Biomedical subjects
Publications and source records attributed to Ian Freckelton.
Against a background of little by way of health practitioner regulation, Indonesia's Medical Practice Act 2004 has introduced a regime of both ethical obligations for medical practitioners and a system of disciplinary oversight over practitioners' conduct. This editorial describes the Indonesian initiatives and evaluates the challenges that are likely to confront their implementation.
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Important statutory and common law developments are changing the landscape of health law in Australia. Human rights considerations are formally included amongst the factors to be applied in the interpretation of statutory provisions and evaluating the lawfulness of actions on the part of government instrumentalities. The Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) create limited bills of rights at State/Territory level in two Australian jurisdictions. Although neither is entrenched, they have the potential to make it more difficult for government to promulgate laws that are inconsistent with human rights, as defined. They will have important repercussions for the evolution of health law in these jurisdictions. The decision of Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 by the Victorian Court of Appeal has also provided a legitimation for parties to incorporate human rights perspectives in submissions about the interpretation of statutory provisions where health rights are in conflict.
The parameters of vicarious liability of corporations for the conduct of their employees, especially in the context of provisions that criminalise breaches of regulatory provisions, are complex. The decision of Bell J in ABC Developmental Learning Centres Pty Ltd v Wallace [2006] VSC 171 raises starkly the potential unfairness of an approach which converts criminal liability of corporations too readily into absolute liability, irrespective of the absence of any form of proven culpability. The author queries whether fault should not be brought back in some form to constitute a determinant of criminal liability for corporations.
The 2006 Report of the Law Reform Committee of the Victorian Parliament into the Coroners Act 1985 (Vic) is a substantial and visionary document which has the potential to take coronial law reform in important new directions. It draws upon a range of reforms trialled in other jurisdictions, but proposes to consolidate a new role for the coroner as a public health official with a formally acknowledged focus on facilitating avoidance of avoidable deaths. Some of its Shipman-inspired proposals require further consideration but the general tenor of the Report - to recognise the distinctive functions of inquests and their potential to alleviate community concerns, respond to family members' needs and reduce the potential for dangerous conduct--deserves support.
In R v Doogan (2005) 158 ACTR 1; 193 FLR 239; [2005] ACTSC 74 the Full Court of the Australian Capital Territory Supreme Court made what is arguably thus far the most extensive Australian appellate decision on coronial law and procedure. The court made findings on the nature of coroners' inquests into fires and deaths, the ways in which the parameters of inquests should be determined and the circumstances in which the conduct of coroners and the counsel assisting them could amount to conduct which would lead the hypothetical disinterested bystander to conclude that the coroner was biased. The decision is a contextually sophisticated analysis. One of its consequences is that it will be difficult for parties to have coroners disqualified for apprehended bias. More generally, though, the decision will lend significant assistance for the recurrent difficulty of evaluating when matters sought to be traversed are outside the proper parameters of a coroner's inquest.
In Council for Regulation of Healthcare Professionals v General Medical Council [2005] EWHC 579 (Admin) Collins J heard an appeal relating to sanctions imposed on a medical practitioner who had provided medically unjustifiable opinions in relation to the person responsible for the death of a child in a notorious case for which a solicitor had been convicted of murdering her two sons. The author analyses and evaluates the considerations determined by Collins J to have justified the imposition of conditions rather than erasure of the practitioner from the Medical Register.
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This editorial scrutinises the impact of preclusion periods for social security entitlements upon personal injury practice. It identifies the differences in calculation in respect of the compensation part of lump sum payments, depending upon whether a plaintiff's case is settled or resolved by litigation. It examines the effect of s 1184K of the Social Security Act 1991 (Cth) and the circumstances in which the discretion to reduce or waive the preclusion period has been exercised in favour of recipients of lump sum payments. It argues that room remains for creative arguments on behalf of plaintiffs, highlighting the potential for the compensatory effect of the lump sum to be undercut if the preclusion provisions are fully applied.
Bipolar disorders are a neglected subject in legal scholarship. Yet they affect decision-making across the spectrum of the law. This editorial analyses the approaches adopted across a variety of areas of legal decisions. It observes a lack of coherence in the approach of the law and attempts to identify a number of issues that are posed by the diverse symptoms of the bipolar disorders. It argues in favour of greater judicial and tribunal member education about the disorders.
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Much about what used to be termed "disciplinary" investigations and hearings is being revisited in the modern era. Therapeutic jurisprudence enables informed and sensitive awareness to potentially therapeutic and counter-therapeutic effects of both investigations and hearings conducted by medical regulatory authorities. This article analyses key aspects of authorities' processes from the perspective of notifiers/complainants and practitioners. Using developments at the Victorian Medical Practitioners Board as a base, it addresses issues of both investigative procedures and decision-making at formal and informal hearings, as well as the ramifications of re-hearings for the integrity of peer review informed regulation. It argues that where reclamation of practitioners is possible (namely where impropriety is not of the most serious order), there is much that is constructive about a focus upon enhancement of performance and competence levels, rather than the traditional preoccupation with whether registered status needs to be affected as a result of practitioner conduct.
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Explore the source record for details and available documents.
Explore the source record for details and available documents.
Explore the source record for details and available documents.