Medical and Legal Uncertainties and Controversies in "Shaken Baby Syndrome" or Infant "Abusive Head Trauma".

Uncertainties and controversies surround "shaken baby syndrome" or infant "abusive head trauma". We explore Vinaccia v The Queen (2022) 70 VR 36; [2022] VSCA 107 and other selected cases from Australia, the United Kingdom and the United States. On expert opinion alone, a "triad" of clinical signs (severe retinal haemorrhages, subdural haematoma and encephalopathy) is dogmatically attributed diagnostically to severe deliberate shaking with or without head trauma. However, the evidence for this mechanism is of the lowest scientific level and of low to very low quality and therefore unreliable. Consequently, expert opinion should not determine legal outcomes in prosecuted cases. Expert witnesses should reveal the basis of their opinions and the uncertainties and controversies of the diagnosis. Further, the reliability of admissions of guilt while in custody should be considered cautiously. We suggest abandonment of the inherently inculpatory diagnostic terms "shaken baby syndrome" and "abusive head trauma" and their appropriate replacement with "infantile retinodural haemorrhage".

New Challenges to the Legal Definition and Medical Determination of Brain Death: A Multi-jurisdictional Approach - Cases from the United States, the United Kingdom, Canada and Australia.

Legal definitions of death and its medical determination have been challenged in high-profile cases in several jurisdictions which define death as either cessation of all functions of the brain or only of the brain stem. Several patients diagnosed brain dead have recovered some vestigial brain activity. Plaintiffs, seeking to prevent withdrawal of life-sustaining treatment, have sought to prevent performance of the key test, the apnoeic-oxygenation test, because it can cause harm and as a medical procedure requires informed consent. Reform of the American Uniform Determination of Death Act, which resembles Australian legislation, has been proposed to include specification of the medical determination of death and lack of requirement of consent to conduct testing. In this article we consider cases and proposals for law reform, concluding that the Australian definition of brain death ought to be retained but that the apnoeic-oxygenation test should be abandoned in lieu of testing brain blood flow and that religious accommodation should be considered.

Medical Tourism and the Best Interests of the Critically ill Child in the Era of Healthcare Globalisation.

In this article, we examine emerging challenges to medical law arising from healthcare globalisation concerning disputes between parents and healthcare professionals in the care and treatment of critically ill children. We explore a series of issues emerging in English case law concerning children's medical treatment that are signs of increasing globalisation. We argue that these interrelated issues present distinct challenges to healthcare economics, clinical practice, and the operation of the law. First, social media leverages the emotive aspects of cases; secondly, the Internet provides unfiltered information about novel treatments and access to crowdfunding to pay for them. Finally, the removal of barriers to global trade and travel allows child medical tourism to emerge as the nexus of these issues. These aspects of globalisation have implications for medicine and the law, yet child medical tourism has been little examined. We argue that it affects a range of interests, including children's rights, parents' rights as consumers, and the interests of society in communalised healthcare. Identifying putative solutions and a research agenda around these issues is important. While cases involving critically ill children are complex and emotionally fraught, the interconnectedness of these issues requires the law to engage and respond coherently to the impacts of healthcare globalisation.

When Is It in a Child's Best Interests to Withhold or Withdraw Life-sustaining Treatment? An Evolving Australian Jurisprudence.

Decisions about whether to withdraw or withhold life-sustaining medical treatment from children give rise to complex and value-laden judgments. While recourse to the courts is uncommon, judicial decisions provide an important source of guidance for the children (where they can participate), families and health and medical professionals involved in these decisions. Yet, there has been remarkably little consideration of the Australian jurisprudence on this issue. This article addresses that gap by undertaking the first comprehensive analysis of all publicly available Australian cases that consider whether or not it is in a child's best interests to receive life-sustaining treatment. A total of 25 cases were located and the judicial consideration of best interests was thematically analysed. Key considerations (to varying degrees) when assessing best interests included the likelihood of treatment curing or improving the child's health, medical views about diagnosis, prognosis and treatment and the child's and parents' views and wishes. The article concludes that the law requires greater certainty and transparency in decision-making. Given the significance of these cases, judgments should describe the factors that the court considers relevant and important, and those that are less influential, as well as the weight ascribed to those various factors and the reasoning that underpins an assessment that treatment is or is not in a child's best interests.

How should Australia respond to media-publicised developments on euthanasia in Belgium?

This article considers the implications that recent euthanasia developments in Belgium might have for the Australian debate on assisted dying. Through media database and internet searches, four significant developments in Belgium were identified: three cases involving individuals who requested access to euthanasia, and recent changes to the Belgian Act on Euthanasia 2002, allowing children access to euthanasia. The article outlines these developments and then examines how they have been discussed in Australia by the different sides of the euthanasia debate. It concludes that these developments are important considerations that legislators and policy-makers in Australia should engage with, but argues that that engagement must be rational and also informed by the significant evidence base that is now available on how the Belgian (and other) assisted dying regimes operate in practice.

Transplantation of the heart after circulatory death of the donor: time for a change in law?

Australia has a shortfall in donated hearts for transplantation. Hearts are usually procured from brain dead donors, but procurement from circulatory dead donors is a potential additional source. However, heart transplantation after circulatory death of the donor may not conform to the dead donor rule. An amendment in law is required to permit heart procurement for transplantation after circulatory death.

Cutting the cord: Can society over-invest in extremely premature and critically impaired neonates?

This article provides a critical examination of the allocation of scarce public health care funds in relation to extremely premature and sick neonates. Decisions to withdraw or withhold life-sustaining treatment from neonates born extremely premature are generally informed by arbitrary and often subjective considerations of those involved in their care--namely parents and medical practitioners. This article argues for a sharp and immediate focus in decisions to treat such neonates based on the allocation of limited health care resources. Accordingly, decisions to save and preserve the lives of imperilled neonates should not be limited to the immediate financial costs of medical treatment. More explicitly there should be a full appreciation of the cost of disability to the family requirements for long-term care, and the benefits and associated costs of life, not only to the patient, but also to society.

Responding to the 'crowd' of voices and opinions in the paediatric clinical space: an ethics perspective.

Ready access to the internet and online sources of information about child health and disease has allowed people more 'distant' from a child, family and paediatric clinician to inform and influence clinical decisions. It has also allowed parents to share aspects of their child's health and illness to garner support or funding for treatment. As a consequence, paediatric clinicians must consider and incorporate the crowd of opinions and voices into their clinical and ethical reasoning.We identify two key ethical principles and related ethics concepts foundational to this task. We then propose a series of exploratory ethics questions to assist paediatric clinicians to engage ethically with the multiple voices in the clinical encounter while keeping the child's needs as a central focus. Using two clinical hypothetical case examples, we illustrate how our proposed ethics questions can assist paediatric clinicians to navigate the crowd in the room and bring moral reasoning to bear.We highlight a need for specific practical interactional skills training to assist clinicians to ethically respond to the crowd in the room, including to identify and weigh up the harms and benefits of endorsing or going against proposed treatments for a child, and how to discuss social media and online sources of information with parents.

Manchester University NHS Foundation Trust v WV [2022] EWCOP 9 : The Court of Protection: On balancing risks; best interests and kidney transplantation.

At first glance, this case might give the impression that a resolution would have been straightforward. A 17-year-old young man with moderate to severe learning disabilities and other conditions discussed below required a kidney transplant-the Court of Protection was tasked with determining whether this was in his best interests. However, the case of WV was in fact far more technical and required nuanced discussion and expert medical evidence from a range of specialists to objectively balance the needs of WV and the risks to WV, and to ultimately determine his fate of life or death based on receiving a kidney transplant.Manchester University NHS Foundation Trust ("The Trust") applied for a declaration in relation to the capacity of William Verdon ("WV") and for the court to consider whether an order should be made that it was not in his best interests to have a kidney transplant with sedation and ventilation post-operatively.

We Need to Talk About Rationing: The Need to Normalize Discussion About Healthcare Rationing in a Post COVID-19 Era.

The global COVID-19 pandemic has brought the issue of rationing finite healthcare resources to the fore. There has been much academic debate, media attention, and conversation in the homes of everyday individuals about the allocation of medical resources, diagnostic testing kits, ventilators, and personal protective equipment. Yet decisions to prioritize treatment for some individuals over others occur implicitly and explicitly in everyday practices. The pandemic has propelled the socially taboo and unavoidably prickly issue of healthcare rationing into the public spotlight-and as such, healthcare rationing demands ongoing public attention and transparent discussion. This article concludes that in the aftermath of COVID-19, policymakers should work towards normalizing rationing discussions by engaging in transparent and honest debate in the wider community and public domain. Further, injecting greater openness and objectivity into rationing decisions might go some way towards dismantling the societal taboo surrounding rationing in healthcare.

Deciding For When You Can't Decide: The Medical Treatment Planning and Decisions Act 2016 (Vic).

The Australian state of Victoria introduced new legislation regulating medical treatment and associated decision-making in March 2018. In this article we provide an overview of the new Medical Treatment Planning and Decisions Act 2016 (Vic) and compare it to the former (now repealed) Medical Treatment Act 1988 (Vic). Most substantially, the new Act provides for persons with relevant decision-making capacity to make decisions in advance regarding their potential future medical care, to take effect in the event they themselves do not have decision-making capacity. Prima facie, the new Act enshrines autonomy as the pre-eminent value underlying the state's approach to medical treatment decision-making and associated surrogate decision-making. However, we contend that the intention of the Act may not accord with implementation of the Act to date if members of the community are not aware of the Act's provisions or are not engaged in advance care planning. There is a need for further research, robust community advocacy, and wider engagement for the intention of the Act-the promotion of "precedent autonomy" in respect to surrogate medical treatment decision-making-to be fully realized.

Deficiencies and Missed Opportunities to Formulate Clinical Guidelines in Australia for Withholding or Withdrawing Life-Sustaining Treatment in Severely Disabled and Impaired Infants.

This paper examines the few, but important legal and coronial cases concerning withdrawing or withholding life-sustaining treatment from severely disabled or critically impaired infants in Australia. Although sparse in number, the judgements should influence common clinical practices based on assessment of "best interests" but these have not yet been adopted. In particular, although courts have discounted assessment of "quality of life" as a legitimate component of determination of "best interests," this remains a prominent component of clinical guidelines. In addition, this paper highlights the lack of uniform clinical guidelines available to medical professionals and parents in Australia when making end-of-life decisions for severely ill infants. Thus, it is argued here that there is a need for an overarching prescriptive uniform framework or set of guidelines in end-of-life decision-making for impaired infants. This would encourage greater transparency, consistency, and some degree of objectivity in an area that often appears subjective.