Equality and Divine Authority

The Victorian Human Rights and Equal Opportunity Commission has released its Equitable Briefing Initiative: Aggregate data report - Jul 2017.

The Commission states

 In 2014 the Commercial Bar Association of Victoria, the judiciary and the Victorian Equal Opportunity and Human Rights Commission began work together to understand and address equity issues for female barristers at the commercial bar. Of specific concern was the notion that women practising at the Victorian Bar in commercial law were briefed less frequently than their male counterparts and received briefs of less value.

The Equitable Briefing Initiative was developed to analyse the briefing practices of law firms and government entities who volunteered to be a part of the initiative by submitting data over a three-year period from 2016–19 on their briefing practices, and to focus on reducing any gender bias apparent in briefing practices.

This report analyses results from the first stage of the Equitable Briefing Initiative. It aims to identify any bias in briefing practices and considers whether the number of briefs to female barristers are proportionate at each level of seniority, and whether the average value of briefs to men and women are equivalent at each level of seniority.

The Commission comments

Overall, the data from this first reporting period allow us to make some interesting conclusions while leaving a number of questions open. There is most evidence of bias in relation to briefing of SC/QCs. Women at that level of seniority tended to receive fewer briefs than men over the reporting period, and there is some suggestion (though not enough evidence to come to any firm conclusion yet) that those briefs to women tended to be lower in value than the briefs that men received. Additional data will help us to determine the extent of any bias experienced by women at the SC/QC level.

Results were more encouraging at the non-SC/QC levels of seniority. Based on CommBar membership numbers, there was evidence that men received more briefs than women, but the discrepancy was not particularly large (the difference between the proportion of women CommBar members and the proportion of briefs they received was only 2.4 per cent); in addition, there was no evidence that the value of briefs to women was lower at either the Junior or Senior level. As previously mentioned, we will be able to make firmer, more precise conclusions as more data are received over subsequent reporting periods.

In Tasmania the Meander Valley Council  has disagreed with the Beerepoot family's claim that land is owned - if that's the word - by God and accordingly the family is not liable to pay rates. A block of the Beerepoot land has accordingly been sold on behalf of the Council for around $120,000 in order to pay $3,500 rates accumulated over seven years. The Council expects to transfer most of the proceeds (less legal costs and the recovered rates) to  the family.

The Beerepoot's reportedly advised the Council that  the land belonged to the "Heavenly Father", with rates being a matter "between council and God". Payment would be "asking us to bow down to a false God which is something we cannot do".

The family had unpaid rates of $9,332 regarding three properties, with an "anonymous source" paying  the rates for two properties in Chudleigh.

Fiduciaries

'Parenthood Is a Fiduciary Relationship' by Lionel Smith comments 

Canadian courts have held that parents stand in a fiduciary relationship with their children. Some commentators take the view that this is an inappropriate and unwarranted extension of a set of concepts that were originally elaborated in the context of the management of property rights and other pecuniary interests. This goal of this paper is to assess the characterization of parents as fiduciaries, in the light of recent scholarship on fiduciary law. I argue that while there are significant differences between the parent-child context and more traditional fiduciary categories, nonetheless the characterization of the parent as a fiduciary towards his or child captures a central, indeed a defining, element of the parent-child relationship, which is also a defining element of more traditional fiduciary relationships: namely, the possession of legal powers that are held in a managerial or other-regarding capacity, for the benefit of another person.

Econometrics

'The Data-Driven Future of International Economic Law' by Joost Pauwelyn and Wolfgang Alschner in (2017) 20 Journal of International Economic Law 217-231 comments 

The availability of more data and new ways of analyzing it is changing the way we do empirical legal research. With the help of modern technology we can study adjudicators, awards and agreements in greater numbers, less time and more detail opening the doors for new research questions, theory building and legal technology applications for scholars and practitioners. This introduction to the Journal of International Economic Law Special Issue on new frontiers in empirical legal research provides a first take on this data-driven future. It distinguishes data-driven research from more traditional methods by pointing to (1) its “data first” attitude, (2) its ambition to look at all the available data rather than subsamples thereof and (3) and its focus on computing rather than reading or counting. Data-driven research comes with new promises, but also challenges and limitations. While it allows researchers to uncover latent structures, debunk past myths and even forecast the future, it also requires new skills and competencies including an ability to tell patterns from noise in inductive data analysis. We argue that the time is ripe to overcome these challenges and to seize the opportunities of the new data-driven frontier in empirical legal scholarship.

Euthanasia

The report by the Victorian Voluntary Assisted Dying Ministerial Advisory Panel released last week follows public consultation regarding the Panel's January 2017 Voluntary Assisted Dying Bill Discussion Paper and the Legislative Council’s Legal and Social Issues Committee Inquiry into End of Life Choices.

The Parliamentary Committee provided a broad policy direction for voluntary assisted dying that focused on allowing a person to self-administer a lethal dose of medication, with  49 recommendations centred on palliative care and advance care planning. The Panel's role  was to consider how this could work in practice and to ensure only those making voluntary and informed decisions and at the end of their life could access voluntary assisted dying.

The report states that

 The Panel supports the recommended improvements for palliative care and advance care planning, noting that the reforms will ensure people have genuine choice at the end of their life. While the Panel is of the view that voluntary assisted dying implementation should be considered in the context of existing care options available to people at the end of life, detailed consideration of the other 48 recommendations made by the Parliamentary Committee is beyond the Panel’s terms of reference. ....

In formulating its recommendations, the Panel relied on a number of guiding principles. These principles are that:

• Every human life has equal value.

• A person’s autonomy should be respected.

• A person has the right to be supported in making informed decisions about their medical treatment and should be given, in a manner that they understand, information about medical treatment options, including comfort and palliative care.

• Every person approaching the end of life should have access to quality care to minimise their suffering and maximise their quality of life.

• The therapeutic relationship between a person and their health practitioner should, wherever possible, be supported and maintained.

• Open discussions about death and dying and peoples’ preferences and values should be encouraged and promoted.

• Conversations about treatment and care preferences between the health practitioner, a person and their family, carers and community should be supported.

• Providing people with genuine choice must be balanced with the need to safeguard people who might be subject to abuse.

• All people, including health practitioners, have the right to be shown respect for their culture, beliefs, values and personal characteristics.

The Panel recognises the need to balance respect for autonomy with safeguarding individuals and communities in relation to voluntary assisted dying. The Panel is of the view that the eligibility criteria, the process to access voluntary assisted dying, and the oversight measures recommended appropriately balance these aims.

The Panel indicates that

The report explains the detailed considerations of the Panel. The voluntary assisted dying recommendation set out by the Parliamentary Committee is the starting point for each of the discussions. The Panel considers the consultation feedback, and reviews the research, the evidence and the experience of other jurisdictions where this is relevant. The Panel provides recommendations for the development of safe and compassionate voluntary assisted dying legislation that can be applied and understood by people and health practitioners in a range of clinical settings.

Part A provides details on the Panel’s recommendations in relation to the eligibility criteria, focusing on the person, the disease, and the circumstances in which a person may be eligible for voluntary assisted dying.

Part B sets out the request and assessment process from the perspective of the person making a request, as well as a medical practitioner’s perspective, and describes the requirements and steps the person must go through to access voluntary assisted dying.

Part C sets out the oversight and governance arrangements that provide protections to keep the community safe, including the establishment of a Voluntary Assisted Dying Review Board, reporting requirements, and new offences related to voluntary assisted dying. This part also sets out the reporting obligations of health practitioners to the Voluntary Assisted Dying Review Board, and the Board’s obligations for public reporting.

Part D considers the implementation of voluntary assisted dying within the context of existing care options and sets out recommendations to ensure the implementation of voluntary assisted dying is resourced appropriately, including the development of workforce support, information and guidance materials.

The final report also includes case studies to illustrate how the recommended framework will work in practice. The central case studies focus on people suffering from cancer and motor neurone disease because the experience in international jurisdictions suggests that it will predominantly be people with these conditions requesting voluntary assisted dying.

A summary of the framework is presented in Appendix 1. Appendix 2 describes how Victoria’s Charter of Human Rights and Responsibilities informed the Panel’s deliberations. Appendix 3 compares the 68 safeguards embedded in the proposed voluntary assisted dying framework with other international voluntary assisted dying legislation.

 In discussing elegibility criteria the report executive summary states

Part A sets out the Panel’s recommendations on the eligibility criteria for voluntary assisted dying.

The eligibility criteria recommended by the Panel follows the eligibility criteria proposed by the Parliamentary Committee. The Panel has refined the criteria and language to ensure it provides certainty and clarity to the community and health practitioners in Victoria about the circumstances in which a person can request voluntary assisted dying. The eligibility criteria limit voluntary assisted dying to adults who are suffering at the end of their life.

The Panel recommends that to access voluntary assisted dying a person must meet all of the following eligibility criteria:

• be an adult, 18 years and over; and

• be ordinarily resident in Victoria and an Australian citizen or permanent resident; and

• have decision-making capacity in relation to voluntary assisted dying; and

• be diagnosed with an incurable disease, illness or medical condition, that: – is advanced, progressive and will cause death; and – is expected to cause death within weeks or months, but not longer than 12 months; and – is causing suffering that cannot be relieved in a manner the person deems tolerable.

The recommended eligibility criteria ensure voluntary assisted dying will allow a small number of people, at the end of their lives, to choose the timing and manner of their death. There is no intention to give people who are not dying access, and the legislation will not give these people an option to choose between living and dying. The eligibility criteria ensure the voluntary assisted dying framework provides a compassionate response to people who are close to death and choose to request voluntary assisted dying to give them greater control over the timing and manner of their death. The Panel recommends that a person must have decision-making capacity throughout the voluntary assisted dying process. This requirement is fundamental to ensuring a person’s decision to access voluntary assisted dying is their own, is voluntary, and is not the product of undue influence or coercion. The Panel recognises that this will mean some people who may want to request voluntary assisted dying will be excluded. People with dementia who do not have decision-making capacity, for example, will not be able to access voluntary assisted dying. People will also not be able to request voluntary assisted dying in an advance care directive. This may disappoint many people in the community, but the Panel is of the view that having decision-making capacity throughout the voluntary assisted dying process is a fundamental safeguard.

The Parliamentary Committee recommended that only those at the end of life, in the final weeks or months, be eligible to access voluntary assisted dying. The Panel supports this restriction, and recommends a more defined limit. During consultations it was clear that the period of time included in ‘final weeks or months’ could be interpreted very differently. The Panel recommends that only those whose disease, illness or condition is expected to cause death within no longer than 12 months be eligible for voluntary assisted dying. This will ensure clarity and is consistent with Victorian practice in defining the end of life.

Consistent with the Parliamentary Committee recommendation, the Panel also recommends that mental illness alone should not satisfy the eligibility criteria. The Panel makes an additional recommendation that disability alone should not satisfy the eligibility criteria. This is because the voluntary assisted dying framework is for people who are suffering at the end of their life. The Panel does, however, recognise that if a person fulfils all the eligibility criteria, the fact that they have a mental illness or a disability should not exclude them from accessing voluntary assisted dying. The refined eligibility criteria remain consistent with those proposed by the Parliamentary Committee. Access is limited to people with an incurable disease, illness or medical condition who are in their final weeks or months of life. The objective clinical assessment of the diagnosis and prognosis has been retained. Like the Parliamentary Committee, the Panel is of the view that suffering should always be judged by the person themselves. The Panel has taken into account the research that suffering has psychological, social and spiritual aspects as well as physical symptoms such as pain, breathlessness and nausea, and that loss of autonomy or control can also contribute to a person’s suffering. The Panel recognises that perceptions and judgements about suffering are inherently individual and subjective.

The Panel is of the view that clear and precise eligibility criteria set out in legislation will prevent any expansion of voluntary assisted dying or any unintended ‘scope creep’. The eligibility criteria recommended by the Panel ensure voluntary assisted dying is only available to those who are already at the end of their life and are suffering. With such robust and limited eligibility criteria, the only way to expand the scope of voluntary assisted dying in the future would be to pass new legislation.

The Panel emphasises that all of the eligibility criteria must be taken together, and that none of the criteria in isolation is sufficient for a person to be eligible to access voluntary assisted dying.

In terms of the request and assistance process

Part B sets out the request and assessment process from the perspective of the person making a request, as well as a medical practitioner’s perspective, and describes the requirements and steps the person must go through to access voluntary assisted dying. Part B describes:

• initiating a request;

• receiving a request;

• making a request; and

• completing the voluntary assisted dying process.

The Panel recommends a prescriptive process that will ensure requests are voluntary, well-considered and enduring, and that only those who meet all of the eligibility criteria will be able to access voluntary assisted dying.

The Panel is also aware that voluntary assisted dying legislation will need to clearly step out the request and assessment process in order to provide health practitioners with clarity about their obligations and ensure it is applicable in a range of clinical settings. The process recommended by the Panel provides a balance between allowing people to make autonomous decisions and recognising that safeguards are required to ensure these decisions are voluntary and properly informed. The process requires the person to make three separate requests for voluntary assisted dying and undergo two independent medical assessments to ensure the eligibility criteria are met and the person is properly informed about their options. There are a number of steps in the process to identify any coercion or undue influence.

The Panel is of the view that a person should be able to seek information about voluntary assisted dying with a medical practitioner they trust and with whom they feel comfortable before beginning a formal process to access voluntary assisted dying. This will allow a person to consider information without feeling pressured to commence the process. To prevent coercion or inadvertent pressure, a health practitioner will not be able to raise or initiate a discussion about voluntary assisted dying with a person with whom they have a therapeutic relationship.

A person should be able to seek information from, and make a first verbal request to, a medical practitioner with whom they have a therapeutic relationship. If a person requests voluntary assisted dying, a medical practitioner must determine whether they will accept the role of coordinating medical practitioner. This role will require them to coordinate the process and is designed to ensure the person is supported. The Panel recommends that all health practitioners have the option to conscientiously object to participating in the voluntary assisted dying process. Consistent with existing standards of care, this conscientious objection must not impede a person’s access to what would be a legal medical treatment. The coordinating medical practitioner will be required to conduct the first assessment of the eligibility criteria and to ensure the person is properly informed. If the person meets the eligibility criteria, the coordinating medical practitioner must refer the person to another medical practitioner. The second medical practitioner will become the ‘consulting medical practitioner’ if they accept the role. They will be required to conduct a second, independent assessment.

The Panel recommends minimum qualifications for medical practitioners involved in voluntary assisted dying. The assessment of the eligibility criteria and conversations about voluntary assisted dying and end of life will require specific experience. The Panel recommends that both assessing medical practitioners must be qualified as Fellows of a College (or vocationally registered) and that at least one of the medical practitioners has at least five years of post-fellowship experience and at least one must have relevant expertise in the person’s disease, illness or medical condition.7 Prior to conducting an assessment, both medical practitioners will be required to undertake specified training. This will ensure they understand the eligibility criteria and their legal obligations. If a medical practitioner assesses a person as ineligible, the person may seek a second opinion. The Panel is of the view that this standard medical practice is part of personcentred care and allows people to ensure the issues that concern them are addressed.

Given the review of each assessment by the Voluntary Assisted Dying Review Board and potential for professional misconduct or criminal charges, the Panel is confident that medical practitioners will comply with the legislative framework and attempts to ‘doctor shop’ will be identified.

If both medical practitioners assess a person as eligible for voluntary assisted dying, the person will be required to complete a written declaration to proceed. This will clearly demonstrate the person understands their decision. The declaration will need to be signed by the person and witnessed by two independent witnesses in the presence of the coordinating medical practitioner. The written declaration represents a lasting statement of the person’s enduring request.

The person must then make a final verbal request for voluntary assisted dying to their coordinating medical practitioner and appoint a contact person. The final request must be at least 10 days after the first request. The Panel also took into account those exceptional circumstances in which a person’s death will occur within 10 days and that it would be unreasonable to preclude them from accessing voluntary assisted dying. In these instances the Panel recommends that the coordinating medical practitioner may waive the 10 day time period if their prognosis is consistent with the prognosis of the consulting medical practitioner. As a clear safeguard, under no circumstances will a person be able to make a final request on the same day as the second independent assessment. As part of the request and assessment process, the person will also be required to appoint a contact person. The contact person will take responsibility for the return of any unused lethal dose of medication after the person has died and act as a point of contact for the Voluntary Assisted Dying Review Board. The coordinating medical practitioner must then complete a final check, which will require the practitioner to certify that each step in the process has been completed.

Before writing the prescription, the coordinating medical practitioner will be required to apply for a permit from the Department of Health and Human Services. This process will be similar to the current authorisation process for other restricted drugs and provides an opportunity for an independent check that the process has been complied with before the person accesses the lethal dose of medication.

The lethal dose of medication will be dispensed by a pharmacist, who will be required to appropriately label the medication and inform the person of their obligations to safely store the medication. The pharmacist will only dispense the medication if there is a valid permit issued by the Department of Health and Human Services. This provides another independent check to ensure compliance with the legal requirements. The person will be required to store the medication in a locked box until they decide to self-administer the medication.

The Panel makes a series of recommendations about how the lethal dose of medication is prescribed, dispensed and reported on. These recommendations create a number of protections to ensure safety through constant monitoring of the lethal dose of medication, with a clear line of accountability.

The Panel has recommended protection for health practitioners who may be present when the person self-administers the medication. The Panel understands that for some people this will provide a sense of comfort, while others may want to self-administer the medication without health practitioners present.

The only circumstances in which a medical practitioner will be authorised to administer the lethal dose of medication will be if the person is physically unable to selfadminister or digest the medication. In these circumstances, only the coordinating medical practitioner will be authorised to administer the medication. While this option ensures voluntary assisted dying is not discriminatory, the Panel is of the view that it is important to limit the authorisation to administer the medication. The coordinating medical practitioner may only administer the lethal dose of medication at the request of the person and this must occur in the presence of an independent witness. If the coordinating medical practitioner is unwilling or unable to administer the medication, they may transfer the role to the consulting medical practitioner. This can only occur if the consulting medical practitioner accepts the role.

The entire request and assessment process is designed to ensure voluntary and informed decisions, and to identify and prevent potential abuse. The Panel recognises the risk that vulnerable people may be pushed or coerced into requesting voluntary assisted dying but is confident the recommended framework will identify and address instances of abuse.

 In relation to oversight the summary states

In addition to providing a clear and compassionate framework for the operation and monitoring of voluntary assisted dying, the Panel recognises that the legislation must also establish protections to keep people who may be vulnerable to abuse safe.

Part C describes:

• protections and offences;

• the establishment of the Voluntary Assisted Dying Review Board;

• medication monitoring;

• monitoring after the person has died;

• monitoring voluntary assisted dying activity; and

• a summary of the legislative safeguards.

The Panel’s recommended framework establishes a system of oversight for the entire process and of continuous monitoring of the lethal dose of medication. The process recommended by the Panel includes a series of checks involving a number of health practitioners, the Department of Health and Human Services, and independent witnesses. The system of oversight recommended by the Panel provides an additional level of protection through the review of all voluntary assisted dying activity, not just those cases where voluntary assisted dying is completed.

The Panel recommends the establishment of the Voluntary Assisted Dying Review Board (the Board). The Board will oversee the voluntary assisted dying framework and review every case and every assessment conducted by a medical practitioner to ensure compliance with the statutory requirements. Consistent with the recommendation of the Parliamentary Committee, the Board will not have the power to veto requests or arbitrate appeals.

The Panel considered the options and recommends that the Board is established as a statutory entity to provide strong governance arrangements as part of the legislative framework under which an oversight body operates. The independence of a statutory body will ensure transparency with respect to its operations.

Both the coordinating and consulting medical practitioners will have mandatory requirements to report to the Board. The dispensing pharmacist will also be required to report to the Board, as will the Department of Health and Human Services when a permit is issued. The medical practitioner who certifies the person’s death will also be required to report voluntary assisted dying to the Victorian Registrar of Births, Deaths and Marriages, who will report this to the Board. These independent reporting points will ensure the Board is able to accurately review what occurred in each case, and the Board will be able to seek further information if required.

If the Board identifies any improper conduct or potential criminal action, it will be required to refer the matter to Victoria Police, the Australian Health Practitioner Regulation Agency, or the Coroner. The Panel is of the view that these existing bodies should be utilised to investigate wrongdoing, as they already have clearly understood roles and responsibilities. The Board will not only monitor completed cases, but also every assessment for voluntary assisted dying. The Board will also monitor the lethal dose of medication to make sure it is returned if it is not self-administered. The Panel recommend a requirement to appoint a contact person, who will have clear legal obligations to return any unused medication. The person accessing voluntary assisted dying will be required to appoint a contact person before they are prescribed the lethal dose of medication. The contact person must agree to return any unused medication to the dispensing pharmacist to be destroyed after the person has died.

The Board will receive a report from the pharmacist when the medication is dispensed and when any unused medication is returned. If the medication is not returned, or it is not known whether the person self-administered the medication, the Board will be able to follow up with the contact person. Information from the notification of death will be shared with the Board by the Registrar of Births, Deaths and Marriages. This will enable the Board to follow up a notification that the medication was not self-administered. Although the Registrar of Births, Deaths and Marriages will obtain information about voluntary assisted dying, the Panel recommends that this not be included on the person’s death certificate. Death certificates are used for a range of purposes, and there is no reason to include information about voluntary assisted dying on such a public document. Other information about treatment at the end of a person’s life is not included in a person’s death certificate. To preserve the privacy of the person, their family, and health practitioners, information about voluntary assisted dying also should not be included. Instead, this information about voluntary assisted dying will be provided to the Board.

The Panel has also recommended a range of new offences that relate specifically to voluntary assisted dying to ensure people are protected. This includes new offences of inducing a person, through dishonesty or undue influence, to request voluntary assisted dying or to self-administer the lethal dose of medication. Other recommended offences include falsifying records related to voluntary assisted dying and failing to report on voluntary assisted dying. These new offences signal the serious nature of any wrongdoing associated with voluntary assisted dying.

Part D sets out the implementation considerations if voluntary assisted dying legislation is passed by the Victorian Parliament.

The Part describes:

• voluntary assisted dying in the context of existing care options;

• implementation planning and governance;

• supporting health practitioners;

• supporting patient and health practitioner communication;

• informing the community;

• supporting the safe introduction of voluntary assisted dying;

• research;

• resourcing; and

• commencement.

The Panel supports the view of the Parliamentary Committee that voluntary assisted dying should be incorporated into existing care processes to protect and support patients and to ensure sound medical practice. This will also ensure people get access to the range of treatment and care options based on their clinical needs and care goals. The Panel notes that some feedback during the consultation process advocated for the establishment of ‘independent panels’ to undertake voluntary assisted dying assessments and processes. The Panel rejected this approach and concluded that establishing independent panels to provide voluntary assisted dying would create unacceptable risks, including the possibility of fracturing existing therapeutic relationships and concentrating the skill and expertise in the hands of a few medical practitioners. This would negatively impact on the patient’s experience and is likely to result in less accurate assessments.

Based on experience overseas, the Panel expects very low rates of utilisation of voluntary assisted dying. The initial uptake of all new medical interventions is low and this will gradually increase over time. The uptake of voluntary assisted dying should be considered in the same way, and an expected gradual increase in use over a number of years reflects the evidence that when new medical interventions are introduced the uptake is gradual. The incremental increase in the use of voluntary assisted dying is demonstrated in the data reported by international jurisdictions and is consistent with the uptake of new medical interventions generally.

The Panel recommends that voluntary assisted dying implementation be considered in the context of existing care options available to people at the end of life. This will support existing therapeutic relationships, and allow review of the practice as part of overall safety and quality monitoring and review processes. To implement this approach Victoria may consider how health services in North American jurisdictions have established programs, and how they have engaged and supported staff.

Accommodating voluntary assisted dying in existing clinical relationships, wherever that is possible, will not only support safe and high-quality practices, but will also provide appropriate professional support for health practitioners. The Panel advocates that support for health practitioners who either choose to participate in voluntary assisted dying, or who conscientiously object, should be developed within existing professional support structures. It will also be important that health service boards and executives play a leadership role in facilitating considerations about service involvement in voluntary assisted dying and how staff are supported if a service decides to offer voluntary assisted dying.

The Panel recognises that the establishment of an Implementation Taskforce is essential to providing the expertise, focus and leadership to develop the necessary resources, processes and systems over the 18 months leading up to the commencement of any voluntary assisted dying legislation.

The Implementation Taskforce will play a pivotal role in focusing and coordinating the work that will need to be completed to prepare for the commencement of the legislation. This should include reviewing the functions proposed in the Parliamentary Committee’s report for the new agencies proposed to clarify roles and responsibilities of both the new and existing agencies. The Implementation Taskforce should also provide advice on the development of evidence-based resources, supports and guidelines to build a safe and compassionate voluntary assisted dying service system.

The Panel recommends that the Implementation Taskforce must engage with, and involve, key stakeholders over the 18 month period to develop effective implementation strategies and resources. Consistency in implementation and governance arrangements and staff support may best be facilitated in partnership with professional colleges and bodies such as the Australian Medical Association, Australian Nursing and Midwifery Federation, relevant professional colleges, pharmacy bodies, and consumer, carer and service representatives.

The Panel is of the view that early planning and development of associated resources and training for the implementation of voluntary assisted dying will give health practitioners and services a sufficient period of time in which to build capabilities, models of care and organisational responses.

NZ Geographical Indications

The Geographical Indications (Wine and Spirits) Registration Amendment Bill (NZ), which amends the Geographical Indications (Wine and Spirits) Registration Act 2006 (NZ), and the Geographical Indications (Wine and Spirits) Registration Regulations 2017 come into effect on 27 July 2017.

The GI Bill was introduced to Parliament in November 2015 and received Royal Assent on 25 November 2016 following consultation around an exposure draft of the proposed regulations and fees schedule.

The NZ Government indicates that

In New Zealand, protection for geographical indications is provided by the Fair Trading Act 1986, the common law tort of ‘passing off’ and through trade mark law. The Geographical Indications (Wine and Spirits) Registration Act 2006 establishes a registration system for wine and spirit geographical indications ...

 Section 9 of the Fair Trading Act 1986 provides that "No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive". A product that does not originate from the geographical area indicated, or that does not possess the characteristics for which a geographical indication is known, could be found to breach the Act. ...

The law of passing off prevents one trader from passing their goods or services off as those of another. Passing off has been used in New Zealand by French wine interests to prevent non-French winemakers from labelling their sparkling wine with “Champagne” (a term protected as a geographical indication in the European Community). For a passing off action to succeed:

There must be goodwill attached to the goods or services.

There must be a misrepresentation, whether intentional or not.

There must be damage to the goodwill. ...

A geographical indication may be protected in New Zealand as a trade mark, including as a collective or certification trade mark.

The 2014 Cabinet Paper regarding the reforms states

The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) sets out minimum standards for the protection of GIs . In New Zealand, these standards ar e met through the Fair Trading Act 1986 , the common law tort of passing off, and the Trade Marks Act 2002.

In relation to wine , there is additional protection for GIs under the Wine (Specifications) Notice 2006 ( Notice ) issued by the New Zealand Food Safety Authority under truth in labelling requirements of the Wine Act 2003. The Notice requires that where a label includes information about the origin of wine at least 85% of the wine must be made from grapes grown in the stated area ( 85% rule).

In relation to spirits, additional protection for GIs is provided under standard 2.7.5 of the Australia New Zealand Food Standards Code  Standard 2.7.5 provides that a geographical indication must not be used in relation to a spirit, even where the true origin of the spirit is indicated or the geographical indication is used in translation or accompanied by expressions such as ‘kind’, ‘type’, ‘style’, ‘imitation’ or the like, unless the spirit has been produced in the country, locality or region indicated.

A single regulatory regime specifically designed for GIs (sui generis regime) has never been implemented in New Zealand. The use of GIs by New Zealand producers is largely confined to the wine industry. Foreign producers, and especially foreign wine and spirits producers, also use GIs in the marketing of their products in New Zealand.

Background to the Geographical Indications (Wine and Spirits) Registration Act 2006

In 2004 there was a substantial risk that New Zealand wine exports would be blocked from the EU market because the EU considered they were not using “officially recognised” GIs on their labels. The EU’s regulatory system for wine imports is complex and highly prescriptive, both in terms of technical standards and labelling requirements. Under the EU regime, the use of GIs on wine labels is necessary for other essential information, such as vintage and grape variety, to be able to be used in the marketing of wine.

The ban would have had a catastrophic impact on the New Zealand wine industry. At that time, the EU was the largest and most significant export market for New Zealand wine. Wine exports to the EU were returning around $140 million in export earnings (approximately 46% of the total export earnings for wine).

The Government’s response was to pass the Act. The intention behind the Act was to align our law more closely with our international obligations under the TRIPS Agreement and to protect wine exports to the EU by bringing our registration system for wines and spirits GIs into conformity with EU requirements.

The Act would impose one main restriction in respect of wine labels. A person would only be able to use a registered wine GI in trade (i.e. on a label) if at least 85% of the wine was obtained from grapes harvested within the GI’s registered boundary. This requirement duplicates the 85% rule currently required under the Wines (Specifications) Notice 2006. The Act would be administered by the Intellectual Property Office of New Zealand (IPONZ). ...

Why is implementation being proposed now?

First, TRIPs and EU wine related negotiations are no longer viable; secondly exports have grown significantly, and consequently the value of NZ wine’s reputation and the risk associated with its misuse have grown as well. Finally, a 2011 industry-commissioned review by PricewaterhouseCoopers (PwC) showed that future industry growth would involve Asian markets where misuse of label information generally was recognised to be a major problem in the alcoholic beverages sector.

The PWC review formed the basis for a new export/development strategy for the wine industry, which reaffirmed the central importance of GI development, registration and enforcement. The new strategy involved the use of GIs to give added focus to marketing authentic, distinctive, yet evolving, wine stories, and to protect the geographical aspects of “Brand New Zealand” from misappropriation or obstruction by offshore parties.

The value of wine exports to the EU has grown steadily from $140 million in 2004 to around $408 million in 2014. Over the same period, total export earnings have grown from $303 million to around $1.3 billion. New Zealand produces wine in a cool climate, leading to distinctive flavours that are the foundation for higher quality wines and which also results in lower yields and higher costs. In order to be sustainable, the industry operates in the premium and super-premium segments of the global wine market. New Zealand wine’s reputation is crucial to its success in such markets and GIs enhance this reputation by making it easier for the industry to differentiate its products from those sold at the commodity end of the market.

NZWine favours implementation of the Act as a means of safeguarding market access to the EU. It also sees implementation as useful for protecting and promoting their products in export markets, [Remainder of paragraph 25 withheld under sections 9(2)(b)(ii) and 9(2)(ba) of the Official Information Act 1982.]

Comment

From a trade perspective, the Ministry of Foreign Affairs and T rade considers there would be a number of key benefits arising from the implementation of the Act which were absent from or not adequately addressed by the Covec report. Implementation would:

• support New Zealand’s interests in launching an FTA negotiation with the EU; 

• facilitate sui generis GI protection in overseas markets which would provide the New Zealand wine industry with an important tool to help protect and enforce its GIs in those markets and, therefore, would support its overall export growth strategy; 

• assist in safeguarding market access for New Zealand wine in the EU market; and

• [bullet point withheld under section 6(a) of the Official Information Act 1982]

MBIE considers that from a non-trade perspective, at this point in time there is not a compelling case for implementation to be a priority for the Government. While implementing the Act would impose new regulatory and business compliance costs on the New Zealand wine and spirits industry, there are unlikely to be any significant benefits that would be realised through its implementation. There does not appear to be any significant misuse of wine or spirits GIs in the New Zealand market that the implementation of the Act and registration of regional names as GIs would address. The small number of cases related to the misuse of GIs and regional names that have occurred have been effectively dealt with under the existing regulatory framework.

MBIE commissioned economic consulting firm Covec to analyse the costs and benefits of implementing the Act. Covec concluded that the costs and benefits of implementing the Act are finely balanced, and the costs and benefits would be likely to be small ($1-4 million each, compared to the total export earnings of the New Zealand wine and spirits industries of around $1.3 billion). While Covec could not identify any benefits in the domestic market from implementing the Act, it did identify potential future benefits in relation to export markets but these were uncertain and difficult to model. A copy of Covec’s report is attached to this paper as Appendix A.

Implementing the Act will have resource implications for the Commerce and Consumer Affairs portfolio and MBIE. The Act as currently drafted requires amendment and regulations setting out the regist ration procedures need to be developed. There are likely to be opportunity costs for the Government from prioritising implementation of the Act over other Commerce and Consumer Affairs projects that are more likely to have a net beneficial impact on the economy.

There are also a number of potential risks should the Act not be implemented. These include:

• not responding in a timely manner to legitimate industry concerns which could undermine industry trade strategies and growth potential; 

• [bullet point withheld under section 6(a) of the Official Information Act 1982] 

• [bullet point withheld under sections 6(e ) (vi) and 9(2)((j) of the Official Information Act 1982]

These benefits and risks are discussed in more details in the following sections A to D.

A Implementation would support New Zealand’s interest in securing FTA negotiations with the EU.

New Zealand is currently engaged in a bilateral “reflection process” to explore the trade and economic relationship with the EU, with a view to the possible opening of FTA negotiations. New Zealand is the demandeur in this regard; we are one of only six WTO members who do not have or are negotiating some form of preferential access to the EU market, and securing an FTA is a priority for the government. [Remainder of paragraph 25 withheld under section 6(a) of the Official Information Act 1982.]

[First sentence of paragraph 33 withheld under section 6(a) of the Official Information Act 1982.]. Since the Act was passed, the EU has remained highly interested in when it will be implemented. The issue of the Act’s implementation is a regular item on the agendas of the annual Agricultural Trade and wider Trade Talks with the EU.

New Zealand has previously explained to the EU that the reason the Act has not yet been brought into force is because it is not in New Zealand’s interests to impose additional regulatory and business compliance costs on the New Zealand economy through implementation, when there is no domestic demand or support for its implementation. [Remainder of paragraph 34 withheld under sections 6(a), 6(e)(vi) and 9(2)(j) of the Official Information Act 1982.]

[Paragraph 35 withheld under sections 6(a),6(e)(vi) and 9(2)(j)) of the Official Information Act 1982.] 

[Paragraph 36 withheld under sections 6(a), 6(e)(vi) and 9(2)(j)) of the Official Information Act 1982.]

[Paragraph 36 withheld under sections 6(a),6(e)(vi) and 9(2)(j)) of the Official Information Act 1982.]

Implementation could facilitate sui generis protection in overseas markets

As discussed above, protecting its GIs in export markets is an important element in NZWine’s overall strategy to grow export returns.

Many of New Zealand’s key export markets for wine provide for some form of sui generis system, such as a registration regime, for granting protection to wine GIs. Being able to demonstrate that a New Zealand GI is officially recognised in New Zealand can assist the applicant to gain sui generis protection for its GI in other countries. Both China and the EU’s sui generis systems for granting protection to GIs have this requirement as one of the necessary prerequisites to obtaining registration. Implementation of the Act and registration of New Zealand GIs would therefore facilitate the process of applying for sui generis protection in those markets. Sui generis protection in overseas markets is not the only tool at the industry’s disposal, but without it the wine industry does not have the same range of enforcement tools as are open to its major competitors.

China is the world’s 5th largest wine consumer and the biggest growth market with 67% growth. Post China FTA implementation, annual wine exports to China have grown significantly ($17 million in 2011, around 2% of total export earnings). New Zealand’s share of the imported wine market in China is nearly 1.6%, which makes New Zealand the 8th largest exporter of wine to China. China is one of the projected growth markets for New Zealand wines with a projected increase in wine exports of an additional NZ$184 million per annum. China imports wine at the high or premium end of the spectrum which is where the New Zealand wine i ndustry is pitching its wines. New Zealand wines are seen as premium products fetching high prices similar to wines from France. This makes NZ wines more susceptible to counterfeiting and passing off, and strengthens the case for tools to protect IP rights.

Once New Zealand has domestic GI legislation in place, there would be various options on how to proceed in order to gain increased protection for New Zealand GIs in the Chinese market. One option would be to register products with the General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ)  on a product-by-product basis; another is to sign a Memorandum of Understanding with China; and a third is to negotiate a “package framework” such as the China-EU Agreement. AQSIQ has recently confirmed that the absence of domestic GI legislation in New Zealand currently precludes New Zealand from taking any of the above options for GI protection in China. The OMAR list approach is not considered a satisfactory substitute to having relevant domestic legislation in place.   AQSIQ is a ministerial administrative organ directly under the State Council of the People's Republic of China in charge of national quality, metrology, entry-exit commodity inspection, entry-exit health quarantine, entry-exit animal and plant quarantine, import-export food safety, certification and accreditation, standardization, as well as administrative law-enforcement.

Sui generis protection of GIs in export markets should provide for more cost effective protection for New Zealand GIs than relying on consumer protection or unfair competition laws. The fact of GI registration can deter unauthorised traders from using a GI without permission, and can encourage them to cease use with out further enforcement action. Recourse to general consumer and unfair competition laws to protect and enforce an unregistered GI in an overseas jurisdiction is complex, difficult, and comes with a degree of uncertainty. Further, in some markets, like China, government agencies may take actions to enf orce GIs on behalf of GI owners.

The current winegrowers that have GIs registered as trade marks (Gimblett Gravels and Waiheke Island) have stated a preference for registration under the Act and confirmed they had only used trade mark registration procedures in the absence of the GI Act.

The process of obtaining sui generis protection in export markets can, however, be costly, time consuming and uncertain due to a lack of international harmonisation.

C Implementation would assist in safeguarding market access for New Zealand wine in the EU market

In the EU, wines need to bear a “legitimate” GI on the label if they are to receive preferential treatment such as being able to use certain geographical names on the label. [Remainder of paragraph 45 withheld under sections 6(a), 9(2)(d) and 9(2)(g)(i) of the Official Information Act 1982.]

This issue is currently dealt with through the use of an OMAR, which includes a list of GIs prepared by the wine industry, but this was put in place as an interim measure until the Act could be implemented. [Remainder of paragraph 46 withheld under section s 6(a), 9(2)(d) and 9(2)(g)(i) of the Official Information Act 1982.]

In the EU, a number of compositional parameters and labelling terms are conditional upon a wine bearing a GI registered under the EU system. An example is the case of minimum alcohol levels which affects sweet and lower alcohol wine categories. New Zealand wines with less than 8.5% actual alcohol by volume are currently not permitted for export into the EU market. NZWine is currently engaged in a Primary Growth Partnership programme aimed at developing unique low alcohol or “lifestyle” wine to satisfy a growing demand in premium markets such as the EU. It is estimated that by 2023 this programme will see NZ$263 million of increased export earnings. Without the ability to seek GI registration in the EU, New Zealand lifestyle wines would be locked out of a lucrative market.

In 2007-8, draft EU wine regulations specified that the only geographical information that could appear on a label was a GI registered in the EU. This represented a very real threat to the New Zealand industry’s interests [Withheld under sections 6(a), 9(2)(d) and 9(2)(g) (i) of the Official Information Act 1982.]. The EU reforms its wine regulation system approximately every 10 years and a major review is currently under way, including the rules for GIs. All New Zealand’s major non-EU competitors have established pathways for GIs in the EU market via either bilateral agreements or registration and would not be affected by such a rule change; New Zealand lies outside either of those pathways.

If the New Zealand wine industry could not use geographical information on its wines in the EU, this would result in major damage to New Zealand’s wine exports. Even if the Act were implemented under urgency, it could take up to 3 years for the register to be set up and for producers’ GI registration applications to be prepared and approved in New Zealand and the EU. NZWine indicates that being unable to use geographical information on New Zealand wine in the EU for that length of time would cause major and potentially irreversible damage in that export market. A New Zealand registration regime could reduce or eliminate the above market access risks. No other form of GI protection (such as trade mark registration) would do so.

D [Heading withheld under section 6(a) of the Official Information Act 1982.]

[Paragraph 50 withheld under section 6(a) of the Official Information Act 1982.]

The Act requires amendment before implementation

MBIE has identified a number of deficiencies with the drafting of the current Act that will require attention before the Act can be implemented. The need to amend the Act before implication has been discussed with NZWine and DSANZ.

The Act is no longer consistent with New Zealand’s international obligations, and in particular does not meet our commitments under the Agreement between New Zealand and the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu on Economic Cooperation. Amendment is required to provide for the cancellation of registered GIs that are confusingly similar to prior existing trade mark rights.

The Act does not provide any sustainable source of funding for IPONZ to operate and maintain the register of GIs. At present, the Act only provides for a single application fee to be paid at the time the initial application is made. Once registered, a GI would remain on the register in perpetuity or until action is taken by the Registrar in response to a third party application to cancel the registration (for example, because the GI has fallen into disuse).

The funding issue is made more acute because of the small number of potential applications to register GIs. NZWine has identified a list of 29 regional names for which registration is likely to be sought and these applications will be made within the first two years of operation of the register. Officials estimate that a small number of applications (up to 10) from foreign parties will also be made with in the period. In outlying years few, if any, further applications are anticipated from either New Zealand or foreign parties.

MBIE has also identified a range of desirable amendments that could be made to the Act to improve its overall workability. NZWine has been active in providing input to officials on potential changes aimed at improving the Act’s workability

Paramedics

'Live tweeting by ambulance services: a growing concern' by Aidan Baron and Ruth Townsend in (2017) 9(7) Journal of Paramedic Practice 282 comments

Despite advances in technology being a driver of paramedic professional development, particularly over the past decade, the introduction of new forms of technology appears to have presented paramedics with some professional challenges. Paramedics, pre-hospital clinicians, and ambulance service providers in both the United Kingdom and Australia, have begun using social media technology to communicate what they do to the general public. Unfortunately some of the material that has been communicated appears to breach professional standards of practice, and therefore has the potential to cause harm to the patient, the individual paramedic, and the paramedic profession more broadly. This article will present the rationale behind why this behaviour is unprofessional, ethically and legally unsound, and why it must cease. We offer a tool that will assist paramedics, and other healthcare professionals, to practise safe and professional social media use in their workplace. 

 The authors state

As registered health professionals, paramedics in the United Kingdom are required to conduct themselves in a manner that aligns with their professional code of conduct (Health and Care Professions Council, 2016). This code speci es ethical and legal standards, which must be upheld in paramedic practice. These codes sit alongside various other legal and policy instruments that regulate paramedic practice such as the Health and Social Work Professions Order 2001 (UK Parliament, 2001); HCPC Standards of Pro ciency (Health and Care Professions Council, 2014), and local social media policies (London Ambulance Service, 2013).

Together these regulations provide guidance for practitioners about how to practise as a professional, and thus provide competent and safe care that maintains the protection of the patient, the individual paramedic, and the paramedic profession more broadly. However, recent examples have demonstrated that some paramedics appear to be unclear about how to professionally engage the use of social media in their practice and in so doing put patients, themselves, and the profession more broadly at risk.

Healthcare professionals are among many communities to have embraced the power of social media as a medium for rapid communication, learning, and establishing relationships both within peer groups and with the broader public. There is a well-established evidence to support the use of social media as a powerful peer-to-peer tool for education. For example, in Free Open Access Medical Education (FOAM) groups (Casey and Wells, 2015), as well as the use of social media platforms by public agencies to communicate and disseminate information to the pubic during a crisis (Palenchar and Freberg, 2013). It can also be used effectively to engage the wider community in both broad and speci c public health promotion programmes (Gold et al, 2012). Indeed ‘live tweeting’ — the contemporaneous sharing on Twitter of an event within a short time of its occurrence — has been validated in its usefulness during emergencies, educational activities, and public events. Recent terrorist events and public disasters have demonstrated the value of live-tweeting as a tool for multi-directional crisis communication (Simon et al, 2014; Eriksson and Olsson, 2016).

Despite its demonstrated usefulness in these discrete areas, there are limits to the ways in which social media, including ‘live tweeting’ can be used by health practitioners. The most worrisome example is the misuse of this technology to inappropriately publicly publish individual patient information.

Publicity and Group Privacy

'Publicity Right, Personality Right, or Just Confusion?' by Graeme B. Dinwoodie and Megan Richardson in Richardson and Ricketson (eds), Research Handbook on Intellectual Property in Media and Entertainment (Elgar, 2017) comments

There is little consensus internationally as to whether and how the law should respond when celebrities find themselves subjected to unwanted public discussions of their private lives in the media (increasingly on a global basis online), and when their personal attributes are referenced without their consent in certain kinds of advertising and trade. A number of commentators have characterized such intrusions on a celebrity’s personal dignity or autonomy as simply falling among the minor inconveniences of being a celebrity, insufficient to warrant legal protection given important social values such as freedom of speech and cultural pluralism. The lack of consensus is reflected in the uncertain shifting legal lines drawn around celebrity protection, especially in common law jurisdictions which, unlike many civil law jurisdictions, do not adhere to the idea of a full-scale personality right. In this chapter, we canvass the diverse devices that the common law courts have deployed to deal with the grant of celebrity rights. We note and support the messy multivalence we find recognised in common law approaches given the range of dynamic interests that are at play. Such heterogeneity of values might also be relevant to the curtailment of celebrity rights. Thus, we equally support a flexible approach to the limitations, defences and other points at which discretion may be exercised by judges to find a balance between the interests/rights that may be claimed for celebrities (human and otherwise) in controlling the uses of their personal attributes in advertising and trade, and the countervailing interests/rights that others may seek to maintain including in freedom of speech and cultural pluralism.

'Group Privacy: a Defence and an Interpretation' by Luciano Floridi in Linnet Taylor, Luciano Floridi and Bart van der Sloot (eds), Group Privacy: New Challenges of Data Technologies (Springer, 2017) comments

In this chapter I identify three problems affecting the plausibility of group privacy and argue in favour of their resolution. The first problem concerns the nature of the groups in question. I shall argue that groups are neither discovered nor invented, but designed by the level of abstraction (LoA) at which a specific analysis of a social system is developed. Their design is therefore justified insofar as the purpose, guiding the choice of the LoA, is justified. This should remove the objection that groups cannot have a right to privacy because groups are mere artefacts (there are no groups, only individuals) or that, even if there are groups, it is too difficult to deal with them. The second problem concerns the possibility of attributing rights to groups. I shall argue that the same logic of attribution of a right to individuals may be used to attribute a right to a group, provided one modifies the LoA and now treats the whole group itself as an individual. This should remove the objection that, even if groups exist and are manageable, they cannot be treated as holders of rights. The third problem concerns the possibility of attributing a right to privacy to groups. I shall argue that sometimes it is the group and only the group, not its members, that is correctly identified as the correct holder of a right to privacy. This should remove the objection that privacy, as a group right, is a right held not by a group as a group but rather by the group’s members severally. The solutions of the three problems supports the thesis that an interpretation of privacy in terms of a protection of the information that constitutes an individual—both in terms of a single person and in terms of a group—is better suited than other interpretations to make sense of group privacy.