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The Continuing Problem of Expert Evidence in Medical Litigation - A Surgical Perspective with Reference to Daubert. 医疗诉讼中专家证据的持续问题--从外科角度看多伯特案。
Journal of Law and Medicine Pub Date : 2023-07-01
Arthur Richardson, Helen Pham, Michael Hollands
{"title":"The Continuing Problem of Expert Evidence in Medical Litigation - A Surgical Perspective with Reference to Daubert.","authors":"Arthur Richardson, Helen Pham, Michael Hollands","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The tension that exists between the medical and legal professions regarding expert evidence is longstanding. In this article, we will examine some of the issues regarding expert evidence particularly as it relates to matters involving surgeons. Many of the current aspects of the Australian uniform evidence law in relation to expert testimony were based on the Federal Rules of Evidence promulgated in the United States in 1975. We will discuss some of the problems of expert evidence in surgical matters, particularly in New South Wales, and offer some thoughts on how the so-called Daubert trilogy could form a basis on which to re-examine the concept of an \"expert\". Our analysis offers suggestions for further improvements to the process of adducing expert evidence in claims involving surgical matters.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 2","pages":"472-487"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139673220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Sharing of Genomic Data: Exploring the Privacy Implications of the Changing Status of Genomic Data. 共享基因组数据：探索基因组数据地位变化对隐私的影响》。
Journal of Law and Medicine Pub Date : 2023-07-01
Margaret Otlowski, Lisa Eckstein
{"title":"Sharing of Genomic Data: Exploring the Privacy Implications of the Changing Status of Genomic Data.","authors":"Margaret Otlowski, Lisa Eckstein","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This article explores the privacy implications of the changing status of genomic data and the consequences for genomic data-sharing. It sets out the theoretical framework for privacy protection in Australia and the centrality of the concept of \"personal information\" - information from which an individual is \"reasonably identifiable\". It examines the applicability of this legal framework to genomic data and the challenge from the ever-growing risk of identifiability of such data and implications for research participation and researchers' willingness to share genomic data. The article critiques the binary approach underpinning Australian privacy law based on whether data are \"identified\" or \"de-identified\" and highlights the difficulty of applying this distinction to genomic data given their changing status over time. It concludes by examining necessary reforms to provide individuals with more effective privacy protection over their genomic data and which would support data-sharing for genomic research.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 2","pages":"326-344"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139673218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Statutory Standard of Care in Australia and its Application to Experimental Medical Practice. 澳大利亚的法定护理标准及其在实验性医疗实践中的应用。
Journal of Law and Medicine Pub Date : 2023-07-01
Perry Peralta
{"title":"The Statutory Standard of Care in Australia and its Application to Experimental Medical Practice.","authors":"Perry Peralta","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Clinical innovation is essential in the development and improvement of interventions used to treat medical conditions. In Australia, the States and Territories have statutorily reintroduced the Bolam principle in a modified form which provides a defence for medical practitioners who have practised in a manner that, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice. This article explores whether the standard could be successfully pleaded as a defence by experimental practitioners. In doing so, the obstacles to an experimental practitioner's ability to rely on the statutory defence are analysed. It finds that the standard effectively entrenches established practices without sheltering legitimate efforts to advance medicine.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 2","pages":"390-409"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139673224","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Standard of Care Test Revisited: Competing Approaches to Defining Competent Profession Practice in Australia. 重新审视护理标准测试：重新审视护理标准测试：澳大利亚界定胜任专业实践的竞争方法》（Competing Approaches to Defining Competent Profession Practice in Australia）。
Journal of Law and Medicine Pub Date : 2023-07-01
Cameron Stewart, Peter Kim
{"title":"The Standard of Care Test Revisited: Competing Approaches to Defining Competent Profession Practice in Australia.","authors":"Cameron Stewart, Peter Kim","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This section examines the recent decision of the New South Wales Court of Appeal in Dean v Pope [2022] NSWCA 260. The decision settles a long-running dispute in New South Wales about the test for the standard of care under s 5O of the Civil Liability Act 2002 (NSW). That provision was introduced following the medical indemnity crisis of the early 2000s and provided for a modified Bolam test to protect professionals from claims in negligence when they had acted in accordance with a standard of \"competent professional practice\". In recent years there has been controversy regarding whether that section required the practice to be one already established to satisfy the section. This section examines the decision, how it fits into the history of the Ipp reforms and what it means for other jurisdictions in Australia.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 2","pages":"278-285"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139673223","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
An Australian Sugary-sweetened Beverage Levy: Why, What and How? 澳大利亚含糖饮料征税：原因、内容和方法？
Journal of Law and Medicine Pub Date : 2023-07-01
Meredith Blake, Marilyn Bromberg, Stephanie Milan
{"title":"An Australian Sugary-sweetened Beverage Levy: Why, What and How?","authors":"Meredith Blake, Marilyn Bromberg, Stephanie Milan","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Sugar-sweetened beverages (SSBs) are associated with overweight/obesity and linked to chronic diseases. A levy or tax on SSBs has been introduced in many jurisdictions globally as a way to lower sugar consumption and/or reformulate lower sugar levels in order to address increasing rates of overweight and obesity. In this article we describe the various approaches to SSB taxation in these jurisdictions. We then explore the legal and policy landscape relevant to the introduction of an SSB levy in Australia. We argue that there is a mandate for the Australian government to introduce such a tax given the clear evidence that consumption, and therefore the adverse associated health outcomes, have a disproportionate impact upon those from lower socio-economic communities. We ultimately recommend that the tax take the form of an excise which focuses on changing industry practice, based on the success achieved by the United Kingdom tax.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 2","pages":"488-498"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139673214","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Coroners' Inquests and Criminal and Disciplinary Law. 死因调查和刑事与纪律法。
Journal of Law and Medicine Pub Date : 2023-07-01
Ian Freckelton
{"title":"Coroners' Inquests and Criminal and Disciplinary Law.","authors":"Ian Freckelton","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Coroners' inquests in Australia and New Zealand are no longer formally part of the criminal justice process. However, they can take place after the resolution of criminal charges and, although coroners' findings cannot be expressed in terms of persons' criminality, inquests can also result in referrals to prosecuting authorities. In addition, referrals to professionals' disciplinary regulators can be made by coroners. The potential for such adverse outcomes for the individuals affected makes it essential for those representing parties or witnesses at coronial hearings to consider carefully the forensic strategies that they deploy and, in particular, the advice that they provide, including in relation to claims to the privilege against self-incrimination. By reason of the partial abolition of the doctrine of autrefois acquit in a number of Australian jurisdictions, the potential for new and compelling evidence to emerge during an inquest takes on additional significance for persons who have been found not guilty of offences such as a murder at a previous trial.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 2","pages":"259-277"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139673215","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Relatives' Right to Know Genetic Information in Aotearoa New Zealand. 新西兰奥特亚罗瓦的亲属基因信息知情权。
Journal of Law and Medicine Pub Date : 2023-07-01
Christian Poland
{"title":"Relatives' Right to Know Genetic Information in Aotearoa New Zealand.","authors":"Christian Poland","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Once someone is diagnosed with a genetic abnormality or disorder, that information can be extremely valuable to their biological relatives. It may allow them to access preventive treatment or make informed decisions, such as whether to have a biological child or not. However, when the original family member refuses to disclose that information to at-risk relatives, a conflict arises between their right to patient confidentiality and their relatives' right to know. Aotearoa New Zealand lacks a specific, workable mechanism for disclosing genetic information to at-risk relatives. This article traverses the theoretical and practical issues involved in non-consensual disclosure of genetic information to suggest a new path for Aotearoa. It argues that the current, Western attitude of autonomy as an individual right free from obligations to others is no longer an appropriate justification for confidentiality over genetic information. Instead, patients diagnosed with a genetic abnormality or disorder should only be entitled to confidentiality where they have a reasonable expectation of privacy - determined by weighing the objective interests for and against disclosure. This approach recognises that we ought to consider our close relationships with others when we exercise autonomy over what is ultimately shared family information.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 2","pages":"410-429"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139673217","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Duty of Care to Protect Employees against the Risk of Psychiatric Harm from Vicarious Trauma: Kozarov v Victoria. 保护雇员免受因果创伤造成精神伤害风险的注意义务：科扎罗夫诉维多利亚州
Journal of Law and Medicine Pub Date : 2023-07-01
Russ Scott, Ian Freckelton
{"title":"The Duty of Care to Protect Employees against the Risk of Psychiatric Harm from Vicarious Trauma: Kozarov v Victoria.","authors":"Russ Scott, Ian Freckelton","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>An employer owes every employee a duty to take all reasonable steps to provide a safe place and system of work. Whether an employer will be liable for psychological harm suffered by an employee will depend on the particular circumstances of the case. In Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12 (Kozarov), the High Court considered whether the Victorian Office of Public Prosecutions had been placed on notice of a risk of \"vicarious trauma\" to a solicitor employed in the Special Sexual Offenders Unit and whether it was required to make a response by taking active steps including offering a rotation to another section where the solicitor did not to have to manage cases of child rape and other sexual offences of gross depravity. The High Court also considered whether by failing to advise her employer of her developing mental illness in a timely way and not accessing the Employee Assistance Program, the solicitor had failed to take reasonable care of her mental health. The article argues that the Kozarov decision is likely to prove a landmark in terms of employers' occupational health and safety responsibilities in respect of exposure to vicarious trauma.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 2","pages":"358-389"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139673221","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
An Award of Damages for Commercial Surrogacy Overseas? 海外商业代孕的损害赔偿裁决？
Journal of Law and Medicine Pub Date : 2023-05-01
Michelle de Souza
{"title":"An Award of Damages for Commercial Surrogacy Overseas?","authors":"Michelle de Souza","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This article examines the United Kingdom Supreme Court decision in Whittington Hospital NHS Trust v XX [2020] UKSC 14. The case centred on whether damages could be awarded for the cost of a commercial surrogacy arrangement in California, following clinical negligence by the hospital that left the plaintiff unable to carry her own children. After examination of this case, the article outlines and compares the United Kingdom and Australian surrogacy laws. It then discusses how a similar case would be decided in Australia and argues that the result would be the same in some Australian States. It also discusses the concept of reproductive autonomy and the importance of this concept when considering cases involving the loss of fertility.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 1","pages":"166-178"},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"9569732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
How to Manage a Pandemic?: Decision-Making under the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic). 如何应对大流行?根据《2021年公共卫生和福利修正案(大流行病管理)法》作出的决策(维多利亚州)。
Journal of Law and Medicine Pub Date : 2023-05-01
Gabrielle Wolf
{"title":"How to Manage a Pandemic?: Decision-Making under the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic).","authors":"Gabrielle Wolf","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Victoria is the first Australian jurisdiction to enact legislation establishing a regulatory framework specifically to guide government management of the COVID-19 pandemic and future pandemics. The Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic) inserts Pt 8A into the Public Health and Wellbeing Act 2008 (Vic). The worthwhile stated objective of Pt 8A is to ensure that decision-making in response to an existing or emergent pandemic is \"proactive and responsive\", \"informed by public health advice and other relevant information\", and transparent and accountable. This column analyses sections of Pt 8A related to this aim, which grant decision-making powers, require various matters to inform this decision-making, and provide measures for oversight of decision-making. The column argues that Pt 8A constitutes a useful model on which Victoria and other jurisdictions could build and recommends further legislative amendments to help achieve its objective.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 1","pages":"23-47"},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"9575960","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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