Complaints

'Mind the Information Gap: Quantifying the Courts' Role in Responding to Patient Harm, 1989 to 2013' by Wendy Bonython and myself in (2018) 25(2) Journal of Law and Medicine 549-571 commented

An empirical critique of Australia's medical indemnity crisis challenges assumptions about the role of the courts through determination of civil liability for medical negligence, occupational discipline and criminal liability. Courts were identified as a cause of a crisis in the 2000s that triggered extensive legislative reform of medical negligence law, absent adequate empirical data substantiating either criticisms of the courts or supporting the reforms. Changes to the occupational discipline framework for health practitioners were less controversial but have resulted in increasingly legalistic responses. Using a detailed longitudinal analysis across all jurisdictions this article examines the role of the courts in responding to patient harm across the relevant 25-year period encompassing these reforms, to determine whether the courts did cause the medical indemnity crisis, what effect the reforms had and what other roles the courts play in responding to patient harm.

'Complaint risk among mental health practitioners compared with physical health practitioners: a retrospective cohort study of complaints to health regulators in Australia' by Benjamin G Veness, Holly Tibble, Brin FS Grenyer, Jennifer M Morris, Matthew J Spittal, Louise Nash, David M Studdert and Marie M Bismark in (2019) 9(12) BMJ Open now notes that

 mental health practitioners had a complaint rate that was more than twice that of physical health practitioners. Their risk of complaints was especially high in relation to reports, records, confidentiality, interpersonal behaviour, sexual boundary breaches and the mental health of the practitioner. Among mental health practitioners, male practitioners and older practitioners (≥65 years compared with 36–45 years) were at increased risk of complaints.

The authors conclude that areas of increased risk are related to professional ethics, communication skills and the health of mental health practitioners themselves. Further research could usefully explore whether addressing these risk factors through training, professional development and practitioner health initiatives may reduce the risk of complaints about mental health practitioners.  The study sought to understand complaint risk among mental health practitioners relative to physical health practitioners through a retrospective study of 7,903 complaints over the 2012 to 2016 year period.

The authors note that the differentiation between these two classes of practitioners is somewhat artificial given there is no bright line between physical and mental health. Many psychiatrists and psychologists treat patients with complex physical health conditions, and many other medical specialists and allied health practitioners treat patients with mental illness.

They comment

Relative to other health professionals, psychiatrists and psychologists have been shown to have high rates of complaints and disciplinary actions.  Prominent issues include sexual boundary violations, concerns about practitioners’ involvement in legal proceedings or reports, and breaches of confidentiality. 

However, existing studies have significant limitations. Common methodological limitations include lack of a comparison group, high potential for confounding among identified risk factors and no adjustment for time spent engaged in clinical care (ie, exposure time). Among studies that have used comparison groups to assess medicolegal risk, the comparison has been between psychiatrists and doctors in other medical specialties. Almost all previous studies focus on psychiatrists and psychologists in the USA, which has a highly litigious and expensive medicolegal environment. By comparison, other jurisdictions such as Australia, the UK and New Zealand offer patients more accessible and affordable options for redress. To the best of our knowledge, no previous research has analysed the complaint risk of psychiatrists and psychologists (collectively referred to herein as ‘mental health practitioners’) compared with practitioners who primarily treat physical health (‘physical health practitioners’). 

The distinction between these two types of practitioners is somewhat artificial because there is no bright line between mental and physical health. Many psychiatrists and psychologists treat patients with complex physical health conditions, and many other medical specialists and allied health practitioners treat patients with mental illness. Nevertheless, we hypothesised that differences in patterns of complaints between practitioners grouped in this way would be detectable and informative for practitioners, health service managers, regulators and patient advocates as a way of targeting and prioritising efforts to improve the delivery of mental healthcare. An increasing body of research demonstrates an association between complaints by patients and peers, and adverse events or other poor outcomes of clinical care. Complaints can provide information on patient safety and experience that may not emerge through other sources of data such as incident reports and malpractice claims. In turn, thoughtful analysis of complaints can inform service improvements. 

We used a national dataset of formal complaints about the conduct, performance and health of registered health practitioners in Australia. Our study had three aims. First, we sought to characterise the frequency, source, outcome and nature of complaints about mental health practitioners compared with physical health practitioners. Second, we aimed to identify specific complaint issues for which mental health practitioners were at higher risk than physical health practitioners. Third, we sought to identify the characteristics of mental health practitioners who are at increased risk of complaints. We expected to find higher rates of complaint about mental health practitioners compared with physical health practitioners, especially in relation to issues of particular sensitivity or relevance to the provision of mental healthcare.

Mcmindfulness

'Mindful Engagement and Relational Lawyering' by Susan L. Brooks in (2019) 48 Southwestern University Law Review comments

 Mindful engagement is a relational approach to mindfulness, and a mindful approach to being relational, in law and in life. It is about cultivating habits of mind and practices that can inform a wholehearted approach to lawyering, which means bringing our emotional and bodily awareness as well as our analytical minds fully into our work. Mindful engagement contemplates the interconnection and integration of engagement with oneself, with others interactively, and with communities and larger social institutions and systems. 

This definition of mindful engagement resonates with the work of mindfulness scholars and researchers Ron Purser and David Loy, who focus on the distinction between mindful engagement and mindfulness as a method solely for personal self-fulfillment. While acknowledging the possible value of a more individualistic approach to mindfulness, they embrace an engaged approach as offering greater potential to reflect on and address the causes and conditions of suffering in the broader environment. In their view, to become a genuine force for positive personal and social transformation, mindfulness must reclaim an ethical framework and aspire to purposes that take into account the well-being of all living beings. 

The purpose of this article is to build upon and contribute to the work of these and other scholars and teachers across many disciplines who believe mindful engagement can lead to more healing and other positive change in the world. My specific focus is on how we can use the relational lawyering framework I have been developing to teach and support mindful engagement as a set of core competencies in legal education and law practice, and through that effort, reduce suffering and improve the wellbeing of the legal profession and the communities we serve.

'Mindfulness In and As Education: A Map of a Developing Academic Discourse from 2002 to 2017' by Oren Ergas and Linor L. Hadar in (2019) 7(3) Review of Education comments

Since the turn of the millennium there has been a clear rise in the implementation and research of mindfulness across primary, secondary and postsecondary education. These implementations, however, hardly constitute a uniform phenomenon. They reflect a variety of framings, modalities and educational aims, as documented in hundreds of peer-reviewed papers. To date no overarching review has provided an empirically-based mapping of this multifaceted and rapidly developing discourse. This paper offers a first-of-its-kind map of mindfulness in education based on the 447 peer-reviewed papers published between 2002 and 2017 that constitute this academic discourse, applying grounded theory methodology. The research reveals an exponential rise in the amount of publications over years, with a complex discourse that evolves from seven different framings of the practice, applied to nine different educational domains and through various types of implementation. It maps this complexity and outlines two main patterns that reflects this discourse to date: a) Mindfulness in education, which comprises mostly of outsourced, secularized interventions aimed at improved mental-physical health, social-emotional learning and cognitive functions. b) Mindfulness as education, which is a more transformative strand characterized by contemplative pedagogy in higher education and sporadic whole-school implementations. Overall, in the studied period mindfulness has been moving from near-anonymity toward the mainstream; however, this discourse reflects a nascent phase given that it is only beginning to critique itself. Furthermore, its two patterns reflect a split discourse that is challenged by the practice’s psychological-secular framing and its Buddhist framing.

The authors state

In the past two decades, the practice of mindfulness - “paying attention, on purpose, in the present moment, non-judgmentally” (Kabat-Zinn, 1994, p. 4) - has become ubiquitous. Studies of its effects on various aspects of psychological well-being and health have spurred the interest of the scientific community leading to an exponential rise in its implementation, research and critique (Brown, Craswell, & Ryan, 2015; Purser, Forbes, & Burke, 2016; Schonert-Reichl & Roeser, 2016). The American Mindfulness Research Association (AMRA) documented over 3700 studies published on mindfulness reflecting an exponential rise from 0 publications in 1980 to 690 in 2016 and 692 in 2017 (Black, 2018). Many of these studies have been funded by the National Institute of Health (NIH) and demonstrated effects of mindfulness on improved well-being, stress-reduction, and enhanced attention regulation, within both clinical and general populations (Brown et al, 2015; Keng, Smoski & Robins, 2011; Zoogman, Goldberg, Hoyt, & Miller, 2015). 

Parallel to and as part of these development, there has been a clear rise in the implementation and study of mindfulness across ages within educational settings, as documented in several peer-reviewed studies, reviews and special issues (Felver & Jennings, 2016; Frank, Jennings & Greenberg, 2013; Kiloran, 2017; Meiklejohn et al, 2012; Moreno, 2017; Renshaw & Cook, 2017; Roeser, 2014; Schonert-Reichl & Roeser, 2016; Weare, 2013; Zenner, Herrnleben & Wallach, 2014). Key organizations, such as the Mindfulness in Schools Project (MiSP) in UK, and MINDUP in the US, have been developing mindfulness curricula, training school teachers and disseminating these practices in hundreds of schools worldwide (Kuyken et al, 2013; Maloney, Lawlor, Schonert-Reichl, & Whitehead, 2016). According to reviews and to some of these mentioned organizations, these curricula have reached thousands of teachers and millions of students spanning all ages (Ergas, 2018; Semple, Droutman & Reid, 2017). Research of mindfulness in education has now expanded to huge state-funded projects, such as the Oxford Mindfulness Center’s MYRIAD, which includes 84 UK schools (approx. 6000 students). 

The term “mindfulness in education”, however, hides a perplexing diversity that a deeper scrutiny of publications in this field demonstrates. To begin with, many of the above initiatives involve mindfulness-based interventions (MBIs) - outsourced programs developed based on Jon Kabat Zinn’s mindfulness-based stress reduction (MBSR) format, and adapted for teachers and/or students (Cullen, 2011; Jennings et al, 2017; Kabat Zinn, 2017; Roeser, 2014). However, implementations of mindfulness practice in education have also been developing within “contemplative pedagogy” (Ergas, 2018; Repetti, 2010). Here mindfulness is integrated into teaching in order to enhance meaningful and transformative learning processes often in higher education and within education in the professions (Bush, 2011; Magee, 2016). When examining publication in these two domains one finds that mindfulness is implemented across educational settings based on highly diverse modalities, definitions, framings, and aims. This diversity begins with the practice itself, which is framed in variety of ways, such as attentional training, mental training, meta-cognitive practice, spiritual practice, meditation, Buddhist meditation, and contemplative inquiry (Bishop et al, 2004; Davidson et al., 2012; Hanh, 2016; Kabat-Zinn, 1994; Owen-Smith, 2017; Roeser, 2014; Roth, 2006, Shapiro et al., 2015; Wong, 2004). These latter terms and others are sometimes associated with a psychological discourse (Kabat-Zinn, 1994), at other times with the practice’s Buddhist or other wisdom-tradition origins (Hoyt, 2016), and yet at other times with a way of knowing-inquiring (Hart, 2004; Roth, 2006). When further probing the psychological discourse, one finds some MBIs associated with cognitive functions (e.g., Flook et al, 2010), others with the affective and social-emotional domain (e.g., Beddoe & Murphy, 2004), and yet others with mental-physical and occupational health (e.g., Crain, Schonert-Reichl & Roeser, 2017). 

The complexity in this discourse further manifests in implementations that span interventions that are as short as four sessions (Zenner et al., 2014) to holistic approaches integrating mindfulness across the curriculum (Tarrasch et al., 2017). Yet, the most perplexing domain that manifests the breadth and diversity in this discourse concerns how they are associated with educational aims. Pointing to a mere few examples, one finds MBIs addressing teacher stress, burnout and social-emotional competencies (Jennings et al, 2017), enhancement of executive functions in primary school (Flook et al, 2010), improving Graduate Record Examinations (GRE) performance (Mrazek et al, 2013), but also contemplative pedagogies that aim to cultivate self-knowledge and awareness (Holland, 2004), a first-person critical perspective (Roth, 2006), and ethics of diversity (Berila, 2014). Professional education reveals additional avenues with higher education courses in which mindfulness is implemented toward cultivating empathy in training nurses (Beddoe & Murphy, 2004), spirituality and compassion in social work education (Wong, 2004), reducing cognitive and emotional biases in law students (Magee, 2016), and engendering healthy habits of mind and compassion in teaching (Roeser, Skinner, Beers, Jennings, 2012). 

The above is a very rough gloss over what appears to be a highly complex and confusing discourse. Mindfulness in education is developing in multiple directions to the point at which it becomes unclear what holds this discourse together and, in fact whether this is one discourse at all? How is it possible that a practice (or set of practices) that goes by the same name is responsible for all of these aims, some of which seem to be pulling in almost contradicting directions? Where is mindfulness in education going? 

One potential explanation for the variety described emerges from the multiple framings of this practice mentioned above. Mindfulness has a unique biography that begins in the 6-5th centuries BC within Buddhism, yet in the late 20th century it was reframed as a psychological-clinical and secularized practice (Gethin, 2011; Kabat-Zinn, 1994; Olendzki, 2011; Purser et al, 2016; Roeser, 2013). However, this only leads to further questions. What is a practice that has its origins in Buddhism doing in contemporary public schools; especially when this occurs in countries such as the US that stress the separation of Church and State? How secular/religious is this discourse? Indeed, there have been lawsuits filed against schools who implemented the practice, accusing them of proselytizing Buddhism to students (Gregoire, 2013; Parker, 2018). Sensitive to this issue, implementers of mindfulness have hence often been grounding the practice in scientific-psychological constructs and avoiding Buddhist terminology (Jennings, 2016; Nelson, 2012). However, this trend has lead to other types of critique often referred to as ‘McMindfulness’, revolving around the commodification of mindfulness, its uprooting from its ethical underpinnings and its construal as a panacea (Forbes, 2019; Hyland, 2017; Purser & Loy, 2013). Scientists themselves have been warning against the “hype” around mindfulness that reflects an enthusiasm that the present state of research does not justify (Greenberg & Harris, 2012; Van dam et al., 2018). 

These and other challenging perspectives, in fact reflect an additional strand within the general discourse of mindfulness and within mindfulness in education. It is comprised of critical perspectives that point to the ways in which social, political, cultural and economic forces shape mindfulness as it enters educational settings (Purser et al, 2016). Taking the above introduction and these critical perspectives, we are facing a situation in which a practice that in the course of approximately two decades, has transitioned from near- anonymity and an association with monks, spiritual seekers and ancient times, to a vibrant academic discourse that seems to be moving into the mainstream of education. This is happening in an extremely rapid pace and in multiple ways that are becoming difficult to understand. Such situation calls us to question what is this novel addition to the curriculum bringing into contemporary education? Is it introducing religiosity/spirituality in disguise? Is it a technique for reducing stress? Is it about improving academic achievements? Is it about all of these? Is it the same phenomenon in primary education as it is in higher education? 

The current research responds to this confusion by developing a first-of-its-kind empirically-based map of the discourse of mindfulness in education. To the best of our knowledge, no previous review that takes into consideration all manifestations of this field has been offered. Previous reviews in this field usually relied on relatively small numbers of cases and focused either on MBIs or on contemplative pedagogies, either centering around their effects or on their ways of implementation (e.g., Bush, 2011; Lomas et al., 2017; Meiklejohn et al., 2012; Moreno, 2017; Zenner et al.’s, 2014). While no doubt necessary and informative, such reviews fail to provide a map of the entire discourse and its development as a whole. The current research is hence not a review of the effects of the practice, neither a paper that advocates or critiques its implementation in education. It is about understanding what is going on? What has been published in this field? What kind of voices are emerging in it? What are the main characteristics of this discourse and is it one discourse or many? Specifically, we aim to (a) map the discourse, the aims and framings of mindfulness across public and secular educational settings. (b) Investigate to what extent is mindfulness in education a spiritual/religious/Buddhist practice. (c) Map curricular patterns and types of implementations of mindfulness in these settings. (d) Identify developed and underdeveloped domains within the discourse and suggest future directions. 

The map that this research aims to develop has both theoretical and practical significance. It enables for a broader conception of the various directions that this discourse entails and their respective breadth, robustness and/or weakness. This expands limited understandings of mindfulness in education by taking into consideration multiple components of this discourse (e.g., types of research, framings of mindfulness, modalities of implementation) and enables those working in the field to locate their work within it in more sophisticated and nuanced ways. Finally, it points us to neglected theoretical and practical domains and hence opens the field for further development.

Difference

The national Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability has released an issues paper on Health care for people with cognitive disability, commenting

Health is a key area of inquiry for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission). People with disability may be subject to violence, abuse, neglect and exploitation in health settings, and the denial of the right to health care may also be a form of neglect. The Royal Commission wants to understand the experiences of people with cognitive disability in accessing or receiving health care. People with cognitive disability include people with intellectual disability, autism, acquired brain injury or dementia. People with cognitive disability may experience poor health outcomes due to barriers in the health system. Research suggests that people with cognitive disability are more likely to suffer an avoidable death that could have been prevented through appropriate health care. 

The purpose of this paper is to invite information and discussion from the public on the key issues regarding health care and services for people with cognitive disability that require exploration by the Royal Commission, as well as examples of good practice. We understand that health care of people with cognitive disability is only one issue we need to consider. We invite your ideas on other matters related to health that we should be examining. Based on your feedback and our research, broader experiences of people with disability in the health system will be addressed in issues papers in 2020. ... 

A human rights-based approach 

Our terms of reference recognise that Australia has international obligations to take appropriate legislative, administrative and other measures to promote the human rights of people with disability. The right to health is provided for in the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and Article 25 recognises the right to the highest attainable standard of health, without discrimination on the basis of disability. The CRPD also provides obligations in respect of habilitation and rehabilitation in Article 26. Australia is also party to four other international human rights instruments which recognise the right to health. The right to health does not simply mean the right to ‘be healthy’. Rather, the right to health contains both entitlements and freedoms. 

Entitlements include the right to essential primary health care. Freedoms include the right to:

• non-discrimination 

• control one's health and body, including sexual and reproductive freedom 

• free and informed consent 

• be free from non-consensual medical treatment and experimentation 

• be free from torture or cruel, inhuman or degrading treatment or punishment. 

The particular experience of people with cognitive disability was addressed by the United Nations Committee on the Rights of Persons with Disabilities (the UN Committee) in its recent Concluding Observations on the combined second and third periodic reports of Australia. The UN Committee recommended that Australia adhere to Article 25 to ensure that all persons with disabilities and children with disabilities have access to information, on an equal basis with others, and to affordable, accessible, quality and culturally-sensitive health services and equipment … with particular consideration for … persons with intellectual or psychosocial disabilities. 

Why is the Royal Commission looking at health care for people with cognitive disability? 

Health is critical to support the independence and inclusion of people with disability. It is an enabling right. If a person’s health needs are not met, then children and adults with disability may be unable to attend school, access employment opportunities or participate in society. However, research shows that, since the mid-1990s, there has been little progress to address the barriers faced by people with cognitive disability when accessing health care. 

Health for First Nations people encompasses spiritual, cultural, emotional and social wellbeing. It recognises that belonging and deep connections to land, culture, spirituality, family, and community are important for wellbeing, and is influenced by past events. There is limited research on the multiple barriers to health care for First Nations people with cognitive disability, although research suggests that non-Indigenous Australians with disability receive services that First Nations people with disability do not. Culturally and linguistically diverse people with disability may also experience unique barriers in accessing health care. This requires further research and investigation. 

Some issues and barriers 

There are a range of issues and barriers that people with cognitive disability may experience with the health system, including mental health and dental and oral health. People with cognitive disability report that medical professionals often don’t take the time to explain health issues in accessible ways. This can make it difficult for people with cognitive disability to understand examinations, diagnosis and treatment options and may lead to these not being performed or being performed without informed consent. Some other examples of barriers and issues are outlined below. 

These barriers and issues may occur in all health care settings, including hospitals, general practitioner’s (GP) clinics, medical centres, community health centres and specialist or consultant offices. 

• Barriers to health care for people with cognitive disability can include: • communication and physical barriers • cost and funding • rural and remote access • training of health and mental health professionals. 

• Attitudes and assumptions, which may influence issues such as: • diagnostic overshadowing – where a health professional attributes symptoms to a person’s disability rather than to a health issue • delayed diagnoses/misdiagnoses • prescribing practices, over-prescription, and restrictive practices • lack of sexual and reproductive health care. 

Since the National Disability Insurance Scheme began, participants, including people with cognitive disability, often report significant issues with the interaction between health systems and the NDIS. 

Some issues include:

• gaps in funding 

• gaps in supports, including support workers and communication supports 

• lack of coordination between the health system and the NDIS 

• inconsistent information • delays in hospital discharge planning that mean people are ‘stuck’ in hospital. 

The Royal Commission is also interested in hearing about other issues and barriers that people with cognitive disability experience in accessing or receiving health care. 

Questions 

Question 1: 

What do you think about the quality of health care for people with cognitive disability? 

Question 2: 

A. If you are a person with cognitive disability, can you tell us about any problems you have had in getting health care? 

B. Can you tell us about any barriers that people with cognitive disability have experienced in accessing health care? 

Question 3: 

A. If you are a person with cognitive disability, can you tell us about any problems you have had with the NDIS and getting health care? 

B. Can you tell us about any problems that people with cognitive disability have had with the NDIS and accessing health care? 

Question 4: 

A. What do you think should be done to fix the problems people with cognitive disability have in getting health care? 

B. How could the NDIS and health systems work better for people with cognitive disability? 

Question 5: 

Why do people with cognitive disability experience violence, abuse, neglect or exploitation in health care? What are the causes? 

Question 6: 

A. Is the violence, abuse, neglect or exploitation that people with cognitive disability experience, different in doctor’s or GP’s surgeries, medical centres, hospitals, specialists or consultants? 

B. Is the violence, abuse, neglect or exploitation that people with cognitive disability experience, different in public, private or not-for-profit health care? 

Question 7: 

A. Are experiences of violence, abuse, neglect or exploitation in health care different for particular groups of people with cognitive disability? 

B. Are experiences of violence, abuse, neglect or exploitation in health care different for First Nations and culturally and linguistically diverse people with cognitive disability? 

C. How does a person’s gender, age, or cultural or sexual identity impact on people with cognitive disability getting health care? 

Question 8: 

A. What could prevent people with disability experiencing violence, abuse, neglect or exploitation in health care? 

B. What would make a person with cognitive disability feel safe when getting health care? 

C. Can you give us any examples? 

Question 9: 

A. What would stop a person with cognitive disability reporting violence, abuse, neglect or exploitation in health care? 

B. What would make it easier for a person with cognitive disability to complain about violence, abuse, neglect or exploitation in health care? 

Question 10: 

Have we missed anything? What else should we know?

Aadhaar

'Surveillance in the Name of Governance: Aadhaar as a Fix for Leaking Systems in India' by Kathryn Henne in Blayne Haggart, Kathryn Henne and Natasha Tusikov (eds) Information, Technology and Control in a Changing World (Palgrave, 2019) 223-245 comments

Many jurisdictions are employing biometric technologies to collect data about and verify the identities of social assistance recipients, with fraud prevention and cost savings serving as common justifications for doing so. This chapter explores the practices of building the infrastructure to monitor welfare beneficiaries, many of whom are vulnerable or marginalised populations. To do so, the chapter examines the Aadhaar system in India, which has issued over one billion unique identification numbers since being launched in 2010. The analysis illustrates a one-way expectation of knowledge and transparency (i.e., for citizens to disclose in order to access services), drawing attention to how nationalist agendas and forms of inequality inform who is subject to the state’s terms and conditions. In doing so, it considers how these forms of surveillance evince broader shifts in which state and non-state actors rely on knowledge to regulate subjects. 

 Henne notes

As other chapters in this book attest, knowledge is often central to the mobilisation of structural power. In focusing on knowledge, it is important to consider what and who can exercise such power and how. Structural power, according to Susan Strange (1998), sits with actors who can influence and exert control over people’s livelihoods and security, including the modes of accessing essential services. Here, I examine how two key features of structural power—that is, knowledge and authority—coalesce in the context of social assistance provision. State-supported welfare systems hinge on the collection of significant amounts of personal information, using data to monitor beneficiaries’ behaviour and to assess their compliance with the conditions of receiving assistance (Eubanks 2018). Accordingly, they rely on a wide range of technologies and techniques to manage and administer benefits and payments. In short, it depends on surveillance — that is, “the focused, systematic, and routine attention to personal details for purposes of influence, management, protection or direction” (Lyon 2007, 14). Social assistance offers a domain of governance where we can observe, document, and trace both striking and mundane aspects of leveraging knowledge in the exercise of structural power. In this context, governance relies on knowledge about subjects, but it is not complete knowledge of their lived conditions; rather, governance here relies on isolated forms of data that can be extracted through biometric technologies. As this chapter illustrates, surveillance becomes a key mode through which authorities come to know subjects, shaping how they are treated. 

While the targeted surveillance of marginalised populations is not new (see Gilliom 2001), the proliferation of monitoring techniques and verification mechanisms in the context of welfare provision has received greater attention in recent years. A number of countries have expanded—and are continuing to expand—their practices of tracking and authenticating social assistance recipients, using a range of technologies to do so. For example, in the United States, mechanisms for discerning welfare recipients’ bought goods, tracking their employment opportunities, and sharing data across administrative agencies are commonplace, as are risk-analysis and predictive tools for assessing their current and future circumstances. The Australian government has proposed expanding trials for welfare card programmes to limit individual purchases and has sought to mandate drug testing as a condition of social assistance. South Africa has added biometric authentication to its social benefits cards, 19 million of which have been supplied to welfare recipients since 2012, with a range of countries — including Ireland, Trinidad and Tobago, and the Philippines — following suit. The Unique Identification Authority of India (UIDAI), established in 2010, has issued over one billion unique identifier numbers (or “Aadhaar”) for use across several government assistance programmes. Although distinct jurisdictions, authorities evoke similar justifications, such as fraud prevention and cost savings, for introducing new monitoring and authentication technologies in the context of social assistance. In doing so, the disproportionate surveillance of citizens who are often poor, vulnerable, and sometimes multiply marginalised becomes enabled through narratives of transparency, accountability, and good governance. 

Developments in social assistance, I argue, demonstrate Zeynep Tufekci’s claim that the engineering of social life is “a political process involving questions of power, transparency, and surveillance” (2014, 1). To illustrate how socio-technical entanglements emerge in the form of surveillance and convey structural power, this chapter focuses on the making and maintenance of data-intensive infrastructure to support state social assistance systems, using India as its central case. Its analysis of Aadhaar examines how surveillance enabled through unique identification numbers constitutes a distinct mode of governance, one that depends on the pursuit of particular kinds of knowledge. After doing so, I consider how these practices evince broader shifts in which state actors, as well as non-state actors working in the service of state interests, create and sustain the conditions for regulating subjects. 

Although its focus is on India, the chapter illuminates potential issues with and limitations of these hybridised formations of governance more generally. Hybridity, at least in relation to law and regulation, typically refers to “synergies between binding and non-binding mechanisms” that support governance functions (Trubek and Trubek 2005, 344). In this case, UIDAI is part of an amalgamated machinery that is supposed to streamline service delivery through data collection and verification; however, as elaborated upon in later sections of this chapter, India’s biometric management system has had notable failings. As a networked assemblage, it has the capacity to short-circuit. I use “assemblage” here to flag that although Aadhaar can be thought of as infrastructure, it is actually constituted as a “multiplicity of heterogeneous objects, whose unity comes solely from the fact that these items function together, that they work together as a functional entity” (Patton 1994, 158). Assemblages can materialise through events, but they are not fixed or stable; they can fluctuate along different registers that cross time and space. Thus, in addition to concerns of technocratic utility, the scrutiny of Aadhaar offers a space in which we can glean insight into how nationalist agendas and inequalities inform the terms and conditions of biometric surveillance systems and how they materialise in citizens’ lives in differential ways. 

In particular, this chapter discusses how UIDAI’s one-way expectation of transparency, which is aimed at recipients of social assistance, illustrates how knowledge and authority coalesce in the contemporary expression of structural power. It shares Strange’s appreciation of granular analyses, as Germain elaborated earlier in this book, as a necessary mode of interrogating the details of a concern in order to understand its material effects. Here, I consider some of the intricacies through which power is being fashioned while retaining critical focus on the “big picture” as Strange would. However, and distinct from Strange, I do so in a way that accounts for entanglements of technologies, bodies, and social categories of difference, which are reflective of interlocking systems of inequality and oppression that are part of the Indian state. The argument put forth here departs from traditional Strangean analyses found in International Political Economy. Unlike Strangean analyses’ tendency to overlook questions of gendered inequality, I embrace feminist calls to look at how “surveillance is integral to many of our foundational structural systems, ones that breed disenfranchisement, and that continue to be institutionalized” and to critically attend to how “underlying structures of domination” inform surveillance activities (Dubrofsky and Magnet 2015, 7). This chapter therefore attends to a wider range of structural formations of difference, including race and racism as well as gender and sexuality, as it examines the exercise of state power. The remainder of the chapter proceeds in four parts. The first section discusses the longer trajectory of states using knowledge about its residents as a central method of governing populations within its jurisdiction. A reflection on specific contours and features of India’s national identification initiative follows. The next section considers the specifics of Aadhaar in relation to insights gleaned through the literatures on surveillance, transparency, and governance, explaining specific contributions from the Indian example. I conclude by contemplating this case study’s implications for how we think of knowledge, particularly its role in the growing range of practices that can be understood as biogovernance, which generally speaking, is the governance of populations and individual humans through science and technology.

Bodies, Seas and Personhoods

'Rethinking Body Property' by Kara Swanson in (2016) 44(1) Florida State University Law Review 193-259 comments

Body products, including blood, gametes, and kidneys, are a routine part of contemporary medicine. They are also controversial. There is a strong preference for donated gifts, based on an intuition that gifts are pure, altruistic, and healthy, and that purchased products (commodities) are tainted, exploitative, and dangerous. Law and policy reflect this dichotomy, preventing market exchanges either by declaring body products non-property or banning sales by the supplying body. Yet with growing scarcity leading to injustice in the allocation and harvesting of body products, calls to allow sales have been increasing, motivating proposals to increase supplies by compensating bone marrow and breast milk suppliers. 

This Article contributes to these pressing debates in two ways. First, it uses original historical research to demonstrate that the morally inflected gift/commodity dichotomy is a historical artifact, neither universal nor inevitable, and thus need not be the assumed basis for law and policy. Second, in a novel use of the intellectual history of property, it brings body products for the first time into the framework of recent progressive property scholarship to rethink body property …

‘A Case for Granting Legal Personality to the Dutch Part of the Wadden Sea’ by Tineke Lambooy, Jan Venis and Christiaan Stokkermans in (2019) 44(6) Water International 786 comments 

The Wadden Sea is the largest unbroken system of intertidal sand and mud flats in the world, with natural processes undisturbed throughout most of the area. It is rich in biological diversity. This World Heritage area encompasses over a million hectares and covers a multitude of transitional zones between land, sea and freshwater environments (UNESCO.org,). The Wadden Sea is shared between the Netherlands, Germany and Denmark. Below, any reference to the Wadden Sea is to the Dutch part of it only (except where the contrary is evident). 

The people of the Netherlands highly value the Wadden Sea. It was voted the most beautiful nature area of the Netherlands (UNESCO, 2016; NRC, 2016b). The Dutch Wadden Islands, the Wadden coast and the Wadden Sea draw millions of tourists every year, who enjoy its vastness and tremendous biodiversity. The Wadden island of Texel made it into the Lonely Planet 2016 Top 10 Europe Destinations List (NRC, 2016a; NL Times 2016) for its ‘unspoiled dune landscapes’, ‘wildlife reserves’, ‘gloriously deserted white-sand beaches’ and ‘pine forests’. A natural area that is both beautiful and unique, the Wadden Sea is alive. Twice a day it breathes in and out, with high and low tide. 

Dangers such as economic activity and splintered governance are threatening the area. In response, two of us were involved in a proposal made last year to grant legal personality to the Dutch Wadden Sea (Van de Venis, Lambooy, & Berkhuysen, 2018). The objective of that proposal was to maintain the ecosystem in a healthy condition for future generations. The proposal was inspired by an emerging international trend of granting rights and legal personality to important ecosystems such as a river or mountainous area. 

More recently, on 20 June 2019, the Dutch Government presented an initiative for rapid improvement of Wadden Sea management. It proposes the creation of a Wadden Sea Management Authority (Beheerautoriteit Waddenzee) to enhance cooperation and mutual consultation between various authorities involved with the Wadden Sea. As welcome as this first step may seem, it may not suffice to address the Wadden Sea’s challenges in the middle and longer term. On 12 July, the municipality council of Noardeast-Fryslân, which encompasses and borders a large part of the Wadden Sea, adopted a motion calling for more rights for the authority. The motion calls for the Wadden Sea to be granted its own and independent identity and place in the Dutch legal system, similar to a municipality or company (Omrop Fryslan, 12 July 2019). 

With all this in mind, the following will be discussed below. First, we provide some more background on the Wadden Sea, its attractions, protection and challenges and highlight some international precedents on the granting of rights to nature. After that, we explore the concept of legal personality under Dutch law and make the case for a novel type of legal person – we call it a ‘natureship’ (natuurschap). This type may be well suited for both the Wadden Sea and other Dutch natural areas deserving a similar level of protection and governance. In the concluding part of the article, we summarize our findings and discuss the opportunity and need for further research on this topic.

TRIPS

'TRIPS Wars: Developing Countries Strike Back' (Texas A and M University School of Law Legal Studies Research Paper No. 19-08) by Peter K Yu comments

 This chapter focuses on the "TRIPS Wars," which involved the developed countries' repeated strikes on the sovereignty, autonomy and policy space of developing countries. These strikes began with the establishment of the TRIPS Agreement, which was then followed by the increasing efforts to negotiate TRIPS-plus trade and intellectual property agreements. 

Notwithstanding these repeated strikes, developing countries have been learning fast. After a decade of mobilization and adjustments, they have now slowly acquired the ability to launch counter-strikes. These counter-strikes are important because they may provide the flashpoints for future tensions and conflicts in the international intellectual property regime. 

This chapter begins by discussing the impact of the TRIPS Agreement and TRIPS-plus trade and intellectual property agreements on developing countries. It then examines the developing countries' counter-strikes at the WTO — including those at the Doha Round negotiations, the TRIPS Council and the WTO Dispute Settlement Body. The chapter concludes by highlighting the developing countries' efforts to establish pro-development initiatives at WIPO and other international regimes.

Religious Freedoms

'The Right to Freedom of Religion and the Right against Religious Discrimination: Theoretical Distinctions' (Oxford Legal Studies Research Paper No. 14/2019) by Tarunabh Khaitan and Jane Calderwood Norton argues that

while they are often conflated, the right to freedom of religion and the right against religious discrimination are in fact distinct human rights. Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. The right against religious discrimination is best understood as protecting our non-committal interest in the unsaddled membership of our religious group. Thus understood, the two rights have distinct normative rationales. These differences reveal a complex map of two overlapping, but conceptually distinct, human rights which are not necessarily breached simultaneously.

Prisons

'Prison Crime and the Economics of Incarceration' by Ben Gifford in (2019) 71(1) Stanford Law Review 71-135 comments

As the United States's prison and jail populations have skyrocketed, a wealth of empirical scholarship has emerged on the benefits and costs of incarceration. The benefits, from an empirical perspective, consist of the amount of crime prevented by locking people up, as well as the value of that prevented crime to society. The costs consist of direct state expenditures, lost inmate productivity, and a host of other collateral harms. Once these benefits and costs are quantified, empirical scholars can assess whether it "pays," from an economic perspective, to incarcerate more or fewer criminals than we currently do. Drawing on this academic literature, policymakers at all levels of government have begun using cost-benefit analysis to address a wide range of criminal justice issues. In addition to evaluating broader proposals to increase or decrease incarceration rates, policymakers are assessing the costs and benefits of myriad narrower reforms that implicate the economics of incarceration. In each of these areas, policymakers rely heavily on empirical scholars' work, whether by adopting their general methods or incorporating their specific results. While these economic analyses of incarceration offer important insights, they suffer from a near-universal flaw: They fail to account for crime that occurs within prisons and jails. Instead, when scholars and policymakers measure the benefits of incarceration, they look only to crime prevented "in society." Similarly, when they measure the costs, they ignore the pains of victimization suffered by inmates and prison staff. This exclusion is significant, as prison crime is rampant, both in relative and absolute terms. To address this oversight, this Article makes several contributions. First, it provides a comprehensive review of the literature on the benefits and costs of incarceration, and it explores a range of ways in which policymakers are applying this economic framework. Second, it makes a sustained normative argument for the inclusion of prison crime in our economic calculus. Third, it draws on the scarce available data to estimate the impact that the inclusion of prison crime has on our cost-benefit analyses. As might be expected, once prison crime is accounted for, the economics of incarceration become significantly less favorable. 

 Gifford argues

The past few decades have seen an explosion in the number of Americans behind bars. In 1980, there were 503,600 inmates in our nation's prisons and jails. By 2015, that number had jumped to 2,172,800. When individuals on parole and probation are taken into account, the adult correctional population in the United States is nearly 7,000,000, or 1 in 37. What's more, the United States is an outlier. Although other Western democracies have seen increases in their prison populations over the same period, the United States currently incarcerates "more than any other country on Earth," in both overall and per capita terms. Indeed, while the United States has only 5% of the world's population, it claims nearly one-quarter of the world's prisoners. 

Given the sheer size of our recent carceral surge, it is natural to ask whether we are now locking too many people up, and how we would know if we were. A plethora of empirical research has tried to answer these questions using traditional principles of cost-benefit analysis. According to this framework, the benefits of incarceration are measured in terms of the value of crime that is avoided by putting criminals behind bars. The costs are measured by looking to the expenses associated with constructing and operating prisons and jails, the productivity that is lost to society when individuals are incarcerated, and the collateral effects that incarceration has on inmates' families and communities. Once the benefits and costs are tallied, scholars are able to determine whether it "pays" to incarcerate more or fewer people than we currently do. 

Drawing on this academic literature, policymakers at all levels of government are also using cost-benefit analysis to address a wide range of criminal justice issues. In addition to evaluating general proposals to increase or decrease incarceration rates, policymakers are assessing myriad specific reforms that implicate the economics of incarceration. These include changes to substantive and sentencing laws, investments in alternative crimeprevention strategies, and intervention programs aimed at reducing recidivism among those already incarcerated. In each of these areas, policymakers are relying heavily on the work done by empirical scholars, whether by adopting these scholars' general methods or by incorporating their specific findings. 

Of course, by focusing narrowly on quantifiable costs and benefits, researchers and policymakers risk overlooking important (even crucial) considerations, such as the unfairness inherent in imposing certain sentences, or the radically disproportionate impact that incarceration has on minority groups. Any prescriptions drawn from these economic analyses must therefore be read with appropriate qualifications. Cost-benefit analysis nevertheless provides a powerful framework through which to evaluate the criminal justice system. After all, if everything else is held equal, we should try to make policy changes whose benefits exceed their costs. 

While analyses involving the economics of incarceration yield important insights, they suffer from a near-universal flaw: They do not account for crime committed inside prisons and jails. Instead, when scholars and policymakers calculate the benefits of incarceration, they look only to the gross amount of crime avoided in society. Similarly, when they calculate the costs of incarceration, they almost always fail to consider the costs of victimization behind bars. For economic analyses of incarceration, and the laws and programs that rely on those analyses, prison crime simply doesn't count. 

This exclusion is significant. Although available data is scarce, the information we have suggests that crime, especially violent crime, is rampant in prisons and jails. As an illustration, the most recent National Inmate Survey, conducted by the Bureau of Justice Statistics (BJS), found that between 3% and 4% of inmates "reported experiencing one or more incidents of sexual victimization by another inmate or facility staff in the past 12 months or since admission to the facility, if less than 12 months." Compare this with the national self-reported rate of rape and sexual assault over the same period, according to the BJS's National Crime Victimization Survey (NCVS): less than 0.15%. While both of these figures may reflect significant undercounting, they imply that the amount of sexual victimization that occurs inside prisons and jails, in absolute terms, is within an order of magnitude of the amount that occurs outside. And sex crimes are only one type of victimization that occurs behind bars. By failing to account for such a substantial amount of crime, scholars and policymakers paint an unrealistically favorable picture of the economics of incarceration. They correspondingly understate the value of programs that keep people out of prisons and jails. 

In order to address this oversight and more accurately assess the costs and benefits of incarceration, this Article makes several contributions. First, Part I surveys the literature on the economics of incarceration, with particular attention to studies that measure the amount of crime that incarceration prevents, the value of that prevented crime to society, and the costs of incarceration. Part II then explores a range of different policy applications involving the economic framework introduced in Part I. As Part II illustrates, policymakers at all levels of government are applying a cost-benefit framework to evaluate not only general proposals to increase or decrease the prison population, but also a host of specific laws and programs that implicate the economics of incarceration. 

Next, Part III highlights the near-universal manner in which prison crime is excluded from economic analyses, and it examines the possible justifications for this exclusion. Although these justifications are rarely articulated, they appear to rely either on the view that prison crime is part of the punishment that criminals deserve, or on the related view that prison crime is preferable to crime in the outside world. Part III argues that these views are misguided, and it draws on the concept of economic "standing" to show that we are not justified in excluding prison crime from our cost-benefit analyses. 

Finally, Part IV looks to the scarce data available on the prevalence of prison crime, and it estimates the impact that inclusion of this data has on economic analyses of incarceration. Even when we confine our inquiry to the costs associated with violent victimization, Part IV finds that accounting for prison crime has a significant impact on our cost-benefit analyses: Regardless of the assumptions we use, the costs of incarceration increase substantially.

Liens

'The Case against the Equitable Lien' by Michael JR Crawford' in [2019] 42(3) Melbourne University Law Review comments

 Recent analyses of proprietary remedies have overwhelmingly focused on the constructive trust. This article investigates a less prominent proprietary remedy: the equitable lien. Though the lien is not as intrusive a remedy as the trust, because it insulates a creditor from the consequences of his/her debtor’s insolvency, it raises many of the same questions. If a lien is to be justified, there must be some compelling reason for preferring the claims of some general creditors at the expense of others. This article argues that it is very difficult to demonstrate why some creditors are more deserving than others. Excepting a small number of anomalous instances in which the lien can be justified on instrumental grounds, the effect of the equitable lien is to discriminate between creditors whose claims are, in all material respects, indistinguishable. 

 Crawford argues

An important project in contemporary private law scholarship has been the attempt to develop a principled basis for determining, across a range of claims, which plaintiffs should be awarded a proprietary remedy and which should be restricted to an award of damages. This attempt to place the law of remedies on a more rational footing has not come before time. As Bant observed, the law has largely failed to disclose a coherent rationale for the divergent treatment of seemingly similarly situated plaintiffs. Given that the decision to grant or withhold a proprietary remedy has significant con- sequences for both the plaintiff and the defendant’s general creditors, the failure to explain why apparently like cases are treated differently is a serious deficiency in the law. 

To date, the literature on proprietary remedies has principally focused on the constructive trust. Another important, though less prominent, remedy is the equitable lien. As a security right, the lien is not as intrusive or extensive as the constructive trust. Nevertheless, because it insulates the lienee from the consequences of his debtor’s bankruptcy, it raises many of the same difficult questions. 

Unlike other analyses of the lien, the purpose of this article is not to explain the nature of the lien or to attempt to rationalise what Waters described as the ‘themeless rag-bag’ of circumstances in which it arises. Instead, it asks whether this form of non-consensual security right can be justified at all. The unavoidable truth about the lien is that it can only be conferred on a plaintiff at the expense of the defendant’s other general creditors. Thus, if the creation of a lien is to be justified, there must be some compelling reason for preferring the claims of some general creditors at the expense of others. The argument advanced in this article is that it is very difficult to demonstrate why some general creditors are more deserving than others. Excepting a handful of anomalous instances in which the lien can be justified on instrumental grounds, the effect of the equitable lien is to discriminate between creditors whose claims are, in all material respects, indistinguishable.

Drones

'Drones and Invasions of Privacy: An International Comparison of Legal Responses' by the late Des Butler in (2019) 42(3) UNSW Law Journal 1039 comments

 Privacy has been recognised nationally and internationally as a major challenge posed by the growing proliferation of drones, otherwise known as ‘remotely piloted aircraft’, ‘small unmanned aircraft’ or ‘unmanned aircraft systems’, with surveillance capability. Currently in Australia an uneven landscape of common law causes of action, surveillance statutes and data protection laws provide fragmented protection of privacy. This article compares that legal response with those of the United Kingdom and the United States. It identifies commonalities and differences between those approaches that may be instructive as Australia determines the appropriate response to the potential of invasion of privacy posed by this form of transformative technology. 

 Butler argues

One evening in April 2017, a 27-year-old woman in Darwin returned home from the gym, took off her clothes and went skinny-dipping in what she thought to be the seclusion of her backyard pool. However, she soon became aware that she was not alone and was shocked to see a small drone hovering 10–15 metres above her head. One month later, a similar surprise awaited a Sydney woman who stepped out of the shower of her fifth floor apartment and saw a drone looking back at her through a window. Drones are now also being employed to spy on prominent individuals for commercial purposes. For example, there have also been reports of drones being operated by paparazzi to spy on public figures. These reports highlight the potential for drones to be used in ways that may infringe on the privacy rights of others. 

In addition, drones are increasingly being employed for other diverse purposes, such as surveying, inspection of pipelines and other infrastructure, filmmaking, monitoring of crops and vegetation, real estate listings, emergency services and surf rescue. Drones may play an increasingly important role in journalism, since they offer a more cost effective alternative to helicopters and may be valuable tools for newsgathering in the public interest in circumstances where other means are not available. However even such activities may inadvertently impinge upon an individual’s privacy, as occurred when a Victorian woman who was sunbathing topless in her backyard was accidentally photographed by a drone that had been commissioned by a real estate firm to advertise a neighbour’s property. In addition to high definition cameras, drones may now be equipped with a variety of technology including facial recognition software, thermal scanners and licence plate readers. 

The recreational use of drones has grown exponentially, promoted through their sale in electrical goods shops and department stores, where a remotely piloted aerial vehicle with a high-quality video camera with streaming capability may be purchased for as little as $100. With such technology capable of being used ‘out of the box’ without specialist knowledge or training, there is an evident risk to not only the safety of the person and/or property but also the privacy of other individuals. 

The Australian experience of invasions of privacy by drones is not unique – it is a growing phenomenon around the world. Indeed, when addressing the inaugural World of Drones Congress in Brisbane in 2017, American futurist Thomas Frey predicted that by 2030 there could be as many as 1 billion drones in the world, each with the capacity of intentionally or unintentionally capturing images of individuals. The legal responses to potential invasions of privacy associated with the use of drones may include dedicated common law causes of action for invasion of privacy, more general common law causes of action that may extend to protect privacy, dedicated statutory causes of action for breach of privacy, privacy legislation that may extend to drones and legislation that specifically applies to invasions of privacy by drones. Such responses of other countries may therefore be instructive when considering the current and possible future responses of the law to this form of invasion of privacy in this country. 

Following this introduction, this article examines the regulatory and privacy laws that are relevant to invasions of privacy by drones in each of Australia, the United Kingdom and the United States. While regulation and privacy protection may be thought of as distinct issues, they are nonetheless intertwined: for example, limitations placed on where and how drones may be used may affect the opportunities to use a drone to invade another’s privacy. The article then identifies commonalities and differences that may be instructive as Australia determines the appropriate response to the potential of invasion of privacy posed by this new form of technology.