Euthanasia

'Permitting Voluntary Euthanasia and Assisted Suicide: Law Reform Pathways for Common Law Jurisdictions' by Jocelyn Downie in (2016) 16(1) QUT Law Review comments

End-of-life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences with law reform in Canada. Through its bird’s eye view, it highlights the remarkable number and variable nature of past attempts at law reform and suggests a shifting tide. It debunks some common myths that have either limited or stymied reform in the past. Finally, it illuminates jurisdictional similarities and differences and lessons learned by those who have gone before so as to inform choices about pathways to pursue for those who will seek to advance a law reform agenda in the future.

 Downie states

End-of-life law and policy reform is the subject of much discussion around the world. Many jurisdictions, including Canada, have beenactively exploring the issue of whether to move to more permissive regimes with respect to voluntary euthanasia and assisted suicide. However, this is not a paper on that well-travelled terrain. Rather,  it explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. There are, of course, a number of pathways to permissive legal regimes with respect to voluntary euthanasia and assisted suicide. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences with law reform in Canada. I seek to gather into one place descriptions of law reform initiatives across a significant set of jurisdictions. This consolidation providesa useful resource for those simply seeking a record of past activities in order to do further comparative work across jurisdictions or across spans of time. Through its bird’s eye view, it highlights the remarkable number and variable nature of past attempts at law reform and suggests a shifting tide. It debunks some common myths that have either limitedor stymied reform in the past. Finally, it illuminates jurisdictional similarities and differencesand lessons learned by those who have gone before so as to inform choices about pathways to pursue for those who will seek to advance a law reform agenda in the future.

'Terminal Sedation - Good Medicine? Good Ethics? Good Law?' by Sheila McLean in (2016) 16(1) QUT Law Review 113-124 comments

The use of sedation at the end of life is becoming increasingly common, yet its ethics and lawfulness have not been as widely discussed as might have been expected. In this article, the primary focus is on what is known as ‘terminal sedation’, with particular reference to the use of sedation without the provision of assisted nutrition and hydration (‘ANH’). It is argued that, where ANH is not contraindicated by patient wellbeing itself, close scrutiny of the practice is required. There are both ethical and legal reasons why a move towards appropriate regulation is appropriate. The urgency of doing this is evidenced by the variety in practices throughout the world, with some commentators suggesting that the decision whether or not to instigate terminal sedation may be influenced by more than clinical indications for its use (in which case, it may be perilously close to a form of euthanasia). Indeed, it may be argued that there is little that differentiates terminal sedation from a form of euthanasia. Moreover, the relatively common exclusion of existential suffering as an indication for terminal sedation is questioned. Were this also to be accepted as a valid indicator for terminal sedation (without the provision of ANH) it becomes even more urgent that anadequate regulatory framework is developed and that the ethics of the practice are appropriately explored and clarified.

McLean indicates that

The purpose of this article is to address the implications – medical, legal and ethical – of the use of terminal sedation, particularly where it is combined with the removal or withholding of assisted nutrition and hydration (‘ANH’). My aim is to both evaluate the status of this increasingly common practice against principles that inform other end of life decisions, and to robustly analyse it for consistency and clarity.

Youth Justice and Mandatory Reporting

The Youth Justice and Other Legislation Amendment Bill 2016 (Qld) seeks to

• Close the Childrens Magistrates Court when hearing all youth justice matters under the Childrens Court Act 1992 (Qld) and provide for victims or their representatives to be present in closed court; 
• Increase the age at which children and young people subject to periods of detention under the Youth Justice Act 1992 (Qld) are to be transferred to adult corrections from 17 to 18 and empower a court on application, to delay a young person’s transfer for up to six months; and 
• Reinstate a court-referred youth justice conferencing program and expand the program to allow for increased flexibility in the delivery of restorative justice interventions as part of police-referred and court-referred conferencing. 

The Explanatory Memorandum states that

current provisions in the YJ Act were based on a non-evidenced policy rationale that stronger penalties and other negative consequences which hold repeat offenders more accountable for their actions will deter further offending by the small cohort of recidivist offenders responsible for a significant proportion of youth offending. 

During the 2015 general election, the Government committed to repealing reforms made to the CC Act and YJ Act in 2014 (the 2014 amendments) as introduced by the former Government and effected by the Youth Justice and Other Legislation Amendment Act 2014 (the 2014 Amendment Act). The 2014 amendments, amongst other things, opened the Childrens Magistrates Court when hearing youth justice matters involving repeat offenders and provided for the automatic transfer to adult correctional facilities of 17 year olds who had at least six months left to serve in detention. 

In the lead up to the 2015 general election, the elected Government also committed to reinstate court-referred youth justice conferencing, removed by the previous Government in 2012 through the Youth Justice (Boot Camp Orders) and Other Legislation Amendment Act 2012 (the Boot Camp Act). 

The Government’s commitment to repeal the 2014 amendments and reinstate court- referred youth justice conferencing is based on a substantial body of international criminological evidence which indicates that increasing the severity of punishment is a poor means of reducing recidivism. Criminological evidence shows that it is the likelihood of being apprehended and punished for an offence, rather than the severity of that punishment, which exhibits the greatest deterrent effect on offending behaviour. 

This is particularly the case with children and young people, whose neurological and cognitive development remains incomplete while they are within the age range to which the YJ Act applies. Children and young people’s cognitive immaturity significantly impedes their capacity to rationally consider the long term consequences of their actions, meaning their behaviour is likely to be more impulsive and marked by poorer decision making and greater risk taking than that of adults. This places children and young people at a heightened risk of opportunistic offending, notwithstanding increases in applicable tariffs and more onerous forms of accountability for that offending. The 2014 amendments were viewed as unduly punitive and inappropriate by the majority of stakeholders. The Legal Affairs and Community Safety Committee (LACSC) consulted widely on the 2014 amendments during its examination of the 2014 Bill. The measures implemented were not supported by any of the submitters to the Parliamentary inquiry, including the Queensland Law Society (the QLS), Bar Association of Queensland, Anti-Discrimination Commission Queensland, Queensland Council for Civil Liberties, leading church and research organisations and Amnesty International. Stakeholders, instead, urged implementation of measures to divert children and address the causes of offending. The amendments proposed in the Bill address the concerns of key stakeholders. 

In reinstating youth justice conferencing, the Bill gives effect to a key restorative justice process and an effective diversionary strategy to reducing youth offending. 

Evidence shows conferencing can, having regard to the right cohorts of offenders and circumstances, have a positive impact on a child or young person’s likelihood of reoffending. Critically, evidence also strongly shows there are direct benefits to victims from being involved in a restorative justice process. These include a reduction in post-traumatic stress symptoms, reduction in the desire for violent revenge and a heightened level of satisfaction when compared to conventional criminal justice practices. 

Research suggests restorative justice is most effectively taken up when it is legislated as a required consideration rather than on an optional basis.

The Queensland Government has also introduced the Child Protection (Mandatory Reporting-Mason’s Law) Amendment Bill 2016 (Qld), described in the Explanatory Memo as follows

Mandatory reporting laws are enacted in each Australian jurisdiction. It is broadly accepted that these laws are an important component of the broader child protection system. 

Currently in Queensland the Child Protection Act 1999 (the Act) identifies the following groups as mandatory reporters:

• a doctor 

• a registered nurse; 

• a teacher; • a police officer who works in child protection; and 

• a person engaged to perform a child advocate function under the Public Guardian Act 2014 (Qld).

Queensland and Western Australia are the only two Australian jurisdictions that do not extend mandatory reporting to the Early Childhood Education and Care sector (ECEC sector). 

Whilst previous reviews into the child protection system in Queensland have looked at the mandatory reporting provisions they have not recommended that they be expanded to include the ECEC sector. The most recent inquiry1 recommended that mandatory reporting requirements be consolidated into one provision and that a consistent approach to reporting child protection concerns be established. These changes commenced after a period of training and education on 1 January 2015. 

On 6 November 2014, the Queensland Law Reform Commission (the Commission) was requested by the then Government to review child protection mandatory reporting laws for the ECEC sector. 

The overwhelming majority of submissions received by the Commission supported extending the mandatory reporting obligation under the Act to apply to the ECEC sector. The Commission recognised ‘the protective role of the ECEC sector in relation to children aged 0–5 years, who are particularly vulnerable. Staff employed in ECEC services are in regular and direct contact with children and their families, and are well-placed to observe and report concerns that children are at risk of significant harm, thereby enabling timely intervention and the protection of children from harm’. 

It also noted that ECEC services are already subject to child protection obligations, have internal policies and procedures in place and can, and do, voluntarily report concerns to Child Safety. The Commission considered that the expansion of the mandatory reporting obligation to the ECEC sector aligned with these existing obligations. It also aligned with the increasing regulation of ECEC services and professionalisation of the workforce that has taken place in recent years.

The Commission’s report titled ‘Review of Child Protection Mandatory Reporting Laws for the Early Childhood Education and Care Sector’ was presented to Government in December 2015. It made a key recommendation that the mandatory reporting provisions in Queensland be expanded to apply to the ECEC sector. 

In accordance with the Commission’s recommendation, the objective of this Bill is to ensure that mandatory reporting obligations apply to the ECEC sector individuals identified by the Commission.  

The Commission found that extending the mandatory reporting obligation to certain individuals in the ECEC sector could be adequately addressed through appropriate training and education about the scope and content of the reporting obligation, and the provision of adequate support and resourcing to the ECEC sector to fulfil the obligation.

US Surveillance History

The short 'Laird v. Tatum and Article III Standing in Surveillance Cases' by Jeffrey L. Vagle in (2016) 18 University of Pennsylvania Journal of Constitutional Law comments

Plaintiffs seeking to challenge government surveillance programs have faced long odds in federal courts, due mainly to a line of Supreme Court cases that have set a very high bar to Article III standing in these cases. The origins of this jurisprudence can be directly traced to Laird v. Tatum, a 1972 case where the Supreme Court considered the question of who could sue the government over a surveillance program, holding in a 5-4 decision that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.

Patent Metrics

'Patent Quantity' by Jeremy Bock in (2016) University of Hawaii Law Review comments

Much of the academic commentary on the patent system’s dysfunctions has focused on patent quality. The considerable attention paid to quality issues, while necessary, overlooks a much larger problem — one of patent quantity. The generation, examination, management, and monetization of an ever-increasing number of patents and applications exert distortionary effects on the patent system, such as the U.S. Patent and Trademark Office’s prioritization of application processing over patent quality; the growth of patent thickets; the “anticommons” that impede innovation; and the rise of patent assertion entities. 

In a departure from the literature, this Article argues that the patent quantity problem must be solved first in order to solve the quality problem. Solving the quantity problem may also mitigate the other distortions in the patent system. Based on a situational analysis of the behavior of the patentees’ agents — who have been largely overlooked in the patent reform literature — this Article proposes that a mechanism for mitigating the patent quantity problem (and its effects) may lie in a judicially-developed de facto working requirement for patent assertions.

Compulsory Treatment

'Is involuntary (compulsory) treatment ever justified in patients with SE-AN: An international perspective’ by Joel Yager, Terry Carney and Stephen Touyz in  Touyz, Le Grange, Lacey and Hay (eds) Managing Severe and Enduring Anorexia Nervosa (Routledge, 2016) comments

Contemplating suitable circumstances and justifications for the involuntary treatment of severe and enduring anorexia nervosa (SE-AN) presents numerous challenges. While there is considerable support for resorting to civil committal powers to coerce selected SE-AN patients into treatment (Bowers, 2014), there is on-going debate about the characteristics of the group for whom this is justified and about when a patient should be permitted to decline treatment where refusal is likely to result in their death (Gans and Gunn, 2013; Giordano, 2010; Lopez, Yager and Feinstein, 2010).

International approaches to span a wide range of clinical, ethical and legal positions (Carney, et al., 2006). In federations such as the United States, Canada or Australia, legal and clinical responses can vary from one part of the country to another due both to policy choices by clinicians about the use of the law, and because the constitutional authority to make laws lies with the States or Provinces, rather than the central government, enabling quite different approaches to be taken from one jurisdiction to the next. In Australia for instance some jurisdictions (such as Victoria) rely on mental health (civil commitment) laws alone, while in the neighbouring jurisdiction of New South Wales the more ‘empowering’ philosophy of adult guardianship (with its interposition of a guardian between patient and clinician) is open to be used as an alternative to mental health laws (and even child protection laws have also been utilised) (Carney, Tait, Saunders, Touyz, and Beumont, 2003). Mental health laws also differ amongst themselves (some favour empowering clinicians to invoke coercion subject to later review, others insist on prior approval of a legal body: Carney, Tait, Perry, Vernon and Beaupert, 2011) and differ between countries in whether courts (as in the US and much of Canada) or multi-disciplinary tribunals authorize or review the exercise of coercive powers (as is the case in Britain and Australia), as well as in whether involuntary detention grants authority to impose treatments such as medications (as in Australia), or requires separate legal authorization.

This chapter explores the often vexed and complex dilemmas confronting the clinician when having to decide upon the involuntary treatment of a patient with severe and enduring AN (SE-AN). It explores the literature beyond the evidence-base. It then provides some considered wisdom, extracted from the published literature, to guide the clinician through what often can become an emotionally charged encounter with an oppositional patient. Clear decision making based upon sound clinical principles can often pave the way for a more successful outcome without what many would consider a ‘bruising battle’ of wills. Finally, the road ahead is addressed looking at compulsory treatment from an international perspective and briefly touching upon the urgent need for research to determine whether such patients do have the mental capacity to make such potentially life-saving decisions.

Justiciability

'The Changing Landscape of Non-Justiciability' by Rayner Thwaites in (2016) New Zealand Law Review (Forthcoming) comments

What is judged to be non-justiciable and how that is determined has changed markedly in the last several decades and the concept remains in flux. There has been recent British and Australian case-law on the concept in the highest appellate courts, providing an opportune moment to survey the contemporary landscape of non-justiciability. The contemporary non-justiciability cases concentrate in the area of foreign relations law, in cases arising from the ‘war on terror’, though they range over broader subject matter. I argue that contemporary Australian and British approaches to non-justiciability, though developed in very different legal contexts, are presently converging, and situate New Zealand case-law in relation to these developments. I argue that non-justiciability is a concept of continuing utility in New Zealand and elsewhere in the common law world. Accounts discerning, and arguing for, the redundancy of non-justiciability mistake its transformation for its demise.

Sexting

In South Australia the Summary Offences (Filming and Sexting Offences) Amendment Bill 2016 (SA), to amend the Summary Offences Act 1953 (SA) has had its second reading.

The proposed section 26DA, regarding a Threat to distribute invasive image or image obtained from indecent filming, provides

 (1) A person who— (a) threatens to distribute an invasive image of a person; and (b) intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused, is guilty of an offence. Maximum penalty: (a) if the invasive image is of a minor—$10 000 or imprisonment for 2 years; (b) in any other case—$5 000 or imprisonment for 1 year.

(2) A person who— (a) threatens to distribute an image obtained by the indecent filming of a person; and (b) intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused, is guilty of an offence. Maximum penalty: (a) if the person filmed was a minor—$10 000 or imprisonment for 2 years; (b) in any other case—$5 000 or imprisonment for 1 year.

(3) It is a defence to a charge of an offence against subsection (1) or (2) to prove— (a) that— (i) the person filmed consented to that particular distribution of the image the subject of the filming; or (ii) the person consented to distribution of the image the subject of the filming generally; and (b) that the person had not, at the time of the alleged offence, withdrawn consent to the distribution of the image.

(4) This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct, and may be explicit or implicit.

Section 26C, regarding Distribution of invasive image is to be amended

26C(1) Maximum penalty: (a) if the invasive image is of a minor—$20 000 or imprisonment for 4 years; (b) in any other case—$10 000 or imprisonment for 2 years.