19 August 2016

Universities

'To What Extent are University IP Policies Legally Binding? Part 1: Staff' by Philip Mendes in (2016) LI(3) les Nouvelles – Journal of the Licensing Executives Society comments
All universities and other research organisations (for brevity, the term ‘university’ is employed, and refers not just to a university, but to all forms of a non-for-profit research organisation) have intellectual property (IP) policies. Like other policies, they serve an important function, stating the university’s position upon diverse matters ranging from conflicts of interests, to paid outside employment by academic staff, and from campus security to the use of the university’s libraries. But university IP policies go further than just stating a policy. They seek, by force of the policy alone, to change where the ownership of IP lies. This article describes the legal basis for IP policy in the US, Australia, United Kingdom and Canada with regard to staff in Universities. 

Victorian FOI, Data Protection and Privacy Regimes

Given that inconvenient statements tend to go offline I'm quoting this week's response by David Watts, Victoria's Commissioner for Privacy and Data Protection, regarding the state's problematical Freedom of Information Amendment (Office of the Victorian Information Commissioner) Bill 2016 -
The Victorian government has introduced into Parliament a Bill that would substantially change the governance of privacy and data protection in Victoria. There has been no significant public comment or discussion concerning the Bill which is to be debated in the forthcoming parliamentary session.
Under current legislation, my role includes consulting with those who are concerned with information privacy and publication, in the public interest, of reports and recommendations relating to my functions.
This paper is designed to ensure that those concerned with privacy and data protection issues in Victoria are aware of and have an opportunity to understand and comment on the proposals.
Freedom of Information issues
The Bill brings together in a single administrative structure the regulation of: • freedom of information (FOI); and • privacy and data protection.
As FOI policy falls outside my functions under Part 6 Division 2 of the Privacy and Data Protection Act 2014 my views on the Bill chiefly relate to proposals the Bill makes regarding privacy and data protection.
There are however some aspects of the Bill dealing with FOI issues ultimately relate to data management and so interact with my functions. The first of these issues is that the FOI changes are minor compared to community expectations for the future of FOI. The government has indicated that a root and branch review of FOI is to occur at some unspecified future time. In this context, the Bill is an opportunity lost. The changes proposed by the Bill to FOI are largely process changes rather than substantive. The regime could be significantly more effective if supported by improvements in the substantive requirements for disclosure.
The second issue relates to the community’s dissatisfaction with current FOI arrangements that stem from its inefficiency. Requests are frustrated and unnecessarily delayed because the system presupposes the paper-based data management environment that prevailed some decades ago. The proposal in the Bill to reduce FOI response times from forty five to thirty days will be meaningless unless accompanied by either the significantly greater human resources support or a fundamental rethink of FOI systems and processes.
While the definition of ‘documents’ (that need to be searched and considered for disclosure) appears wide enough to include electronic material, the determined practice of agencies is to deal in paper for FOI purposes.
One consequence of this practice is that searching for and photocopying documents causes significant delays and constitutes a significant disincentive to FOI applications. The practice also utilises excessive public sector resources which could be better allocated elsewhere and generates unnecessary costs for the public sector and fees for applicants. If the legislation clarified the requirements so that electronic searching were expressly required, significant cost and delay could be avoided.
If Google can produce a consolidated search history result in fractions of a second for each user, it is disappointing that the Bill allows the disconnection between current document management practice and FOI practice to continue and fails to drive digital solutions and efficiencies. This issue has been identified in a number of publications. Of note is the by no means recent reference in Moira Paterson, Freedom of Information and Privacy in Australia, (Ed.1, 2005) at [2.25-6].
Finally, the proposed merger of: • FOI functions, which relate to the release of information; with • privacy and data protection functions, which usually do not, raises the issue of whether the Bill proposes to embed a conflict of interest into the administrative structure. Balancing this concern, there may be an argument that this apparent conflict provides a useful discipline with security including the need to provide assurance that the information is available for appropriate purposes, without hindrance. These complex issues deserve careful policy consideration before any misstep is taken. I will consider this issue further later in this paper.
A missed opportunity for reform
If the priority is to reform the administration of privacy and data protection through merging existing statutory bodies, the sensible first step would be to consolidate the administration of health privacy with the current framework that applies to all other personal information. The distinction between privacy issues in the context of health and other personal and sensitive information has presented a number of administrative challenges that are not justified by any public interest benefit. This is a more significant and urgent issue than the possibility of merging FOI and privacy functions.
The health privacy role of Health Services Commissioner has been seriously under- resourced since it was created and has not had the significant impact on the management of the privacy of health records that the public is entitled to expect on the basis of the legislation that created the role. This issue needs to be addressed.
Governance issues
As already noted, the main focus of the Bill appears to be on revisions to governance. The Bill proposes that three areas of activity - freedom of information, privacy and data protection - should be administered in a single statutory body through creation of an overarching Information Commissioner, overseeing the three functions, with 2 Assistant Commissioners also appointed. I refer to this structure as the ‘information commissioner model’.
Introduction of the information commissioner model in Victoria
This structure has not been the subject of consultation – either within government, (including with my office or that of the FOI Commissioner), with non-government stakeholders or with the community in general. It is modelled on a similar structure adopted in other jurisdictions, including the Commonwealth and NSW. In those contexts there does not appear to have been any substantial policy basis for the introduction of the structure.
In Victoria, the normal processes applicable to the development of policy proposals and obtaining approval in principle from Cabinet do not appear to have been followed. The policy proposal for the Bill appears to have been developed within the Department of Premier and Cabinet (DPC) in apparent secrecy.
I was first advised that the proposal had been considered and approved by Cabinet at a meeting on 3 March 2016. The concerns I expressed were dismissed as being ‘too late’ because Cabinet had already approved the proposal - presumably at the immediately previous scheduled meeting on 29 February 2016.
At that meeting I was advised that my comments on the Bill, when it was drafted, would be sought. When this occurred I chose not to so because the fundamentals of the Bill had been predetermined.
Policy basis of the information commissioner model
The information commissioner model was first implemented in Australia by the Rudd government. Research has not identified policy material or an evidence base to support it.
Senator Sherry said in the second reading speech for the Australian Information Commissioner Bill 2010, which first introduced the structure: ‘The Government considers that the co-location of privacy and FOI policy will enhance oversight and allow for consistent information policy.’ and: and: The a priori policy hopes behind these views have proven to be wrong. Experience in a number of jurisdictions indicates that the model does not work. The current position is that either these structures are not filled, or are not functional.
The experience in NSW is that the structure has led to conflict. This dysfunction has led to persistent and intractable disputes between commissioners. In Queensland, the privacy commissioner position was not permanently filled for years.
Similar issues with the Commonwealth legislation have led to significant turnover in the roles, with two of the three not currently filled and the senior role currently the subject of an acting appointment. In the case of the Commonwealth, the article at: ‘The nature of the FOI functions and privacy functions are too extensive for one office holder to effectively manage.’ ‘...the Government expects that the three office holders will work together cooperatively ...’ 3 http://www.canberratimes.com.au/national/public-service/the-slow-death-of-the- office-of-the-australian-information-commissioner-20150826-gj81dl.html sums up the situation well, albeit with some unsurprising journalistic spin. In short, the evidence base that has emerged following implementation of the information commissioner model elsewhere in Australia suggests that structural dysfunction will be the outcome of passing the Bill.
The operational consequences of this dysfunction have meant that the community has not been well served. Each of the Commonwealth, NSW and Queensland offices has been held back in their response to the complex digital-age issues relevant to privacy and FOI. In a privacy context, this has meant that key contemporary and sophisticated issues such as guidance and thought leadership about information sharing, information security, cloud computing, de-identification and the phenomenon of big data have been hampered.
Protective Data Security
Victoria’s information management framework is substantially different to those of other jurisdictions and cannot properly be compared them. The Privacy and Data Protection Act 2014 (PDPA) addressed long-outstanding recommendations from the Auditor-General and the Ombudsman that highlighted security deficits within the Victorian public sector. The PDPA responded by providing structural support for a statutory protective data security framework for the Victorian public sector that extends to all government information, not just personal information. There is no counterpart elsewhere in Australia. Victoria is the only jurisdiction that mandates transparency and independent assurance and oversight for security.
The Victorian public sector is significantly divided on the attractiveness of this approach. A number of agencies that encounter difficult data security issues through delivery of higher risk services have become supporters of the assurance that the legislation provides. Other, predominantly central, agencies are less aware of the risks they face and being at a very early stage of cultural change, in some cases display fairly open opposition to the legislation.
The Bill may endanger the progress achieved to date in implementing this reform, without any policy-based indication that this risk is justified by likely public benefit. There is a significant likelihood that stakeholders productively involved in improving data security will suffer a drop in confidence in the process that has achieved a great deal of progress in the last 2 years. If the Bill is passed without the support of a preliminary and durable policy process public and media perception can be expected to criticise the merger of functions as giving rise to conflict of interest. It should be expected that public trust and confidence in both security and FOI will suffer as a result.
Continuity
The PDPA has been in place for something less than 2 years. In the context of: • the 5 year appointment of the existing CPDP; and • the significant cultural challenge for the public sector represented by introduction of the PDPA replacement of the governance regime for privacy and data protection appears premature. In this short period it is inconceivable that government could have tested the existing governance arrangements, found them wanting and developed a more effective model.
Since 2014 significant progress has been made in developing privacy and data protection policy and frameworks and in encouraging sensible operational responses to adverse incidents involving privacy and data protection. Despite this progress, the developments are still at an early stage and need to be consolidated. A governance change at this stage can be expected to damage and at least to some degree reverse this process. It is tempting to conclude that the proposed changes are a reaction to discomfort caused by the existing governance structure and the effectiveness of developments. This is not a positive conclusion.
Cultural change
Fundamentally, the PDPA was designed to drive public sector cultural change. The change process the PDPA mandates is not welcome in many parts of the Victorian public sector.
In the context of data security, resistance to cultural change has caused significant delay since the PDPA came into force. The start date of the Victorian Protective Data Security Standards (VPDSS) was delayed three times either without explanation or on the pretext that further consultation was needed. This further proposed consultation involved minor or trivial matters that could have been addressed within days. The Department of Premier and Cabinet, being the party proposing this consultation, did not undertake it. Ultimately other stakeholders within government were in the interesting position of seeking the change that the Department primarily responsible for the policy area was resisting. While this reaction to cultural change is understandable, it is not laudable.
There is more than a passing appearance that the proposals for change to governance in the Bill are intended to further inhibit the change process commenced by the PDPA.
Terms of Appointment
I currently hold the role of Commissioner for Privacy and Data Protection (CPDP).
The CPDP is appointed by the Governor in Council and once appointed can be: • suspended by the Governor in Council, with the reasons for that suspension reported to Parliament within 7 days; and • removed by a resolution of both houses of Parliament. If suspension occurs and removal does not follow within 20 sitting days, the suspension ceases and the appointment continues (see s.100 of the PDPA).
These arrangements are the same as those for other governance appointments under Parliament, such as the Auditor-General, the Ombudsman and the heads of IBAC and the Victorian Inspectorate. In other words, privacy and data protection is a subject area ultimately administered by Parliament in the same way as other key governance issues within the public sector.
The Bill proposes that the balance of these arrangements changes so that the Governor in Council (that is the Executive) can suspend or remove either of the 2 Commissioners responsible for privacy and data protection, with only a requirement to report the grounds for that action to Parliament, within 10 sitting days (see clauses 6 (proposed s. 6N) and 80 (proposed s. 8L) of the Bill).
This change represents a significant weakening of: • the independence of the Commissioners; and • the effect of the provisions in the proposed legislation that the Commissioners are not subject to the direction of the Minister (Clauses 6 (proposed s. 6B(3)(a)) and 80 (proposed s. 8L) of the Bill).
A threat of removal may be used to similar effect as a power of direction.
Conclusion
These issues warrant careful consideration. I recommend that the Bill should be examined carefully for both intended and unintended consequences before it is passed. It would be appropriate for these issues to be dealt with in the course of the committee stages of Parliament considering the Bill.

Identity

The Births, Deaths and Marriages Registration Amendment Bill 2016 (Vic) introduced in the Victorian Legislative Assembly yesterday seeks to make it easier for trans gender, gender diverse and intersex people to gain new birth certificates that accurately record their gender.

Adults will be able to apply to alter the sex recorded on their Victorian birth registration and birth certificate. They will be able to nominate their sex descriptor as male, female or specify a gender diverse or non-binary descriptor. The Bill also introduces a new process enabling parents or a guardian to apply to alter the sex recorded on their child’s birth registration, subject to consent by that child and a supporting statement from a doctor or registered psychologist. Children over the age of 16 will be assumed to have capacity to consent.

Currently, if a person in a heterosexual marriage (i.e. under Commonwealth law) changes gender and wants a new birth certificate to reflect that, he or she will need a divorce first given non-recognition of same-sex marriage is illegal. The Victorian Bill, is passed, means that couples will no longer be forced to divorce if one partner wishes to apply to change the sex recorded on his or her birth registration.

Posthumous Moral Rights

'Dead Loss: Damages for Posthumous Breach of the Moral Right of Integrity' by Jani McCutcheon in (2016) 40(1) Melbourne University Law Review considers 
whether damages may be awarded for the posthumous breach of an author’s moral right of integrity, which endures for 70 years post-mortem and, in many common law countries, protects authors against certain conduct in respect of a work which is prejudicial to their honour or reputation. While remedies for infringement ostensibly include damages, this article interrogates whether death defeats the moral right by denying significant damages due to a number of obstacles, principally the apparent conundrum that the dead cannot suffer loss. Has Parliament legislated a puzzle by giving the dead rights that are practically ineffectual? The problem is significant because nonnominal damages mark and deter wrongs, justify the expense and risk of litigation, and support the role of posthumous moral rights and remedies in protecting the public’s interest in cultural heritage. The article explains the impediments to posthumous damages awards and advocates reform to facilitate them and enhance the efficacy of post-mortem moral rights.

Tinkering

'Freedom to Tinker' by Pamela Samuelson in Theoretical Inquiries in Law (Forthcoming) comments 
Tinkering with technologies and other human-made artifacts is a long-standing practice. Freedom to tinker has largely existed without formal legal recognition. Tinkering has typically taken place in an unregulated zone within which people were at liberty to act unobstructed by others so long as they did not harm others. The main reason why it now seems desirable to articulate some legal principles about freedom to tinker and why it needs to be preserved is because freedom to tinker is being challenged by some legal developments. This Article explains that user-innovators have traditionally had considerable freedom to tinker under trade secrecy, patent, and trademark laws. Although copyright law permits a modest degree of tinkering with existing products, it restricts freedom to tinker more than other IP laws. Copyright law and sometimes contract law place substantial constraints on user rights to tinker with and modify computer programs and other digital works. These constraints are of particular concern to tinkerers because computer programs are embedded in such a wide range of technologies these days. This Article offers suggestions about how and why the law should protect a zone of freedom to tinker for socially beneficial purposes.

GMO Labelling

'On the Costs and Benefits of Mandatory Labeling, with Special Reference to Genetically Modified Foods' by Cass Sunstein comments
 As a result of movements for labeling food with genetically modified organisms (GMOs) Congress enacted a mandatory labeling requirement in 2016. These movements, and the legislation, raise recurring questions about mandatory product labels: whether there is a market failure, neoclassical or behavioral, that justifies them, and whether the benefits of such labels justify the costs. The first goal of this essay is to identify and to evaluate the four competing approaches that agencies now use to assess the benefits of mandatory labeling in general. The second goal is to apply those approaches to the context of GM food. 
Many people favor labeling GM food on the ground that it poses serious risks to human health and the environment, but with certain qualifications, the prevailing scientific judgment is that it does no such thing. In the face of that judgment, some people respond that even in the absence of evidence of harm, people have “a right to know” about the contents of what they are eating. But there is a serious problem with this response: the benefits of such labels would appear to be lower than the costs. Consumers would obtain no health benefits from which labels. To the extent that they would be willing to pay for them, the reason is likely to be erroneous beliefs, which are not a sufficient justification for mandatory labels. Moreover, GMO labels might well lead people to think that the relevant foods are harmful and thus affirmatively mislead them. 
Some people think that the key issue involves the need to take precautions in the face of scientific uncertainty: Because there is a non-zero risk that GM food will cause irreversible and catastrophic harm, it is appropriate to be precautionary, through labels or through more severe restrictions. The force of this response depends on the science: If there is a small or uncertain risk of serious harm, precautions may indeed be justified. If the risk is essentially zero, as many scientists have concluded, then precautions are difficult to justify. The discussion, though focused on GM foods, has implications for disclosure policies in general, which often raise difficult questions about hard-to-quantify benefits, the proper use of cost-benefit balancing, and the appropriate role of precautionary thinking.

Rights

'The Anatomy of the Human Rights Framework for Intellectual Property' by Peter Yu in (2016) 69 SMU Law Review 37-95 comments
Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on the human rights limits to intellectual property rights, intellectual property and human rights, and intellectual property as human rights. Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has also been devoted to the interplay of intellectual property rights and human rights in the area of scientific productions. 
Aiming to fill the lacuna, this article focuses on the complex interactions among scientific productions, intellectual property and human rights. It begins by outlining the various arguments for or against recognizing patent rights as human rights. It then explores the proper place of intellectual property rights — in particular, patent rights — in the human rights framework for intellectual property. To help facilitate a systematic and holistic study of the framework, this article advances a layered approach to intellectual property and human rights and identifies the framework's organizing principles and structural layers. 
This article further illustrates the proposed layered framework with examples involving four different types of scientific productions: (1) scientific publications; (2) scientific innovations (including inventions); (3) scientific knowledge; and (4) indigenous knowledge, innovations and practices. The article concludes by exploring whether an alternative human rights basis can be found in the right to own private property — a recurring debate among policymakers, commentators and intellectual property industries as well as one that has found support in recent human rights developments in Europe.

Majority

'Arrested Development: Rethinking the Contract Age of Majority for the 21-Century Adolescent' by Wayne Barnes in (2016) Maryland Law Review offers a provocative - and for Australian courts unpersuasive - argument regard the age of majority.

Barnes comments
 The contract age of majority is currently age 18. Contracts entered into by minors under this age are generally voidable at the minor’s option. This contract doctrine of capacity is based on the policy of protecting minors from their own poor financial decisions and lack of adultlike judgment. Conversely, the age of 18 is currently set as the arbitrary age at which one will be bound to her contract, since this is the current benchmark for becoming an “adult.” However, this article questions the accuracy of age 18 for this benchmark. Until comparatively recently, the age of contract majority had been 21 for centuries. The age was reduced to 18 in the aftermath of protest over the military draft of 18-year-olds during the Vietnam War during the 1960s and 1970s, and the enactment of the Twenty-Sixth Amendment which lowered the voting age from 21 to 18. However, the appropriate age for the military draft bears little to no relation to the appropriate age for voting, or contracting. Moreover, other evidence points in the direction of age 21 as a more appropriate age of majority. First, scientific evidence of brain development has advanced to the point that we now know the brain does not stop developing until well into the 20s, which means the powers of cognition and decision-making are not fully developed until then. Second, sociological evidence suggests that most people do not perceive the full attributes of adulthood as having been reached until at least 21, if not older. Third, other areas of the law have experiences in coming back to age 21 as an appropriate marker of adulthood --- these include the age for purchasing alcohol, the age for obtaining a credit card, and soon (it appears) the age for purchasing cigarettes. This confluence of evidence suggests that the contract age of majority was always appropriately set at age 21, and a return to that age of capacity for contracts will correct a historical misstep in the law.

18 August 2016

Malpractice

'Does Medical Malpractice Law Improve Health Care Quality?' by Michael D Frakes and Anupam B Jena in (2016) Journal of Public Economics comments
Despite the fundamental role of deterrence in justifying a system of medical malpractice law, surprisingly little evidence has been put forth to date bearing on the relationship between medical liability forces on the one hand and medical errors and health care quality on the other. In this paper, we estimate this relationship using clinically validated measures of health care treatment quality constructed using data from the 1979 to 2005 National Hospital Discharge Surveys and the 1987 to 2008 Behavioral Risk Factor Surveillance System records. Drawing upon traditional, remedy-centric tort reforms – eg, damage caps – we estimate that the current liability system plays at most a modest role in inducing higher levels of health care quality. We contend that this limited independent role for medical liability may be a reflection upon the structural nature of the present system of liability rules, which largely hold physicians to standards determined according to industry customs. We find evidence suggesting, however, that physician practices may respond more significantly upon a substantive alteration of this system altogether – ie, upon a change in the clinical standards to which physicians are held in the first instance. The literature to date has largely failed to appreciate the substantive nature of liability rules and may thus be drawing limited inferences based solely on our experiences to date with damage-caps and related reforms.

Praxiography

‘Beyond Cultural History? The Material Turn, Praxiography, and Body History’ by Iris Clever and Willemijn Ruberg in (2014) 3 Humanities 546–566 comments
The body came to be taken seriously as a topic of cultural history during the “corporeal” or “bodily” turn in the 1980s and 1990s. Soon, however, critique was raised against these studies’ conceptualization of the body as discursively shaped and socially disciplined: individual bodily agency and feeling were felt to be absent in the idea of the material body. This article critically analyzes new approaches in the field of body history, particularly the so-called “material turn”. It argues that the material turn, especially in the guise of praxiography, has a lot to offer historians of the body, such as more attention to material practices, to different kinds of actors and a more open eye to encounters. Potential problems of praxiographical analyses of the body in history include the complicated relationship between discourses and practices and the neglect of the political and feminist potential of deconstructive discourse analyses. However, a focus on the relationship between practices of knowledge production and the representation of the body may also provide new ways of opening up historical power relations.
The authors state that
In the 1980s and 1990s a “corporeal” or “bodily” turn took place in sociology and feminist philosophy. The body came to be taken seriously as object of study, resulting in studies on the history of obesity, anorexia, disability, menstruation, genitalia, beauty, sports, hygiene, the senses, the regulation of racial bodies and many more body-related topics [1–7]. In recent years, several multi-volume overviews of body history have been published [8–11]. The field of body history grew out of the history of medicine, gender and sexuality and was strongly influenced by the cultural turn. No longer considered a timeless biological entity, the body came to be seen as historically variable and shaped by culture, language and ideology. Especially, Michel Foucault’s and Judith Butler’s methodology of discursive constructionism found its way into historical studies of the body. Soon, however, critique was raised against these studies’ conceptualization of the body as discursively shaped and socially disciplined. This critique focused on the absence of individual bodily agency and of feeling in the notion of the material body and aimed to look beyond discursive constructionism, without reverting to older biologist concepts. The proposed answers differed widely: psychoanalysis, praxiography, neo-essentialism and other approaches were put forward [12]. In this article, we aim to critically analyze one of these new approaches in the field of body history, i.e., praxiography, which can be regarded as part of the so-called “material turn”, also named neo or new materialism. We explore what praxiography has to offer to historians of the body: It seems to pay more attention to material practices, to different kinds of actors and purports to have a more open eye to encounters (between bodies, objects, experts, and techniques). However, these new approaches also potentially contain a number of problems. Political critique, for instance, a feature that was strongly present in the cultural-historical approach of the body popular in the 1990s, at first sight seems to be absent. We hope to stimulate discussion on the advantages and disadvantages of the material turn’s key features amongst historians of the body. ...
Before sketching neo-materialist approaches to body history, we will first outline the rise of body history, with a particular emphasis on methodology and its accompanying problems. Although the body had not been completely absent in historical writing before the cultural turn, it was only on the wings of the latter that the corporeal came to be taken seriously as a field of study in the humanities, partly because the cultural turn diverged from a more traditional intellectual history, which privileged the mind over the body [13]. Before the cultural turn, in the first half of the twentieth century, historical sociologist Norbert Elias had devoted much attention to the disciplining of the body in early modern court cultures [14,15]. The Russian philosopher and literary critic Mikhail Bahktin put the material meanings of the body center stage in his analysis of the work of the French Renaissance writer Fran├žois Rabelais [16,17]. In cultural anthropology, the body had always been a serious topic of interest, and especially the symbolical anthropology of Mary Douglas, which regarded bodily boundaries as representative of ideas concerning purity, would be very influential in the new histories of the body produced as part of the cultural and performative turn [18]. The work of Michel Foucault, particularly his book on modern punishment, in which he saw the modern body as an object of new forms of disciplinary power, yet also as productive of those new forms, has been seen as foundational to the bodily turn [19,20].
The first overview of this new branch of cultural history was presented by historian Roy Porter, who warned from the start that too much theorizing over the body would lead to anachronism. Advocating attention to empirical research, Porter also feared that too much attention was being paid to the disciplining of past bodies, and thus to Foucauldian approaches. In his 2001 revision of his 1991 chapter, Porter noted “the domain in which writing about the history of the body has skyrocketed most stupendously: the theoretical dimension. Drawing on critical theory, postmodernism, post-Foucauldianism, and other ‘-isms’ embodying the linguistic turn, and also on feminist, gender, gay and lesbian philosophy, and much else besides, a challenging corpus of body theory now exists; yet it is one which is all too often historically dogmatic or deficient. The squaring of the empirical and the theoretical remains to be done.” ([21], p. 253).
Porter exemplifies the aversion of historians to the use of theory and their need for empirical evidence. One historical sub-field less averse to theory is gender history. It is from this field that most of the histories of the body have grown. The most influential work on the gendered body in the past has been the book by Thomas Laqueur Making Sex: Body and Gender from the Greeks to Freud [1]. Using mostly images in medical textbooks as sources, Laqueur argued that bodily sex differences, which he termed the “two-sex model”, in which men and women had completely different genitalia and other body parts, were only perceived in the eighteenth century, when Enlightenment ideas on the equality of the sexes threatened male privilege. Laqueur’s book is generally regarded as an important application of social constructionism to the body (in distinction to the concept of gender, which was approached from this angle from the start). Laqueur underlined how making, but also simply seeing bodily gender differences depended on political and social aims. It is important to keep in mind how social constructionism of the body has always been particularly fertile in regard to gender. The influence of gender history on body history also received some critique from feminist historians. In an article first published in 1999, Kathleen Canning argued that “‘body’ remains a largely unexplicated and undertheorised historical concept” ([22], p. 499). Canning noted that the turn from women’s to gender history left the body tainted with essentialism, a blank slate upon which gender ideologies were written. Feminist historians were interested in deconstructing those ideologies, but not particularly in the body that was targeted by these ([22], p. 501). Canning saw the prominence of the discursive body in gender history, at the cost of the “body as experience”, yet also signaled studies in which bodies were excessively material and undertheorized. She also pointed out, however, that these symbolic bodies remained “immaterial/dematerialised” and indicated two explanations for the embrace of the discursive body: the work of Michel Foucault and a more practical reason, that is the availability of sources that chart the discursive construction of gendered bodies, and the lack of sources dealing with the body “as a site of experience, memory, or subjectivity”. Canning called for “locating bodies spatially, nationally, and as inscribed by ethnicity and race”, underlining the importance of empirical evidence and historical specificity ([22], pp. 501–04).
The work of Michel Foucault and of gender theorist Judith Butler has indeed been very influential. Butler’s emphasis on cultural norms like the “heterosexual matrix”, which constitute (gendered) bodies discursively, has mostly been applied to the deconstruction of these norms, and the extent of agency this leaves us with has been heavily debated [23,24]. Although this notion of the discursive construction of the body has been used by many historians, it has to be kept in mind that several historians did attempt to reconstruct corporeal experiences in the past. Best known among these is the German historian Barbara Duden, whose The Woman beneath the Skin. A Doctor’s Patients in Eighteenth-Century Germany (originally published as Geschichte unter der Haut: Ein Eisenacher Arzt und seine Patientinnen um 1730 in 1987) placed eighteenth-century female patients’ experience of their own bodies centre stage [25]. Duden described a world in which the body, which was thought to contain continuous motions or a “flux”, was not considered as an object clearly separated from its environment. These eighteenth-century German women and their doctor used a language completely different from the discourse framing the modern body as an isolated object of medical examination. Conspicuously, rare studies into historical corporeal understanding, like Duden’s, were nearly always medical histories, based on egodocuments like letters, from which some personal experience, however entwined in cultural discourses, could be retrieved [26]. Nevertheless, these studies remained exceptions, the majority of body historiography being devoted to deconstructing medical discourse. To theorize the body as site of experience, some historians resorted to psychoanalytical approaches. Lyndal Roper described an “economy of bodily fluids” in early modern witchcraft beliefs, which regarded old women as sucking on the bodily fluids of others. Roper, using psychoanalytic categories, argued that young mothers projected their own confusing emotions onto older lying-in maids, whom they accused of witchcraft. These emotions were highly sensitive to the manipulation of the body [27]. Other historians were influenced by feminist philosophers who tried to find new ways of perceiving the body, like Moira Gatens’ notion of the “imaginary body”, which stressed the psychical significance of various zones of the body, while trying to bridge the gulf between discursive and material bodies [28]. Elizabeth Grosz, as well, started from psychoanalytical notions while formulating her notion of “corporeal feminism”. Grosz claimed that the body can never be fully disciplined or described by discourse and underlined the agency of the body in her notion of “counter-strategic reinscription” ([29], p. 64).
Grosz, like feminist Iris Marion-Young, built upon phenomenology in accounting for women’s experiences. From this perspective, body, self and world become entangled in situated, corporeal experiences. Phenomenological approaches thus already highlighted the material aspect of bodily experience and the difficulty of separating notions of “the natural” and “the social” [22,30–32]. Similarly, the experiential and social aspects of the body were emphasized by Leslie Adelson’s notion of embodiment, who defined it as a process “of making and doing the work of bodies—of becoming a body in social space.” ([22], p. 504). In short, the body as a site of experience was emphasized by psychoanalytic and phenomenological approaches, including attention to the material and social aspects of the body, as well as agency and resistance. These approaches, however, were not applied very often by historians.
Although body history has become an accepted part of the field of social and cultural history, historians still seem to be struggling with some of the methodological and theoretical problems that surfaced in the 1990s. For example, Ivan Crozier, in his 2010 introduction to the sixth volume of A Cultural History of the Human Body, on the body in the modern age, leans on the theoretical approaches of Foucault and Butler uncritically. He also makes use of Julia Kristeva’s term “abjection” and Mary Douglas’ “matter out of place”. For Crozier, the discursive constructionist approach is less of a problem than for other historians and he combines it with insights from anthropology and psychoanalysis. In addition, he couples a general plea for a socio-historical embeddedness to a seemingly self-evident, yet often neglected, attention to an always changeable body. Defining bodies as “performed social institutions”, whose agency is constrained by “various techniques of training, practice, and sanctioning”, Crozier proposes to study bodies in action and in a socio-cultural and historical context, while at the same time mediated through a variety of discourses and arrangements of power [33]. Crozier also points to the “underdetermined character of the corporeal”, the idea that the same body changes according to locale: “the body is not used the same way when it is sick, during sex, as it ages, for pleasure, for work, for sport, or when it is represented.” ([33], pp. 21–22). Thus, the problem of a one-sided emphasis on discursive construction and discipline, neglecting individual experience and agency, does not surface in Crozier’s account. However, a call for a more open-ended view of the changeable body, including more attention to historically changing places, echoes Canning’s plea for more historical specificity ([22], p. 504).
In a second recent overview of “the somatic turn”, Roger Cooter is more critical of the “the representational approach”, locating the problem in several scholars’ acceptance of the body “only as a representation”. One important new direction in the history of the body Cooter signals is a return to biological essentialism, influenced by neuroscience and the cognitive turn [34]. Importantly, Cooter notes the relevance of what he terms the “new breed of essentialisms” to the history of the body. However, he seems to regard these only as a threat to a balanced history of the body, not as productive methodologies. Moreover, as we will show below, some important new approaches, like the practice turn and praxiography, cannot be grouped so easily under the heading of “essentialism”.
To conclude, in the past 20 years, social and discursive constructionist approaches to the body have been very influential, but have also come under attack, due to their presumed lack of attention to individual corporeal experience, which is often taken to mean a neglect of agency. For historians, this critique is paired to a call for using more empirical sources. Psychoanalytical and phenomenological approaches that do underline bodily experience have had little impact on history writing. On the one hand, a historical picture of the material body is called for (including historical locality and changeability), on the other hand “essentialism”, implying a return to a biological, non-historically specific body, is feared. In the remainder of this article, we explore what the application of praxiography to body history implies for these questions in regard to the material, experiencing body as stated in historical sources.

Privacy Regulation

'Friending the Privacy Regulators' by William McGeveran in (2016) 58 Arizona Law Review comments
According to conventional wisdom, data privacy regulators in the European Union are unreasonably demanding, while their American counterparts are laughably lax. Many observers further assume that any privacy enforcement without monetary fines or other punishment is an ineffective “slap on the wrist.” This Article demonstrates that both of these assumptions are wrong. It uses the simultaneous 2011 investigation of Facebook’s privacy practices by regulators in the United States and Ireland as a case study. These two agencies reached broadly similar conclusions, and neither imposed a traditional penalty. Instead, they utilized “responsive regulation,” where the government emphasizes less adversarial techniques and considers formal enforcement actions more of a last resort. 
When regulators in different jurisdictions employ this same responsive regulatory strategy, they blur the supposedly sharp distinctions between them, whatever may be written in their respective constitutional proclamations or statute books. Moreover, “regulatory friending” techniques work effectively in the privacy context. Responsive regulation encourages companies to improve their practices continually, it retains flexibility to deal with changing technology, and it discharges oversight duties cost-efficiently, thus improving real-world data practices.
'Statutory Regulation of Professional Journalism Under European Data Protection: Down But Not Out?' (University of Cambridge Faculty of Law Research Paper No. 35/2016) by David Erdos comments
 European data protection aims to protect the privacy and related rights of individuals, purposes which come into tension with the free speech of professional journalism. Moreover, statutory Data Protection Authorities (DPAs) act as the ‘guardians’ of the data protection framework across the European Economic Area. In light of this, this article explores through both a DPA questionnaire and a DPA website review the enforcement efforts of these critical regulators in this sector. The results indicate that, notwithstanding stringent statutory provisions enforceable by DPAs in many Member States, activity has been patchy even in areas which raise limited free speech concern (e.g. action against significant inaccuracy). Nevertheless, many DPAs do engage in this area especially when sensitive or importantly confidential information is involved. The stringency of local law also positively correlates with the extent of enforcement, whilst the level of resourcing surprisingly does not. The article proposes action by both Member States and DPAs to ensure more regulatory coherence under the forthcoming General Data Protection Regulation.

Heuristics

'Patent Damages Heuristics' by Thomas Cotter in Texas Intellectual Property Law Journal (Forthcoming) comments
In many domains, including law, decisionmakers often resort to heuristics, which others have aptly described as “shortcuts that simplify and speed up decision making” by, for example, “ignor[ing] some of the available information” to arrive at “adequate, though often imperfect, answers to difficult questions.” In this paper, I argue that a patent system that more readily accepts the use of damages heuristics may better serve public policy than one that requires patent owners to substantiate every aspect of their claimed damages with rigorous proof. More specifically, policymakers confronted with the choice between a proposed heuristic and an open-ended, nonheuristic standard (or an alternative heuristic) ideally should choose the proposed heuristic when the sum of the administrative and error costs associated with its use is lower than the sum of the administrative and error costs resulting from the use of the nonheuristic (or alternative heuristic). To be sure, there often may be no easy way to evaluate whether this condition is satisfied — due both to the paucity of the evidence and to the fact that the cost one attributes to error depends in part on the value one places on the importance of accurate damages calculations to patent policy. Nevertheless, I will argue that, at least in some recurring situations, policymakers can reach a reasoned conclusion whether or not use of a particular heuristic is likely to improve social welfare; and that, more generally, the patent system would benefit if courts were more mindful of both the necessary tradeoffs to be made in calculating damages and where the gaps in our knowledge lie.

17 August 2016

Circumcision

'Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy' by Stephen Munzer in (2015) 37 University of Pennsylvania Journal of International Law 503-581 comments
After an appellate court made circumcision of minors effectively illegal in the absence of a medical justification, the German Parliament passed a statute that restored, with some limitations, the right of parents to seek ritual circumcisions for their sons. Between these events, a fierce controversy broke out in Germany involving Jews, Muslims, and other Germans. Whereas circumcision without medical indication is rare among most Germans, it is a common religious practice in Jewish and Muslim communities in Germany. The debate tapped into ongoing discussions of German cultural norms, German secularization, and a long history of anti-Semitism and a much shorter history of anti-Muslim sentiment in Germany. It also tapped into the religious and traditional practices - sometimes converging, sometimes diverging - of Jews and Muslims.
This Article discusses the range of opinions on religious circumcision among Germans and other Europeans. It disentangles the social factors at work in the debate and analyzes the court decision and the new statute. It also examines some recent decisions under the new statute and explores problems with the statute's application. Given that roughly 700 million boys worldwide have undergone ritual circumcision, the German controversy has global implications.
This Article shows that at day's end, the debate turns on issues of toleration and multiculturalism. It is scarcely possible to resolve this - debate without asking, "What is a child?" If a child is a proto-member of his parents' religious community and has only a weak right to bodily integrity, or if the risk-benefit ratio favors circumcision and the parents have a broad scope of consent, then circumcision without medical indication might be legally and morally permissible. Parents might then have discretion to place on his body a permanent physical symbol of his expected or hoped for religious affiliation as an adult. Yet if a child has a strong right to bodily integrity, and circumcision is not medically indicated, then the permanent physical modification of his body with a symbol of Jewish or Muslim identity might be problematic, and circumcising him for aesthetic or other nonreligious reasons might likewise be problematic.

Queensland Human Rights Act?

'A Human Rights Act for Queensland? Lessons from Recent Australian Experience' by George Williams and Daniel Reynolds in (2016) 41(2) Alternative Law Journal comments
The Queensland Parliament has launched an inquiry into whether the state should enact a human rights act and, if so, in what form. If Queensland does pass such a law, it will become the third jurisdiction in Australia to do so, following on from the ACT in 2004 and Victoria in 2006. Queensland can learn from the many years of experience of those regimes, which show that a well-functioning human rights act needs a stand-alone cause of action, comprehensive and timely parliamentary scrutiny, and intelligible duties of judicial interpretation. If Queensland embraces these lessons in enacting a human rights act, it will advance to the vanguard of human rights protection in Australia.
The Report [PDF] of the Queensland Parliamentary Legal Affairs and Community Safety Committee inquiry into such an Act notes that the Committee's Terms of Reference were -
1. That the Legal Affairs and Community Safety Committee inquire into whether it is appropriate and desirable to legislate for a Human Rights Act (HR Act) in Queensland, other than through a constitutionally entrenched model.
2. That, in undertaking the inquiry, the committee consider: a. the effectiveness of current laws and mechanisms for protecting human rights in Queensland and possible improvements to these mechanisms; b. the operation and effectiveness of human rights legislation in Victoria, the Australian Capital Territory and by ordinary statute internationally; c. the costs and benefits of adopting a HR Act (including financial, legal, social and otherwise); and d. previous and current reviews and inquiries (in Australia and internationally) on the issue of human rights legislation.
3. That, if the committee decides it would be appropriate and desirable to legislate for a HR Act in Queensland, the committee consider: a. the objectives of the legislation and rights to be protected; b. how the legislation would apply to: the making of laws, courts and tribunals, public author ities and other entities; c. the implications of laws and decisions not being consistent with the legislation; d. the implications of the legislation for existing statutory complaints processes; and e. the functions and responsibilities under the legislation.
4. That the committee invite public submissions, consult with the community and key stakeholders and report to the Legislative Assembly by 30 June 2016
The Committee Chair comments
The committee has undertaken this inquiry over several months, and received almost 500 submissions.
The committee invited consultation with stakeholders in jurisdictions with statutory human rights legislation, namely the ACT, Victoria and New Zealand. The committee conducted public consultation with community and Indigenous groups in North Queensland and with selected stakeholder representatives in Brisbane.
We have identified key issues raised by those who made submissions, and considered features of human rights legislation in other jurisdictions.
In this instance the committee was unable to agree on whether it would be appropriate and desirable to introduce human rights legislation to Queensland.
Government members of the committee concluded that it is appropriate and desirable to have a human rights act in Queensland.
Non-government members were of the opposite view.
Given the above and the wording of the terms of reference at point 3, the committee as a whole has not considered the various aspects set out under point 3. 

Tarnished Trade Marks

'What Can Harm the Reputation of a Trademark? A Critical Re-Evaluation of Dilution by Tarnishment' by Michael Handler in (2016) 106 Trademark Reporter 639-692 comments
“Dilution” remains one of the most controversial concepts in trademark law throughout the world. However, while dilution by “blurring” has received sustained criticism for decades, relatively little scholarly attention has been paid to the other limb of dilution, namely “tarnishment”. It is perhaps easy to see why. The concept of tarnishment has a stronger intuitive appeal than blurring; it has seemingly clear parallels with other areas of the law involving harm to reputation; and the relatively few tarnishment cases around the world have tended to involve unsavoury uses of famous marks.
In this article I critically re-assess dilution by tarnishment, addressing three related issues. First, I explore the historical origins of the tarnishment action in both the United States (focusing on mid-twentieth century State dilution statutes and earlier case law) and Europe (looking at developments in the Benelux from the 1960s). This investigation reveals that the type of injury against which such early laws were designed to protect was more limited than “dilution by tarnishment” as currently conceptualized. Second, focusing on more recent case law, I will investigate the ways in which famous marks’ reputations have been constructed in tarnishment actions, and show that there has been insufficient engagement with the complex, multivalent notion of brand “reputation”. Third, looking to literature on consumer psychology, I will consider whether, in the absence of consumer confusion, unauthorized uses of famous marks in fact create reputational “harm”, at least of a type and magnitude that might justify the current levels of legal intervention under United States and EU law.
Taken together, these issues show that tarnishment raises as many complex and unresolved issues as blurring in relation to the “harms” against which dilution laws are designed to protect. This should give us cause to reconsider whether the dilution action is really about preventing cognizable harm at all, or is ultimately concerned with the morality of trade behaviour, and what the consequences of such a reconceptualization might be.

Law Students

'Law Student Lifestyle Pressures' by Alex Steel and Anna Huggins in Rachael Field, James Duffy and Colin James (eds) Promoting Law Student and Lawyer Well-being in Australia and Beyond (Ashgate, 2016) comments
One significant factor influencing student wellbeing is the degree to which their studies are subject to external lifestyle pressures. These pressures are relieved or exacerbated by choices students make around their approaches to study, and the amount of time they devote to work and leisure. This Chapter considers results from a 2012 survey of law students at the University of New South Wales (UNSW), Sydney, Australia. Those results are compared to results from a similar US law student survey, and comparable data from the UK and Australia more broadly. In addition, the UNSW study compares key lifestyle choices of undergraduate (LLB) and graduate (JD) law students. The significance of the analysis in this Chapter for understanding law students’ wellbeing is that comparing American and Australian law students’ lifestyle patterns provides insights into contextual variation between both groups, which is important to bear in mind when comparing American and Australian research on law students’ wellbeing, and appreciating the limits of such comparisons. In particular, much of the wellbeing literature to date has focused on course-based stressors, but in light of recent research indicating that improvements in students’ course-based experiences may not have a direct effect on law students’ elevated levels of psychological distress, it is important to understand the broader life pressures and stressors that may be impacting law students’ wellbeing.
'How should academia, the practising profession and the courts assist each other in the education of Australian lawyers?' by Ailsa McKeon in (2016) 90 Australian Law Journal 355 identifies
four proposals for increased engagement between academia, the practising profession and the courts for the furtherance of Australian lawyers' education. These proposals are, in sum: increased involvement between professional regulation bodies and university students; greater emphasis on critical thinking and problem-solving skills through taught law courses and pro bono activities; greater student engagement with the operation of courts and tribunals; and the training of solicitors from law firms by those within community legal centres in relation to their pro bono activities. The philosophical foundations of the law support such steps, which would be of direct advantage to students and broader benefit to the community.
 McKeon argues
Voluminous amounts of literature already exist around law school education. This is partly due to the fact that law schools have faced a number of challenges in recent decades, including the proliferation of their number, differing funding models, and the demands of a changing marketplace. There is less material on the continuing education of legal professionals, [1] despite the fact that all Australian practitioner regulation bodies require continuing professional development for practitioners' ongoing certification. [2] For their part, members of the judiciary receive the benefit of a number of institutions dedicated to the education and training of judges throughout their tenure. Domestically, these include the Australian Institute of Judicial Administration, the National Judicial College of Australia, and the Judicial Conference of Australia.
To the outsider, or even the law student, it is easy to perceive law school, the legal profession, and the courts as discrete units. However, these units are necessarily connected: for example, the practitioner regulation bodies and the courts control admission to the profession, partly on the basis of university qualifications. Yet on a daily basis, these linkages are largely invisible. In the author's view, this has played a role in the apparent transition of the practice of law from being a profession to a vocation.
This claim is not founded in elitism. Rather, it reflects the fact that the law is fundamental to a just and democratic society and that as such, a life in the law requires commitment to particular values. Testament to this is the fact that admission to the ranks of legal professionals as an officer of the court requires, first, that an applicant be of "good character"; and secondly, that the applicant give an oath or affirmation to the effect that she or he will "truly and honestly conduct [herself or himself], in the practice of a lawyer of this court, according to law to the best of [her or his] knowledge and ability". The particular ethics of law are also vital to its proper practice; jurisprudence too, connects law with philosophical notions of the "good life" and how this may be achieved in society. Returning to the central question, this article makes four recommendations – three focusing on law schools and the fourth on the legal profession – aimed at enhancing the education of Australian lawyers through increased emphasis on professional ethics and a holistic understanding of the law and legal process. The first recommendation is of increased involvement between professional regulation bodies and university students. The second is a greater emphasis on critical thinking and problem-solving skills, both by embedding these skills within taught law courses and through pro bono activities. The third encourages greater student engagement with the operation of courts and tribunals. The fourth, related to continuing legal education of legal practitioners, is the training of solicitors within law firms, in relation to their pro bono activities, by those within community legal centres. Each of these is addressed in turn.

Occupation

In Nowak & anor -v- Residential Tenancies Board [2016] IEHC 471 Humphreys J in the Eire High Court has commented on procedure and identity.

The judgment states
1. The applicants seek leave to apply for judicial review in order to quash a determination of the Private Residential Tenancies Board dated 12th February, 2016 in an application between the applicants and their landlords, Andrea Hogan and Sinead Rossiter (necessary parties, not joined by the applicants), which fixed a market rent for their tenancy and deal with other related matters. The determination was communicated to the first named applicant under cover of a letter dated 19th February 2016, which he says was received on 22nd February, 2016. ...
The applicant’s affidavit of 15th July, 2016.
4. The applicant also sought to put in further evidence and swore an affidavit on 15th July, 2016 which begins as follows: “I, Peter Nowak, A DISCIPLE OF THE LORD JESUS CHRIST of [address] aged 18 years and upwards MAKE OATH and say as follows…”.
5. The Central Office declined to accept this affidavit, on the grounds that it did not comply with rules of court.
6. Order 40, r. 9 provides in pertinent part that “Every affidavit shall state the description and true place of abode of the deponent”. This reflects an approach going back to that pursuant to the Rules under the Supreme Court of Judicature (Ireland) Act 1877 (see Wylie Judicature Acts (1881) under O. XXXVI, r. 5 (p. 432)). The term “description” means “occupation”. Spaddacini v. Treacy (1888) 21 L.R. Ir. 553 is an interesting decision, involving the description and abode of two plaintiffs, the first a struck-off solicitor resident in Stillorgan Castle (now St. John of God’s) describing himself as “Esquire” and the other a grocer describing himself as a “gentleman”. Albeit in the context of a statutory requirement to specify trade, profession or occupation, Porter M.R. held that “gentleman” was not a sufficient description of a person (such as a grocer) who actually had an occupation. He observed that “No one has suggested that ‘human being’ would be the proper description” (at p. 559). Of course he had not met someone of Mr. Nowak’s inventiveness.
7. To my mind, fanciful descriptions such as “a disciple of the Lord Jesus Christ” do not constitute a description (in the sense of occupation) envisaged by O. 40, r. 9. If such a mode of description were permitted, one could not stop the next deponent describing themselves in the opening of an affidavit as a “Guardian reader” or the one after that as a “keen golfer”, and so on. No reductio is however required because we are firmly in absurdum from the off. It is hard to know which the applicant’s affidavit trivialises more, religion or court procedure.
8. The Central Office was entirely correct in refusing to accept this affidavit. The solicitor who took it should not have allowed it to be sworn in that form. I trust that the message will get through in order to avoid a repetition.

Health Practitioner Revalidation

The Medical Board of Australia has published a discussion paper and the interim report of its expert advisory group on on practitioner revalidation, concerned with what should be done "to make sure that medical practitioners in Australia maintain and enhance their professional skills and knowledge and remain fit to practise medicine".
Regulation is about keeping the public safe and managing risk to patients. Part of this involves making sure that medical practitioners keep their skills and knowledge up to date. ... We are committed to finding the most practical and effective way to do this that is tailored to the Australian healthcare environment. 
The interim report proposes a ‘two by two’ approach to revalidation
  •  Two parts: Strengthened CPD + proactive identification and assessment of ‘at-risk’ and poorly performing practitioners 
  • Two steps: Engage and collaborate in 2016 + recommend an approach to pilot in 2017. 
The Board states
This ‘two by two’ model represents evolution, not revolution, in the requirements for doctors to make sure they provide safe care to patients throughout their working lives, the report states. ‘An integrated approach will be most effective. CPD alone, however rigorous, may not identify the practitioner who may be putting the public at risk. A regulatory approach, however thorough, cannot reliably, single-handedly improve the quality of care provided by most competent doctors,’ 
In discussing Strengthened CPD the Board states
Evidence-based approaches to CPD best drive practice improvement and better patient healthcare outcomes. Strengthened CPD, developed in consultation with the profession and the community, is a recommended pillar for revalidation in Australia. 
Identifying and assessing at risk and poorly performing practitioners: A small proportion of doctors in all countries is not performing to expected standards at any one time, or over time. Another group of practitioners is at risk of poor performance. Developing accurate and reliable ways to identify practitioners at risk of poor performance and remediating them early is critical, with considerable transformative potential to improve patient safety. It is equally critical to identify, assess and ensure there is effective remediation for practitioners who are already performing poorly. 
The report recommends guiding principles should apply to all potential approaches:
 Smarter not harder: strengthened CPD should increase effectiveness but not require more time and resources 
Integration: all recommended approaches should be integrated with – and draw on – existing systems and avoid duplication of effort, and 
Relevant, practical and proportionate: all recommended improvements should be relevant to the Australian healthcare environment, feasible and practical to implement and proportionate to public risk.
The Interim Report comments
Part two: Identifying and assessing practitioners at risk of poor performance and poorly performing practitioners A small proportion of doctors in all countries is not performing to expected standards at any one time, or over time. Many practitioners found to be under-performing self-remediate or return to safe practice with local support. This is the preferred approach. Another group of practitioners, however, is at risk of continued poor performance. To improve patient safety, improve practitioner performance and reduce the adverse impacts of patient complaints on complainants and doctors, it is critical to develop accurate and reliable indicators to identify at-risk and poorly performing practitioners, and when necessary, to intervene early with improved remediation processes. It is equally critical to improve our ability to identify, assess and effectively remediate practitioners who are poorly performing, including those who are the subject of multiple complaints or notifications and are already at a high predicted risk of continued poor performance. We do not know enough about the extent of ‘at-risk’ and poorly performing medical practitioners among those undertaking different types of CPD programs in Australia. The EAG proposes that strategies to effectively identify and assess ‘at-risk’ and poorly performing practitioners should apply across all categories.
Practitioners at risk of poor performance
Identifying risk factors
Prevention is better than cure. Developing indicators to identify ‘at-risk’ practitioners and being clear about actions to effectively assess them is critical, so effective interventions can follow.
The strongest risk factors associated with an increasing regulatory risk profile that have been identified and replicated both nationally and internationally are: • age (from 35 years, increasing into middle and older age) • male gender • number of prior complaints, and • time since last prior complaint. 
Additional individual risk factors found in certain studies include: • primary medical qualification acquired in some countries of origin • specialty • lack of response to feedback • unrecognised cognitive impairment • practising in isolation from peers or outside an organisation’s structured clinical governance system • low levels of high-quality CPD activities, and • change in scope of practice. Based on available evidence, the EAG believes that the time has come to deepen our understanding of factors that most reliably and practicably indicate practitioners at risk of poor performance that are relevant to medical practice in Australia.
We propose that there is now enough evidence to trigger discussion and draw on insights available about how various risk factors might be used to proactively identify practitioners at risk of poor performance in the Australian healthcare environment. Doing this could enable early intervention to protect the public and individual doctors from ongoing risk and improve the performance of these doctors. Deepening the understanding of the risk profiles of doctors who are already the subject of complaints or notifications using existing regulatory databases will provide a more accurate picture of risk indicators, improve ways to predict risk, and suggest the optimal timing and avenues for intervention.
Assessing individuals
Having identified the cohorts, or groups of practitioners at most risk of poor performance, it is important to then assess the identified individuals to determine whether and how the individuals actually pose a risk to public safety. Not all individuals in at-risk groups will be underperforming. Some practitioners who are identified as underperforming will return to safe practice simply through the process of being assessed and receiving feedback.
Robust early detection and remediation processes are anticipatory and preventive. They should be non-punitive, individualised and educational, designed to return the doctor to safe practice as soon as possible. The level of assessment of at-risk practitioners should be proportionate to the level of risk, consistent with the guiding principles. Examination-style assessment will not be effective in this task.
Tiered assessment
The EAG supports a tiered approach to assessment of performance, scaled to match the level of potential risk. A tiered, multi-faceted assessment strategy could start with multi-source feedback for low-risk cases, escalating through peer review and feedback processes, to more thorough in-situ evaluation to fully determine the nature of serious underperformance in doctors as required by the regulator. Cost-effective, early interventions should escalate only as needed.
1. Specialty-specific multi-source feedback (MSF) is the recommended starting point to assess whether practitioners in at-risk groups are performing safely, or are underperforming, or are poorly performing. The available evidence indicates that it is an effective and practical performance appraisal tool. MSF gained from colleagues, co-workers, and patients may provide a practical, cost-effective and efficient pathway for the early detection of doctors at risk of poor performance. It is consistent with the guiding principles outlined on page seven. Used effectively in CPD programs, it has been shown to identify gaps in both clinical and professional performance, to trigger self-reflection and to improve practitioner performance. It has also been used to help identify doctors who are not performing to accepted standards. 2. The next level of assessment – for doctors who may pose more serious risk – involves more intensive peer-mediated processes. This could include peer review of medical records, peer review of performance in practice, and/or facilitated feedback based on practice or outcomes data. 3. The highest level of assessment would align with extensive performance assessment, as can be mandated by regulators. Comparing the results of MSF from ‘at-risk groups’ with results of MSF from practitioners not in at-risk categories will be important for benchmarking.
Poorly performing practitioners: identifying, assessing and remediating individuals
International research indicates that about six per cent of medical practitioners are poorly performing at any one time. No Australian research has yet reliably identified how many medical practitioners in Australia fall into this category. Future Australia-specific research should confirm this number. In the meantime, the EAG believes that action is required to identify, assess and where possible remediate all of these practitioners, in the public interest.
Responsibility for identifying and remediating under-performing and poorly performing practitioners in Australia needs further development and consensus.

15 August 2016

Qld Adoption Regime

The report by the Queensland Department of Communities, Child Safety and Disability Services of the Review of the operation of the Adoption Act 2009 provides
an overview of the review of the operation of the Adoption Act 2009 (the review) and outlines the results of the public consultation process that may inform proposals to amend adoption legislation, policies and practices in Queensland.
The report states
Section 327 of the Adoption Act 2009 (the Act) requires the Minister administering the Act to review its operation, as soon as practicable, five years from commencement of the Act. The review must examine the effect of the Act on parties to adoption and their families. The review comprised a range of information sources, including adoption statistics, community correspondence, advice from Queensland Government departments on the day-to-day practical application of the Act and approaches in other states and territories. The review was supported by a comprehensive public consultation that enabled individuals and stakeholders to provide feedback through an online survey, written submissions, interviews and focus groups. A total of 356 individuals and organisations participated in the public consultation, including:
  • 216 individuals who responded to an online survey 
  • 77 written submissions, provided by: 46 individuals 31 organisations 
  • 63 individuals who participated in interviews or focus groups.
Participants included individuals from a range of age groups and geographic locations, and with varying adoption experiences. Of the total number of participants, 12 per cent identified as an adopted person, 16 per cent identified as an adoptive parent and 3 per cent identified as a birth parent affected by the repealed Adoption of Children Act 1964.
The most common issues raised during the public consultation were suitability and assessment of applicants, consent and dispensation requirements, timeframes in administering adoption processes and eligibility criteria.
The results of the review indicate that the Act is operating as intended. However, some aspects of the Act could be enhanced to ensure Queensland is doing its best to promote the wellbeing and best interests of adopted persons throughout their lives. A small number of operational improvements have also been identified to strengthen Queensland’s adoption practices, ensuring that the needs of children requiring adoption continue to be met now and into the future.
The Department states that
Responses received from consultation on the review indicate that the Act is operating as intended. However, there is an opportunity to enhance aspects of the legislation to allow for a contemporary and flexible legal framework for adoption in Queensland.
A small number of operational improvements have also been identified, which have the potential to further develop Queensland’s adoption practices, to ensure that they continue to meet the needs of children requiring adoption now and into the future.
Changes are proposed to:
  • broaden eligibility criteria to enable single persons, same-sex couples and persons undergoing fertility treatment to have their names placed on the expression of interest register 
  • remove the offence for a breach of contact statement for adoptions that occurred before 1991 while retaining departmental obligations as a safeguard 
  • enable the chief executive to consider the release of identifying information to persons under 18 years of age in exceptional circumstances, without consent from adoptive or birth parents, and broaden the definition of ‘relative’ to include future generations of kin 
  • require the court to be satisfied that exceptional circumstances apply to allow a change of a child’s first name in a final adoption order 
  • enable the chief executive to facilitate contact between parties to an adoption, during interim orders 
  • streamline processes for adoption by step-parents 
  • make minor technical amendments to clarify the intent of existing provisions and make consequential amendments based on the endorsed policy objectives 
  • require a further review of the Act in five years’ time.
In discussing adoption contact the report states
A total of 105 individuals and stakeholders who contributed to the review through the Get Involved survey or a written submission provided feedback on adoption information and contact. Of these, the majority (80 per cent or 84 respondents) provided feedback regarding contact, breaches (59 per cent or 62 respondents), access to information (27 per cent or 28 respondents) and open adoption (14 per cent or 15 respondents).
Contact statements
The review examined if there should continue to be restrictions on how parties to the same adoption make contact with each other and, if so, whether those restrictions should have penalties attached for a breach.
There were mixed responses to this issue, with many individuals expressing a preference for continuing to have some way to record their preferences for contact. Of the 216 individuals who responded through the Get Involved survey, approximately 50 per cent (102 respondents) believe there should be restrictions in how people involved in an adoption make contact with each other, approximately 35 per cent believe there should be no restrictions, while 15 per cent did not respond.
Participants of the targeted consultation sessions with the external specialist expressed strong views about contact statements. Participants reported that the offence provision and its penalties cause considerable trauma and fear, because they imply individuals cannot be trusted and would not do the right thing. Having penalties in the legislation is felt by some to be another rejection and inappropriate state intervention in the life of adoptees and birth families.
Feedback from targeted consultation sessions also revealed that other legal avenues, such as offences for stalking and provisions in privacy legislation, are adequate to avoid unwanted contact, and that specific offence provisions about adoption are unnecessary and traumatising.
According to the Australian Institute of Health and Welfare, there were 2970 contact statements in place in Queensland, as of 30 June 2015. Of these, 1708 contact statements were put in place by adoptees and 1249 by birth mothers. Birth fathers have lodged 11 contact statements. The overall number has reduced by 19 contact statements since the previous year.
Penalties for breaches of contact statements
Approximately 55 per cent of respondents from the Get Involved online survey supported penalties for breaching contact statements, with 25 per cent not supporting the penalties. Two stakeholder groups and an individual provided written submissions in support of removing the penalty for a breach of contact statement.
In Queensland, if a person makes contact with the person who put in place a contact statement relating to a pre-June 1991 adoption, in a way that breaches the contact statement, the person may be charged with an offence.
In discussing access to adoption information the report comments
Access to adoption information was a common theme in the views expressed by individuals and stakeholders who participated in the consultation. There were 105 responses, including written submissions and comments on the Get Involved survey, and six written submissions from stakeholder groups, that emphasised the importance of access to adoption information.
Participants of targeted sessions with the external specialist supported open adoption as a way of maintaining a child’s access to their identity. In at least seven interviews, there was specific reference to wanting improved access to information and support about birth fathers.
There was broad agreement that accessing information had improved since the repealed Adoption of Children Act 1964, but more could be done to further support people to gain as much information as possible about their identity and circumstances surrounding an adoption. Comments regarding specific changes to access to adoption information varied greatly. However, suggestions were made about extending the provisions to include family members more broadly.
There was a focus on the need for improving provisions to enable the timely release of medical information, and routine practices of seeking medical information on behalf of adoptees at the time of birth. This is viewed as a natural extension of focusing on, and prioritising, the needs of the child.
Adoption legislation in all state and territories of Australia contain provisions for access to pre-adoption and/or identifying information. According to the Australian Institute of Health and Welfare 2014–15, 2602 applications for information were made in Australia between 2014 and 2015, of which 414 were made in Queensland.
All states except South Australia allow for adoptees under the age of 18 years to apply for this information in varying degrees. However, each state also requires consent to be obtained from the adoptive parent/s and/or birth parents. Unlike the Australian Capital Territory, New South Wales and Western Australia, there is no discretionary power in Queensland to release information to an adopted person under the age of 18 years if a person required to give consent under the Act cannot be located.
New South Wales, Victoria, the Northern Territory, South Australia and the Australian Capital Territory have legislative provisions that regulate access to information and apply similar definitions for the term ‘relative’. All definitions include grandparents, sons, daughters, brothers, sisters, aunts and uncles. Western Australia includes ‘descendants’, ‘siblings’ and ‘grandparents’, but makes no reference to aunts and uncles, while Tasmania does not explicitly define the term ‘natural relative’. No state or territory specifically allows cousins, relatives under traditional Aboriginal and Torres Strait Islander custom or other significant persons in their definition. However, New South Wales does allow a person who had a close personal relationship with the birth parents or adopted person to apply for adoption information, after the death of that birth parent or adopted person. Queensland is the only state to exclude grandparents and include spouses in its definition of ‘relative’.
Under access to information provisions in the Queensland legislation, a man is an adopted person’s biological father if:
  • he is shown as such on the birth register 
  • the man consented to the adoption 
  • the chief executive holds a record or sufficient evidence that the man accepted paternity of the adopted person before or at the time of the adoption 
  • the chief executive is otherwise satisfied on the balance of probabilities that the man is the adopted person’s father. This allows a man, determined to be the birth father under these provisions, to apply for the release of pre-adoption information about other parties.
The most comparable definition and process for determining a ‘biological father’ is applied by New South Wales, who use the term ‘presumptive father’. Victoria and South Australia use similar processes, however each also make use of definitions or provisions in other legislation, to establish the birth father. The Australian Capital Territory, Tasmania and the Northern Territory do not specifically define a birth father or biological father, making reference only to ‘natural parents’ or ‘relinquishing parents’. Western Australia does not specify who is a biological father in access to information provisions, however, does so in provisions relevant to consent to adoption, and this definition and process is similar to that of Queensland.