Australia’s COVIDSafe app was launched by the Australian Government in April 2020. The app uses Bluetooth technology to record “contact events” or “digital handshakes” between app users, which are stored on users’ phones for 21 days. Contact events include the encrypted ID of the other contact user, the Bluetooth signal strength during the event, and its duration and time (but not location data). If a user tests positive, this information is uploaded to the National COVIDSafe Data Store (a cloud-based data repository supported by Amazon Web Services and administered by the Digital Transformation Agency), where it can be decrypted for use by state contact tracers.
The app has been hampered by concerns about its security, privacy, and effectiveness. Amendments to the federal Privacy Act (1987) created a legislative framework for protecting the privacy of app data and preventing ‘function creep’, i.e., the risk of data being used for purposes other than contact tracing, such as law enforcement. This framework follows the same format as other privacy laws in Australia (such as legislation that applies to the MyHealth Record System), setting out a series of permitted uses, collections, and disclosures of app data related to contact tracing and maintaining the data store and the app. All other collections, uses, or discloses are prohibited, as is uploading app data from a user’s device to the data store without their consent, retaining or disclosing data to someone outside Australia (unless for contact tracing purposes), and decrypting app data on a user’s device.
Crucially, the legislation protects voluntary use, for example, by making it an offence to require someone to download or use the app, or to refuse to provide them with goods or services because they’re not using it. The legislation also creates a mechanism for dismantling the system when it is no longer needed, and for deleting the information contained in the data store.
The basic legislative privacy protections on the app are sound, although commentators have identified some ways in which they could be strengthened, for example, by providing for the periodic removal of contact event data from the data store.
Where the system really falls down is in the design and operation of the app itself. This invokes the concept of privacy by design, i.e., building privacy protections into the physical design, architecture, and computer code of the device or system concerned. Privacy in the digital realm can be protected through multiple channels, including contractual mechanisms, legislation, and design-based solutions. The physical design of the system or device is at least as important – if not more so – than any legal frameworks that apply. This is often referred to as “code” or “architecture”-based regulation, and it’s interesting to consider whether or how the privacy and transparency concerns raised below could also be addressed through legislation.
Privacy advocates and tech experts have extensively canvassed the security and privacy flaws in the app, as well as technical problems that prevent it from operating effectively. This report, by a group of software developer and cybersecurity experts, provides a comprehensive and readable summary. Some of the early bugs included “phone model and name being constantly exposed and unique identifiers being available to track over time… undetectable, permanent long-term tracking of iOS and Android devices and attackers being able to control devices remotely” (p.7). The authors point out that many of the app’s technical challenges stem from the use of Bluetooth for a function it wasn’t originally intended for, i.e., continually and indefinitely scanning the environment for other devices, and then making connections with them.
They also say that some of the technical issues with the app resulted from a lack of consultation with tech experts (and the wider community) during its development, as well as a lack of testing and verification.
Also concerning has been the DTA’s slow response to concerns raised by the tech community once the app was launched, as well as limited transparency in the scheme’s operation. This includes the DTA’s failure to release the number of active users, and the Government’s reluctance to release the full version of an independent report on the app’s operation, which found that the app imposed significant time costs on contact tracers for no little additional benefit. Some of this information was omitted in a shorter version of the report originally made publicly available.
The Government has taken steps to address some of the bugs in the app, including through the adoption of the “Herald” protocol in December 2020, although the authors of the report mentioned above say this protocol still has problems, and in fact reintroduced some issues that had been fixed previously. They call for the Government to adopt the Exposure Notification Framework developed by Apple and Google, which doesn’t create the same privacy and security challenges as the Covidsafe app.
There have also been developments in the responsiveness and transparency of the scheme. For example, the DTA has identified a contact point for security concerns, and in April 2020, it made publicly available the full source code for the app, which is hosted on a Github repository. But, according to researcher Emma Blomkamp, the early lack of community engagement was a missed opportunity to build public acceptability of the app or a ‘social licence to operate’ (particularly among Australia’s diverse communities) and to inform the public about the app’s operation and the privacy protections that would apply.
Trust in government is crucial to an effective response to the COVID-19 pandemic. By now, we all know that governments possess highly coercive powers for responding to public health emergencies. But to a significant extent, governments must rely on people voluntarily doing the right thing, including downloading the Covidsafe app and sharing their personal information with contact tracers. That’s much more likely to happen when people trust the government, and that trust is much more likely when there’s a transparent and accountable system in place, combined with rigorous privacy protections, both “code” and law based.
This is an area where a fast rollout shouldn’t have come at the expense of a responsive, transparent, or accountable one.
“The combination of very sick patients, knowledge deficits, and high pressure environments is likely to make capacity assessment very difficult during the COVID-19 pandemic.”
The article provides examples of mental capacity disputes in a number of common law jurisdictions before recommending that in emergency admissions for COVID-19, health practitioners use what Professor Stewart and his co-authors term the “CARD” approach (Comprehend, Appreciate, Reason, and Decide).
“CARD gives clinicians a legally defensible means of rapidly determining the mental capacity of COVID-19 patients, essential to guide urgent treatment and ensure that patients’ best interests are ultimately served in the process.”
COVID-19, Australian prisons: Human rights, risks and responses
Australian prisons have, so far, avoided the levels of COVID-19 infection experienced in the United States and elsewhere, but the potential for high infection rates remains.
“Ultimately, COVID-19 presents an opportunity to reconsider the deeper issues regarding use of incarceration as a punishment and the human rights of prisoners more generally.”
Cameron Stewart teaches in Sydney Law School’s Master of Health Law program, including subjects on Death Law, Health Care and Professional Liability, and Government Regulation, Health Policy and Ethics.
Related posts on COVID-19 from the Sydney Health Law team:
Science at warp speed: COVID-19 medical research governance
In biomedical research focused on developing COVID-19 vaccines and therapies, the need for speed is taken for granted. But “what, if anything, might be lost when biomedical innovation is sped up”? In a timely article in the Journal of Bioethical Inquiry, Professor Cameron Stewart and colleagues, consider a study (on the use of anti-malarial drug hydroxychloroquine for treatment of COVID-19) recently retracted from The Lancet to illustrate the potential risks and harms associated with speeding up science.
As Professor Stewart and his co-authors note:
“[T]the potential damage caused by not ensuring effective governance of research during epidemics may be immense. Harmful drugs and devices might go on to injure millions of people, useful drugs and devices might be abandoned, the public’s faith in science and medicine might be undermined, and irrational and ineffective healthcare might proliferate.“
The article goes on to suggest a range of measures to address weaknesses in technical or methodological rigour, lack of peer oversight, and unmanaged conflict of interest in pandemic research.
“This is a difficult conversation, but one that must be undertaken. After all, this is not the first time that science has been sped up during pandemics with problematic effects, and we will undoubtedly need to speed science up again, many times in the future.”
COVID-19 public health orders and mental health practitioners
Their article notes that due to the COVID-19 pandemic, health authorities in all Australian jurisdictions can invoke public health orders that allow for an extremely broad range of coercive orders, including forcible detention, testing, and treatment of any person reasonably suspected of being COVID-19 positive.
The article highlights relevant public health laws for mental health practitioners to be aware of and suggests that mental health units and public health units establish lines of communication to work together.
Professor Stewart and his colleagues conclude with a call for nationally consistent regulation as “the best way to encourage best practice, fair decision-making, the protection of human rights, and the promotion of public safety”.
Cameron Stewart teaches in Sydney Law School’s Master of Health Law program, including subjects on Death Law, Health Care and Professional Liability, and Government Regulation, Health Policy and Ethics.
Related posts on COVID-19 from the Sydney Health Law team:
The duty of confidentiality is crucial to building relationships of trust and confidence between patients and healthcare professionals, and to effective healthcare systems more broadly. However, the law recognises that the duty of confidentiality is not absolute and sometimes needs to yield to other public interests. A recent UK case, ABC v St George’s Healthcare NHS Trust  EWHC 455 (QB), concerned the need to balance the public interest in protecting the confidentiality of health information against the public interest in preventing serious harm to others.
The case arose out of a tragic set of facts. In 2007, ABC’s father shot and killed her mother. He was convicted of manslaughter by reason of diminished responsibility and detained under the UK’s Mental Health Act 1983 at a clinic at Springfield Hospital. The father (referred to as XX in the judgment) received care from a multidisciplinary team, headed by Dr Olumoroti, a consultant forensic psychiatrist. Despite the devastating impact of her father’s offence, ABC continued to be involved in her father’s care, and attended family therapy sessions at Springfield Hospital.
During his detention, XX was diagnosed with Huntington’s Disease (a genetic condition that ABC had a 50% chance of inheriting). XX refused to disclose the diagnosis to ABC or her sister, despite learning in September 2009 that the claimant was pregnant. The Springfield clinical team was informed of the claimant’s pregnancy but disagreed as to whether she should be told about her father’s diagnosis. Ultimately, Dr Omuloroti – as XX’s responsible physician – decided against disclosure.
ABC had her baby in April 2010, and in August of that year, a Mental Health Tribunal directed XX’s discharge. Dr Olumoroti and a social worker visited the claimant’s home, where Dr Olumoroti accidentally disclosed XX’s diagnosis. In a twist of fate, ABC’s sister was then in the early stages of her first pregnancy, but ABC did not want XX’s diagnosis disclosed to her.
In 2013, ABC tested positive for the genetic mutation for Huntington’s Disease. She developed a psychiatric illness as a result and was greatly concerned for her daughter’s future.
ABC brought actions against three healthcare trusts responsible for the clinicians involved in XX’s care, including the Springfield Hospital clinical team. ABC argued that the three defendants had been negligent in failing to alert her to the risk she had inherited the gene for Huntington’s Disease in time to terminate her pregnancy. She also argued there had been a breach of the UK Human Rights Act 1998, but this played a minor role in the case. ABC sought damages for the continuation of her pregnancy, psychiatric harm, and consequential loss.
The case was initially struck out, a ruling that was overturned by the UK Court of Appeal, and the case was finally heard by Justice Yip in the UK High Court. ABC was ultimately unsuccessful against all three defendants, but perhaps surprisingly, Justice Yip held that Springfield Hospital owed her a duty of care in negligence. That duty is the focus of this post.
Justice Yip held that the negligence complained of fell outside of any pre-existing duty of care. However, Her Honour was prepared to create a new duty, based on the application of the Caparo test, the UK’s test for creating a novel duty of care in negligence.
First, harm to the claimant (i.e., psychological harm and the loss of the opportunity to terminate her pregnancy) was clearly foreseeable and had actually been foreseen by the clinical team, as was apparent from the evidence at trial and medical records.
Second, there was a relationship of sufficient proximity between ABC and Springfield Hospital, central to which was the claimant’s participation in family therapy. This created a patient-practitioner relationship between ABC and the hospital (in respect of those sessions), a well-established duty of care. Although the duty didn’t require disclosure of the diagnosis, the relationship meant that the hospital held a significant amount of information about ABC. For example, the clinical team knew she had suffered psychological harm as a result of her father’s offence and were working with her to help her come to terms with it. Had they wished to disclose the diagnosis to her, the family therapy sessions provided an avenue for doing so.
On the third limb of the test, Justice Yip concluded that it was fair, just and reasonable to impose on Springfield Hospital a duty to:
… balance [ABC’s] interest in being informed of her genetic risk against her father’s interest in preserving confidentiality in relation to his diagnosis and the public interest in maintaining medical confidentiality generally… The scope of the duty extends not only to conducting the necessary balancing exercise but also to acting in accordance with its outcome. -
Justice Yip framed this duty of care not as one to simply disclose confidential information when a patient has refused consent, but as a duty to balance the interests the individual concerned against those of the patient, an exercise which may or may not lead to disclosure.
In the result of a legal challenge, the court would review the balancing exercise undertaken by the healthcare professional(s) concerned. There will only be a breach of the duty if the balancing exercise was not conducted properly and if it had been conducted properly, the defendant would have disclosed. The court will also set aside the defendant’s decision if the balancing exercise was conducted properly and the defendant would not have disclosed, but the decision is one that no responsible body of medical opinion would support.
The court’s role in cases involving this duty almost resembles a form of judicial review, where the court reviews whether the decision was reached by the correct procedure, rather than the correctness of the decision per se – unless the decision is completely unsupported by responsible medical opinion.
Generally speaking, it is uncommon (but not unheard of) for healthcare professionals to owe a duty to third parties outside the patient/practitioner relationship. But additionally, the duty in this case conflicts with the obligation of confidence owed to the patient themselves. Justice Yip pointed out that professional guidance (and existing legal authorities) already recognize that the obligation of confidence is not absolute and require a similar balancing exercise. Also, clinicians would be given considerable latitude in this balancing exercise by the courts.
Justice Yip was careful to stress that she was only deciding whether a duty of care arose on the particular facts of the case before her, which were unusual and created a relationship of close proximity between the defendant and the claimant – a central component in finding the duty existed. She was not creating a general duty of care owed by healthcare professionals to anyone who was not their patient, nor would the duty require healthcare professionals to chase down all the genetic relatives of their patient.
However, Justice Yip did not limit the duty to cases involving genetic information, but extended it any kind of confidential health information. Accordingly, it has significant ramifications for UK healthcare professionals in a range of fields.
Australia is yet to see a similar case which creates something resembling a legal obligation to consider whether to disclose confidential information to at risk individuals, when patients refuse consent (Australian legal authorities and professional guidelines permit – but don’t require – disclosure in these circumstances). Such a duty seems unlikely in the near future, given the unusual factual matrix in ABC v St George’s Healthcare NHS Trust, the different legal context in Australia, and our own High Court’s reluctance to create novel duties of care in negligence.
Section 5O of the Civil Liability Act 2002 (NSW) (CLA) introduced a modified version of the Bolam principle into the law of civil liability in NSW, extended to professionals other than medical professionals (the original subject of the principle). The effect of s 5O(1) is that a court is prevented from making a finding of negligence against a defendant professional where it can be shown that he or she acted in accordance with a practice widely accepted as being competent by peer professional opinion, unless that opinion is irrational (s 5O(2)) (s 5P excludes the application of s 5O to risk warnings in certain circumstances). Three recent cases involving s 5O provide some guidance on how the provision should be interpreted.
In Sparks v Hobson  NSWCA 29 (recently covered on this blog by Professor Roger Magnusson) the plaintiff, Mr Hobson, required corrective surgery to straighten his spine, which took place in two stages. The first stage proceeded without incident, but the second stage had to be brought ahead of schedule and done urgently. The surgery was terminated after the anesthetist, Dr Sparks, became concerned that Mr Hobson’s blood pressure and oxygen levels were dangerously low as a result him being positioned face down for the surgery. While a later surgery successfully addressed the spinal condition, Mr Hobson was rendered paraplegic as a result of the second urgent surgery. He brought an action in negligence against the hospital and members of his treating team, including Dr Sparks and the principal surgeon Dr Grey. The trial judge found that both doctors had been negligent in not terminating the surgery 13 minutes sooner than they did, and that s 5O could not be made out. The defendants appealed to the NSW Court of Appeal.
Dr Grey was successful in establishing that he had not been negligent, but a majority of the Court of Appeal found that Dr Sparks had been negligent in failing to terminate the surgery sooner. Justice McFarlan and Justice Simpson accepted that they were bound by the Court of Appeal’s reasoning in McKenna v Hunter & New England Local Health District  NSWCA 476. Here, the court held that in order for s 5O to be established, a medical practitioner must demonstrate that what he or she did conformed with a practice that was in existence at the time the medical service was provided. Then, he or she must establish that that practice was widely (although not necessarily universally) accepted by peer professional opinion as competent professional practice.
Justice Basten rejected the requirement that there be “a practice” (described as a “regular course of conduct adopted in particular circumstances”), on the basis that the Court of Appeal’s decision in McKenna was overturned on appeal to the High Court and its reasoning was no longer binding. However, His Honour agreed with Justice McFarlan (but on different grounds) that Dr Grey’s evidence was insufficient to establish s 5O.
The majority’s judgment in Sparks v Hobson narrows the scope of the operation of s 5O, meaning that it will not be available in circumstances where the defendant cannot show that he or she followed a discrete, established “practice”. This includes in unusual factual situations or potentially, situations involving new medical techniques or procedures. The High Court recently denied an application for leave to appeal from the Court of Appeal’s decision.
Under s 5O(2) peer professional opinion cannot be relied upon for the purposes of s 5O(1) if the court considers that the opinion is “irrational”. The NSW Court of Appeal considered the meaning of this term in South Western Sydney Local Health District v Gould  NSWCA 69. The plaintiff, a young boy, slipped and fell on wet concrete and injured his thumb. He was administered antibiotics at Campbelltown Hospital and a different antibiotic at Liverpool Hospital, which he was transferred to in the evening on the day of the incident. However, gangrene developed in his thumb after he was discharged and it was amputated. The plaintiff successfully brought a claim in negligence against the health district responsible for Liverpool Hospital. The trial judge found that the treating team at Liverpool Hospital had been negligent in failing to give the plaintiff an additional course of a different antibiotic, and that the opinion of the defendant’s two expert witnesses (that the additional course of antibiotics was not required) was irrational under s 5O(2).
On appeal to the NSW Court of Appeal, Justice Leeming (with whom Meaghar J agreed) made a series of comments on s 5O after considering the history, objective and statutory context of the provision. Justice Leeming concluded that ():
Text, context and purpose [of s 5O] all support the conclusion that it is a seriously pejorative and exceptional thing to find that a professional person has expressed an opinion that is ‘irrational’ and even more exceptional if the opinion be widely held. To consider a body of opinion to be ‘irrational’ is a stronger conclusion than merely disagreeing with it, or preferring a competing body of peer professional opinion.
Justice Leeming held that the trial judge had erred by conflating the process of resolving a conflict between competing expert opinions “with the entirely different process required by s 5O(2) of determining whether an opinion is ‘irrational’” (). It was also procedurally unfair for the trial judge to find the evidence of the defendant’s witnesses irrational when this point had not been argued at trial or raised with either party. Further, the evidence of the defendant’s witnesses was sufficient to establish s 5O(1) and the appeal was allowed.
Does s 5O operate as a defence?
Based on the decision in Dobler v Halveson (2007) 70 NSWLR 151, s 5O has commonly been interpreted as a defence, meaning that the plaintiff must establish a breach of the duty of care for the purposes of s 5B of the CLA (as well as the other elements of negligence), following which the defendant must raise evidence that his or her conduct accorded with competent professional practice for the purposes of s 5O.
In Gould, Justice Leeming commented that the proper interpretation of Dobler was that if the defendant could establish the preconditions in s 5O, then it would act to set the standard of care. If the preconditions in s 5O could not be established then ss 5B and 5C of the CLA would apply. However, “[t]here is no occasion to compare the s 5O standard with that which would be considered in the application of s 5B in a case where the preconditions of s 5O have been made out” (). Justice Leeming noted that this interpretation of s 5O was also suggested by Justice Basten and Justice Simpson in Sparks v Hobson. In that case, Justice Basten commented that ():
…once s 5O is invoked, arguably the general exercise required by s 5B becomes otiose. There can only be one standard against which to judge the conduct of a professional defendant, although that standard may depend upon the resolution of conflicting evidence called by the plaintiff and the defendant. It is only if one takes the plaintiff’s evidence in isolation that a two-stage process, involving the assessment of the plaintiff’s claim followed by assessment of an affirmative defence, will arise. However, in a practical sense, that is not how the dispute should be determined. Rather, a judgment will be given based on all of the evidence. Nor is the exercise helpfully clarified by speaking of shifting burdens of proof. The question for the trial judge is ultimately whether the plaintiff has established that the conduct of the defendant failed to comply with the relevant standard of care.
According to Justice Basten, s 5O will be engaged where there is evidence of a widely accepted professional practice supporting the defendant’s conduct, but that evidence, when available, will set the relevant standard: “there cannot be two legally supportable standards operating in the one case” (). So while the defendant may need to establish the elements of s 5O, it is the starting point for determining the standard of care owed by the defendant and whether the defendant fell below the standard of care – not a defence that is considered after breach has been established for the purposes of s 5B of the CLA.
The word “professional” is not defined in s 5O. It clearly extends to medical professions, but it is unclear which other professions it might include. The meaning of the word “profession” was considered in Zhang v Hardas (No 2)  NSWSC 432. In this case, Ms Zhang sued Mr Hardas, a chiropractor, alleging that he had been negligent in treating her over 12 consultations between February and September 2007, causing her to develop a depressive disorder. The case concerned Mr Hardas use of an “activator” device on Ms Zhang’s spine, which delivered a significant force to the spine for the purpose of moving bones in the spine. Ms Zhang alleged that the device had been applied hundreds of times to her cervical spine during each of the consultations with Mr Hardas.
Justice Leeming in the NSW Supreme Court rejected this argument, with the evidence supporting Mr Hardas’ position that the device had been used no more than a dozen times during each session with Ms Zhang. Further, it was not reasonably foreseeable that a person of normal fortitude might suffer a recognized psychiatric injury as a result of undergoing treatment with the activator device when it was used no more than a dozen times on each occasion. However, Justice Leeming considered whether s 5O would apply, if His Honour was incorrect on the point of whether the plaintiff owed the defendant a duty of care, as argued by the defendant.
Justice Leeming considered whether Mr Hardas, as a chiropractor, could be said to be “practicing a profession”. After reviewing the history of professionalization, Justice Leeming stated that he preferred the view “that the essential nature of practising a profession is closely linked to a partial monopoly, justified by education and public benefit, and involving a measure of altruism distinct from the drive for profit” (). However, Justice Leeming did not express a conclusive view of the meaning of the word “profession” for the purposes of s 5O, but instead confined his decision to the narrower question of whether chiropractors practiced a profession.
Justice Leeming noted that at the time the incident occurred, chiropractors were regulated under a series of acts, including the Chiropractors Act 2001 (NSW), the Health Care Complaints Act 1993 (NSW) and the Public Health Act 1991 (NSW). The Chiropractors Act established a Registration Board that developed a code of professional conduct for chiropractors and also included definitions of “professional misconduct” and “unsatisfactory professional conduct.” Public complaints could be made to the board, and the Act also established a Chiropractors Tribunal that dealt with complaints that could involve suspending or cancelling a chiropractor’s registration. The Public Health Act provided that a person could not engage in spinal manipulation unless they were a registered chiropractor.
Justice Leeming concluded that s 5O “was enacted in a context in which (a) it was plain that the conventional medical profession was squarely within the mischief to which it was directed and (b) legislation treated chiropractors in ways which were similar to medical practitioners”, including through the creation of a tribunal dealing with instances of professional misconduct, combined with statutory concepts of professional misconduct and unsatisfactory professional conduct ().
The Chiropractors Act 2001 also consistently treated chiropractors as professionals and “there is every reason for the defined term “professional” in s 5O to extend to occupations regarded by the same Legislature as professional” (). Accordingly, chiropractors could be regarded as practising a profession for the purposes of the provision. Further, “the notion of a licensed monopoly of people who practice spinal manipulation, with educational qualifications and mechanisms for admitting and excluding those who meet or fail to meet those standards, also appears to apply” ().
Mr Hardas could establish that he had acted in a manner that was widely accepted in Australia as competent professional practice as he had established that the “activator technique” was widely accepted in Australia, and the fact that other chiropractors used different methods did not prevent him from establishing that he had followed competent professional practice (s 5O(3)). Justice Leeming left to one side the issue of whether s 5O required the defendant to establish that he or she had followed “a practice” but noted that Mr Hardas’ conduct would have met this requirement if necessary.
Australian law may be on the cusp of a brain-based revolution that will reshape the way we deal with criminals.
Some researchers, such as neuroscientist David Eagleman, have argued that neuroscience should radically change our practices of punishment. According to Eagleman, the courts should give up on the notion of punishment altogether and instead focus on managing criminals and containing their behaviour in order to keep the rest of us safe.
Is this a good idea? And is this how Australian judges are responding to our increasing knowledge of the neurobiological bases of behaviour?
There are two broad approaches to justifying punishing someone who commits a crime. The first is in terms of “moral culpability” or “just deserts”. Crudely, if someone has caused harm, they deserve to have harm inflicted on them in return.
This is known as the “retributive” view; retributivists aim to mete out just deserts, or “just punishment”.
The second approach is to think in terms of the consequences of punishment. If punishment might deter or rehabilitate the offender, or prevent them from committing another crime by incapacitating them, or if it could serve as a deterrent to others, then and only then, is punishment justified.
If the punishment will only harm the individual who committed the crime, but it won’t prevent further crime or benefit others then, on pure consequentialist grounds, it is not justified.
In Australia, judges usually take both retributive and consequentialist considerations into account when determining punishment.
A clear illustration of retributivism is in the sentencing of the serial killer, Ivan Milat where the judge said:
These truly horrible crimes demand sentences which operate by way of retribution […] or by the taking of vengeance for the injury […] the community must be satisfied the criminal is given his just deserts
Currently, Australian offenders are also given the opportunity to make a plea in mitigation after their conviction for a crime. The aim of such a plea is to reduce the severity of punishment.
In some cases, the defence may engage a psychologist or psychiatrist to provide expert evidence about mental or neurological impairment to suggest that an offender is less morally culpable for the crime, and therefore deserving of less retribution.
But some academics, such as American psychologists Joshua Greene and Jonathan Cohen, have argued that consequentialist considerations will be all that is left after neuroscience revolutionises criminal law. Punishment as retribution will be consigned to history.
According to Greene and Cohen, retributivism relies on the notion that people have free will. They say the advance of neuroscience will cure us of that notion by opening the black box of the mind and revealing the mechanistic processes that cause all human behaviour. Once these causes are revealed, we will give up the idea that people are responsible for their bad actions.
We will start to think that a criminal’s frontal lobe impairment caused him to lash out, for instance, and focus on how we can prevent this happening again, rather than thinking they chose to punch their victim and thus they deserve punishment.
According to Greene and Cohen, this will make crime reduction the only goal. If they are right, punishment practices will move in the direction advocated by Eagleman.
Case by case
Greene and Cohen made their argument about the demise of retributivism ten years ago. In light of their predictive claims, it is interesting to examine how the legal system is actually responding to the increasing use of neuroscientific evidence.
We can get an idea of what is happening in Australia from cases in the Australian Neurolaw Database, which was launched in December 2015. The database is a joint project between Macquarie University and the University of Sydney, and includes both Australian civil and criminal cases that employed evidence derived from neuroscience.
Interestingly, the sentencing cases in the database do not suggest retributive justice is being abandoned when the court is confronted with evidence of impairment to an offender’s brain.
Where used in sentencing, neuroscience evidence is often put forward in relation to assessment of the moral culpability of the offender. It is thus used to help determine how much punishment an offender deserves.
This is very different to suggesting moral culpability ceases to be a relevant consideration in the determination of punishment, or that courts should pay no regard to questions of desert. It presupposes that questions about appropriate punishment are important ones to answer correctly.
One example of the way Australian courts regard evidence derived from neuroscience is in the sentencing of Jordan Furlan in 2014. In sentencing 49-year-old Furlan for a violent incident involving a 76-year-old victim, Justice Croucher considered the impact of evidence of a brain injury some years prior to the offence, on Furlan’s moral culpability.
Justifying a sentence of three years and six months, the judge said the offender’s “moral culpability was reduced, but only to a moderate degree because his judgment was impaired as a result of his acquired brain injury”.
The judge went on to say that just punishment was an important factor (among others) in crafting the sentence.
A more striking case relates to the sentencing of former Tasmanian legislative council member Terry Martin for child sex offences. Expert evidence indicated he had developed a compulsive form of sexuality as a result of the effects of medication for Parkinson’s disease on the dopamine system of his brain.
The judge imposed a much more lenient sentence than would have otherwise been the case because of the clear link between the medication and the offending. This link was said to reduce Martin’s moral culpability.
We cannot be sure how neuroscience will affect the law in future. Indeed, there may even be a backlash against this form of evidence.
What can be said is that Furlan, Martin and other cases show Australian judges still consider moral culpability, even in the face of neuroscientific evidence of impaired mechanisms. They do not move to purely consequentialist considerations.
This means retributivism is still alive and well, and just punishment still matters to Australian courts. So, at least for now, the impact of neuroscience is not revolutionary.
This article originally appeared in The Conversation and is reproduced with the kind permission of the authors.
Q was a pregnant 12 year old girl who was referred to medical staff at the Central Queensland Hospital after asking her GP for an abortion. Q was finding the pregnancy “very stressful emotionally” and had run away from home, self-harmed, and attempted suicide on two occasions.
The medical specialists and counselors that had met with Q supported her decision to terminate the pregnancy, as did Q’s parents. There was evidence that continuing the pregnancy would pose significant risks to Q’s physical and mental health.
Central Queensland Hospital sought orders from the Court authorizing the termination of Q’s pregnancy. These were granted by Justice McMeekin in the Queensland Supreme Court on the 20th of April, followed by the judge’s reasons a week later.
The parens patriae jurisdiction
The Supreme Court’s parens patriae jurisdiction formed the basis for the Court’s intervention. This jurisdiction grants Supreme Courts wide powers in relation to the welfare of children, with the best interests of the child being the Court’s primary consideration.
Could Q consent to the treatment?
As I discuss in an earlier post, a child can consent to medical procedures when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed,” i.e., is Gillick competent (following Gillick v West Norfolk & Wisbech Area Health Authority  AC 112).
Generally speaking, parents can consent to treatment on children’s behalf when they are not Gillick competent. However, there are some forms of treatment that fall outside the scope of parental consent, known as “special medical treatment.”
Justice McMeekin held that terminations are one such form of treatment (following State of Queensland v B  QSC 231). Accordingly, court authorization for the treatment would be needed if Q herself was not competent to consent to the treatment.
Justice McMeekin found that Q had a good understanding of the risks involved in the procedure, but doubted that she had the maturity to fully appreciate the long-term consequences of a decision to continue with the pregnancy. Accordingly, she was unable to make a fully informed decision and was not competent to consent to the termination. As such, it was appropriate to invoke the Court’s parens patriae jurisdiction.
Could the treatment be performed lawfully?
Queensland’s Criminal Code criminalizes the termination a pregnancy, unless authorized or justified by law. Section 282 of the Code provides that a person is not criminally responsible for performing a termination so long as it is for the patient’s benefit or to preserve the mother’s life, and is reasonable in the circumstances.
Section 286 of the Code also provides that a “person who has care of a child” must provide the necessaries of life for the child, and take reasonable precautions to prevent danger to a child’s health, including their mental health. The definition of “a person who has care of a child” can include hospitals and doctors who care for children.
In determining whether the termination was lawful, Justice McMeekin followed the approach of the Victorian Supreme Court in R v Davidson  VR 667, which held that an abortion would be lawful where it was believed on reasonable grounds that the abortion was necessary to prevent serious danger to the patient’s life or health, and it was not out of proportion to the danger to be averted.
Justice McMeekin held that it was clearly in Q’s best interests for termination of the pregnancy to proceed, as it was necessary in order to prevent serious danger to Q’s mental and physical health. Further, the proposed response was not out of proportion to the danger to Q’s health. Accordingly, the termination would not be considered unlawful, and it could be justified under sections 282 and 286 of the Code.
Justice McMeekin declared that: the termination of the pregnancy through the administration of drugs was lawful; Q should be permitted to undergo the termination; and the hospital’s staff be permitted to perform it. If the drugs failed to effect a termination within five days, Q’s pregnancy could be terminated using a surgical procedure.
What are the implications of the decision for access to abortion services in Queensland?
The criminalization of abortion in Queensland creates a barrier to women’s access to reproductive services. Q was forced to wait weeks for court authorization for her termination. In 2010 a young Cairns couple faced criminal charges for importing the abortion drug Misoprostol and inducing a miscarriage at home. They were ultimately found not guilty, but following that case, many doctors in Queensland stopped performing abortions.
Lucy Clark in The Guardian suggests that similar fears and uncertainties may be behind Q’s doctors’ decision to seek court authorization for her treatment. She may be right in that respect, but it must be kept in mind that the Queensland Supreme Court characterizes abortion as a form of “special medical treatment” that parents cannot consent to. Accordingly, court authorization would still be needed to perform a termination on a child that was not Gillick competent, regardless of abortion’s status under criminal law.
Kerridge, Lowe and Stewart criticize the characterization of abortion as a form of special medical treatment, arguing that it should fall within the scope of parental consent for children’s medical treatment. A change in the common law would be required in order for a termination to be performed on a non-Gillick competent child without court authorization (although the courts could still intervene under their parens patriae jurisdiction).
Nevertheless, the decriminalization of abortion in Queensland is still an important step in enhancing respect for women’s reproductive rights, and in ensuring access to abortion services.
In March, the Network for Bodies, Organs and Tissues (NBOT) will host its annual multi-disciplinary workshop on bodies and tissues. The event provides a forum for discussions of moral, ethical and regulatory issues relating to the access and control of tissue. The Network welcomes papers that examine the challenges posed by the different uses of tissues (e.g. reproductive, therapeutic, regenerative, research, education, etc.), and debates about how to manage and resolve body-based conflicts. It encourages contributions from a diverse range of disciplines, and which explore the broader implications of changes in the way we regard the human body, organs and tissues.
We are currently calling for expressions of interest from Network members and their colleagues.
Please send abstracts (200 words) to email@example.com by Friday 19 February 2016.We encourage you to pass this invitation onto students and other interested colleagues who wish to speak about their research in an encouraging and supportive environment.
Attendance at the workshop will be free but registration is essential. Register here
Gender dysphoria is a condition where a person feels that their biological sex is deeply incongruent with their perceived gender, causing him or her significant distress. Stage 1 of treatment involves the administration of puberty-suppressant hormones. Stage 2 involves the administration of cross-sex hormones that promote the development of physical characteristics of the opposite sex.
Treatment for gender dysphoria has become an important topic within the law on consent to medical treatment, because the Family Court receives an increasing number of applications to authorize treatment for children with gender dysphoria. If you’re not familiar with this area, some background on children’s ability to consent to medical treatment is helpful before discussing these cases.
Consent to medical treatment: the role of parents and children
Marion’s Case remains the foundational case on minors’ ability to consent to medical treatment. This case dealt with the sterilization of a 16 year old woman with an intellectual disability, who was incapable of consenting to treatment. In this case the High Court held that a child can consent to medical treatment when he or she “achieves a sufficient understanding of and intelligence to enable him or her to understand fully what is proposed” (following the English case of Gillick v West Norfolk and Wisbech Area Health Authority).
If a child is not “Gillick competent,” then her parents can consent to medical treatment on her behalf. However, the High Court in Marion’s Case held that there are some forms of treatment (known as “special treatment”) that fall outside of parental authority and require court authorization.
Marion’s parents could not consent to her sterilization because it was “non-therapeutic” treatment, and because the procedure was irreversible, there was a significant risk of making the wrong decision (either about the child’s capacity to consent or as to what was in her best interests), and the consequences of a wrong decision were particularly grave.
Since Marion’s Case the courts have extended the category of “special treatment” to include other procedures. In doing so, they have categorized these procedures as “non-therapeutic” and applied the list of factors relied upon by the High Court in Marion’s Case.
Consent to treatment for childhood gender dysphoria
The Family Court originally held that treatment for gender dysphoria was a form of special treatment, and required court authorization for both stage 1 and stage 2 treatment. However, Re Jamie modified this position. In this case the court held that treatment for gender dysphoria was therapeutic and that parents could consent to stage 1 treatment. Children could consent to stage 2 if they were Gillick competent, but if they were not, then court authorization remained appropriate.
Relying on Marion’s Case, the Family Court also held that the court must determine whether the child is Gillick competent, as stage 2 treatment was irreversible, there was a significant risk of making the wrong decision, and the consequences of a wrong decision were particularly grave.
Re Martin: problems with the current position
The Family Court considered a case on treatment for gender dysphoria just before Christmas, Re Martin. The case did not change the Family Court’s position on treatment for gender dysphoria (being the judgment of a single judge), but Justice Bennett (who decided the case), offered an insightful critique of Re Jamie.
Martin (aged 16) was born a girl, but identified as male from a very young age, and had been diagnosed with gender dysphoria. Martin lived as a boy, but he experienced worsening depression as he approached puberty. Martin’s parents and treating physicians supported cross-sex hormone therapy and applied to the court for authorization.
In her Honour’s decision, Justice Bennett argued that the Family Court’s reliance on Marion’s Case in Re Jamie was contradictory and inconsistent. One of the grounds for this argument was as follows:
The Full Court in Re Jamie accepted that gender dysphoria is a recognized psychological condition and that treatment is “therapeutic.” However, the court decided that it still needed to authorize stage 2 treatment if the child was not Gillick competent (relying on the factors listed in Marion’s Case).
According to Marion’s Case, parents can consent to therapeutic treatment even if it has grave and permanent effects. However, the approach taken by the Family Court suggests that therapeutic treatment can still be classified as special treatment based on an assessment of the factors set out in Marion’s Case. Accordingly, court authorization will be required for some forms of therapeutic treatment.
Re Jamie seems like a case of wanting to have your cake and eat it too. The court respects children’s rights by allowing Gillick competent children to consent to stage 2 treatment. But the court seems uneasy about the idea of stage 2 treatment taking place without any form of court oversight, hence it retains a role in either confirming that a child is Gillick competent or in authorizing treatment where the child cannot consent on her own behalf.
This appears to strike a good balance between respecting children’s autonomy and recognizing their need for protection. But the court’s ruling is a significant departure from Marion’s Case, and it blurs the distinction between therapeutic and non-therapeutic treatment (although this distinction has always been problematic).
Time for a change in the law?
As pointed out by Justice Bennett in Re Martin, there are good practical reasons for not requiring court authorization of treatment for gender dysphoria. In uncontroversial cases (which they almost always are), the court will simply follow the doctors’ advice, and it is difficult to see what advantages are added by court involvement.
Court proceedings have significant emotional and financial costs for children and their parents. Some children may forego treatment because their families cannot afford to make a court application. On the other hand, this is a complex area of medical practice, and stage 2 treatment can have profound and irreversible effects on children’s social and sexual identity.
Justice Bennett concluded Re Martin by finding that Martin was Gillick competent, but her Honour also invited the court (or parliament) to change the law. This seems sorely needed – both to clarify the position on “special treatment,” and to facilitate access to treatment for children for gender dysphoria. On balance, the costs of court authorization outweigh any possible benefits, suggesting that court oversight in undisputed cases is not in the best interests of children with gender dysphoria.
An article in The Guardiantoday claims that the Department of Immigration has sought access to confidential medical records of asylum seekers for ‘political purposes.’
The article reports on a briefing document written by a senior clinician at International Health and Medical Services (which delivers health services at mainland and offshore detention centres), which appears to show that the IHMS has disclosed asylum seekers’ health records to the immigration department for reasons not related to the health and welfare of individuals in detention.
As the article points out, this practice potentially breaches the Commonwealth Privacy Act, which prohibits the disclosure of health information to third parties (without the consent of the individual concerned), unless the disclosure is directly related to treatment of the individual (or in certain permitted circumstances, such as preventing a threat to public health or safety).
Further, the disclosure breaches clinicians’ duty of confidence towards their patients, and may also violate professional guidelines and codes of practice, such as the Medical Board of Australia’s Good Medical Practice code of conduct for doctors. Under the code, good medical practice includes protecting patients’ privacy and confidentiality, and ‘appropriately sharing information about patients for their health care.’
Disclosure of asylum seekers’ health records may seem like a relatively minor issue considering the many documented abuses perpetrated against individuals in detention. But, privacy is an important underpinning to personal autonomy, and the right to control information about one’s self is key to self-determination. The unauthorised disclosure of asylum seekers’ medical records represents a significant infringement of asylum seekers’ rights, and forms part of a broader trend towards dehumanising people in detention centres.
In part, the Privacy Act was enacted to give effect to Australia’s obligations under article 17 of the International Covenant on Civil and Political Rights, which states that ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation’ [sic]. The unauthorised disclosure of asylum seeker’s health records puts Australia at odds with its international human rights commitments, as well as breaching domestic privacy laws.
The disclosure of medical records for ‘political purposes’ (whatever that may mean) illustrates the Catch-22 situation faced by clinicians working in detention centres. Health professionals working in these centres must deal with the tension between their ethical and legal duties to patients, and pressure from government and private employers to act in ways that compromise the health and wellbeing of asylum seekers. This issue also raises serious questions about the immigration department’s approach to privacy and its management of highly personal, and potentially very sensitive, health information.