Trauma

'The Pain I Rise Above': How International Human Rights Can Best Realize the Needs of Persons with Trauma-Related Mental Disabilities' by Mehgan Gallagher and Michael L. Perlin comments 

Persons with mental disabilities — and specifically those with trauma-related mental disabilities — must seek to rise above their pain each day, in a world that is not designed to understand or have compassion for their individualized needs. This population is disproportionately traumatized, not only by the existence of their disability, but also by how others treat them. This article explores how international human rights documents — particularly the UN Convention on the Rights of Persons with Disabilities (CRPD) — can be used to realize the rights of dignity, respect, and equality for persons with trauma-related mental disabilities, and how trauma-informed practice, therapeutic jurisprudence, and problem-solving courts can be utilized to ensure the protection of the rights of individuals with trauma-related mental disabilities.

Privacy Policies and Ideology

'Are Privacy Policies Informational or Ideological?' by Jane R. Bambauer in (2017) 66 DePaul Law Review 503 comments

Consumer privacy is predominantly regulated through disclosure. The Federal Trade Commission (FTC) strongly urges American businesses to notify consumers about their privacy practices, and the agency is considering requiring “just-in-time” disclosure that would make these notices more salient and aggressive. American law contains many mandated disclosure rules, and they fall along a spectrum. Some disclosures are indisputably good policy because they alert consumers about material risks that all would agree are bad, such as product warnings about latent dangers of physical harm. These long-accepted “informational” disclosures are compatible with the compelled speech doctrine of the First Amendment. Other mandated disclosures are arguably poor policy because they mislead consumers and cause foreseeable overreactions. For example, mandated disclosures about the presence of mercury in vaccines, about the foreign origins of products, or about raw correlations between depression and abortion technically consist of factual statements. Nevertheless, they should be treated as “ideological” disclosures running afoul of the compelled speech doctrine. 

Much less is known about mandated disclosures that fall in the middle of the range, between clearly informational and clearly ideological disclosures. Mandatory privacy disclosures seem to fall in this middle range. These disclosures do not have the virtue of alerting consumers to risks because they concern attributes that consumers do not consistently see as positive or negative. Some disclosures are useful for preference matching where consumers value a product more after learning about an attribute, while others value it less. Some disclosures are useless, meaning that consumers informed about the attribute do not change their valuation at all. These middle range disclosures may be wasteful, but they are not fraudulent or distortive. How should the First Amendment treat the laws that mandate disclosure about these attributes? This essay presents a theory and practical instrument for distinguishing between informational and ideological mandated disclosures, and shows that at least some of the privacy policies required by law are constitutionally suspect.

Apology

'The Failure of ‘Sorry’: An Empirical Evaluation of Apology Laws, Health Care, and Medical Malpractice' by Benjamin Michael comments

As part of the effort to contain the size and frequency of medical malpractice claims, many states have adopted apology laws. These laws make apologies from physicians to patients inadmissible in any subsequent court proceedings. The basic rationale behind apology laws is that meritless malpractice claims are less likely to be filed when a physician can apologize to his or her patient without risking those statements being used in court. Through the use of a unique dataset, this article corrects several misunderstandings concerning this new generation of tort reform. 

First, it shows that while apology laws may reduce the frequency and size of malpractice claims as intended, they may also have a perverse effect on patients’ propensity to litigate. If a physician knows more about whether a patient’s injury was caused by malpractice than the patient, an apology could alert the patient to that malpractice and encourage the filing of a claim. 

Second, the article provides the first empirical analysis of the effect of apology laws on clinical outcomes, investigating their ability to reduce the practice of defensive medicine. Examining over 1.6 million hospital stays for heart attack patients, the article finds no evidence that apology laws reduce defensive medicine. Apology laws do not decrease the intensity of treatment received by patients. In fact, they increase the medical resources used to treat heart attack patients, consistent with an increase in defensive medicine. Based on these empirical findings, the article concludes that apology laws are not effective tort reforms and that states should look to other policies if they wish to achieve the goals of apology laws.

'Promoting and Protecting Apologetic Discourse Through Law: A Global Survey and Critique of Apology Legislation and Case Law' (2017, 7(3) Oñati Socio-Legal Series) by John C. Kleefeld comments

The year 2016 was a milestone for the law-and-apology field, marking the thirtieth anniversary of the first general law aimed at enabling apologies for civil wrongs, introduced in Massachusetts in 1986, as well as the tenth anniversary of the Apology Act, enacted in British Columbia in 2006. The Apology Act seeks to promote apologies and apologetic discourse as an important form of out-of-court dispute resolution, chiefly by making apologetic statements inadmissible for proving liability in civil wrongs. It has served as a benchmark from which subsequent law reform efforts in Canada and abroad have been measured. In 2017, that benchmark was passed with the enactment in Hong Kong of the most ambitious apology law yet, which privileges not only statements of remorse, but also statements of facts embedded in apologies. This article summarises global apology legislation and court decisions to date. Part I considers each major jurisdiction, starting with the USA and concluding with Hong Kong. Part II draws some conclusions about where we have been and where we are going in our efforts to promote or protect apologetic discourse, including recommendations on interpreting existing laws and on drafting or redrafting apology legislation.

Plant IP

The thoughtful 'Information Intellectual Property and the Global Information System for Plant Genetic Resources for Food and Agriculture' (Griffith University Law School Research Paper No. 17-21) by Charles Lawson comments 

The International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty) establishes a mechanism for the accessing and sharing of some plant materials. An essential element of that accessing and sharing is information about the materials including information (and data) about the characterisation, regeneration and evaluation of the materials. A “Global Information System” (GLIS) will allow much of this information to be made available and shared. This article reviews the information obligations imposed by the Plant Treaty and its associated “Standard Material Transfer Agreement” on the collection and disclosures of information and other legal obligations that will likely shape the form and function of the GLIS. The article concludes that the GLIS will need to carefully distinguish between information that is freely available and information that is subject to legal restrictions.

Corrections

The NSW Audit Office report on Therapeutic Programs in Prisons states

When a prisoner enters custody in New South Wales, there is an expectation that they will be offered therapeutic programs that reduce their risk of reoffending. Relative to the costs of providing them, these programs have wide-ranging benefits for prisoners and the broader community, and provide significant savings to the justice system. Corrective Services NSW has lead responsibility for ensuring relevant and effective programs are provided, and for the Premier’s Priority of reducing reoffending by five per cent by 2019.

In New South Wales, a significant majority of people convicted of an offence will eventually be reconvicted. Of those convicted of an offence in 2004, 79 per cent had been reconvicted of another offence by 2014 – half within the first year of their initial offence. The total cost to the community of reoffending is difficult to fully quantify. However, the potential to reduce costs to the prisons system alone by reducing reoffending is significant given the average costs of a prison stay is $167 per prisoner per day over an average 218 day sentence. Total prison system costs in New South Wales were $720 million in 2016.

To help achieve its mandate to reduce reoffending, Corrective Services NSW delivers therapeutic programs in prison and the community, along with a range of vocational, education, supervision, case management and health and wellbeing general services. These programs and services contribute to the central goal of reducing the likelihood that prisoners will return to prison. This audit assessed whether selected therapeutic programs are available, accessible and effective in reducing the risk of reoffending. ...

Conclusion

Corrective Services NSW does not ensure that eligible prisoners receive timely programs to reduce the risk they will reoffend on release. Most prisoners who need programs do not receive one before their earliest release date. These prisoners can be released with no intervention or held in prison longer awaiting a program. Additionally, programs have not been systematically evaluated to confirm they are helping to reduce reoffending in NSW.

In 2015–16, 75 per cent of prisoners who needed programs reached their earliest release date without receiving one. These prisoners are often released with incomplete or no intervention in prison, or are refused parole and held in custody for longer than their minimum term. Corrective Services NSW prioritises prisoners for programs based on their risk of reoffending. However, the 20 per cent increase in the prison population between 2011–12 and 2015–16 has put a significant strain on program resources. While program staffing has increased by 20 per cent over the past two years, the overall proportion of prisoners receiving programs before release has not.

Since 2015, there has been increased roll out of moderate-intensity EQUIPS programs, which reach greater numbers of prisoners. However, over the same period, the number of programs to meet the higher-intensity therapeutic needs of sex offenders and serious violent offenders has decreased or remained the same despite increased numbers of prisoners entering custody that may benefit from them. Corrective Services NSW does not collect and act on information to ensure that coverage of specific program needs among sex offenders and serious violent offenders is sufficient given the increases in these prisoner types.

Corrective Services NSW bases its programs on international evidence and has worked in partnership with independent evaluators to evaluate some programs. However, these evaluations have mostly been inconclusive due to small sample sizes and data quality issues. Further evaluations are proposed, including as a result of an additional $237 million investment in reducing reoffending, which will also see the role out of additional programs and case management initiatives.

75 per cent of prisoners who needed programs did not complete them before the earliest date they could have been released for parole

In 2015–16, 75 per cent of prisoners with an identified program need did not complete a program prior to the earliest date they could have been paroled. If prisoners do not complete programs before their earliest parole date, they can be released having had no, or incomplete, interventions while in prison to address their offending. They can also be refused parole by the State Parole Authority, adding unnecessary length to the time spent in jail and exacerbating overcrowding. Parole refusal data from the State Parole Authority indicates that non-completion of programs was a factor in 84 per cent of 302 parole refusals in 2015.

Program resourcing at the prison level is inadequate to meet increased demand

Lack of availability of programs to meet demand is a key factor preventing prisoners from completing programs in time for release. The 20 per cent increase in the prison population between 2011–12 and 2015–16 has placed a significant strain on resources. While more programs are being delivered, the overall proportion of prisoners receiving them before release has not. Prisoner case management is not performed in a timely and consistent way, resulting in prisoners missing opportunities to be referred to programs, particularly if they have shorter sentences. For example, 27 per cent of prisoners with more than six months to serve had not completed an assessment required to determine eligibility for an EQUIPS program in the past four years.

The mix of available programs may be out of step with the needs of some prisoners

Since 2012, Corrective Services NSW has increased the number of moderate-intensity EQUIPS domestic violence and aggression programs provided and more prisoners overall are now able to participate in programs. Over the same period, the number of intensive programs delivered for sex offenders has decreased and the number of intensive programs for serious violent offenders has remained the same. This is despite increasing proportions of prisoners sentenced for sexual assault and related offences, and serious violent offences.

Corrective Services NSW uses a risk-assessment model to determine which prisoners are eligible for existing programs, but does not regularly review whether there are gaps or insufficient program coverage of some therapeutic needs.

Corrective Services NSW does not collect robust and comparable information on program quality and outcomes

Program performance reporting at the prison level focuses on program throughput, such as the number of programs delivered and the number of prisoners participating. Corrective Services NSW does not routinely collect information on program implementation that would provide insights at the prison level into whether programs are being run effectively, and are achieving their intended goals.

Corrective Services NSW has not systematically evaluated its therapeutic programs to confirm they are effective in reducing reoffending

Programs being delivered in New South Wales prisons are based on international evidence about the success of the specific methods and approaches used. This is a good foundation, but Corrective Services NSW is unable to show that its programs are effective in the New South Wales context, and that they are having an impact in achieving the Premier’s target of reducing reoffending by five per cent. Evaluations of some programs have been conducted, but these were mostly inconclusive because of challenges with data collection, such as developing significant enough sample sizes. A lack of consistent forward planning has also affected the rigour of some evaluations.

With the roll out of an additional $237 million investment in reducing reoffending, Corrective Services NSW proposes to focus efforts on evaluating the effectiveness of its programs by engaging external experts and increasing resourcing in its own evaluation unit. A systematic forward program for independent evaluation, which identifies solutions to existing data gaps and builds on past studies, is needed to support this.

Recommendations

Corrective Services NSW should by December 2017:

1. Implement a systematic approach to the use of convictions, sentencing and case management data to ensure that gaps in program offerings can be identified and addressed.

By June 2018:

2. Clearly establish program delivery staff resourcing benchmarks, based on individual prison profiles, that would meet demand and ensure prisoners receive timely assessments, comprehensive case management and relevant programs before the earliest date they can be released.

3. Establish consistent program quality and outcomes performance indicators at the prison-level, and monitor and respond to these quarterly.

4. Develop and implement a detailed forward program of independent evaluations for all prison-based therapeutic programs, that includes identified data requirements for prisons to collect and provide.

Published Editions

A perspective on Australia's published editions regimes is provided by Guillaume Laroche's 'Settling the Score: Copyright in Modern Editions of Public Domain Musical Works' in (2013) 26(1) Intellectual Property Journal 83.

Laroche comments

Modern sheet music publishers regularly assert copyright claims over their new editions of public domain compositions by long-deceased composers like Mozart and Chopin, yet the legal basis for these claims remains untested. This inquiry argues that most such claims are untenable, and outlines a doctrinal copyright analysis supporting this conclusion in Canadian law and jurisprudence. Following a brief overview of the sheet music publishing industry’s copyright practices and some recent challenges to its preferred status quo, two doctrinal approaches are tested using various editions of Frédéric Chopin’s “Raindrop Prelude”. First, an application of the doctrine of originality, as described in CCH v. Law Society of Upper Canada, reveals that editors’ original expression in most new editions of public domain compositions is difficult to discern. Although some editions meet the required standard, this finding nonetheless jeopardizes many publishers’ copyright claims. Second, the inquiry briefly investigates the nature of musical scores as works, concluding that, contrary to what publishers have sometimes argued, a proper application of the Copyright Act should classify them as musical works instead of artistic works. Finally, the findings of the court in the British case Sawkins v. Hyperion are applied to the Canadian context. The article concludes by discussing some of the policy implications of its findings, contrasting the benefits accruing to musicians with the potentially harmful decisions that some music publishers might make if the Canadian standard were adopted more widely.

Balmain New Ferry

The delicious 'False Imprisonment, Fare Dodging and Federation — Mr Robertson’s Evening Out' by Mark Lunney in (2009) 31 Sydney Law Review 537 argues that

The decisions of the High Court and the Privy Council in Robertson v The Balmain New Ferry Company Ltd retain their place in modern tort texts discussing false imprisonment. This is surprising because the reasoning is frequently considered unclear at best or incorrect as worst. This article considers the case in two historical contexts to evaluate these views. The first context considers contemporary legal doctrine by exploring the significance of the pre-Judicature Act pleading rules applicable in New South Wales and the gap in the contemporary law that made the company’s method of enforcing fare collection problematic. Despite these impediments, the commercial pressures to uphold the system of fare collection proved sufficient to overcome these objections. The second, broader, historical context explores the reaction to the decision of the High Court as an aspect of lingering anti-federal sentiment in New South Wales. The analysis reveals a uniquely Australian context to the decision and reveals the potential of studies of the history of private law to contribute to the history of Australian law more generally. 

Lunney comments

The decision of the Privy Council in the case of Robinson v Balmain New Ferry Co Ltd remains a part of many tort courses and tort textbooks in common law countries. et the reason for including it tends to be to dismiss it as out of line with general principle, as non-representative rather than paradigmatic. It is explained away as an aberration, a task made easier by the eccentricity of its facts. Whilst for explanatory purposes this is a perfectly satisfactory way of dealing with the case as part of the modern law of tort, it leaves open a number of questions. First, if the case was considered contrary to general principle, why did the decisions of both the High Court of Australia and the Privy Council find comprehensively in favour of the ferry company? Analysis of contemporary legal doctrine suggests a lacuna in the law relating to the operation of the system of collecting fares adopted by the ferry company. The matter was of enormous importance to ferry companies: a result in favour of Robertson would have mandated significant change in ferry companies’ practices. The way that the legal lacuna was filled by both the High Court and the Privy Council avoided this commercially undesirable result — albeit with reasoning that gave short shrift to the pleading rules that operated in New South Wales — and ignored well-established limitations on the circumstances in which a person’s imprisonment could be justified. 

The emphasis that Robertson placed on pleading rules in his argument may reveal a subtler context. In the High Court and in the petition for leave to appeal to the Privy Council, Robertson stressed the importance of respecting the pleading rules of New South Wales. The concern that State law might be ignored by the federal High Court needs to be viewed in the context of a High Court that was barely three years old and a federation that had been formed less than a decade before. The reaction to the decision of the High Court demonstrates that anti-Federation sentiment had not simply gone away after 1901. Given the status of the plaintiff, Archibald Nugent Robertson, the decision of the High Court provided a suitable focus for some of that sentiment, in terms of specific criticism of the High Court, as well as for more general expressions of dissatisfaction with Federation. In short, the case demonstrates the potential significance of Australian legal history, in particular the history of private law, to explanations of wider historical trends in Australia, an area that deserves far greater attention than it has thus far received. ... 

This article has attempted to place the decision in Robinson v Balmain New Ferry Co Ltd in its historical context. That context is a complex amalgam with both an internal and an external dimension — a dimension that was understood and controlled by the lawyers and a dimension that went beyond the intricacies of pleading and doctrine. Whatever the merits of the competing legal arguments — and in many ways Robertson’s were stronger — the ferry company was not prepared to limit its case by reference to relatively narrow points of law. By the time the case reached the High Court, the commercial ramifications of a decision in Robertson’s favour were explicitly pointed out by the ferry company. The High Court and the Privy Council were not prepared to jeopardise the established system of fare collection; as the Balmain Observer put it, the ferry company’s rules had been endorsed by its victory. That the decision has proved to be of limited practical importance merely demonstrates its expediency: the commercial imperative of the ferry company could not generate a rule of general application. Viewing the case in its historical context may not change our views as to the result, but it does allow us to explore the interplay between the internal and external dimensions of legal reasoning. It demonstrates that these contexts were not mutually exclusive. As David Ibbetson has shown, the way a case is put by lawyers to the court is fundamental to how the case is decided, and this is evidenced by the varying ways the case was put to the courts by the ferry company’s lawyers. The ferry company was allowed to detain Robertson not just because he had entered into a contract but because the High Court was aware of the commercial consequences of a decision in his favour. This is not to deny the force of reasoning processes internal to law but merely suggests that in some cases, at least in the past, judges and courts did consider the consequences of their decisions, and in doing so, may have considered matters beyond legal doctrine. 

At a broader level, Robertson also shows the value of historical analysis of private law in Australia. The history of tort law in Australia after Federation remains to be written, and Robertson is a good example of the merits of such a project. It reveals an Australian court dealing with a case of first impression that forced it to make new law, a law which was in fact endorsed by the Privy Council. As Bruce Kercher notes, the observation that Australian courts merely copied the English common law ‘should be a commencing point of historical analysis, a hypothesis to explore, rather than a conclusion’. He notes that ‘[w]hen this history is written, we might well find that the High Court was less deferential to English law than we presently assume’. We may also find, as in Robertson, that there were peculiarly Australian contexts in which court decisions and legislation were made. It would be going far too far to think that the High Court justices in Robertson were out to get him, but Robertson does illustrate that decisions are not made in an historical vacuum and, at least to some degree, reflect contemporary historical and political currents. Viewed in this light, the reaction to Robertson represents a remnant of the defeated, but not extinguished, anti-Federation sentiment, a sentiment that at the time was not doomed to failure.

Whatever else this article has achieved, it is hoped that law students of the future may have cause to challenge Harold Luntz’s assessment of Robertson as ‘the arrogant barrister plaintiff’. Pompous he no doubt was, but as this article has demonstrated, he had good reason to think the law was on his side. Nor can one can doubt the sincerity of his belief in the virtue of his cause. We may not have liked him, but we should, perhaps, respect the actions of a man who, in a different era, might have been championed as a defender of civil liberties. 

This article would not be complete without an observation on another well-known aspect of the case — why the authorised report of the Privy Council decision refers to him as Robinson rather than Robertson. There is certainly no error in the Privy Council record, so the mistake must have been made at the printers. An educated guess is that the problem arose from the name ‘Nugent’, an uncommon name which Archibald Nugent Robertson shared with a reasonably well-known contemporary American writer, Nugent Robinson. The printer may well have inadvertently made the connection with Nugent Robinson, and this is what appears in the printed report. The result was, as Professor Tony Blackshield’s ditty on the case records, not only that Robertson lost, but, to add insult to injury, ‘[t]hey couldn’t even spell your name’.