Who’s the best doctor for a tummy tuck or eyelid surgery? The latest review doesn’t actually say

This article, co-authored with Professor Cameron Stewart, was originally published in The Conversation.

If you’re thinking about a tummy tuck, breast implants or eyelid surgery, you might be looking for reassurance your chosen doctor is qualified and has the right skills for the job.

Today’s release of the much anticipated review of how cosmetic surgery is regulated in Australia goes partway to achieving that.

The review makes several sensible suggestions about how to protect consumers, following allegations around cosmetic surgery practices aired in the media (which prompted the review in the first place).

There’s much to commend. The review is comprehensive, sober, realistic and the product of considerable consultation.

It recommends tightening up how cosmetic surgery is advertised, streamlining how to complain when things go wrong, and improving how complaints are managed.

However, these recommendations and others, which the health professionals’ regulator accepts, are unlikely to be implemented right away. Such reforms take time.

Recommendations to identify who has the appropriate education and skills to perform cosmetic surgery – a GP with or without extra surgical qualifications, a specialist plastic surgeon, or doctors with other titles – may take time to finalise and determine.

That’s because plans to identify certain doctors as “endorsed” practitioners – effectively validating their ability to competently perform cosmetic surgery – hinge on the medical board identifying and approving what skills and education will be needed.

Any relevant course or training program would also need to be accepted by the Australian Medical Council (which looks after doctors’ education, training and assessment).

Here’s what needs to happen next to protect health consumers.

Photo by Joey Lee

Remind me, what’s the review about?

Over the past few years, the media has reported on allegations people had undergone inappropriate or unsafe cosmetic surgeries and were turning up to hospitals for remedial surgery.

Critics said people had been enticed by deceptive social media advertising and had trusted “inadequately trained” cosmetic surgeons to care for them. But they were never adequately warned of the risks.

The Report is available here.

Facing what threatened to become a crisis of regulatory confidence, the Australian Health Practitioner Regulation Agency or AHPRA (and its medical board) was bound to act. It commissioned an independent review of doctors who perform cosmetic surgery in Australia.

What did the review recommend?

The review examined “cosmetic surgeries” in which the skin is cut, such as breast implants and abdominoplasties (tummy tucks). It didn’t cover injections (such as Botox or dermal fillers) or laser skin treatments.

It makes several significant recommendations.

1. Cosmetic surgeons need to be “endorsed”

A new system would see doctors “endorsed” as a cosmetic surgeon with AHPRA. This “blue tick” style of endorsement would only be given to those who had met a yet-to-be determined minimum educational standard.

Once rolled out, however, consumers would be educated to look for this endorsement on the publicly available register of health professionals.

2. Making complaints will be simpler

There are currently several avenues for making complaints about cosmetic surgeons, including to AHPRA itself, to the medical board (within AHPRA), as well as to state-based health-care complaints agencies.

The review recommends new educational materials be produced to show consumers exactly how and when to complain about cosmetic surgeons. It also recommends a special consumer hotline be created to provide further information.

3. Stricter rules on advertising

The review recommends tightening up existing advertising guidelines to strictly control those who promote cosmetic surgery health services, particularly advertising that might:

  • glamourise or trivialise risky procedures
  • use models who have not had cosmetic surgery to sell a cosmetic procedure
  • use social media influencers
  • suggest cosmetic surgery be used to obtain an “acceptable” or “ideal body type”.

4. More scrutiny, more policing

Finally, the review recommends sharpening policies about how health professionals obtain informed consent for procedures, the importance of postoperative care, and the expected training and education of cosmetic surgeons.

The review also recommends AHPRA create a specific cosmetic surgery enforcement unit to regulate doctors providing these services.

Such an enforcement unit might refer problematic doctors to the medical board, which could then determine whether immediate disciplinary action was necessary. This might mean the immediate suspension of their registration (“medical licence”).

Photo by Philippe Spitalier

Will these reforms work?

The Royal Australasian College of Surgeons and the Australasian Society of Aesthetic Plastic Surgeons have said the suggested reforms are inadequate and may even lead to some doctors being endorsed when they lack appropriate training.

Another possible reform rejected by the review was to make the title “surgeon” a protected title. This could then only be used by those who have done years of specialist training.

Indeed, Australian health ministers are currently examining this very issue.

Currently, any doctor can call themselves a “cosmetic surgeon”. But since “plastic surgeon” is a protected title, only those with specialist training can use it.

Others doubt whether the enhanced regulation of titles will in fact improve safety. After all, a title is no guarantee of safety, and there may be unintended consequences too, such as the inadvertent creation of a market monopoly.

This has been a long time coming

Today’s review is the latest in a long line of reviews of medical practice involving cosmetic procedures over the past 20 years. Until now, no reforms have been able to sustain long-lasting improvements in outcomes or reduce numbers of complaints.

These recurrent scandals and the regulatory stagnation reflects the fractured nature of Australia’s cosmetic surgery industry – with its longstanding turf wars between plastic surgeons and cosmetic surgeons.

But this is also a multimillion-dollar industry that has historically been unable to agree on a set of standards for education and training.

In the end, for this review to catalyse meaningful reform, the next task will be for AHPRA to reach professional consensus about the standards to be set for cosmetic surgery. With some luck, the endorsement model may have the required impact.

It’s a huge challenge, but an important one. After all, regulators who try to impose standards from above without the support of professional consensus face an incredibly difficult task.

Developed countries, dwindling national flexibilities, and access to essential medications during public-health emergencies

Dr Olugbenga Olatunji, Lecturer, The University of Sydney

Photo by Diana Polekhina on Unsplash

In a recently published paper, I historicise the gradual but potent attacks of the developed countries on the breadth and effectiveness of flexible obligations in international patent agreements. Flexibilities are usually included in these agreements to strike a balance between the monopolistic nature of patent rights and the right of states to suspend or abridge them in national interests. The paper discusses this flexibility-winding-back phenomenon through the lens of two treaties – the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Agreement for the Trade-Related Aspects of Intellectual Property Rights (TRIPS). This post summarises the highlights of this paper. Given the currency of this topic, especially in view of the COVID-19 pandemic, a cursory comment is also provided on the recently adopted Decision of the World Trade Organisation (WTO) on improved access to COVID-19 vaccines.

Paris Convention – the ‘draining’ of a hitherto broad flexibility reservoir

The Paris Convention (PC) was adopted in 1883 to regulate industrial property (IP) like patents, trademarks, service marks, geographical indications, utility models, etc. It is pivoted on a tripartite principles of national treatment (NT), priority rights (PR), and common rules (CRs). NT (article 2, PC) requires subscribers to the PC to extend to citizens of other subscribers the same level of IP protection enjoyed by their citizens. PR (article 4, PC) is particularly useful for applicants who intend to protect their IP in multiple jurisdictions, as it allows them a grace period within which to submit applications for the same IP in other jurisdictions without losing the filing date of their first application – the duration of PR depends on the type of IP involved. Lastly, CRs outline principles of general application in respect of each of the IP categories covered in the agreement (e.g., see articles 4, 4bis, 4ter, 4quater and 5).

Two broad heads of patent-related flexibilities in the PC are discussed in the paper. The first and the most comprehensive one is the ‘non-binding’ nature of the PC tripartite principles. This is because these principles (NT, PR, and CRs) are only activated for members who offer protection for any of the IP categories under the PC. This approach is particularly advantageous in that a member may invoke not offering patent protection as a policy tool for expanding national technological base and promoting access to needed medications. Even where patent protection exists, this fluid approach means members could suspend or abridge patent rights to cater to access demands during public health emergencies. The second (equally broad) flexibility is forfeiture/revocation (article 5, PC). PC subscribers are empowered to revoke granted patents for abuses of patent rights like non- or insufficient working of the patents or other anti-competitive practices. This makes sense given one of the oft-cited justifications for rewarding creativities with monopoly rights is to foster industrial development through technical education and technology transfer.

Next, the paper traces the barrage of attacks directed at the broader forfeiture/revocation flexibility incorporated into the original PC (see 3.2). The first stop is the 1900 Brussels Revision which imposed two conditions for using the exception: first, members must wait 3 years post-patent-filing before invoking the flexibility even after non- or insufficient working of the invention had been established; and second, affected patentee must have no justification for not working or for insufficiently working their inventions (see article 2). The 1925 Hague Revision heralded a further tightening of this flexibility by requiring, in addition to the Brussels conditions, that forfeiture/revocation would only be available if the remedy of compulsory licensing (CL) could not resolve an alleged patent abuse (see article 5). In 1934, the London Revision added another condition, to wit, flexibility not to be available unless an alleged patent abuse remains unredressed two years after the grant of CL (see article 5(4)). The 1958 Lisbon Revision completes this process by refining the period within which CL could issue in addition to providing that CL must only be non-exclusive (see article 5(4)).

Cumulatively, all of these revisions decimated the revocation/forfeiture exception as patentees are now allowed to ‘justify’ alleged abuse of patent rights. Interestingly, the developed countries still yearned for more pro-patentee revisions and were only stopped by the increased membership of low-and-middle-income-countries (LMICs) who not only opposed further pro-patentee revisions, but also unsuccessfully pushed pro-access revisions of their own (e.g., see Loughran at 424-31). This stalemate led to a US-championed forum-change to the General Agreement on Tariffs and Trade (GATT) – now the WTO.                          

Transition to GATT, TRIPS, and access concerns

Sections 4, 5, and 6 of the paper examine the behind-the-scenes political intrigues that produced TRIPS as well as potential effects of the new treaty on access. In a nutshell, TRIPS’s structure mirrors that of the PC to the extent that it provides for NT, PR, CRs, and flexibilities. However, one distinction between TRIPS and the PC is that TRIPS exterminates the most consequential flexibility under the PC, namely, deference to members on if and how to incorporate the three pillars of the PC at national level. Hence, TRIPS now requires that all WTO members must entrench in their national laws TRIPS minimum standards, including provisions on enforcements and dispute resolutions. This universalisation of minimum standards is an incredible win for developed countries and their multinational corporations (MNCs) for two reasons: one, it makes it easier for their MNCs to obtain and enforce IP protection in LMICs; and two, with no obligation to exploit patents in countries of grant, it arguably legitimises ‘rent-seeking’ behaviour also in LMICs. It is for these reasons, among others, that TRIPS has been criticised as an impediment to access (e.g., see FM Abbott article).

The above notwithstanding, the paper acknowledges the simultaneous inclusion of flexibilities like parallel importation and compulsory licence in TRIPS. Theoretically, these could be used by members to temperate potential threats that TRIPS may constitute for access. The problem here though is that the freewill of LMICs to utilise flexibilities is tremendously constrained by developed countries, using different political-cum-economic stratagems to thwart their attempts. Apart from political/economic might, developed countries have also deployed Free Trade Agreements (FTAs) to diminish the scope and effectiveness of flexibilities post-TRIPS. FTA IP chapters are notorious for enacting TRIPS-plus obligations – obligations far higher than TRIPS minimum (see section 6). Countries like India, Brazil, Argentina, Thailand, and South Africa (just to mention a few) have been strategically targeted by the US, for example, either for using or attempting to use TRIPS flexibilities (e.g., see Drahos and Braithwaite).

In section 7, the paper identifies four ways through which this continuing attack on national flexibilities could exacerbate the access situation in LMICs, namely by:

  • legitimising external influence in national IP rule-setting (US & EU use trade access to control IP rule-settings in several LMICs);
  • imposing additional constraints on the use of certain flexibilities (e.g., compulsory licence for export and parallel importation);
  • unjustifiably adopting higher IP regime in the mistaken belief that this would foster technology transfer and FDI (e.g., Tanzania and Kenya); and
  • threatening the continued existence of India as the ‘pharmacy of the developing world’ (US has repeatedly placed India on a priority watchlist for using flexibilities, MNCs have developed strategies for challenging legitimate use of flexibilities in India, and a section of the Indian generic industry is becoming exceedingly pro-patent owing to influence from MNC collaborators).         

Postscript: the WTO Decision on improved access to COVID-19 vaccines   

Since early 2020, the world has witnessed a once-in-a-lifetime pandemic which originated in China in December 2019. The resulting shortage of PPEs, ventilators, diagnostics, vaccines, and therapeutics, later complemented by a wave of vaccine nationalism among developed countries, led South Africa and India to submit a proposal in October 2020 to the WTO offering ways out of this access quagmire. This proposal called for a blanket waiver of section 1 (copyright and related rights), section 4 (industrial design), section 5 (patents), and section 7 (protection of undisclosed information) of Part II of TRIPS for 3 years to enable a fast-tracked containment and treatment of COVID-19 infections.

After over 18 months of negotiations, a Decision finally emerged at the Ministerial Conference held in June 2022. Unsurprisingly, this Decision has no scintilla of resemblance to the original proposal from India and South Africa. Instead, it considerably reflects an alternative proposal sponsored by the EU, which identifies the overhauling of TRIPS’s CL framework as the holy grail to improved access for COVID-19 vaccines and therapeutics. It is worth noting however, that though based on the EU proposal, the Decision is narrower in scope. For instance, unlike the EU proposal, the approved Decision will only apply to vaccines, while negotiations regarding diagnostics and therapeutics will follow 6 months from the date of adoption (see paras 1 and 8).

The Decision’s substantive provisions may be grouped into three: the first refines TRIPS provisions on article 31 CL by removing the need for prior authorisation under article 31(b) and re-defining adequate remuneration under article 31(h) (paras 3a and 3d). In the second group are provisions focused on addressing some of the criticisms raised against article 31bis (CL for exports). These provisions clarify the circumstances for waiving TRIPS article 31(f) (para 3b); the re-exportation of imported vaccines (para 3c); and the timing of communication of actions under the Decision to Council for TRIPS (para 5). The last group of provisions addresses the issue of duration (5 years, though extendable) (para 6), and the problem associated with access to test data where CL has been granted under articles 31 and 31bis (para 4).       

In retrospect, the process that produced this Direction confirms how emboldened the developed countries have become, not only in attacking national flexibilities pre-TRIPS, but also in manipulating LMICs to ‘voluntarily’ surrender flexibilities. As explained in the paper, this domination is heightened by the successful linkage of trade and IP under the WTO, such that developed countries can now use trade access as a carrot-and-stick instrument to reward cooperating LMICs (increased trade access) or punish recalcitrant ones (withdrawal of trade access). This seems to explain why the India-South Africa proposal did not see the light of the day (in whole or in part) despite the tremendous supports it garnered within and outside the WTO. It also seems to explain why LMICs with capacity to manufacture COVID-19 vaccines would agree to undertake not to use the Decision, even though the Decision is intended to benefit all LMICs (see footnote 1 of the Ministerial Decision).                      

Moving forward despite dwindling flexibilities

It is indisputable that there is no quick fix to the ubiquitous conundrum of inadequate access, especially during a deadly pandemic like COVID-19. However, a few potential solutions may be explored. The lead recommendation in the paper is a political one, which makes sense given the political nature of this problem. Thus, since the laws of many LMICs provide for TRIPS flexibilities, they are advised to muster political will to use these flexibilities not minding any threat of economic sanctions from their developed country counterparts. India is a leading example here as it has defied repeated US harassments aimed at preventing it from using flexibilities. Second, while the June Decision falls short of the widely supported proposal, LMICs could still take advantage of the clarified provisions of TRIPS articles 31 and 31bis CLs. This recommendation, however, circles back to the need for LMICs to show unabashed political will to use the Decision. Third, LMICs may also consider the possibility of using the WTO platform to secure an undertaking from developed countries not to interfere in attempts by LMICs to use flexibilities. Lastly, not all countries can or should venture into pharmaceutical production; as such, a specialised agency could be instituted (perhaps, within the WHO) to coordinate the donation of urgently needed pharmaceutical products to these vulnerable countries where patent is not the issue.

The courts’ role in treatment for childhood gender dysphoria: recent updates

Photo by Aedrian on Unsplash

In 2020 and 2021, there were significant developments in the courts’ role in treatment for childhood gender dysphoria.  The UK case of Bell v Tavistock is well known, but Re Imogen is of more practical importance here in Australia. Both cases illustrate the changing role of the courts in treatment for childhood gender dysphoria, following developments in our understanding of gender dysphoria and its treatment. They also engage key principles coming out of Gillick v West Norfolk and Wisbech Area Health Authority, where, in a legal turning point, the House of Lords held that a minor can consent to their own treatment when they achieve “a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.”

When a child is not “Gillick competent”, generally speaking, their parents can consent to treatment on their behalf. The Australian courts have created an exception, however, for forms of “special medical treatment” that must be authorised by the courts.

The Family Court has previously held that both “stage one” (puberty blockers) and “stage two” (cross-sex hormones) of (medical) treatment for childhood gender dysphoria were forms of special treatment that required court authorisation. But it has gradually relaxed this stance, deciding in 2013 (in Re Jamie) that stage one could be consented to parents, and in 2017 (in Re Kelvin) that court authorisation was no longer required for stage two. However, court authorisation was still required where there was a dispute or genuine controversy about whether the treatment should be administered.

Re Imogen concerned this last point coming out of Re Kelvin. Key to the case was that Imogen’s parents disagreed on whether she should receive treatment, with her mother disputing Imogen’s diagnosis of gender dysphoria, as well as her competency. Justice Watts in the Family Court held that if a parent or medical practitioner dispute (i) the competence of an adolescent; (ii) a diagnosis of gender dysphoria or (iii) the proposed treatment, an application to the Family Court is mandatory.

A controversial point is that Justice Watts held that even if the child was competent to consent to treatment themselves, if there is a dispute about diagnosis or treatment, the court must still decide the diagnosis and whether treatment is in the young person’s best interests.

Justice Watts also held that under existing Australian law, a medical practitioner treating a minor was unable to commence any stage of treatment without first obtaining the consent of both parents to treatment, and if there was any dispute, court authorisation was required. To the extent that guidelines on the Australian Standard for treatment stated that parental consent was not required in relation to a competent minor (although it was desirable), they were incorrect.

Academics Stephanie Jowett and Fiona Kelly criticise Re Imogen both for its practical implications for healthcare professionals and transgender young people and their families, and on the basis of legal principle.

Assuming an adult is competent, they are free to make whatever healthcare decision they choose (within the scope of healthcare options that are available to them – clinicians are not obliged to provide futile treatment), even if it is harmful to their health or could lead to their death. But Jowett and Kelly point out that the courts are reluctant to leave Gillick competent minors to make healthcare decisions for themselves, where that decision could have significant implications for their health.

Re Imogen illustrates this point in relation to treatment for childhood gender dysphoria: if a young person is Gillick competent, why does the court then have to decide on their diagnosis or treatment if there is a dispute between their parents on these issues? If the young person has achieved competency, why can’t they make the decision themselves?

There may be good reasons to accept some degree of court oversight and paternalism in relation to competent minors, but the circumstances in which court intervention is required (and whether alternative dispute resolution processes could be made available) should be considered carefully.  

Re Imogen requires healthcare professionals to seek consent from both parents prior to treatment, and Jowett and Kelly point out that this means an unsupportive parent could trigger court intervention by challenging the diagnosis, the proposed treatment, or both. This is the case even if a parent is absent from their child’s life or has a problematic relationship with the child. The judgment also places a significant administrative burden on healthcare professionals to obtain the consent of both parents prior to treatment, or (where consent cannot be obtained) to support transgender young people to obtain court authorization through lengthy and expensive court proceedings. This could result in significant (perhaps prohibitive) costs to families, as well as delays in treatment during a critical window for intervention.

The UK High Court’s 2020 decision in Bell v Tavistock represented an increase in court intervention in treatment for childhood gender dysphoria, but the decision has since been overturned by the UK Court of Appeal.

Two claimants sought a declaration that the UK Gender Identity Development Service had acted unlawfully in prescribing puberty blockers to children under the age of 18. The UK High Court did not find the practice unlawful but made a declaration that a child would have to understand the implications of both stage one and stage two treatment to achieve Gillick competence.

The Court also provided guidance that it was “highly unlikely” that a child aged under 13 could be competent to their own treatment, and “very doubtful” that children aged 14 or 15 could be competent. It may be appropriate for court authorisation to be sought for children aged 16-17, although a statutory presumption of competency takes effect at 16 in the UK. This guidance was understood by clinicians as requiring court authorisation for treatment of any child for gender dysphoria.

The Court made findings about the nature of treatment for childhood gender dysphoria that were fundamental to its guidance on whether minors could be competent to consent. The court characterised treatment as perhaps “unique” and “experimental” due to uncertainty over its short- and long-term impacts. It also has life-long and life changing consequences, going to the heart of individual identity.

The Court rejected the idea of stage 1 treatment as a neutral “pause” that gave children time to mature and consider their options (some Australian commentators have expressed a similar opinion), and that stage 1 and 2 of treatment were entirely separate. Instead, it conceptualised the two stages as one clinical pathway, and so to achieve competence, a child would need to understand not just the implications of taking puberty blockers, but also those of progressing to cross-sex hormones, including that: the majority of patients taking puberty blockers go on to take cross-sex hormones; cross-sex hormones may lead to a loss of fertility; and may negatively impact on sexual function. There would be obvious difficulties for younger children in understanding these kinds of ideas, and therefore no age-appropriate way of explaining them.

Following the judgment, the Court’s characterisation of treatment was disputed by professional bodies involved in treating transgender young people in the UK. Bell v Tavistock was not binding on Australian healthcare professionals, but it appears that some Australian service providers reconsidered their approach to obtaining consent to treatment for childhood gender dysphoria following this decision, in conjunction with Re Imogen. The idea of stage 1 and 2 of treatment as inexorably linked also appears contrary to the approach of the Australian Family Court, which has tended to treat the two stages as distinct since Re Jamie.

Bell v Tavistock was appealed in 2021, and the UK Court of Appeal held that (among other things) the factual findings made on the nature of treatment were not open to the High Court to make (based on the nature of the Court’s jurisdiction when undertaking judicial review), and that the declaration made by the Court was contrary to Gillick.

This was because the High Court’s declaration provided a list of factual circumstances that had to be evaluated in determining whether a child was competent to consent to medical treatment (related to whether the child could understand the implications of stage two treatment). This would essentially mean that healthcare professionals would be substituting the judgment of the court for their own clinical judgment when determining a child’s competency. Yet, said the Court of Appeal, the ratio of Gillick was “that it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment.” [76]

The UK Court of Appeal also held that the High Court should not have issued guidance on the age at which children could consent to treatment, as it was not able to generalize about children’s competency to consent at different ages. Further, the guidance required court applications in circumstances where the High Court itself recognised there was no legal requirement to do so. The Court of Appeal recognised that this would have the effect of denying treatment for young people who lacked the resources to make such an application, and that the requirement for court authorisation where the child, parents, and clinicians all agreed on treatment would be inconsistent with previous UK authority.

The most recent decision in Bell v Tavistock will come as a relief for transgender young people, their families, and clinicians, as it removes the requirement for (expensive and time consuming) court intervention when all parties involved agree on treatment. Some role for the courts in disputes over the treatment of competent minors may be justified. However, continuing changes in the law on treatment for childhood gender dysphoria can only create stress and uncertainty for transgender young people, their families, and the clinicians treating them.

The Covidsafe app: speed at the expense of transparency and accountability

Photo: Markus Winkler via Unsplash

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.


COVID-19, patients’ mental capacity and prisoners

@mbaumi via Unsplash

The coronavirus pandemic has raised an abundance of issues at the intersection of law and medicine. In recent co-authored articles, Cameron Stewart, Professor of Health, Law and Ethics at the University of Sydney Law School considers some of these issues.

Mental capacity assessments for COVID-19 patients: Emergency admissions and the CARD approach

In this Journal of Bioethical Inquiry articleProfessor Cameron Stewart and colleagues examine the principles of mental capacity and make recommendations on how to assess the capacity of COVID-19 patients to consent to emergency medical treatment.

“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.

In a November 2020 article in the Journal of Bioethical InquiryProfessor Cameron Stewart and colleagues consider what steps the state should take to protect prisoners. The article looks at Australian prisons’ regulatory responses to COVID-19 and considers calls for the release (decarceration) of some prisoners, including the Victorian case of Rowson v Department of Justice and Community Safety [2020] VSC 236. In that case, a prisoner unsuccessfully sought release pending departmental consideration of his application for release into home detention on health grounds — namely, risk of serious injury or death from COVID-19.

Professor Stewart and his co-authors conclude:

“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:

https://sydneyhealthlaw.com/2020/11/04/covid-19-medical-research-governance-and-public-health-orders/

https://sydneyhealthlaw.com/2020/03/18/whos-in-control-of-australias-response-to-coronavirus-part-1-legal-frameworks/

https://sydneyhealthlaw.com/2020/03/19/whos-in-control-of-australias-response-to-coronavirus-part-2-operational-responses/

https://sydneyhealthlaw.com/2020/08/26/rule-of-law-in-the-covid-19-response/

https://link.springer.com/article/10.1007/s11673-020-10055-2

COVID-19, medical research governance, and public health orders

Image: Mika Baumeister

Posted by Belinda Reeve on behalf of Cate Stewart

The impact of coronavirus-related biomedical research and public heath laws have been considered in recent articles co-authored by Cameron Stewart, Professor of Health, Law and Ethics at the University of Sydney Law School.

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 InquiryProfessor 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

Professor Cameron Stewart and colleagues look at restrictive practices in Australian COVID-19 public health orders and their implications for mental health practitioners in the October 2020 issue of the International Journal of Mental Health Nursing.

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:

https://sydneyhealthlaw.com/2020/03/18/whos-in-control-of-australias-response-to-coronavirus-part-1-legal-frameworks/

https://sydneyhealthlaw.com/2020/03/19/whos-in-control-of-australias-response-to-coronavirus-part-2-operational-responses/

https://sydneyhealthlaw.com/2020/08/26/rule-of-law-in-the-covid-19-response

ABC v St George’s Healthcare NHS Trust: a new duty at the intersection of healthcare confidentiality and harm to others

 

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Image: Flickr – Miki Yoshihito

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 [2020] 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. [188]-[189]

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.

Some recent cases on s 5O of the Civil Liability Act 2002 (NSW)

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Image: Matt Madd, Flickr

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.

“A practice”

In Sparks v Hobson [2018] 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 [2013] 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.

“Irrational”

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 [2018] 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 ([96]):

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’” ([65]). 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” ([129]). 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 ([18]):

…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” ([24]). 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.

“Professional”

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) [2018] 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” ([144]). 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 ([169]).

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” ([169]). 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” ([170]).

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.

 

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.