Volenti

'The Volenti Defence under Australian and Canadian Law: A Comparative View' by Marel Katsivela in (2014) 8 Journal of Comparative Law comments

Assumption of risk constitutes a defence in negligence actions in Canada and in Australia. Important similarities but also differences underline the two common law defences. The present study presents and compares the two common law defences. It also comments on some provisions of the relatively recent tort law reform legislation in Australia and on how the legislation interacts with the Australian and the Canadian common law defences.

Katsivela states that the assumption of risk as a well-known defence in the area of torts

exists where the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he runs, agrees to incur it. The defence originates from the Latin maxim volenti non fit injuria (volenti). Under Roman law, it stated a principle of estoppel vis-à-vis Roman citizens who consented to being sold as slaves.   

Volenti reflects the individualism of early common law, drawing from the principle that ‘one is free to work out one’s own destiny.’ During the 19th century, this defence was very important for employers who were usually defendants in actions for injuries the employees had suffered at work. Due to volenti, employees were deemed to have accepted the risks of their employment. With the adoption of apportionment legislation in Canada and in Australia in the 20th century, the scope of assumption of risk became restricted. From that time onwards it is essential to distinguish between volenti and the victim’s contributory negligence. 

Torts—including the assumption of risk defence—remain largely defined by provincial/ state case law in the two countries. However, tort reform legislation adopted by Australian states in 2002-2003 has regulated volenti without repealing the common law defence. As we are going to see later, Canada has not adopted legislation similar to the Australian one. 

The object of the present study is to present volenti in Australia and in Canada and to comment on their similarities, their raison d’être as well as their differences and their possible effect or influence in advancing the law in the two countries. In this regard, we will review the common law defences in the two countries and examine some provisions of the Australian tort reform legislation. We will also focus on how the legislation interacts with the Australian and the Canadian common law defences. Our analysis will be limited to negligence actions rather than intentional torts since assumption of risk arises more often within the scope of the former. Although this defence has been invoked in a variety of negligence actions, we do not aim at examining all its fields of application but, rather, use case law that best illustrates its elements and aids in the presentation of the applicable principles and comparative analysis. 

In undertaking this task, we are conscious of the fact that we are examining rules present in two common law jurisdictions. Jurisdictions sharing the same legal tradition often share common legal reasoning and concepts. However, commonwealth countries (for example, Australia and Canada) have developed distinctive common law rules at the domestic level. Similarities but also differences are often noted when examining specific legal issues or concepts in two or more common law nations. The assumption of risk defence following Canadian and Australian law constitutes no exception. Important similarities but also differences will be observed regarding volenti in the two jurisdictions.  

In commenting on this defence from a comparative perspective, we align ourselves with the third category of comparative law scholars described by Pr. Mehren. These scholars do not reject or embrace convergence of local laws.  They believe that such convergence may or may not occur. Until or unless it takes place, however, they opine that it is the responsibility of comparative law to determine to what degree and the way in which convergence of local laws exists or may be occurring, and to provide the analytical tools that enable jurists from different legal cultures to achieve a shared understanding of their respective intents, positions or views. 

This is precisely the approach the author adopts. We do not know whether convergence of tort law principles will take place at the international level. We do not, however, exclude such a development. Until this occurs, we feel that it is our duty to examine (tort) concepts applicable in different countries in order to shed some light on the rules governing them and identify the degree of their convergence. This will allow jurists worldwide to achieve a better understanding of the laws in different jurisdictions. 

The following sections form the basis of our analysis: the first two sections focus on the presentation of volenti in Australia and in Canada respectively and the third section analyzes the applicable laws. 

Power and Irrationalism

'The Enlightenment Gone Mad (I): The Dismal Discourse of Postmodernism’s Grand Narratives' by Rainer Friedrich in (2012) 19(3) Arion 31-78 comments

[T]here is a discernible commonality among the various branches of postmodernism. They have in common a penchant for passing death sentences and issuing death certificates, promulgating, with either insouciant glee or ponderous gloom, the death of reason; the death of the enlightenment; the death of universalism; the death of normativity and law; the death of meaning and truth—in short, the death of almost everything that the Western intellectual tradition stands for in general and that modernity has claimed in particular. With exorbitant virulence, postmodernism has turned against the anthropocentric and subjectivistic-individualistic tenor in modernity, in particular against its focus on the thinking subject, with the denigration of the Cartesian cogito, yielding further death certificates: the death of man; the death of autonomous subjectivity; the death of the self; the death of the author. Such pervasive negativity, often speaking in apocalyptic tongues, is the chief defining feature uniting the many postmodernisms. This had prompted Jacques Derrida to ridicule his own postmodern camp for the tendency of “going-one-better in eschatological eloquence . . . the end of history . . . the end of the subject, the end of man, the end of the West, the end of Oedipus, the end of the earth, Apocalypse now.” By his own admission, Derrida, as we shall see, has been no stranger to the apocalyptic tone he derides. A murky discourse of death, Postmodernism usurps the epithet from yesterday’s dismal science and accedes to the status of today’s dismal discourse.

In 'The Enlightenment Gone Mad (II): The Dismal Discourse of Postmodernism’s Grand Narratives' in (2012) 20(1) Arion 67-110 Friedrich comments

... Foucault was a voluptuary of power. Detestable to Foucault is only that kind of power that wraps itself insidiously in the language of truth, rationality, science, knowledge, jurisprudence, democracy, popular sovereignty, humanitarianism, and morality; that effaces itself in order to be able to rule with an invisible hand, so that it cannot be combated—detestable is, in short, the power/knowledge régime, the disciplinary power prevalent in the democratic republics. That’s the kind of power Foucault urges resistance to. When calling it, as he occasionally does, productive and creative, Foucault is referring primarily to its ability to invent ever more, and more sophisticated, forms of camouflage and vehicles for its hidden hand. 

Yet power is for Foucault also creative and productive when, for instance, it gives rise to limit-experiences in sado-masochism, a relationship the core of which is sexually charged power—and to Foucault that’s a desirable thing. This hints at the hidden normativity in Foucault’s power-discourse. How to disclose it? I propose a new avenue. Let us seek the criterion for judging and evaluating power within his power discourse, so that we cannot be accused of forcing extraneous norms on it that would subject him to a dis- course he disowns. Foucault does have a criterion by which to evaluate, judge, and condemn the modern power-knowledge régime. It is, quite simply, power—unadulterated, undisguised, self-asserting, authentic power that is. In Foucault’s Grand Narrative there lurks the unreflected and un- stated normativity of good and bad power: power precious and desired versus power ugly and detested. For a starter, here is a passage reminiscent of Batailles’s affective politics:

Power has an erotic charge. . . . How do you love power? Nobody loves power any more. This kind of affective, erotic attachment, this desire one has for power, for the power that’s exercised over you, doesn’t exist any more. The monarchy and its rituals were created to stimulate this sort of erotic relationship towards power. The massive Stalinist apparatus, and even that of Hitler, were constructed for the same purpose. But it’s all collapsed in ruins and obviously you can’t be in love with Brezhnev, Pompidou or Nixon.

 There is an air of regret in this. The culprit for the “collapse in ruins” is quickly identified: 

Humanism is everything in Western civilization that restricts the desire for power: it prohibits the desire for power and excludes the possibility of power being seized. The theory of the subject (in the double sense of the word) is at the heart of humanism and this is why our culture has tenaciously rejected anything that could weaken its hold upon us. But it can be attacked in two ways: either by a “desubjectification” of the will to power . . . or by the destruction of the subject as a pseudosovereign.

Like Nietzsche, Foucault admired the age of the sophists— the age prior to Plato’s inauguration of Western metaphysics that forced the will to power to efface itself and masquerade as the disinterested pursuit of truth. Nietzsche had invoked the “culture of the sophists” (“Sophisten-Kultur”) as “the invaluable movement amidst the moral and idealist swindle of the Socratic schools which was then breaking out in all directions.” In that culture, Foucault holds, arguing in the same vein, “effective, ritual discourse” (rhetoric that is), “precious and desirable,” is “linked to the exercise of power,” “charged with power and peril,” and “respond[s] to desire or to that which exercises power.” In short, in the discourse of the sophists, the overt, undisguised, self-assured will to power was operative. Through rhetorical discourse, as the sophist Polos in Plato’s Gorgias (466b11–c2) unabashedly holds, one can, like a tyrant, have one’s personal and political enemies in the city-states put to death and thus enhance one’s own power. No self-effacement here! It’s the kind of desirable power that humanism prohibits. 

Thus it is overt authentic power that provides Foucault’s Grand Narrative with its criterion for indicting disciplinary power on the charge of establishing the carceral in moder- nity’s democratic societies. The implication of its crypto-normativity is somewhat disconcerting. It appears that any regime, any society, any social formation where the will to power is exercised freely, assertively, and overtly, without masking itself as some form of non-power, is preferable to liberal or social democracy.

Explanation

‘The epidemiology of ‘bewitchment’ as a lay-reported cause of death in rural South Africa’ by Edward Fottrell, Stephen Tollman, Peter Byass, Frederick Golooba-Mutebi and Kathleen Kahn in (2011) J Epidemiol Community Health comments

 Cases of premature death in Africa may be attributed to witchcraft. In such settings, medical registration of causes of death is rare. To fill this gap, verbal autopsy (VA) methods record signs and symptoms of the deceased before death as well as lay opinion regarding the cause of death; this information is then interpreted to derive a medical cause of death. In the Agincourt Health and Demographic Surveillance Site, South Africa, around 6% of deaths are believed to be due to ‘bewitchment’ by VA respondents.

Using 6874 deaths from the Agincourt Health and Socio-Demographic Surveillance System, the epidemiology of deaths reported as bewitchment was explored, and using medical causes of death derived from VA, the association between perceptions of witchcraft and biomedical causes of death was investigated.

 The authors conclude

The odds of having one’s death reported as being due to bewitchment is significantly higher in children and reproductive-aged women (but not in men) than in older adults. Similarly, sudden deaths or those following an acute illness, deaths occurring before 2001 and those where traditional healthcare was sought are more likely to be reported as being due to bewitchment. Compared with all other deaths, deaths due to external causes are significantly less likely to be attributed to bewitchment, while maternal deaths are significantly more likely to be.

 They comment

Witchcraft provides a moral agency framework that can make sense of seemingly random events in space and time, and in South Africa, witches using Muthi (‘medicine’) are said to be able to cause disease and misfortune. This has important consequences for treatment choices; seeking Western healthcare and remedies for witchcraft-related illness is considered redundant or, at best, secondary to traditional rituals, medicines and sacrifices.

In the world’s poorest settings, where belief in witchcraft is prevalent and the burden of disease and premature mortality is highest, the vital events of individual lives are not recorded and medical registration of deaths and their causes is rare. Localised surveillance systems have been established in many resource-poor settings in an attempt to overcome this lack of information. These Health and Socio-Demographic Surveillance Systems (HDSSs) monitor populations in clearly defined geographic areas and record all information on births, deaths and migrations. Since 1992, every death occurring in the Agincourt HDSS, South Africa, is subject to a verbal autopsy (VA), whereby trained fieldworkers interview the closest care giver of the deceased to retrospectively record the signs and symptoms of the deceased. These data are later used to derive a probable cause of death. The VA tool also records the respondent’s opinion as to what, in their opinion, the main or most important cause of death was, which in numerous instances is ‘bewitchment’. This study explores the epidemiology of reported bewitchment and its associations with individual and household characteristics of the deceased, including VA-derived medical causes of death.

 The authors go on to comment

Exploration of the epidemiology of bewitchment as a lay- reported cause of death over a 15-year period in the Agincourt HDSS, South Africa, provides a useful insight into a population’s understandings of death. Illness duration and specific causes of death appear to be important factors associated with the likelihood of a death being reported as due to bewitchment. Deaths following a long illness and those due to obvious external causes are approximately 60-70% less likely to be reported as bewitchment compared with other causes. Conversely, maternal deaths are almost three times more likely to be reported as bewitchment compared with non-maternal deaths when controlling for age and sex groups. This association with maternal deaths, and the greater proportion of bewitchment deaths among women in the reproductive age group of 15-49 years compared with other age-sex groups, suggests that the Agincourt community may associate the sudden deaths of otherwise healthy young women with malicious supernatural causes. ...

The greater proportion of bewitchment deaths in the mid- 1990s may also be related to heightened consciousness of witchcraft activity resulting from politically motivated witch hunts in the area during the early days of post-apartheid. During this transitional period in South Africa, characterised by a climate of uncertainty and long-standing mistrust within and between sectors of society, there was an ‘epidemic’ of occult violence and fear of malicious supernatural forces within the former Northern Province, including the former homeland of Gazankulu in which Agincourt is located. It was also a social climate in which fears about witches flourished, nourished by rapidly expanding charismatic churches that offered sanctuary and support against evil brought by witches. The prevalence of witchcraft during that period has been interpreted by some to be an aggressive rationalisation of misfortune from unknown or uncontrollable forces. Time, and perhaps the gradual success of reconciliation initiatives, may have overcome some of these driving forces towards the beginning of the new millennium, and the incidence of witchcraft-related violence did diminish after 1997.

The study indicates an association between bewitchment beliefs and maternal deaths. Maternal deaths fit well into commonplace understandings of witchcraft. For example, invisible agents or those with a grudge working in mysterious ways and with intent to cause harm target seemingly healthy individuals performing the natural and expected role of child-bearing, causing unexpected illness and death that results in prolonged suffering for the immediate family. Furthermore, witchcraft has previously been identified as an important factor that affects women’s reproductive health, with pregnancy being described as a state of acute vulnerability to the actions of jealous others. Moreover, it is commonly believed that witches are particularly keen on attacking the generative capacities of families and lineages, so an affliction that special- ises in fertile victims and as a consequence of sexual activity is considered tailor-made for their craft. The relative rarity of maternal deaths, the role of women in childbirth and the importance of fertility in African society in general may further explain why maternal deaths are associated with witchcraft in some people’s eyes, perhaps echoing beliefs held in Europe until the 17th century that midwives and witchcraft were closely linked. 

Assigning blame to witchcraft may be a mechanism for dealing with the incomprehensibility of why a woman should die during the natural process of childbirth and the catastrophic consequences of death with respect to infant survival and family life. This can be contrasted to deaths caused by obvious and more comprehensible external causes, such as accidents, homicide and suicide, which were less likely to be reported as witchcraft. 

There is an increasing trend in deaths being reported as due to bewitchment in relation to increasing education level of the deceased, although not statistically significant in the multivariate analysis (tables 1 and 2). It has been shown that education is not necessarily a protective factor against belief in witchcraft and that formal education may in fact contribute to the growth of witchcraft by exposing people to new ways of thinking and conduct. Resulting changes in behaviour may clash with local values resulting in suspicions and accusations of witchcraft.   

If the true medical and social causes of illness are not recognised at the community level, it is difficult to intervene and prevent them. An ethnographical study in Nigeria, for example, shows that discussants believe that reproductive health problems and delivery complications caused by curses and witches can only be cured by traditional healers, animal sacrifices and prayers, with medical interventions considered redundant. Similar beliefs were evident from the open histories of the VAs in the current study. For example, one case report of an 18-year-old woman apparently suffering from postnatal psychosis describes how she was separated from her child and taken to an evangelical church to be healed, whereupon she was tied up with ropes so tight that ‘there were scars on her ankles and arms’. Following 2 weeks with a traditional healer, the woman was sent home and died within hours. This potentially preventable death highlights the devastating consequences that may result from inappropriate and misguided treatment-seeking behaviour, which are likely to be motivated by lay cultural understandings of illness. 

The fact that individuals who sought only traditional treatments for their terminal illnesses were almost six times more likely to have their death reported as bewitchment supports the view that traditional medicine and bewitchment are strongly associated (table 2). Nevertheless, almost 40% of bewitchment cases in this study accessed Western healthcare, occasionally in combination with traditional care (results not shown). This reflects pluralistic healthcare-seeking behaviour characteristic of the Agincourt population and South Africans in general  and is suggestive of a process of health-seeking behaviour in which personal beliefs and actions are continuously debated and evaluated throughout the course of an illness. The apparent willingness to use Western care reinforces the need to improve the accessibility and, crucially, the quality of existing services. In particular, there is an apparent need for enhanced communication to patients and their relatives regarding the meaning of diagnoses and realistic treatment expectations.

Understanding divergences between biomedical and cultural concepts of illness has implications for health measurement techniques. Rather than replicating a purely clinical paradigm, through which the social context of illness and death may edited out, VAs should instead be considered as an interface between epidemiological and ethnographical methods that are able provide important information on the chain of biomedical and social events associated with preventable mortality. As demonstrated by the current study, quantitative exploration of certain local concepts or perceptions of illness may facilitate translation of these culture-specific interpretations into more generic medical models useful for health measurement.

Insights gleaned from the people directly affected by specific health issues are also critical in developing sustainable health programmes and building health partnerships. Planners need to understand barriers and enablers to care seeking which are likely to include local understanding of the causes of illness and consequent perceived appropriateness of Western medicine in the framework of certain world views. With such insights, the perception of witchcraft and its associations with illness and death have real public health implications.

UID

'Aadhaar: wrong numbe, or Big Brother calling?' by Kalyani Menon Sen in (2015) 11(2) Socio-Legal Review comments

Aadhar, touted by its supporters as the ultimate tech solution to India’s development problems, failed to bring the UPA back to power. Despite having trashed it from the Opposition benches, the BJP government is now rolling it out at an accelerated pace despite strong opposition from civil society groups and continuing concern about the technology and its social and ethical implications. This paper examines the of cial justi cations for Aadhar from the perspective of those whose interests it claims to serve.

Experience on the ground suggests that the real attraction of Aadhar for this government lies in its potential as a tool for the promotion of the interlinked agendas of neoliberal globalisation and militarised nationalism. Disguised as “development”, Aadhar is facilitating India’s transition into a society where critics and dissenters are seen as enemies rather than as essential actors in democracy.

The author argues that

India has changed in this last one year – for better or for worse, depending on one’s position on the political map. Old laws are being overhauled, old programmes are being junked, old institutions are being given the coup de grace, old icons are being cleared away from their pedestals and replaced with new idols, the rusty iron frame of the bureaucracy is being pulled apart, holiday lists and restaurant menus are being revised – everything, it seems, is being refurbished and repurposed in the pursuit of one man’s all-consuming vision of development. But the more some things change, the more one thing stays the same. Aadhaar, the magic number that was peddled by the previous government as a wide-spectrum remedy for corruption, exclusion and poverty, is still with us. True, its self-proclaimed creator and his ambitions have disappeared into oblivion, starry airs and high-pro le election campaign notwithstanding. But that seems inconsequential now, when the Modi Sarkar itself, with far less publicity and far more determination, is pushing through his incomplete agenda of converting every single Indian into a number in the world’s largest biometric database.

As a matter of fact, the idea of Aadhaar is rooted in something far weightier than Nilekani’s rosy vision of an IT-enabled India. The proposal for a national identity card was rst oated in 1999 by the Kargil Review Committee, set up to study national security in the aftermath of the Kargil war. The committee recommended issuing of special identity cards to Indian citizens living in border areas in order to distinguish them from illegal in ltrators. In May 2001, a Group of Ministers headed by the then Home Minister L. K. Advani, accepted and expanded this recommendation, suggesting that a “multi-purpose national identity card” be issued to every citizen. In December 2003, the Citizenship (Amendment) Bill, 2003 was introduced in the Lok Sabha by the Home Minister, with a clause empowering the central government to “compulsorily register every citizen of India and issue national identity card to him [sic].”

However, this history was more or less buried by the time Aadhaar was nally launched in 2009 by the Congress-led UPA government. The UPA’s publicity pitch presented it as a “game-changer,” a magical techno-fix whereby the hitherto excluded could claim their fair share of the fruits of development. Rumblings to the contrary – concerns around security, privacy, profiling, data-creep, targeting – were dismissed as the carping of professional nay-sayers with little concern for the needs and priorities of the poor.

The modus operandi is very different now. Gone are the days when grandiose announcements of Aadhaar-enabled service delivery by the powers-that-were were stymied and undermined by sceptical judges, lethargic bureaucrats and venal party cadres. Instead, what we have now is a steadily growing list of government services and functions that have been successfully coupled to Aadhaar in various parts of the country. Cooking gas subsidies, house allotments, school scholarships, admission into remand homes and welfare homes, passports, “e-lockers” for archiving documents, bank accounts under the Jan Dhan Yojana,  provident fund accounts, pensions, driving licences,insurance policies, loan waivers and even entry passes for the Kerala Chief Minister’s mass contact programme - all these can be claimed by flashing an Aadhaar card.

One does not know whether the ethical, technical and operational glitches that blocked the UPA from implementing Aadhaar have been addressed and resolved. There doesn’t seem to be much conversation about them anymore. As far as we know, the concerns set out in the first leaflet circulated by the “Say No to UID” Campaign in 200918 still stand.

The Campaign had pointed out that the UIDAI – set up through an executive order as a project of the Planning Commission – did not have a legal mandate for collection of personal data and biometrics. This is still the situation: the National Identification Authority of India Bill was introduced in the Rajya Sabha in 2010, but was rejected in 2011 by the Parliamentary Standing Committee on Finance chaired by Yashwant Sinha of BJP with a recommendation of “back to the drawing board”.

The Campaign had also raised questions regarding privacy and data protection. Apart from the technical issues involved in safeguarding a database of a billion plus, the Campaign also alerted the public to the on-going dilution of existing safeguards. For instance, the UIDAI is allowed to provide personal data in cases where “national security” is invoked. Earlier, such a disclosure required an order from the Union Home Secretary or a State Home Secretary. Now, all it needs is advice from any officer above the rank of Joint Secretary. Moreover, there is no provision to penalise misuse of data obtained under this provision.

Even at that early stage, the Campaign warned that the use of biometric identifiers like ngerprints and iris scans could lead to invalid data and “false positives” for millions of Indians – those whose hands and fingers are worn out from a lifetime of hard labour, or those whose corneas have been scarred by glaucoma, injuries or infections. Activists also demonstrated how ngerprint scanners and iris scanners can be deceived and “spoofed” – false figerprints can be created using latex and adhesives and coloured contact lenses can blur and obscure iris patterns.

Most alarming of all was the fact that the proposed Bill did not contain any mechanisms for credible and independent oversight of the UIDAI. The Campaign pointed out that this would increase the risk of “functionality creep” – the government would be able to add features and additional data to the Aadhaar database without informing or taking the consent of citizens and without re-evaluating the effects on privacy in each instance. The Campaign pointed to the manner in which “national security” was being repeatedly and successfully invoked to defend “encounter killings” and other extra-constitutional actions by the police and armed forces, and warned that this had created an enabling environment for abuse of the UID database to serve undemocratic, illegal and unethical purposes.

Despite the fact that all these concerns remain as valid as when they were first raised – no convincing answers having been offered either by the UPA government or the Modi Sarkar – the government seems determined to go ahead with its grand plans for Aadhar. As this article goes to press, a pilot project has been launched in Bengaluru to give the district police access to databases of the National Population Register, Aadhaar and the Crime and Criminal Tracking Network System (CCTNS) to enable online verification of identity, address and criminal record of those applying for passports.

Lemons

'Why Australia Needs a Motor Vehicle ‘Lemon’ Law' by Stephen Corones in (2016) 39(2) University of New South Wales Law Journal comments

On 30 November 2015, the Legal Affairs and Community Safety Committee of the Queensland Parliament tabled its report, ‘Lemon’ Laws – Inquiry into Consumer Protections and Remedies for Buyers of New Motor Vehicles (‘Queensland Lemon Law Report’). In its terms of reference, ‘lemons’ are defined as ‘new motor vehicles with numerous, severe defects that reoccur despite multiple repair attempts or where defects have caused a new motor vehicle to be out of service for a prolonged period of time’. 

There are three different bases by which a consumer can obtain relief in relation to loss or damage arising from the purchase of lemon motor vehicles. The first basis is where the motor vehicle manufacturer conducts an investigation and there is the possibility of a safety concern with one or more of the parts used in its vehicles. The manufacturer may initiate a voluntary recall of the vehicles in the range and repair the defect free of charge. If the manufacturer does not initiate a voluntary recall, the consumer can commence private action for relief under the consumer guarantee provisions of the Australian Consumer Law (‘ACL’) located in schedule 2 of the Competition and Consumer Act 2010 (Cth) (‘CCA’) and adopted in the states and territories as a law of their respective jurisdictions. The third basis for obtaining relief is for the consumer to complain to the Australian Competition and Consumer Commission (‘ACCC’) or state and territory regulators for a contravention of the prohibition of misleading conduct in section 18 of the ACL; or for false or misleading representations by the manufacturer or dealer in relation to after-sales care, the availability of spare parts and servicing. There is also scope for the ACCC to bring a representative action on behalf of consumers to enforce the consumer guarantees. The ACCC has published a comprehensive industry guide on consumer remedies and obligations created by the ACL. Claims for damages or compensation for death or personal injury arising from lemon purchases are dealt with elsewhere in the ACL.

Reporting Impaired Practitioners

'Views on mandatory reporting of impaired health practitioners by their treating practitioners: a qualitative study from Australia' by Marie M Bismark, Ben Mathews, Jennifer M Morris, Laura A Thomas and David M Studdert in (2016) BMJ Open comments

 Since the time of Hippocrates, doctors have been bound by three core ethical duties: protection of patients (‘I will keep (the sick) from harm and injustice’); confidentiality (‘What I may see or hear in the course of the treatment … I will keep to myself’) and loyalty to the profession (‘To hold him who has taught me this art as equal to my parents’). Codes of practice for other health professions impose similar duties. These duties may conflict sharply with each other in situations where a health practitioner, during the course of treating a colleague, becomes aware of an impairment that may affect the colleague's ability to practice safely.

Since 2010, health practitioners in Australia have had a legal obligation to notify the Australian Health Practitioner Regulation Agency (AHPRA) if they have a reasonable belief that another health practitioner has practiced while intoxicated, engaged in sexual misconduct, significantly departed from professional standards or placed the public at risk of substantial harm because of an impairment (table 1). The purpose of the legislation is to protect the public, by ensuring that practitioners practice in a competent and ethical manner. Controversially, the mandatory reporting duty extends to practitioners who provide clinical care to an impaired practitioner, such as a psychiatrist who treats an anaesthetist with a substance use disorder or a neurologist who cares for a general practitioner with dementia. Such ‘treating practitioners’ and ‘practitioner-patients’ form the focus of this study.

Australia is not the only jurisdiction to have mandated reporting of practitioner-patients. New Zealand7 and some US states have similar requirements. However, three features of the Australian provisions make them unusually far-reaching. First, they apply to treating practitioners in 14 health professions, ranging from Aboriginal and Torres Strait Islander health practice to psychology, not merely to medical practitioners. Second, the reporting requirement is triggered by identification of a past risk of substantial harm, rather than future risks. And third, unlike some US laws, there is no safe harbour from reporting in situations where the practitioner-patient agrees to participate in an approved treatment programme. It should be noted that some exemptions for mandatory reporting by practitioner-patients exist in the states of Queensland and Western Australia, but there is none in Australia's other four states and two territories.

Mandatory reporting, especially by treating practitioners, is controversial. Proponents assert that disclosure of an impairment that places the public at risk of substantial harm is necessary to protect patients. Opponents argue that this approach deters help-seeking and drives impaired practitioners underground. The Australian Medical Association has led the call for treating practitioners to be exempt from the duty to report impaired health practitioners. A recent independent review of the national law, commissioned by the Australian state and federal health ministers, expressed the same view.

Debate over the desirability of imposing mandatory reporting requirements on treating practitioners has occurred against a background of scant evidence about the attitudes and practices of practitioners who encounter such situations. In deferring action on the recommendation of the independent review, the Australian health ministers concluded that ‘data is inconclusive’ and that further research is needed to inform a national approach. To date, the only empirical study into mandatory reporting behaviour in Australia found that such reports are rare events. Over a 13-month period, only 816 mandatory reports were lodged with AHPRA (18 reports per 10 000 practitioners per year)

One shortcoming of previous research was that, as a purely quantitative analysis of reports made to AHPRA, it had almost no information on the settings from which the reports arose, and the motivations and attitudes of the treating practitioners who made them. To better understand the knowledge and attitudes of practitioners towards their mandatory reporting duties and their experiences in dealing with impaired practitioner-patients under the new regime, we collected qualitative data from treating practitioners and medicolegal advisors in each of Australia's six states.

In discussion the authors comment

Australia's mandatory law has been the subject of vigorous debate, but the debate has occurred in a vacuum of evidence about the law's impact or effectiveness and the attitudes and experiences of practitioners in applying it. This qualitative study explored the views and experiences of 18 health practitioners and 4 medicolegal advisors on mandatory reporting by treating practitioners of impaired practitioner-patients. 

Purpose of mandatory reporting 

A major finding of this study relates to interviewees' knowledge of and attitude towards the general purpose of the law. There was widespread acceptance among interviewees that certain types of public health concerns can trump the general duty of patient confidentiality, as they do with respect to other conditions, such as child abuse and infectious disease, which are subject to mandatory reporting. Furthermore, all interviewees agreed that minimising the risk posed to patients by practitioner impairment—the public health policy goal which underpins the mandatory reporting law—is an important aim. Where interviewees diverged was with respect to the question of whether mandatory reporting laws are an effective mechanism by which to achieve this goal. 

Approximately one-third of interviewees opposed mandatory reporting obligations for treating practitioners under any circumstances, opining that decisions about reporting should always be left to individual practitioners. However, a majority supported mandatory reporting requirements for treating practitioners in certain circumstances. Among such guarded supporters were a number of interviewees who had experienced tensions and reticence when faced with the decision of making such a report. In their view, the existence of the legal duty provided practitioners with a ‘lever’ to influence the behaviour of impaired practitioners, offered protections to those who did make reports and underscored the duty to protect the public from harm. 

There are some internal tensions in these findings. On the one hand, some of the practitioners we interviewed opposed any kind of mandatory reporting law. On the other hand, everyone supported the overriding policy goal of minimising the risk posed to patients by practitioner impairment. How can these standpoints be reconciled? One interpretation is that practitioners have misconceived the nature of the reporting duty and its parallels with existing ethical duties to protect third parties from harm. Perhaps the kind of case they envisage as triggering the requirement to report is not, in fact, the target of the law. Indeed, the Medical Board has seen the need to issue a number of statements clarifying that the threshold for reporting is high and is not triggered in situations where a practitioner is compliant with treatment and any risk to the public has been appropriately managed. An alternative interpretation is that practitioners have adopted a utilitarian approach and believe that the good achieved by reporting practitioners with impairments—at least under the current regulatory system—is outweighed by the harm associated with discouraging other impaired practitioners from seeking help for their impairing conditions. 

Interface with clinical practice 

Another major finding is that, regardless of whether they supported the existence of a mandatory duty to report, all interviewees identified deficiencies in the way that the legal regime currently operates. These concerns focused on three areas: knowledge, content and administration of the law. 

Knowledge of the law 

The first concern was that, while the medicolegal advisors had a predictably strong knowledge of the law, most interviewees felt that health practitioners did not have a clear understanding of their obligations. (Indeed, it was apparent that the interviewees themselves, who were sampled specifically because of their familiarity with the reporting regime, exhibited a shaky grasp of some of its details.) Studies of other mandatory reporting regimes have also found that mandated reporters often do not have the required training to properly fulfil their role. A fundamental tenet of the rule of law is that a law must be reasonably intelligible, clear and predictable for those to whom it applies. Yet interviewees relied heavily on medical indemnity providers for advice on their reporting responsibilities. 

Interviewees also noted that it was difficult to access any case studies on mandatory reporting by treating practitioners or to obtain real-time advice on their obligations from AHPRA. This reported absence of sufficient education is a flaw in implementation. However, it is a remediable flaw. All practitioners need and deserve sufficient education about the nature of the mandatory reporting law, its context, purpose, scope and method of implementation. This will better enable effective reporting behaviour, limit ineffective reporting behaviour and foster attitudes conducive to relevant policy goals.20 ,23 One component of this training should be case studies demonstrating the range of potential scenarios and appropriate responses. In particular, concrete information on what constitutes a ‘substantial harm’ is essential. At present, far too much is left to the eye of the beholder. Such education would provide treating practitioners and practitioner-patients with the understanding necessary to ensure smooth operation of the reporting rules. Besides enabling reporters to fulfil their duties, it may help dispel misperceptions that discourage help-seeking among impaired practitioners. 

Content of the law 

The second concern was that the wording of the law failed to accord with the realities of clinical decision-making. Interviewees emphasised a range of clinical and contextual factors—not mentioned in the legislation—that need to be taken into account in resolving the three-way tension between patient confidentiality, protection of the public and loyalty to colleagues. This finding resonates with previous research on mandatory reporting of child abuse, which showed that a range of case characteristics influence reporting intentions. 

As it stands, some elements of discretion are already built in to the reporting duty. For example, the concept of ‘reasonable belief’ requires the practitioner to discern grounds for believing that the practitioner has an impairment and that, because of the impairment, the practitioner has placed the public at risk of substantial harm. If these conditions are not present, the duty is not activated and the practitioner is entitled to take other lesser steps to encourage the practitioner to seek assistance voluntarily. Seen in this way, the legal duty does already offer some leeway for choices to be informed by the clinical context and circumstance. However, practitioners remained concerned that the focus on past behaviour fails to take into account whether or not a practitioner-patient was willing and able to comply with an appropriate treatment plan. This finding is consistent with a recent review of mandatory reports by treating practitioners which found that most mandatory reports involve a practitioner-patient who lacks insight, is dishonest with the treating practitioner or shows a reckless disregard for patient safety. 

Administration of the law 

Finally, some interviewees expressed a lack of confidence in the ability of the regulator to respond to mandatory reports in a fair, timely, predictable and effective manner. This finding is consistent with results of previous studies that have found that failure to make a mandatory report is often associated with a belief that reporting will not result in an effective response. The concern is further heightened in the context of reporting an impaired peer. Involvement in medicolegal processes can be highly stressful, for whistle-blowing practitioners and for health practitioners who are subject to complaint. 

When regulatory outcomes are seen as unpredictable, or likely to exacerbate rather than address the impairment, incentives not to report, spurred by considerations of patient confidentiality and professional loyalty, are more likely to hold sway.  

Research in other contexts has shown that mandated reporters respond well to their duties, and sustain their intrinsic confidence and commitment to fulfilling them, when supported by robust and responsive systems. A sound regulatory system needs to possess sufficient oversight and responsive capacity and the system must not only require compliance by the regulated actors, but must demonstrate accountability to those actors. In this context, this could include (1) ensuring prompt responses to reports, (2) provision of information to the reporter about the resulting processes and outcomes and (3) appropriate and proportional responses to the concern, occurring along a spectrum from providing support and rehabilitation to disciplinary measures.

The authors conclude

On the basis of the findings from this study, we offer three recommendations for improving the operation of Australia's mandatory reporting regime, as it is applies to the obligations of treating practitioners with respect to practitioner-patients. These recommendations aim to reduce the tensions—real or perceived—between competing considerations of public protection, confidentiality and loyalty. 

First, greater efforts should be made to educate practitioners about the scope of their duty under the law. At a minimum, these efforts must provide practitioners with guidance regarding how they approach the more subjective elements of the law, including the concepts of ‘reasonable belief’ and ‘substantial harm’. In a recent case involving an impaired pharmacist, a Tribunal in New South Wales expressed concern that the failure to make a notification was “indicative of a failure to understand, or properly implement, the mandatory notification provisions in the National Law.” 

If many practitioners do not know the precise scope and function of the law, or worse, have a misinformed and an exaggerated sense of their reporting obligations, they are almost certainly more likely to view the law as a blunt instrument that is insensitive to the realities of clinical practice. Second, even supporters of the law should accept that it has a flaw that is out of step with similar regimes in other places and should be rectified. Under the current law, any practitioner who has placed the public at risk of substantial harm in the practitioner's practice of the profession because of an impairment must be notified, even if their condition is now being effectively managed. The reporting duty should be amended to explicitly assure access to confidential treatment (ie, no need to report) for practitioners who voluntarily participate in an agreed treatment plan and take necessary steps to protect patients from harm (eg, by limiting the nature or extent of their practice for a period of time). This would largely restrict notifications to situations where a practitioner is unable or unwilling to comply with an appropriate management plan and may therefore encourage help-seeking behaviour among practitioners with health concerns. 

Finally, regulators, practitioner health programmes, educators, insurers and professional bodies should work together to ensure that mandatory reports result in a fair, sensitive and timely response. Concerns that the regulatory response to mandatory reports is slow, stressful and unpredictable currently limit the willingness of Australian health practitioners to report impaired practitioner-patients. Little is known about the experiences of practitioners who have been subject to a mandatory report or the extent to which different regulatory responses may either exacerbate or help address health impairments. Greater transparency around likely outcomes of a report—as provided for example by the Legal Services Board in Victoria—combined with a more supportive and streamlined regulatory process would benefit practitioners, reporters and members of the public who may otherwise be exposed to a risk of harm. 

In combination, these three measures may bolster the public protection offered by mandatory reports, reduce the need to breach practitioner-patient confidentiality and help align the law with the loyalty that practitioners feel to support, rather than punish, their impaired colleagues.

Shaming

The Queensland Ombudsman, in reporting on the practice of local government in shaming property owners by including their names in signage where a property is being auctioned to pay overdue rates, comments

In this chapter, I will consider the following issues:

• whether council was required to include the homeowner’s name on the auction notice − was there an express legislative requirement? − should the relevant section of the LGR be interpreted as requiring council to include the homeowner’s name having regard to the intended purpose of the auction notice? 

• whether it was a breach of privacy for council to include the homeowner’s name 

• whether it was reasonable for council to include the homeowner’s name.

I will also consider the department’s role in relation to this matter.

3.1 Whether council was required to include the homeowner’s name on the auction notice 

There are two aspects to the question as to whether council was required to include the homeowner’s name on the auction notice, which will be considered separately as follows. 

3.1.1 Express legislative requirement 

Section 142(5)(d) of the LGR requires a council to display an auction notice in a conspicuous place on the land before selling it for overdue rates or charges. Council was therefore required to place the auction notice on the homeowner’s property. The issue is whether council was required to include the homeowner’s name on the auction notice. 

During the course of this investigation, it was agreed between council and this Office that there is no express legislative requirement to include owners’ names on an auction notice. 

It is therefore a matter of statutory interpretation as to whether inclusion is required. 

3.1.2 Interpretation of relevant section of LGR 

Section 142(4)(b) requires the auction notice to include ‘a full description of the land’. Council contends that this phrase should be interpreted as including owners’ names. 

During the course of the investigation, views have been expressed about the way in which the phrase ‘a full description of the land’ in s.142(4)(b) should be interpreted. These views have involved reference to ss.140(4)(d) and 154(2) and have previously been set out in this report. As such, I do not consider it necessary to repeat them here. I accept that there are arguments both ways regarding the use of terms relating to ownership and the description of property in the LGR. I consider, however, that other factors hold greater weight in terms of statutory interpretation in this instance. 

I consider that the ordinary meaning of a description of land does not include the ownership of land. Council argues that the notion of ‘land’ contemplated by s.142(4)(b) of the LGR is not ‘land’ as geography, but rather as property, in which ownership is fundamental, in that there is no property without an owner. It also argued that ownership of a property is an element in the legal description of a property and therefore omitting ownership would render the description less than a ‘full description’. While council has expressed this view, it has not put forth a compelling argument upon which to base its view. 

Council considers that if the legislature intended to exclude the owner’s name, it would have made it clear that the name of the owner was not required to be included to satisfy the requirements set out in the LGR. I do not agree that this is the case. It is my view that, if intended, the LGR requirements relating to the auction notice would have expressly included a requirement to include the owner’s name. 

Purpose of auction notices 

Council has argued that, in interpreting the term ‘a full description of the land’, the purpose of the auction notice should be taken into account and that the legislative intent was to ensure interested parties obtain notice of the proposed auction. It contends that, without the owner’s name on the auction notice, there is a real risk that parties with an interest in the land may not become aware that a property in which they have an interest is proposed to be auctioned. 

I maintain my view that the primary purpose of an auction notice is to notify potential purchasers and it is of little or no relevance to potential purchasers who the owner of the land is.17 I do accept, however, that a secondary purpose of the auction notice may be to notify those with an interest in the land. It does not necessarily follow, however, that including ownership details of the property is required to achieve this purpose. Council’s argument hinges on the presumption that those with an interest in land would know and remember the name of the owner of the land but would not know and remember the street address of the land in which they have an interest. I do not accept this argument. 

The discussion is not relevant in respect of the owner of the land, the holder of any registered interest in the land or any encumbrancee, lessee or trustee of the land who has given the local government notice of their interest in land, as council is obliged, under s.142(5)(a), to provide a copy of the auction notice to those parties. The receipt of the auction notice would alert them that the auction is of relevance to them. 

While council’s submission seems to suggest councils have an obligation generally to those with an unregistered interest in land, I do not consider that council’s submission sufficiently establishes that council’s obligations extend beyond those specifically listed in the LGR. 

Even if council’s obligations were wider than those set out in the LGR, those with an unregistered interest would know of the need for vigilance in terms of protecting their interest as they would be aware that, as their interest is not registered, the world at large does not know of their interest to advise them of any circumstance which may affect it. I consider that it is reasonable to expect that people with an unregistered interest in land that they wished to protect would be aware of the street address of property in which they have an interest and would therefore, without the need for inclusion of the owner’s name, have sufficient notice to afford them the opportunity to take whatever action necessary to protect their interests. 

A specific example provided by council is that an executor of an estate may not be aware of a particular property owned by the deceased person but may notice an auction notice which identifies the name of the relevant deceased person as the responsible landowner. One of the duties of an executor is to ‘collect and get in the real and personal estate of the deceased’. It is therefore incumbent upon an executor to identify, at an early stage of the administration of the estate, what real property is owned by the deceased. While in most cases an executor would be aware of what real property is owned by the deceased, if they are not aware, they would need to conduct a search with the Queensland Titles Registry to identify all real property in Queensland owned by the deceased. An executor would then turn their mind to what debts may be owed in respect of any property identified. In any event, for an executor to be protected from liability in distributing the estate, they would need to undertake newspaper advertising requiring any person with a claim upon the estate to forward details to the executor.  If the deceased owed rates or charges, council would, if it saw the advertisement, contact the executor accordingly. Therefore, other processes exist in respect of the administration of estates to alert an executor to any debts owing. 

I note that council’s submission provides excerpts of New South Wales legislation and examples of its interpretation and application. While the process for the sale of land in other states may be of academic interest, the New South Wales legislation is materially different to the Queensland legislation and I therefore consider it of limited value in reaching a view concerning the situation at hand. 

In summary: • there is no express legislative requirement for council to include the homeowner’s name on the auction notice • I do not accept that the term ‘a full description of the land’ in s.142(4)(b) of the LGR should properly be interpreted to include the name of the homeowner. 

I therefore do not consider that there was any requirement in the statutory scheme for council to include the homeowner’s name on the auction notice. 

I note that the department shares my view. 

3.2 Whether it was a breach of privacy for council to include the homeowner’s name 

Council and this Office agree that including landowners’ names on an auction notice is not a breach of privacy. 

The name of the owner of land is listed in the land record as referred to in s.154 of the LGR. The name of the owner of a particular piece of land is therefore a matter of public record. For this reason, releasing the information is not a breach of privacy. 

3.3 Whether it was reasonable for council to include the homeowner’s name 

While council’s inclusion of the homeowner’s name on the auction notice did not constitute a breach of privacy, it does not necessarily follow that this means council’s actions are reasonable. That is a matter for separate consideration. 

In arguing as to the reasonableness of its actions, council relies on its interpretation as to the purpose of the relevant section of the legislation, being to ensure extensive public notice of a proposed auction is given. As discussed above, I do not accept that the name of the owner is required to be included on the auction notice in order to achieve this purpose. 

Council acknowledges that including an owner’s name on the auction notice may cause significant distress to some owners, but would not cause distress to others. It argues, however, that the detriment to the owner is far outweighed by the utility in providing this information in the notice and by the legal risks of challenge to the sufficiency of the notice. I have considered the various scenarios put forth by council in relation to who may be disadvantaged by an owner’s name not appearing on an auction notice and in what circumstances. Noting the protections set out in the LGR for those with an interest in land, I consider that a circumstance where a person with an interest in land, who is minded to protect that interest, is worse off because the name of the owner does not appear on the auction notice would be extremely rare, if not, non-existent. In contrast, having regard to the number of sales of properties across Queensland each year for overdue rates and charges, the occurrence of homeowners being distressed at the appearance of their name on an auction notice displayed at their property is very real, as demonstrated by this complaint. 

Given my view, expressed above, that the regulatory scheme does not require the landowner’s name to be included on the auction notice, I do not accept that any challenge to the sufficiency of the notice would likely be successful. 

I accept council’s observation that not all property owners would be distressed at having their name on the auction notice and note that it would be relevant whether the property is their home. 

Complaints to this Office demonstrate that many properties sold by councils for overdue rates are the owner’s home. 

Many people would consider the inability to pay their bills, as and when they become due, to be a matter of shame and embarrassment. Distress is therefore a reasonably foreseeable response to the publication within a person’s community of the fact they cannot pay their bills. I also consider that it would be very common for a homeowner whose property is being sold for overdue rates and charges to have suffered a range of very difficult personal circumstances which culminated in them being in that situation. Many would be at a low point in their lives and more vulnerable than they would ordinarily be. The complainant in this case expressed their distress in terms of humiliation and the feeling of being attacked. Having regard to these factors, the level of distress possible from the publication of the owner’s name should be given appropriate weight. 

In weighing the chances of a person with an interest in land being disadvantaged by the absence of the owner’s name on the auction notice against the likelihood of it causing distress to a homeowner and the level of the distress caused, I disagree with council’s assessment that the detriment to the owner is far outweighed by the utility in providing this information. I consider the real potential for significant distress to far outweigh any perceived detriment to a person with an interest in the land not considered to be an interested party under the LGR. For this reason, I consider council’s actions in including the homeowner’s name on the auction notice to be unreasonable. 

I note that the department also does not consider it is reasonable to publish landowners’ names. 

While council has advised that its approach is consistent with advice from an eminent local government law firm, whether an action of council is reasonable or not is ultimately a matter of administrative judgement for council itself, with review oversight by this Office. ... 

 Having regard to the above, I form the following opinion and make the following recommendation: 

Opinion 1 The publication by council of the names of landowners on an auction notice is not a requirement under s.142 of the Local Government Regulation 2012, is unnecessary to support the sale of land process, and has the potential to cause significant distress to a landowner and is therefore unreasonable administrative action under s.49(2)(b) of the Ombudsman Act 2001. 

Recommendation 1 Council cease including landowners’ names in its auction notices. 

There are a number of other steps in the sale of land process which have the potential to result in the publication of a landowner’s name. One such step is the requirement in s.140(2) of the LGR for a resolution of council to sell land, where the landowner’s name could appear in the resolution, or material referenced. 

My comments as to the reasonableness of publishing a landowner’s name in connection with the sale of land for overdue rates and charges apply not only to where it may appear on an auction notice, but also where it may appear in any other publication. For this reason, I consider that council should review the information made publicly available under the sale of land process and, where relevant, ensure no unnecessary publishing of the landowner’s name. 

I make the following recommendation: 

Recommendation 2 Council review the information that is publicly available relating to land to be sold for overdue rates and charges and make changes to its procedures to ensure no unnecessary publishing of a landowner’s name occurs.

3.4 Department’s role 

Having regard to the inconsistent approach taken by councils in relation to this issue, I am of the view that the department should provide appropriate guidance to all Queensland councils about this issue. How the department chooses to do this is a matter for the Director-General. 

Department’s response to the proposed report The department noted that the local government legislation is silent as to whether a landowner’s name should be included on auction notices when selling land to recover overdue rates and charges. Accordingly, the department is of the view that publication of landowners’ names in auction notices is not necessary to ensure compliance with legislative requirements. 

I form the following opinion and make the following recommendation to the department:     

Opinion 2 Given the inconsistent approach taken by councils in relation to the publication of landowners’ names on auction notices, it would be appropriate for the department to provide advice to all Queensland councils regarding the issue. 

Recommendation 3 The Director-General provide advice to all Queensland councils to the effect that it is not necessary under the legislative scheme for landowners’ names to be published by councils in auction notices.