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Disability Law Reform in Australia: Principles, Pragmatism and Politics. 澳大利亚残疾法改革：原则、实用主义和政治。
Journal of Law and Medicine Pub Date : 2023-12-01
Ian Freckelton
{"title":"Disability Law Reform in Australia: Principles, Pragmatism and Politics.","authors":"Ian Freckelton","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This editorial reviews two landmark contributions to disability reform in Australia, both published in 2023 - the 12 volume report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and the important Commonwealth Government of Australia report on the operation of the 10-year-old National Disability Insurance Scheme. It contends that each leaves Australia with major steps that need to be taken to enable persons with disability to live in a fairer, safer and more inclusive environment in which their human rights are genuinely respected. The reports contain many challenges where a balance needs to be orchestrated between implementation of principled reform and what is financially feasible. If Australia's governments are to adopt the recommendations in the reports, politics will need to be set aside and collaboration between Federal and State governments will be essential. Attitudes and practices will have to change in government and the general community, laws, protocols and even institutions will need to be reformed, accountability mechanisms will need to be tightened, and considerable sums of money will have to be spent.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 4","pages":"785-805"},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140068838","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
Expert Evidence of "Risk Assessments" and the Preventive Detention of "Dangerous Prisoners". 风险评估 "和预防性拘留 "危险囚犯 "的专家证据。
Journal of Law and Medicine Pub Date : 2023-12-01
Russ Scott, Ian Coyle, Ian Freckelton
{"title":"Expert Evidence of \"Risk Assessments\" and the Preventive Detention of \"Dangerous Prisoners\".","authors":"Russ Scott, Ian Coyle, Ian Freckelton","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) provides for the preventive detention of a prisoner if there is \"acceptable, cogent evidence\" to a \"high degree of probability\" that the prisoner is a \"serious danger to the community\" because of an \"unacceptable risk\" that the prisoner will commit a \"serious sexual offence\". In preventive detention cases courts rely on the expert opinion of psychiatrists and psychologists who often use actuarial risk assessment instruments. In Black v Attorney-General (Qld) [2022] QCA 253 the Queensland Court of Appeal considered a decision to detain an offender who had a history of possessing and trading child sexual exploitation material but who had not previously been proved to have committed a contact offence against a child. This article analyses the reasoning of the Court of Appeal and critically examines the reliability of probabilistic risk assessment tools and the validity of expert evidence about risk in the preventive detention context.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 4","pages":"917-961"},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140068839","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
Artificial Intelligence in Medicine: Issues When Determining Negligence. 人工智能在医学中的应用：确定过失时的问题。
Journal of Law and Medicine Pub Date : 2023-12-01
Paul Nolan, Rita Matulionyte
{"title":"Artificial Intelligence in Medicine: Issues When Determining Negligence.","authors":"Paul Nolan, Rita Matulionyte","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The introduction of novel medical technology, such as artificial intelligence (AI), into traditional clinical practice presents legal liability challenges that need to be squarely addressed by litigants and courts when something goes wrong. Some of the most promising applications for the use of AI in medicine will lead to vexed liability questions. As AI in health care is in its relative infancy, there is a paucity of case law globally upon which to draw. This article analyses medical malpractice where AI is involved, what problems arise when applying the tort of negligence - such as establishing the essential elements of breach of duty of care and causation - and how can these can be addressed. Product liability under Australian Consumer Law is beyond the scope of this article. In order to address this question, the article: (1) identifies the general problems that black box AI causes in the health care sector; (2) identifies the problems that will arise in establishing breach and causation due to the \"black box\" nature of AI, with reference to the Civil Liability Act 2002 (NSW) and common law through two hypothetical examples; and (3) considers selected legal solutions to the problems caused by \"black box\" AI.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 3","pages":"593-615"},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139708167","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
Investigating Investigation Powers under the Health Practitioner Regulation National Law. 调查《国家卫生从业人员管理法》规定的调查权力。
Journal of Law and Medicine Pub Date : 2023-12-01
Chris Corns
{"title":"Investigating Investigation Powers under the Health Practitioner Regulation National Law.","authors":"Chris Corns","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Investigators and inspectors appointed under the Australia Health Practitioner Regulation National Law play important roles by gathering and assessing evidence used in disciplinary proceedings and/or criminal prosecutions. In performing these roles, investigators and inspectors exercise \"police-like\" powers including coercive questioning and entry onto private property with or without a search warrant. The investigation process can add additional stress and anxiety for health practitioners who are subject to disciplinary proceedings. It is difficult for an aggrieved party to challenge the lawfulness of the exercise of an investigation power in a tribunal as tribunals lack jurisdiction to rule on the legality of an investigation power or the admissibility of evidence. This article explores the range of powers possessed by investigators and inspectors under the National Law and a number of issues relating to the exercise of those powers.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 3","pages":"673-689"},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139708172","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
Work Stress, Vicarious Trauma and the Public Mental Health Framework: Kozarov v Victoria [2022] HCA 12 and Its Aftermath. 工作压力、继发性创伤和公共心理健康框架：Kozarov 诉维多利亚州 [2022] HCA 12 案及其后果》。
Journal of Law and Medicine Pub Date : 2023-12-01
Kay Wilson, Ian Freckelton
{"title":"Work Stress, Vicarious Trauma and the Public Mental Health Framework: Kozarov v Victoria [2022] HCA 12 and Its Aftermath.","authors":"Kay Wilson, Ian Freckelton","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The Public Mental Health Framework argues that law and policy are important in preventing mental ill-health and promoting wellbeing. Therefore, the 2022 decision of the Australian High Court in Kozarov v Victoria (Kozarov), in which a lawyer from the Office of Public Prosecutions (OPP) who worked in the Specialist Sex Offences Unit successfully claimed damages for vicarious trauma, has significant implications for the legal profession and those who are employed in emotionally demanding work. This article provides commentary on the Kozarov decision, within the context of other Australian case law including subsequent cases. It explores the significance of Kozarov and post-Kozarov authority for the development of (1) the law in \"work stress\" cases; (2) employers in the wake of the decision, including the OPP; and (3) the Public Mental Health Framework in relation to work stress and sexual violence as social determinants of health and mental health.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 3","pages":"641-672"},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139708180","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
Supporting the Involvement of Adults with Cognitive Disabilities in Research: The Need for Reform. 支持有认知障碍的成年人参与研究：改革的必要性》。
Journal of Law and Medicine Pub Date : 2023-07-01
Shih-Ning Then, John Chesterman, Yuu Matsuyama
{"title":"Supporting the Involvement of Adults with Cognitive Disabilities in Research: The Need for Reform.","authors":"Shih-Ning Then, John Chesterman, Yuu Matsuyama","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This article examines current legal and ethical requirements concerning research about adults with cognitive disabilities. These requirements, the article argues, are complex, difficult to navigate, and inevitably act as a disincentive for research to be conducted. These requirements also do little to encourage active involvement by adults with cognitive disabilities in deciding whether to participate in research. The article argues that reforms are needed for State and Territory laws to require, wherever possible, adults to be supported to make their own decisions about research participation. State and Territory law reform is also required to clarify when, and on what basis, others may be appointed to make research participation decisions on behalf of adults with cognitive disabilities. The article concludes by seeking complementary reform of the National Health and Medical Research Council National Statement on Ethical Conduct in Human Research, which would result in it being more human rights compliant and simpler to apply.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 2","pages":"459-471"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139673219","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 Patent Landscape for CRISPR Genome Editing in Australia. 澳大利亚 CRISPR 基因组编辑的专利情况。
Journal of Law and Medicine Pub Date : 2023-07-01
Naomi Foo, Olumayowa Adesanya, Jane Nielsen, Dianne Nicol
{"title":"The Patent Landscape for CRISPR Genome Editing in Australia.","authors":"Naomi Foo, Olumayowa Adesanya, Jane Nielsen, Dianne Nicol","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Although Australia has a proud record of health and medical research, it finds less traction when it comes to innovative product development. Patent filings are recognised as one of the measures of national innovation, and this is one measure where Australian innovators are falling short. We examined whether there may be discrete pockets of innovation in particular areas of technology where Australian researchers are making significant contributions. This study used patent filings as a measure of innovation and used clustered regularly interspaced short palindromic repeat (CRISPR) genome editing as a case study. We found a rich patent landscape, with filings for general methods and compositions and for specific diseases. However, the contribution by Australian applicants was small, with only four out of 519 filings. This indicates that navigating the CRISPR patent landscape to secure freedom to operate is likely to be complex for Australian innovators in this field.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 2","pages":"286-309"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139673222","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
Welcome to Television: Regulating Alcohol Marketing on Television in Australia to Protect the Health of Young People. 欢迎收看电视：规范澳大利亚电视上的酒精营销，保护青少年健康。
Journal of Law and Medicine Pub Date : 2023-07-01
Paula O'Brien
{"title":"Welcome to Television: Regulating Alcohol Marketing on Television in Australia to Protect the Health of Young People.","authors":"Paula O'Brien","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Television content is now available whenever and wherever viewers want it through free-to-air commercial television, catch-up television, video-on-demand services whether subscription or free, and social media platforms such as Facebook and TikTok. Alcohol marketing is pervasive in television, with young people's exposure to such marketing being causally connected to harms such as early initiation to drinking and heavy drinking practices. The World Health Organization recommends that countries ban or place comprehensive restrictions on alcohol marketing. Australia has failed to heed this recommendation. This column reviews the regulation of alcohol marketing in Australia from the perspective of its capacity to protect young people from exposure to the marketing. Australia's regulation of alcohol marketing is weak, fragmented and outdated, with rules that favour the interests of the alcohol, media and sporting industries, and do not protect the public's health, particularly that of young people.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 2","pages":"310-325"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139673226","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
Legal Liability of Clinical Ethics Services in Australia: "Should I Be More Worried Than I Am?" 澳大利亚临床伦理服务的法律责任："我应该比现在更担心吗？
Journal of Law and Medicine Pub Date : 2023-07-01
Sharon L Feldman, Carolyn Johnston
{"title":"Legal Liability of Clinical Ethics Services in Australia: \"Should I Be More Worried Than I Am?\"","authors":"Sharon L Feldman, Carolyn Johnston","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>A key function of clinical ethics services (CESs) is to provide decision-making support to health care providers in ethically challenging cases. Cases referred for ethics consultation are likely to involve diverging views or conflict, or to confront the boundaries of appropriate medical practice. Such cases might also attract legal action due to their contentious nature. As CESs become more prevalent in Australia, this article considers the potential legal liability of a CES and its members. With no reported litigation against a CES in Australia, we look to international experience and first principles. We consider the prospects of a claim in negligence, the most likely legal action against a CES, through application of legal principles to a hypothetical case scenario. We conclude that, although unlikely to be successful at this time, a CES could face answerable claims in negligence brought by patients (and families) who are the subject of ethics case consultation.</p>","PeriodicalId":45522,"journal":{"name":"Journal of Law and Medicine","volume":"30 2","pages":"345-357"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139673216","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 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
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