Anxiety and Data Breach

'Risk and Anxiety: A Theory of Data Breach Harms' by Daniel J. Solove and Danielle Keats Citron argues

 In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their claims are viable. Plaintiffs have argued that data breaches create a risk of future injury from identity theft or fraud and that breaches cause them to experience anxiety about this risk. Courts have been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm. A sound and principled approach to harm has yet to emerge, resulting in a lack of consensus among courts and an incoherent jurisprudence.

In the past five years, the U.S. Supreme Court has contributed to this confounding state of affairs. In 2013, the Court in Clapper v. Amnesty International concluded that fear and anxiety about surveillance – and the cost of taking measures to protect against it – were too speculative to constitute “injury in fact” for standing. The Court emphasized that injury must be “certainly impending” to warrant recognition. This past term, the U.S. Supreme Court in Spokeo v. Robins issued an opinion aimed at clarifying the harm required for standing in a case involving personal data. But far from providing guidance, the opinion fostered greater confusion. What the Court made clear, however, was that “intangible” injury, including the “risk” of injury, could be sufficient to establish harm. In cases involving informational injuries, when is intangible injury like increased risk and anxiety “certainly impending” or “substantially likely to occur” to warrant standing? The answer is unclear.

Little progress has been made to harmonize this troubled body of law, and there is no coherent theory or approach. In this essay, we examine why courts have struggled when dealing with harms caused by data breaches. The difficulty largely stems from the fact that data breach harms are intangible, risk-oriented, and diffuse. Harms with these characteristics need not confound courts; the judicial system has, been recognizing intangible, risk-oriented, and diffuse injuries in other areas of law.

We argue that courts are far too dismissive of certain forms of data breach harm. In many instances, courts should find that data breaches cause cognizable harm. We explore how existing legal foundations support the recognition of such harm. We demonstrate how courts can assess risk and anxiety in a concrete and coherent way.

Arnstein

'The Questionable Origins of the Copyright Infringement Analysis' by Shyamkrishna Balganesh in (2016) 68 Stanford Law Review comments

Central to modern copyright law is the test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components: actual copying — the question whether the defendant did in fact copy — and improper appropriation — the question whether such copying, if it did exist, was unlawful. Somewhat counterintuitively, though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach continues to influence modern copyright law and is responsible for the subjective and unpredictable nature of the infringement analysis in copyright infringement lawsuits. Examining the memoranda, correspondence, and extrajudicial writings of the three judges who decided the Arnstein case reveals that the court’s decision to empower the jury was driven almost entirely by Judge Frank’s unique legal philosophy — his skeptical views about judicial factfinding and his desire to control lower court decisionmaking. Characterizing the entire infringement analysis as a purely factual one provided him with a perfect mechanism for giving effect to his skepticism. The Arnstein test thus had very little to do with substantive copyright law and policy, a reality that copyright jurisprudence has thus far ignored altogether in its continuing affirmation of the opinion’s framework. This Article disaggregates the complex issues that were at play in Arnstein to show how the opinion was rooted in a dystopian vision of the adjudicative process that has since come to be universally repudiated and argues that it may well be time for copyright jurisprudence to reconsider its dogmatic reliance on Arnstein, thereby freeing copyright law from one of its best-known malaises.

Balganesh argues

The Arnstein opinion itself says very little about its reasons for according juries such a central role in what is unquestionably a complex determination. What makes this omission in the opinion doubly perplexing is the reality that the author of the majority opinion, Judge Jerome Frank, was an outspoken and acerbic critic of the jury system. A well-known legal realist, Judge Frank devoted many hours of his nonjudicial work to criticizing the jury system in various books and articles. The practice of allowing a jury to decide what was in effect “its own ‘law’ in each case” was to Judge Frank among the greatest scourges of the American system of adjudication, since it contributed to unpredictable “jury-made law,” which often bore no connection to actual rules of law. Judge Frank’s lifelong distaste for juries and his careful identification of the various malaises promoted by the jury system are therefore hard to reconcile with the overwhelming confidence in juries that he exudes in Arnstein, a confidence that continues to haunt copyright law and practice to this day.

This Article shows that the Arnstein court’s decision to rely on juries for the infringement analysis had very little to do with copyright law or policy. The Arnstein formulation was hardly a considered decision about the values at stake in the copyright infringement analysis but instead almost entirely the product of Judge Frank’s well-developed legal philosophy, which led him to an approach that minimized the role of lower court judges in the infringement analysis and significantly curtailed their ability to rely on issues of law to decide cases. Considerations of copyright law were for the most part entirely secondary to the court’s decision. While scholars (and, on occasion, courts) have criticized the Arnstein court’s analytical framework, hardly anyone has examined exactly why the majority opinion chose to go down the road that it did.

Understanding Arnstein and its legacy requires appreciating the unique worldview of the majority opinion’s author, Judge Jerome Frank, who held strong views about legal rules and the centrality of facts to adjudication. A close reading of the opinions in the case; an examination of the archival memoranda, draft opinions, and correspondence between the judges; and an analysis of the judges’ various contemporaneous extrajudicial writings tell a complex story about the framing of the court’s opinion and its decision to rely on the jury to assess the legality of a defendant’s copying. In the end, this story reveals that the Arnstein opinion remains a true epitome of legal realism, as famously and controversially articulated and advanced by Judge Frank. This reading even suggests that Arnstein’s canonical status in copyright jurisprudence may merit serious reconsideration.

Arnstein is today taken to have decided an important substantive rule relating to the elements of an actionable copyright infringement claim. In actuality, the majority opinion spends little time on copyright principles and devotes most of its attention to an important procedural question: the appropriate standard for summary judgment. This can be explained by the majority’s discomfort with the lower court opinion. The district court in the case granted the defendant’s motion for summary judgment because the judge refused to believe the plaintiff’s account of the facts. In his opinion finding for the defendant, the district court judge specifically alluded to the plaintiff’s prior record of litigiousness and went on to characterize the plaintiff’s claims as “fantastic.” To the majority in Arnstein, the district court’s seeming reliance on the plaintiff’s prior filings was highly problematic, since it suggested that the judge failed to fully consider the merits of the particular case at hand. What was additionally troublesome to the majority, however, was its intuitive sense that the two works at issue shared some level of similarity, as revealed in the judges’ private correspondence. The majority further felt that this intuition necessitated something more than a summary disposal of the case. Reversing the district court’s grant of summary judgment to ensure that this intuition received due attention upon remand required a fair bit of guile. Without ever mentioning that his disagreement with the lower court was on the facts, Judge Frank devised an approach that would allow his version of the facts to be given due consideration. Instead of simply reversing the district court and remanding for another possible decision on summary judgment, Judge Frank sent the case back to the lower court with specific instructions, not only as to whom the factfinder was meant to be (i.e., the jury), but also as to the appropriate steps and standards to be employed during the factfinding process. While the first of these may have been procedurally desirable to avoid summary judgment, the second was altogether unnecessary since the lower court had not even reached the issue of improper appropriation when it granted summary judgment on the question of copying (access).

Judge Frank thus deftly intermingled both substantive and procedural rules, thereby enabling the jury to test his interpretation of the factual record. Through such maneuvering, he effected a reversal that was, in the end, purely about the facts. But in so doing, he created an all-important copyright law rule: determining whether copying is improper is a subjective factual question for the jury, rather than a legal question with its own normative standard.

Arnstein is perhaps a prime example of a hard case making bad law. Judge Frank’s focus on the procedural aspects of the case in order to ensure the plaintiff received a fair hearing muddied the copyright issues at stake by suggesting that the decision to involve juries in the copyright infringement analysis was a considered point of copyright law. Indeed, it is for this anomalous reason that even though the standard for summary judgment enunciated in Arnstein has since been overruled, copyright law—relying on Arnstein and its rich lineage—continues to accord juries a primary role in the infringement analysis. Ironically, in an opinion handed down a mere five days after Arnstein, Judge Frank himself illustrated his comfort in making copyright infringement determinations without any jury at all, a reality that has gone largely unnoticed. The court’s procedural maneuverings in Arnstein — maneuverings designed to grant Ira Arnstein a jury trial—have instead assumed a life of their own. Appreciating the interwoven factual, procedural, substantive, and theoretical issues that were at play in Arnstein sheds new light on its importance within the copyright canon. Indeed, it raises the distinct possibility that as a principled normative matter — driven by copyright’s utilitarian and constitutional goals — there may be little reason to treat all aspects of the infringement analysis as purely factual questions for a lay jury. That position was driven in large measure by Judge Frank’s legal philosophy, which he applied to the facts of the case before him and much of which has since been soundly repudiated in American legal thinking. There is thus good reason to question the wisdom of continuing to provide juries with primary control over the question of infringement in the manner suggested by Arnstein. Scholars have over the years voiced their skepticism of the Arnstein two-step test and its seemingly naive belief in the competence of lay juries to understand the complexities of copyright law. Yet few have seriously investigated the reasons for this naiveté. A richer understanding of Arnstein’s mistaken legacy suggests that it might well be time for courts to seriously revisit and rationalize copyright law’s infringement analysis.

The argument in this Article unfolds in four parts. Part I begins with a discussion of Ira Arnstein’s copyright claim against the defendant, Cole Porter, and a close reading of the three principal opinions in the case—one from the district court and two (the majority and the dissent) from the Second Circuit. It closes with a brief discussion of how courts have interpreted and adopted Arnstein over the years, illustrating the case’s canonical status in copyright law. Part II introduces the legal philosophies and views of the judges who heard the case. In it, we see how Judge Frank brought to the case his controversial views about the role of courts, rule skepticism, factfinding in trials, and the appropriate use of summary judgment, which played off of the views and opinions of the other judges in the case. Part III reconstructs the Arnstein opinion against the backdrop of these philosophies and the judges’ own archival documents (draft opinions, conference memoranda, and private correspondence) to produce a more nuanced and textured image of the case and its contributions to copyright law. Part IV then moves to the prescriptive and argues that, with the rejection of Judge Frank’s overarching philosophy in Arnstein, it may well be time for copyright law to abandon its doctrinaire conformity to the Arnstein formulation.

Offshore Children and Protection

The Child Protection Panel's Making children safer: The wellbeing and protection of children in immigration detention and regional processing centres report comments

Since the Child Protection Panel (the Panel) commenced its work in March 2015, there has been a profound change to the immigration detention environment and that at the regional processing centre (RPC) in Nauru. The number of children in detention facilities or the RPC has decreased very significantly. This is the result of a major effort to move children and their families into community settings within Australia, and the Government of Nauru implementing ‘open centre’ arrangements while the processing of transferees’ claims is expedited.

These shifts have not reduced the relevance of this report. Community detention is now the primary form of detention of children awaiting status resolution in Australia. The Panel’s recommendations will further promote the wellbeing and protection of children in community detention. Further, some of the Panel’s recommendations, such as incident inquiry, internet security, information management and intelligence, have broader application beyond the child protection context.

A key emphasis for the Panel has been a focus on strategies to improve child wellbeing, as well as improving the responses of the Australian Government Department of Immigration and Border Protection (the Department) to incidents involving children. Since the Panel commenced its work, the Department has already responded positively to many of the Panel’s observations.

 The report goes on to state

The terms of reference call for the Panel to ‘ensure that a comprehensive and contemporary framework for the Department relating to the protection of children is in place’.

Importantly, the Department’s Child Safeguarding Framework has now been finalised, providing high-level guidance for staff and service providers. A key recommendation of the Panel is the completion of the policy architecture that supports this Child Safeguarding Framework, and the alignment of service provider policies and key departmental roles.

The terms of reference further call for the Panel to ‘assess the adequacy of departmental and service provider policy and practice around the management of incidents of abuse, neglect or exploitation involving children’.

The Panel assessed 242 incidents of child abuse. Responses to just over half of the cases were assessed by the Panel as adequate or good. The response to child victims was comparatively better than the response to persons of interest (POIs).

The Panel has observed that the held detention environment shifted considerably during its tenure. For matters reviewed throughout this process, and indeed early in the Panel’s existence, departmental service providers tended to control incidents and responses, with the Department, in many cases, playing a secondary role. A greater emphasis on accountability for departmental officers has led to a significant capability improvement in relation to the Department’s ability to respond to incidents.

Observations on the data

The most vulnerable victim group identified through the case reviews was children under the age of 6 years, who made up 40 per cent of the victims. Of this group, 70 per cent were males. Just over 75 per cent of POIs were adults, with males represented at twice the proportion of females. Service provider staff or subcontractors represented less than 10 per cent of the POIs.

The data show that nearly 25 per cent of cases featured child victims who had previously been reported as being the subject of earlier child abuse. There was a relatively small group of 22 POIs that the Panel would characterise as recidivists, as they featured in approximately 25 per cent of all cases.

The Panel notes that, notwithstanding the serious nature of many incidents reviewed, less than 1 per cent of all cases resulted in criminal convictions.

There has been a very high level of compliance by the Department and its service providers, achieving a 95.3 per cent rate against the mandatory reporting requirements in each state and territory jurisdiction.

 The Panel's Key findings are

Incident reporting and categorisation

High-quality incident reporting is critical to establishing a good basis for investigation and effective action. This is an area where considerable improvement is required. Incident reports often tended to be very brief, with inadequate description of what was reported or observed. The Panel was also of the view that improvements to complaint management systems were generally warranted, as there was a pattern of premature closure of matters and a lack of transparency in the complaint process. The categorisation of incidents needs to be strengthened to accurately identify the number, nature and seriousness of incidents – including improving consistency across different service providers.

Child safeguarding inquiries

There is a need to significantly strengthen the Department’s capacity to conduct child safeguarding inquiries into incidents of child abuse. This will call for stronger leadership from senior operational staff, including coordination of multi-agency forums to facilitate the outcomes of child protection safeguarding inquiries. It is essential that inquiries are not finalised until all available facts are established and effectively responded to, even if a criminal investigation cannot proceed. The Panel noted that the Department and service providers often lacked the capability to effectively respond to complex incidents.

Improving management of information flow

The Panel found that there was a need to improve the flow of detainee- and transferee-related information within and outside the Department. Staff need to know where this information is held and how it can be accessed. In the longer term, integrating the currently fragmented information holdings relating to children and their families will be important.

When privacy considerations restrict the flow of necessary information, this can be largely overcome by seeking consent from detainees and transferees to share such information.

Community detention capability

There is a need to strengthen the capability of community detention service providers to ensure that staff have the skills to identify and act on emerging risks to children, and respond effectively to critical incidents. There is also a need to develop case management protocols relating to children to inform placement decisions and identify support needs. This latter observation applies equally in held detention.

The Panel acknowledges that it had the least amount of time to work on community detention cas-es, which is arguably the most important area moving forward. There is important work to be undertaken on identification and management of risk in the community detention environment.

Risk management

The Panel found that the current approach to risk management focuses broadly on physical security and good order of detention facilities. In community detention, the Panel found no risk frameworks in place. It is important that the Department works with service providers to extend existing risk assessment mechanisms to ensure that they specifically address the safety of children in detention and those who are a threat to children.

External relationships

The Panel notes that, in promoting the wellbeing and protection of children, the Department must work in close cooperation with state and territory authorities – both child protection and others. It is important that the Department continue to build strong relationships with those authorities to enable the reciprocal flow of information about child protection matters and establish a common understanding of the processes followed by each party so that complex cases can be effectively resolved.

The Panel noted steps taken by the Government of Nauru to improve its child protection services, and the improved capability of its local police, supported by Australian Government officials

Elder Abuse

The Australian Law Reform Commission's 266 page discussion paper (DP 83) on Elder Abuse features the following questions and recommendations for reform -

2. National Plan

Proposal 2 – 1 A National Plan to address elder abuse should be developed.

Proposal 2–2 A national prevalence study of elder abuse should be commissioned.

3. Powers of Investigation

Proposal 3–1 State and territory public advocates or public guardians should be given the power to investigate elder abuse where they have a reasonable cause to suspect that an older person: (a) has care and support needs; (b) is, or is at risk of, being abused or neglected; and (c) is unable to protect themselves from the abuse or neglect, or the risk of it because of care and support needs.

Public advocates or public guardians should be able to exercise this power on receipt of a complaint or referral or on their own motion.

Proposal 3–2 Public advocates or public guardians should be guided by the following principles: (a) older people experiencing abuse or neglect have the right to refuse support, assistance or protection; (b) the need to protect someone from abuse or neglect must be balanced with respect for the person’s right to make their own decisions about their care; and (c) the will, preferences and rights of the older person must be respected.

Proposal 3–3 Public advocates or public guardians should have the power to require that a person, other than the older person: (a) furnish information; (b) produce documents; or (c) participate in an interview relating to an investigation of the abuse or neglect of an older person

Proposal 3–4 In responding to the suspected abuse or neglect of an older person, public advocates or public guardians may: (a) refer the older person or the perpetrator to available health care, social, legal, accommodation or other services; (b) assist the older person or perpetrator in obtaining those services; (c) prepare, in consultation with the older person, a support and assistance plan that specifies any services needed by the older person; or (d) decide to take no further action.

Proposal 3–5 Any person who reports elder abuse to the public advocate or public guardian in good faith and based on a reasonable suspicion should not, as a consequence of their report, be: (a) liable, civilly, criminally or under an administrative process; (b) found to have departed from standar ds of professional conduct; (c) dismissed or threatened in the course of their employment; or (d) discriminated against with respect to employment or membership in a profession or trade union.

5. Enduring Powers of Attorney and Enduring Guardianship

Proposal 5–1 A national online register of enduring documents, and court and tribunal orders for the appointment of guardians and financial administrators, should be established.

Proposal 5–2 The making or revocation of an enduring document should not be valid until registered. The making and registering of a subsequent enduring document should automatically revoke the previous document of the same type.

Proposal 5–3 The implementation of the national online register should include transitional arrangements to ensure that existing enduring documents can be registered and that unregistered enduring documents remain valid for a prescribed period.

Question 5–1 Who should be permitted to search the national online register without restriction?

Question 5–2 Should public advocates and public guardians have the power to conduct random checks of enduring attorneys’ management of principals’ financial affairs?

Proposal 5–4 Enduring documents should be witnessed by two independent witnesses, one of whom must be either a: (a) legal practitioner; (b) medical practitioner  (c) justice of the peace; (d) registrar of the Local/Magistrates Court; or (e) police officer holding the rank of sergeant or above. Each witness should certify that: (a) the principal appeared to freely and voluntarily sign in their presence; (b) the principal appeared to understand the nature of the document; and (c) the enduring attorney or enduring guardian appeared to freely and voluntarily sign in their presence.

Proposal 5–5 State and territory tribunals should be vested with the power to order that enduring attorneys and enduring guardians or court and tribunal appointed guardians and financial administrators pay compensation where the loss was caused by that person’s failure to comply with their obligations under the relevant Act.

Proposal 5–6 Laws governing enduring powers of attorney should provide that an attorney must not enter into a transaction where there is, or may be, a conflict between the attorney’s duty to the principal and the interests of the attorney (or a relative, business associate or close friend of the attorney), unless: (a) the principal foresaw the particular type of conflict and gave express authorisation in the enduring power of attorney document; or (b) a tribunal has authorised the transaction before it is entered into.

Proposal 5–7 A person should be ineligible to be an enduring attorney if the person: (a) is an undischarged bankrupt; (b) is prohibited from acting as a director under the Corporations Act 2001 (Cth); (c) has been convicted of an offence involving fraud or dishonesty; or (d) is, or has been, a care worker, a health provider or an accommodation provider for the principal.

Proposal 5–8 Legislation governing enduring documents should explicitly list transactions that cannot be completed by an enduring attorney or enduring guardian including: (a) making or revoking the principal’s will; (b) making or revoking an enduring document on behalf of the principal; (c) voting in elections on behalf of the principal; (d) consenting to adoption of a child by the principal; (e) consenting to marriage or divorce of the principal; or (f) consenting to the principal entering into a sexual relationship

Proposal 5–9 Enduring attorneys and enduring guardians should be required to keep records. Enduring attorneys should keep their own property separate from the property of the principal.

Proposal 5–10 State and territory governments should introduce nationally consistent laws governing enduring powers of attorney (including financial, medical and personal), enduring guardianship and other substitute decision makers.

Proposal 5–11 The term ‘representatives’ should be used for the substitute decision makers referred to in proposal 5–10 and the enduring instruments under which these arrangements are made should be called ‘Representatives Agreements’.

Proposal 5–12 A model Representatives Agreement should be developed to facilitate the making of these arrangements.

Proposal 5–13 Representatives should be required to support and represent the will, preferences and rights of the principal.

6. Guardianship and Financial Administration Orders

Proposal 6–1 Newly-appointed non-professional guardians and financial administrators should be informed of the scope of their roles, responsibilities and obligations.

Question 6–1 Should information for newly-appointed guardians and financial administrators be provided in the form of: (a) compulsory training; (b) training ordered at the discretion of the tribunal; (c) information given by the tribunal to satisfy itself that the person has the competency required for the appointment; or (d) other ways?

Proposal 6–2 Newly-appointed guardians and financial administrators should be required to sign an undertaking to comply with their responsibilities and obligations.

Question 6–2 In what circumstances, if any, should financial administrators be required to purchase surety bonds?

Question 6–3 What is the best way to ensure that a person who is subject to a guardianship or financial administration application is included in this process?

7. Banks and superannuation

Proposal 7–1 The Code of Banking Practice should provide that banks will take reasonable steps to prevent the financial abuse of older customers. The Code should give examples of such reasonable steps, including training for staff, using software to identify suspicious transactions and, in appropriate cases, reporting suspected abuse to the relevant authorities.

Proposal 7–2 The Code of Banking Practice should increase the witnessing requirements for arrangements that allow people to authorise third parties to access their bank accounts. For example, at least two people should witness the customer sign the form giving authorisation, and customers should sign a declaration stating that they understand the scope of the authority and the additional risk of financial abuse.

Question 7–1 Should the Superannuation Industry (Supervision) Act 1993 (Cth) be amended to: (a) require that all self-managed superannuation funds have a corporate trustee; (b) prescribe certain arrangements for the management of self-managed superannuation funds in the event that a trustee loses capacity; (c) impose additional compliance obligations on trustees and directors when they are not a member of the fund; and (d) give the Superannuation Complaints Tribunal jurisdiction to resolve disputes involving self-managed superannuation funds?

Question 7–2 Should there be restrictions as to who may provide advice on, and prepare documentation for, the establishment of self-managed superannuation funds?

8. Family Agreements

Proposal 8–1 State and territory tribunals should have jurisdiction to resolve family disputes involving residential property under an ‘assets for care’ arrangement.

Question 8–1 How should ‘family’ be defined for the purposes ‘assets for care’ matters?

9. Wills

Proposal 9–1 The Law Council of Australia, together with state and territory law societies, should review the guidelines for legal practitioners in relation to the preparation and execution of wills and other advance planning documents to ensure they cover matters such as: (a) common risk factors associated with undue influence; (b) the importance of taking detailed instructions from the person alone; (c) the importance of ensuring that the person understands the nature of the document and knows and approves of its contents, particularly in circumstances where an unrelated person benefits; and (d) the need to keep detailed file notes and make inquiries regarding previous wills and advance planning documents.

Proposal 9–2 The witnessing requirements for binding death benefit nominations in the Superannuation Industry (Supervision) Act 1993 (Cth) and Superannuation Industry (Supervision) Regulations 1994 (Cth) should be equivalent to those for wills

Proposal 9–3 The Superannuation Industry (Supervision) Act 1993 (Cth) and Superannuation Industry (Supervision) Regulations 1994 (Cth) should make it clear that a person appointed under an enduring power of attorney cannot make a binding death benefit nomination on behalf of a member.

10. Social Security

Proposal 10–1 The Department of Human Services (Cth) should develop an elder abuse strategy to prevent, identify and respond to the abuse of older persons in contact with Centrelink.

Proposal 10–2 Centrelink policies and practices should require that Centrelink staff speak directly with persons of Age Pension age who are entering into arrangements with others that concern social security payments.

Proposal 10–3 Centrelink communications should make clear the roles and responsibilities of all participants to arrangements with persons of Age Pension age that concern social security payments.

Proposal 10–4 Centrelink staff should be trained further to identify and respond to elder abuse.

11. Aged care

Proposal 11–1 Aged care legislation should establish a reportable incidents scheme. The scheme should require approved providers to notify reportable incidents to the Aged Care Complaints Commissioner, who will oversee the approved provider’s investigation of and response to those incidents.

Proposal 11–2 The term ‘reportable assault’ in the Aged Care Act 1997 (Cth) should be replaced with ‘reportable incident’. With respect to residential care, ‘reportable incident’ should mean: (a) a sexual offence, sexual misconduct, assault, fraud/financial abuse, ill-treatment or neglect committed by a staff member on or toward a care recipient; (b) a sexual offence, an incident causing serious injury, an incident involving the use of a weapon, or an incident that is part of a pattern of abuse when committed by a care recipient toward another care recipient; or (c) an incident resulting in an unexplained serious injury to a care recipient. With respect to home care or flexible care, ‘reportable incident’ should mean a sexual offence, sexual misconduct, assault, fraud/financial abuse, ill-treatment or neglect committed by a staff member on or toward a care recipient.

Proposal 11–3 The exemption to reporting provided by s 53 of the Accountability Principles 2014 (Cth), regarding alleged or suspected a ssaults committed by a care recipient with a pre-diagnosed cognitive impairment on another care recipient, should be removed.

Proposal 11–4 There should be a national employment screening process for Australian Government funded aged care. The screening process should determine whether a clearance should be granted to work in aged care, based on an assessment of: (a) a person’s national criminal history; (b) relevant reportable incidents under the proposed reportable incidents scheme; and (c) relevant disciplinary proceedings or complaints.

Proposal 11–5 A national database should be established to record the outcome and status of employment clearances. Question 11–1 Where a person is the subject of an adverse finding in respect of a reportable incident, what sort of incident should automatically exclude the person from working in aged care?

Question 11–2 How long should an employment clearance remain valid?

Question 11–3 Are there further offences which should preclude a person from employment in aged care?

Proposal 11–6 Unregistered aged care workers who provide direct care should be subject to the planned National Code of Conduct for Health Care Workers.

Proposal 11–7 The Aged Care Act 1997 (Cth) should regulate the use of restrictive practices in residential aged care. The Act should provide that restrictive practices only be used: (a) when necessary to prevent physical harm; (b) to the extent necessary to prevent the harm; (c) with the approval of an independent decision maker, such as a senior clinician, with statutory authority to make this decision; and (d) as prescribed in a person’s behaviour management plan.

Proposal 11–8 Aged care legislation should provide that agreements entered into between an approved provider and a care recipient cannot require that the care recipient has appointed a decision maker for lifestyle, personal or financial matters.

Proposal 11–9 The Department of Health (Cth) should develop national guidelines for the community visitors scheme that: (a) provide policies and procedures for community visitors to follow if they have concerns about abuse or neglect of care recipients; (b) provide policies and procedures for community visitors to refer care recipients to advocacy services or complaints mechanisms where this may assist them; and (c) require training of community visitors in these policies and procedures.

Proposal 11–10 The Aged Care Act 1997 (Cth) should provide for an ‘official visitors’ scheme for residential aged care. Official visitors’ functions should be to inquire into and report on: (a) whether the rights of care recipients are being upheld; (b) the adequacy of information provided to care recipients about their rights, including the availability of advocacy services and complaints mechanisms; and (c) concerns relating to abuse and neglect of care recipients.

Proposal 11–11 Official visitors should be empowered to: (a) enter and inspect a residential aged care service; (b) confer alone with residents and staff of a residential aged care service; and (c) make complaints or reports about suspected abuse or neglect of care recipients to appropriate persons or entities.

Disclosure

'Negligence, genetics and families: A duty to disclose actionable risks' by Michael Fay, in (2016) 16(3-4) Medical Law International 115-142 comments

Genetic testing can reveal information significant to patients’ relatives. This familial aspect raises an important question: should clinicians owe a duty to disclose genetic risk to patients’ blood relations? In ABC v St George’s Healthcare NHS Trust and Smith and Another v University of Leicester NHS Trust, the High Court rejected claims by relatives regarding genetic information. Both cases are being appealed. The High Court’s analysis of duty was restrictive; foreseeable harm and proximity thus far receiving minimal scrutiny. A detailed analysis indicates harm and proximity are important in defining the scope of a duty. The foreseeable harm is argued as medically actionable genetic conditions. Proximity could be demonstrated by claimants establishing themselves as identifiable victims of non-disclosure that ought to be in defendants’ contemplation as so affected. It is also argued a duty is not prohibited by the policy reasons relied upon in ABC: incremental development, confidentiality, a right not to know and psychiatric harm.

Fay concludes

Genetic information is a conundrum because of its familial dimension. ABC and Smith have seen this issue adjudicated from two perspectives in court, and both claims were rejected, but neither case provides a complete analysis of the Caparo test, thus harm did not receive attention in both cases, and proximity was also eschewed in ABC. The Court of Appeal will be presented an opportunity to more completely consider duty when it hears both cases on appeal in 2017 and it is argued the matter should be sent to trial. Full consideration of a duty to relatives is essential against a backdrop of increasing accessibility of genetic information.

The High Court resisted both claims, concluding such a duty was a giant step inconsistent with incremental development of negligence, but caselaw is indicative a duty to disclose is actually an incremental development. Cases on non-disclosure of risk may form a springboard for a duty and would constitute more appropriate analogies than the doctor–patient caselaw cited in ABC. Reliance on Selwood in Smith was also deserving of greater analysis; instead the court distinguished the cases on their factual matrix. If the proposed duty is accepted as an incremental development, claimants must then overcome the Caparo test. It is argued foreseeable harm and proximity are critical considerations when defining the scope of the duty and lack of discussion in ABC is a missed opportunity. The foreseeable harm is proposed as undisclosed, medically actionable conditions that eventuate. This constitutes an interference with physical integrity which is an interest protected by tort and US and UK caselaw on undisclosed risks indicate directly causing harm is not a prerequisite of liability. Proximity will pose a problem because there is no pre-existing relationship between clinicians and relatives. However, relying on caselaw concerning risks of infection, contagion and physical harm, claimants may be able to demonstrate they were identifiable victims of non-disclosure and should have been in the defendants’ contemplation as so affected. If identifiable victims are defined as immediate relatives, the scope of the duty and number of potential claimants will be limited, providing a rejoinder to concerns regarding an overly burdensome obligation.

Furthermore, the policy issues relied on in ABC do not prevent a duty being fair, just and reasonable. Confidentiality is not absolute; the public interest in maintaining confidences can be countervailed by another public interest, and prevention of harm and protecting Article 2 rights both have application to genetic information. Erosion of doctor–patient trust is a valid concern but research is indicative of greater than 90% of people being willing to forgo confidentiality in cases of actionable conditions. A right not to know is also reconcilable with a duty if individuals have previously indicated they do not want to receive information about their genetic risks. Furthermore, research indicates a preference for disclosure in cases of medically actionable conditions, meaning reliance on a right not to know in ABC was questionable. Psychiatric harm caused by disclosure also does not prohibit a duty providing the condition is medically actionable, because treatment means disclosure can avert harm. Therapeutic interventions counterbalance potential risks of psychiatric harm; where no treatment is available, whether disclosure is beneficial is a moot point. Disclosure made to engender preparedness is suspect because it is unclear harm would be avoided.

While ABC and Smith both rejected a duty to disclose, an opportunity to send the matter to trial will come before the Court of Appeal in 2017. Smith represents a step too far in terms of duties to third parties, but it is at least arguable a duty should be owed in ABC, though the intractable nature of Huntington’s disease is problematic. Since Huntington’s is not treatable, foreseeable harm will be difficult to prove. Furthermore, the benefits of disclosure in the absence of therapeutic responses are debatable. In the event a duty is accepted, breach and causation remain moot points.