My brain made me do it: will neuroscience change the way we punish criminals?

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Source: Flickr

Allan McCay and Jeanette Kennett

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?

Two approaches

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.

Neuroscientific tilt

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.

Slow revolution

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. 

Central Queensland Hospital v Q: Access to abortion in Queensland and children’s ability to consent to medical treatment

 

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Image: Indybay.org

The decision in Central Queensland Hospital and Health Service v Q raises interesting issues in relation to the criminalization of abortion in Queensland and children’s ability to consent to medical treatment.

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 [1986] 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 [2008] 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 [1969] 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.

NBOT Annual Workshop – Call for Papers

Date: 10 March 2016

Venue: Sydney Law School, University of Sydney

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 cameron.stewart@sydney.edu.au 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

Children with gender dysphoria and consent to treatment: time for a change in the law?

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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.

Immigration department breaches the privacy rights of asylum seekers

Picture of facilities at Nauru Detention Centre, available from: https://www.humanrights.gov.au/publications/forgotten-children-national-inquiry-children-immigration-detention-2014/12-children
Picture of facilities at Nauru Detention Centre, available from: https://www.humanrights.gov.au/publications/forgotten-children-national-inquiry-children-immigration-detention-2014/12-children

An article in The Guardian today 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.

Muzzling health and welfare professionals in the name of national security: Australia’s Border Force Act 2015

Posted by Roger Magnusson and Cameron Stewart

This is the view from the top of Table Mountain in Cape Town, South Africa.  Take it in.  It helps to have a sense of perspective.

The view from Table Mountain, Cape Town (1)
The view from Table Mountain, Cape Town (1)

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The view from  Table Mountain, Cape Town (2)
The view from Table Mountain, Cape Town (2)

It’s now more than 21 years since apartheid ended.  These days, few people would criticise anyone for having broken those racially motivated laws that were part of South Africa’s statute book during the period of white minority rule.  But why do people feel that way?

For some, it may be the patent absurdity of discriminating against entire classes of people based on the colour of their skin, or whether or not they passed the “pencil test” .

For others, it may be the fact that laws constructing systematic racial discrimination were inconsistent with a higher moral law, or with international human rights instruments that give protection from discrimination on grounds such as race, colour, sex, language, religion, and national or social origin .

With apartheid in mind, let’s return to Australia.  The Box below describes some key features of the Australian Border Force Act 2015 (Cth).  The application of this Act to health and welfare professionals caring for children in immigration detention has attracted a great deal of attention.

Rightly so.

As law professors, health law specialists, and parents, we know we are not alone in believing that whatever sense of obligation we feel to obey the law is eclipsed by the moral imperative to protect children from harm.  Some of the worst abuses of children, causing lifelong harm and distress, are the result of institutional indifference to instances of abuse.  If you think you care about children, or if you have any children of your own, then consider how the Australian Border Force Act will impact on them.

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The Act creates the Australian Border Force, integrating immigration and customs functions into a single entity within the Department of Immigration and Border Protection.

Amongst other things, the Act appears designed to improve the control of information, to prevent leaks, and to reduce unwelcome media scrutiny of the operation of immigration detention facilities arising from public disclosures by Immigration and Border Protection workers.

The Act creates an offence, carrying a penalty of imprisonment for 2 years, if an “entrusted person” makes a record of, or discloses “protected information” (s. 42).

An “Immigration and Border Protection Worker” includes government employees, as well as consultants – doctors, nurses, social workers – engaged by the Department to work inside immigration detention centres.  “Protected information” means “means information that was obtained by a person in the person’s capacity as an entrusted person”.

The Act authorizes the Secretary of the Department to authorize an entrusted person (let’s say a doctor) to disclose protected information (let’s say allegations of sexual assault against a child in immigration detention) to the Department, to police, or to any other authorized body or person.  However, the Secretary may attach written conditions to the permission to make such disclosures (s. 44).

The Act does authorize disclosure of protected information to “prevent or lessen a serious threat to the life or health of an individual” (s. 48).  However, this would not extend to disclosures to the media relating to the systemic conditions in which children are living in detention, or the impact of incarceration on their mental and physical health and wellbeing.

In summary, the Act appears designed to muzzle health and welfare professionals from reporting any information they obtain in the course of their duties (extending, for example, to allegations of sexual assault against children in immigration detention), except with the permission of a bureaucrat.

The culture operating within the Department of Immigration and Border Protection is likely to mean that Secretarial permission will rarely, if ever, granted.

The likely result of the Act is that it will become more difficult for the government’s accountability for the health, welfare and protection of children in immigration detention to be tested in the political arena.

Whatever you think about the merits of mandatory detention of the children of asylum seekers, the constraints on health and welfare professionals appear to strike at the heart of freedom of speech.  The Act might well infringe the implied constitutional freedom of political communication that all Australians enjoy.  No doubt this will be tested soon.

The Australian Border Force Act does not mention the Public Interest Disclosure Act 2013 , but if – as the government asserts – the former Act is subject to the latter , persons speaking out would need to navigate a thicket of statutory conditions in order to escape prosecution.  The intent of the Australian Border Force Act is to change the culture within which services are delivered to persons in immigration detention: that much seems clear.

It is not surprising that health and welfare professionals have pointed to the contrast between the Australian Border Force Act and the protections that apply to Australian children outside immigration detention.

In NSW, the Children and Young Persons Care and Protection Act 1998 imposes mandatory reporting on health and welfare professionals when they have reasonable grounds to suspect a child is being abused or is at risk of significant harm .  On the other hand, unless the Secretary gives their permission, doctors and welfare workers could be committing a criminal offence if they reveal anything at all about the conditions in which children in immigration detention are living.

Writing in the Guardian, over 40 “entrusted persons” have called for civil disobedience:

“We have advocated, and will continue to advocate, for the health of those for whom we have a duty of care, despite the threats of imprisonment, because standing by and watching sub-standard and harmful care, child abuse and gross violations of human rights is not ethically justifiable”.

As law professors employed by one of Australia’s oldest law schools, we live and breathe law, and care about the rule of law.  Frankly, however, we don’t care about it enough to stand by while government tries to muzzle dedicated professionals working in difficult conditions to protect the safety and dignity of children.

Parliament makes the rules.  It decides what is lawful and unlawful.  But when the moral compass goes astray and laws are designed to ensure that the public never even gets to hear about the harm that children are suffering in immigration detention, then that is a step too far.

The President of Australia’s Human Rights Commission, Professor Gillian Triggs, points out that Australia is alone in the world in indefinitely locking up the children of asylum seekers. The Commission’s Forgotten Children report found that this practice violates the right to health that children enjoy under the Convention on the Rights of the Child.  It also ignores the substantial body of evidence of the harm that immigration detention is causing to children.

“Entrusted persons” face difficult choices in the months ahead.  In deciding how to reconcile their professional ethics, moral intuitions and legal obligations, they can at least stand assured that there can be no moral obligation to stand by and do nothing while children are being harmed.

The Australian Border Force Act 2015 needs a radical overhaul.  Otherwise it belongs in the bin.  Both parties ought to think again.

Take another look at the view from Table Mountain.  In the distance you can see Robben Island, where Nelson Mandela spent 18 of his 27 years of imprisonment.

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Upcoming Conferences: Emerging Health Policy Research Conference 2015

The Menzies Centre for Health Policy is hosting its 10th annual Emerging Health Policy Research Conference on Tuesday, 21 July 2015, at the University of Sydney.

The Conference showcases the work of current masters, doctoral and early career research workers, as well as those new to the field of health policy research. This year’s keynote speaker is Professor Billie Giles-Cori, Director of the McCaughey VicHealth Community Wellbeing Unit, Centre for Health Equity, University of Melbourne. The conference includes sessions on healthy environments, research translation, health systems and workforce, policy analysis, and mental health.

The full conference program and registration form are available on the Menzies Centre website.