Melbourne Law School - Research Publications
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ItemThe Schiavo and Korp cases: Conceptualising end-of-life decision making(Law Book Co., 2005)An incompetent, terminally ill patient can be viewed in two ways – as a person who is dying, when futile, life-prolonging treatment can be lawfully withdrawn; or a person with a disability, for whom a guardian must be appointed to decide about treatment. Terri Schiavo’s husband took the first view and her parents the second. Maria Korp was regarded as dying when treatment was withdrawn. The difference in conceptualising a patient’s situation is critical. Where a patient is dying, treatment can be lawfully withdrawn whatever the view of the relatives; they cannot require treatment to be continued. Where a patient has a disability and a surrogate decision maker is appointed, the focus is on what the patient would have wanted in such circumstances, so that the surrogate can act in accordance with the patient’s wishes. That deflects attention from the fundamental legal principle that whatever a patient or the relatives want, they are not legally entitled to demand treatment that doctors consider futile in the circumstances.
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ItemEffects of tort law reform on medical liability(Thomson, 2005)In the period 2001-2004, legislation has been passed in all Australian jurisdictions to effect “tort law reform”. This article outlines some of these changes, focusing particularly on the amendments to the Wrongs Act 1958 (Vic), though it also draws attention to corresponding changes in other jurisdictions. The new legislation creates new immunities from liability; limits recovery for psychiatric injury; reintroduces in modified form the Bolam test of professional negligence; replaces the “not far-fetched or fanciful” test of foreseeability with one requiring that the risk be “not insignificant”; extends the scope of the traditional defence of voluntary assumption of risk; and provides caps, thresholds and a higher discount rate in relation to damages. The impact that these changes may have on the liability of health professionals is considered.
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ItemUndertaking research in other countries: National ethico-legal barometers and international ethical consensus statements(PUBLIC LIBRARY SCIENCE, 2007-02-01)Is it ethical for scientists to conduct or to benefit from research in another country if that research would be unlawful, or not generally accepted, in their own country?
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ItemArguments against people "owning" their own bodies, body parts and tissue( 2002)There are a number of reasons why people should not, as a general principle, be recognised as having proprietary rights in their own body, body parts and tissue. This paper commences with some of the arguments against recognising such rights then examines in more detail the arguments that have been put forward in favour of recognising them. In relation to the latter, counter-arguments are put to each argument. The author argues that the counter-arguments outweigh the arguments. This leads to her conclusion that the law should not recognise proprietary rights in bodies, body parts or tissue in favour of the people from whom they came, though proprietary rights may arise in favour of a third person, by principles that suggested in the paper.
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ItemLegal issues related to the ownership of and access to bodily material( 2002-01)Who owns your body and parts removed from it? Can you legally sell your bodily material - or information derived from it? Can you legally prevent other people gaining access to your excised bodily material, including your blood relatives who may need your tissue or genetic information for their own genetic tests? What legal remedies are there if people take or use your bodily material without your consent? And why are the answers to these questions vitally important for scientists?
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ItemInformed consent: lessons from Australia( 2002-01)This paper discusses recent English and Australian law on the legal duty of doctors to inform patients about risks associated with proposed medical procedures in order to obtain the patient’s ‘informed consent’ to undertake the procedure. Australian courts since Rogers v Whitaker have rejected the ‘Bolam test’ (accepted medical practice) and have applied a more patient-centred test. Table 1 in the paper gives specific examples from recent Australian cases of medical risks that courts have ruled must be disclosed. The National Health and Medical Research Council (NHMRC) has also published General Guidelines for Medical Practitioners on Providing Information to Patients, (1993). However, an empirical study described in the paper found that many doctors appear not to understand their legal duty to inform patients: see Table 2. Not surprisingly, a significant number of doctors are still being held liable for negligent failure to inform.
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ItemProprietary rights in human bodies, body parts and tissue: regulatory contexts and proposals for new laws(Hein, 2002)This paper examines the law on the proprietary rights of people in respect of their bodies, body parts and tissue. Proprietary rights include rights of ownership and control. The paper argues that the context in which judicial decisions are made and policy recommendations are developed sometimes results in a patchwork of legal principles. Being aware of the context in which different aspects of the law have been developed enables us to understand why principles have been developed, what is needed to reconcile them and how we can establish a coherent regulatory regime. The paper then proposes such a scheme to deal with proprietary and control rights in this area. It argues that people (or the personal representatives of people who have died) should have a personal autonomy right to be consulted about the use of their corpse or their excised body parts or tissue in teaching, research and commercialisation of biological inventions, and to refuse or to impose conditions. They should not, however, have a right of ultimate ownership in their corpse, body parts or tissue, except for the limited right of personal representatives to gain possession of bodies and body parts of people who have died for burial or cremation if they so wish. That right should not extend to tissue preserved on slides, in paraffin wax or similar format. That tissue should be subject to proprietary interests in favour only of the hospital, research institute, its staff or the people to whom they transfer it. The same rule should apply to bodies or body parts held by a hospital or research institute with the consent of the person concerned, though the bodies or body parts may ultimately have to be returned for burial or cremation. Tissue removed under a statutory requirement without consent, such as for coronial investigation or forensic tests, should be used only for the purposes prescribed by the relevant legislation.
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ItemOwnership of human tissue and the law(Nature Publishing Group, 2002-02)Genetic researchers and medical practitioners often need to obtain access to stored human tissue without consent from the people concerned. But the laws that relate to the ownership of, and control over, stored human tissue are at present unclear, especially in the light of recent cases and inquiries. Here, I discuss how the law might be clarified, and argue that the law should allow stored human tissue to be used without consent, providing that this occurs with ethical approval and that the confidentiality of the donor is protected.
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ItemNo Preview AvailableThe role of the church in developing the law(BRITISH MED JOURNAL PUBL GROUP, 2002-08-01)The church and other community organisations have a legitimate role to play in influencing public policy. However, intervention by the church and other religious bodies in recent litigation in Australia and the United Kingdom raises questions about the appropriateness of such bodies being permitted to intervene directly in the court process as amici curiae. We argue that there are dangers in such bodies insinuating their doctrine under the guise of legal argument in civil proceedings, but find it difficult to enunciate a principled distinction between doctrine and legal argument. We advise that judges should exercise caution in dealing with amicus submissions.