Terminal , Doente Terminal , Criança , Inglaterra , Europa (Continente) , Humanos , Relações Pais-Filho , Assistência Terminal/ética , Assistência Terminal/legislação & jurisprudência
14.
Bull World Health Organ ; 95(11): 749-755, 2017 Nov 01.
Artigo em Inglês | MEDLINE | ID: mdl-29147055

RESUMO

The sustainable development goals (SDGs) adopted by the United Nations in 2015 include a new target for global health: SDG 3 aims to "ensure healthy lives and promote well-being for all at all ages." Dementia care of good quality is particularly important given the projected increase in the number of people living with the condition. A range of assistive technologies have been proposed to support dementia care. However, the World Health Organization estimated in 2017 that only one in 10 of the 1 billion or more people globally who could benefit from these technologies in some way actually has access to them. For people living with dementia, there has been little analysis of whether assistive technologies will support their human rights in ways that are consistent with the United Nations Convention on the Rights of Persons with Disabilities. The aim of this paper is to examine the relevant provisions of the convention and consider their implications for the use of assistive technologies in dementia care. Assistive technologies can clearly play an important role in supporting social engagement, decision-making and advance planning by people living with dementia. However, concerns exist that some of these technologies also have the potential to restrict freedom of movement and intrude into privacy. In conclusion, an analysis of the implications of assistive technologies for human rights laws is needed to ensure that technologies are used in ways that support human rights and help meet the health-related SDG 3.


Assuntos
Demência/reabilitação , Pessoas com Deficiência , Equipamentos de Autoajuda , Demência/psicologia , Direitos Humanos , Humanos , Nações Unidas
15.
J Law Med ; 24(3): 525-37, 2017.
Artigo em Inglês | MEDLINE | ID: mdl-30137747

RESUMO

This editorial reviews the international lineage and also the ramifications of the decision by the United Kingdom Supreme Court in Montgomery v Lanarkshire Health Board [2015] 1 AC 14; [2015] UKSC 11 in respect of medical practitioners' obligations to advise of risks to their patients. It argues that the abandonment of the test set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 constitutes the final interment of the paternalistic rationales for withholding pertinent information from patients. The decision is internationally significant in terms of its recalibration of the doctor-patient relationship, its identification of the dignity in informed decision-making by patients, and its assertion of a culture of shared information to enable patients to balance clinical with non-clinical considerations in making decisions about treatment.


Assuntos
Tomada de Decisões , Consentimento Livre e Esclarecido/legislação & jurisprudência , Relações Médico-Paciente , Humanos , Paternalismo , Reino Unido
16.
J Law Med ; 25(1): 7-29, 2017 Nov.
Artigo em Inglês | MEDLINE | ID: mdl-29978620

RESUMO

Decision-making about seriously ill and dying children is fraught and distressing for all concerned. The United Kingdom saga involving Charlie Gard and the ruling by four courts hat in his best interests he should not receive experimental therapy overseas provides many lessons for how such controversies should and should not be handled. This editorial places the case in historical and legal context and traces the evolution of the disputation about the treatment to be provided to Charlie, including through the courts and in the media. It argues that it is important for all concerned, including for confidence in clinical guidance and decision-making, that systems be generated which minimise the risk of cases such as that involving Charlie Gard being handled so publicly and in so adversarial a way.


Assuntos
Tomada de Decisões , Futilidade Médica , Suspensão de Tratamento , Criança , Humanos , Jurisprudência , Menores de Idade , Reino Unido
17.
J Law Med ; 23(3): 497-515, 2016 Mar.
Artigo em Inglês | MEDLINE | ID: mdl-27323630

RESUMO

Attempts at medicinal cannabis law reform in Australia are not new. However, in historical perspective 2015 and 2016 will be seen as the time when community debate about legalisation of medicinal cannabis reached a tipping point in a number of Australian jurisdictions and when community impetus for change resulted in major reform initiatives. In order to contextualise the changes, the August 2015 Report of the Victorian Law Reform Commission (VLRC) and then the Access to Medicinal Cannabis Bill 2015 (Vic) introduced in December 2015 into the Victorian Parliament by the Labor Government are scrutinised. In addition, this editorial reviews the next phase of developments in the course of 2015 and 2016, including the Commonwealth Narcotic Drugs Amendment Act 2016 and the Queensland Public Health (Medicinal Canna- bis) Bill 2016. It identifies the principal features of the legislative initiatives against the backdrop of the VLRC proposals. It observes that the principles underlying the Report and the legislative developments in the three Australian jurisdictions are closely aligned and that their public health approach, their combination of evidence-based pragmatism, and their carefully orchestrated checks and balances against abuse and excess constitute a constructive template for medicinal cannabis law reform.


Assuntos
Legislação de Medicamentos , Maconha Medicinal , Austrália , Política de Saúde , Humanos , Formulação de Políticas
18.
J Law Med ; 23(4): 735-61, 2016 Jun.
Artigo em Inglês | MEDLINE | ID: mdl-30136551

RESUMO

Decisions on the issue of medically assisted suicide were delivered within a two-year period by the Supreme Court of Ireland (Fleming v Ireland [2013] IESC 19), the Supreme Court of Canada (Carter v Canada (Attorney General) [2015] 1 SCR 331; 2015 SCC 5), the High Court of South Africa (Stransham-Ford v Minister of Justice and Correctional Services 2015 (4) SA 50; [2015] 3 All SA 109; [2015] ZAGPPHC 230 (GP)), and the High Court of New Zealand (Seales v Attorney-General [2015] 3 NZLR 556; [2015] NZHC 1239). This editorial scrutinises the jurisprudence generated by the decisions, identifies their ramifications and argues that it is likely that the combination of the carefully constructed judgments, together with their reception by the legal, medical and general communities, will lead to an increasing impetus for end-of-life law reform in many countries. It reviews the June 2016 report of the Legal and Social Issues Committee of the Legislative Council of the Victorian Parliament as an example of such reform initiatives. The challenge for those who wish to construct such changes to the law is to fashion legislative regimes which provide adequate protection to patients, as well as to the life-saving culture of medicine, and to safeguard dignity but ensure that respect for the quality of life is not eroded by pressures to end lives that some regard as no longer having value.


Assuntos
Reforma dos Serviços de Saúde/legislação & jurisprudência , Suicídio Assistido/legislação & jurisprudência , Austrália , Canadá , Humanos , Irlanda , Autonomia Pessoal , Direito a Morrer/legislação & jurisprudência , África do Sul
19.
J Law Med ; 23(4): 813-34, 2016 Jun.
Artigo em Inglês | MEDLINE | ID: mdl-30136557

RESUMO

A series of decisions by superior courts exercising their parens patriae jurisdiction in Australia, New Zealand, the United Kingdom and Canada has overturned decisions by parents, and by minors, including some close to the age of 18, to decline life-saving treatment on the basis that such treatment is "in the best interests" of the children concerned. This article reviews the reasoning in such cases and analyses the justifications proffered for giving limited weight to the expressed wishes of children and even of their parents in such matters. It identifies that the issues have particularly arisen in respect of families that are Jehovah's Witnesses and also where there is strong opposition to the application of mainstream medicine in the context of burdensome treatment for life-threatening conditions. It acknowledges the seriousness of such decisions and the potential for collateral influences that are difficult to identify to exert significant impact upon wishes expressed in respect of children who are seriously ill. It also accepts the complexities of identifying the "real wishes" of children. However, it contends that in appropriate cases flexibility in determining children's overall best interests is necessary and that the autonomy otherwise given to mature minors should play a more significant role in courts' decision-making in respect of the authorisation of treatment that children have purported to decline.


Assuntos
Tomada de Decisões , Menores de Idade/legislação & jurisprudência , Consentimento dos Pais/legislação & jurisprudência , Recusa do Paciente ao Tratamento/legislação & jurisprudência , Adolescente , Austrália , Canadá , Criança , Humanos , Reino Unido
20.
J Law Med ; 24(1): 61-71, 2016.
Artigo em Inglês | MEDLINE | ID: mdl-30136774

RESUMO

This article reviews a series of high-profile decisions made during 2016 by the Western Australian Family Court in relation to a child with a brain tumour whose parents were resistant to his being treated with chemotherapy and radiotherapy by reason of their commitment to natural therapies and their belief at an early stage after his diagnosis that orthodox medical treatment should be abandoned in favour of palliative care. The article argues that the decisions in Director Clinical Services, Child & Adolescent Health Services v Kiszko [2016] FCWA 19, 34 and 75 constitute a problematic precedent in terms of the potential for certain forms of parental behaviour being able to engineer a desired outcome that may not be in the best interests of a vulnerable child. It contends that efforts should be made to hear the voice of a child in such cases, that it is important that collateral agendas which may be influencing antagonism to treatment be identified early, and that a constructive role may be able to be played by child protection authorities in prompt initiation of litigation where attempts at non-adversarial resolution of a treatment impasse have failed.


Assuntos
Defesa da Criança e do Adolescente/legislação & jurisprudência , Menores de Idade/legislação & jurisprudência , Consentimento dos Pais/legislação & jurisprudência , Recusa do Paciente ao Tratamento/legislação & jurisprudência , Austrália , Pré-Escolar , Dissidências e Disputas , Humanos
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