Melbourne Law School - Theses
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ItemProtecting the public? An analysis of complaints and disciplinary proceedings against doctors in Australia and New Zealand( 2013)The professional regulation of doctors is commonly justified as necessary for the protection of the public. However, the degree to which regulatory decision-making is actually consistent with public protection considerations is unclear. The impact of other influences, such as the wider public interest in ensuring an adequate supply of doctors in the workforce, is also unknown. This thesis uses empirical analyses of the complaints and disciplinary mechanisms of the Australian and New Zealand medical regulatory frameworks to explore these questions. The first empirical study is an analysis of the 485 determinations made by medical tribunals between 2000 and 2009 in the four most populous states of Australia and in New Zealand. The characteristics of the doctors involved are described, together with the characteristics of the cases. The nature of the misconduct at issue is analysed according to a new typology that is more refined than previous typologies and, for the first time, considers misconduct according to both its type and the underlying reason for that misconduct. Disciplinary sanctions imposed by the tribunals are explored in some detail, with removal from practice given special attention due to the unique role of that sanction in protecting the public. The results lead the author to question whether the potential for rehabilitation is being weighted too heavily by the tribunals, and whether this may indicate that other considerations (such as doctor supply and the doctor’s own interests) are being allowed to obscure the primary goal of public protection. The second empirical study investigates 5,323 complaints made to medical boards in Victoria and Western Australia between 2001 and 2008. Again, the characteristics of the doctors concerned are analysed, with particular attention paid to how those characteristics appear at different stages of the complaints and disciplinary process. A focus of the second study is doctor country of training, which is considered in a more nuanced way than ever before. Due to the regulatory response to doctor shortage in Australia, this doctor characteristic is of contemporary significance, including in relation to what it reveals of the tension between public protection and the wider public interest. The increased risk of complaints and disciplinary proceedings among international medical graduates suggests that more may need to be done in ensuring that the approach to the registration, support and supervision of such doctors does not expose the public to risk. The apparent association between elevated complaints risk and doctors from specific countries of training is highlighted as deserving of further study and analysis. As well as being instructive as to the priorities and operation of the complaints and disciplinary system, the knowledge gained through the empirical studies may be useful to medical boards in furthering their public protection agendas. In summary, the results indicate that the risk of being subject to complaints and/or disciplinary action is particularly elevated for doctors who: are male; specialise in obstetrics/gynaecology; psychiatry or general practice; obtained their primary medical qualification outside of Australia or New Zealand; hold general registration; and have previously come to the negative attention of the regulator. In terms of case characteristics, the first study shows that sexual misconduct, illegal or unethical prescribing, and inappropriate or inadequate treatment are the most common issues leading to disciplinary action. This increased knowledge may move regulators one step closer to being able to proactively identify of ‘at risk’ doctors and behaviours, thus allowing them to target training, support and interventions towards such doctors and concerns.
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ItemAcoustic jurisprudence: listening to the trial of Simon Bikindi( 2013)Sound is a fact of life. It is not a fact, however, that contemporary legal scholarship has made any particular efforts to acknowledge, let alone to interrogate in any depth. As a community of jurists we have become deaf to law and to the problem of the acoustic. We must begin to take responsibility for a dimension of legal thought and practice that is no less real or significant simply because we barely attend to it. This thesis argues, therefore, for a specifically acoustic jurisprudence. It proceeds by means of a case study. Between September 2006 and December 2008, Simon Bikindi stood trial at the International Criminal Tribunal for Rwanda in Arusha, Tanzania, accused of inciting genocide with his songs. My analysis of the Bikindi case is pursued according to two main axes. First, the Tribunal’s ‘sonic imagination’: how it thought about matters of acoustics for the purposes of judgment. Second, the ‘judicial soundscape’: the Tribunal’s own acoustics, how sound operated in the courtroom, what work it did, how it was used, ignored, co-opted or otherwise perceived. Each of these two lines of inquiry is further divided into three parts, on the topics of song, speech and sound respectively. I demonstrate how the ICTR drew on, reproduced and gave juridical shape to a whole range of familiar ways of imagining sound in its various forms. And I show how, even though the Tribunal was not always insensitive to matters of acoustics, its approach to Bikindi’s songs displayed an acute form of legal deafness: a real misunderstanding of how songs work, what they do and why they are important. Although the thesis takes the Bikindi case as its main site of analysis, its most important implications are intended to be much broader. Most of all, it is addressed to a gap in the extant literature on the formal, aesthetic and material dimensions of legal practice. Drawing on the jurisprudential literature into which it inserts itself, the emergent field of sound studies and a theological and metaphysical tradition which extends back at least as far back as Ancient Greece, it is both an argument for the importance of attending to questions of sound in law and a first exemplification of what it might mean to do so.