Health

The Health Collection contains publications on a range of topics in the area of health and medical law and regulation, ethics and policy.

• The Public Health Implications of the Association of South East Asian Nations (ASEAN) Legal Regime on Tobacco William Onzivu The Public Health Implications of the Association of South East Asian Nations (ASEAN) Legal Regime on Tobacco
  Abstract:

  In response to the public health disaster caused by the trade in tobacco, and in recognition of the important role that international law can play in the promotion of public health, the World Health Organization has developed the Framework Convention on Tobacco Control. In an era of trade liberalisation, however, attempts to control the trade in tobacco in the interests of public health encounter international, regional and local regimes designed to enhance trade, not restrict it. This article examines this dilemma as it is played out in the regional trade mechanisms developed in the ASEAN and it argues that, despite some limitations, the ASEAN legal regime could be adapted to support strong tobacco control measures designed to protect and enhance public health.

  Authors: William Onzivu
• Animal Law in Australasia: A New Dialogue Peter Sankoff and Steven White (editors) Animal Law in Australasia: A New Dialogue
  Abstract:

  This book is a scholarly examination of the legal relationship between humans and animals in Australia and New Zealand. It asks whether existing laws really do protect animals, and, where the law comes up short, how it could be improved. The questions explored go beyond animal welfare and challenge the reader to think about the nature of legal interests, and practical and ethical contexts for a range of laws. Australian, New Zealand and international academics and practitioners cover topics ranging from core concepts and theoretical questions around “animal welfare” and law, to specific matters of concern: animal cruelty sentencing, live animal export, recreational hunting, and commercial uses of animals in farming and research.

  Authors: Peter Sankoff and Steven White (editors)
• Safety, Security, Health and Environment Law, 1st edition Michael Tooma Safety, Security, Health and Environment Law, 1st edition
  Abstract:

  First edition of Michael Tooma’s ground‑breaking integrated approach to the law and practice of workplace health, safety, security and environment management. Tooma identifies a common grounding in risk management and similar legislative treatment of regulation in these areas across State and federal jurisdictions.

  Authors: Michael Tooma
• Narrative Medical Competence and Therapeutic Jurisprudence: Moving Towards a Synthesis Warren Brookbanks Narrative Medical Competence and Therapeutic Jurisprudence: Moving Towards a Synthesis
  Abstract:

  ‘Narrative medicine’ is a term connoting medicine practised with narrative competence. It proposes both an ideal of medical care and the methods used to grow towards those ideals. Therapeutic jurisprudence, on the other hand, is a legal construct which draws on social science insights to suggest a new approach to legal problem-solving which has, as a conscious aim, the reduction or elimination of the anti-therapeutic effects of law and legal processes. Both paradigms have in common a focus on individual experience within medical and legal life settings and point towards models of practice which are more therapeutically engaged and psychologically oriented. Through a connecting theme of the ethical ideal of hope, the article seeks to show that both these relational constructs are capable of empowering participants in medical and legal encounters into a more effective achievement of desired ends through the establishment of strong human relationships and more effective means of communication.

  Authors: Warren Brookbanks
• Therapeutic Jurisprudence and Anorexia: A Synergy? Terry Carney and Dominique Saunders Therapeutic Jurisprudence and Anorexia: A Synergy?
  Abstract:

  This article analyses file histories and qualitative data from cases where clinicians and tribunals have made choices about invoking one or more of the various legal avenues by which treatment may be enforced for a person with severe anorexia nervosa. Adopting a therapeutic jurisprudence (TJ) framework, it is argued that there are therapeutic advantages favouring some forms of interventions over others (such as in choosing between mental health and guardianship laws), and other TJ applications such as in law reform (advance directives) or in the ‘strategic’ use of law. Each individual case must, however, be contextualised and judged by the particular needs of the individual anorexia patient.

  Authors: Terry Carney and Dominique Saunders
• The Past, Present and Future of Mental Health Law: A Therapeutic Jurisprudence Analysis Alfred Allan The Past, Present and Future of Mental Health Law: A Therapeutic Jurisprudence Analysis
  Abstract:

  This article uses a therapeutic jurisprudence perspective to review the evolution of mental health law in the Western world by examining developments at various stages in history, in particular the 20th century. It suggests that one of the major challenges for the future, from a therapeutic jurisprudence perspective, will be to help minimise the stigma, prejudice and discrimination associated with mental health law. The article concludes with the suggestion that the question of whether mental health law itself, because it contributes to discrimination against mentally disordered people, may be anti-therapeutic requires more investigation and consideration.

  Authors: Alfred Allan
• Emergency Law: Rights, liabilities and duties of emergency workers and volunteers Michael Eburn Emergency Law: Rights, liabilities and duties of emergency workers and volunteers
  Abstract:

  Emergency Law is an Australian text designed to give a clear insight into legal issues involved in planning for and responding to emergencies. It is a clear and concise account of the law that applies in a civil emergency and to the Australian emergency services as well as the rights and obligations of those who provide emergency care to the sick or injured, be they professionals, trained volunteers, neighbours or strangers who stop to help.

  Authors: Michael Eburn
• Mental Illness - Freedom and Treatment Julian Gardner Mental Illness - Freedom and Treatment
  Abstract:

  The tension between the rights of people with mental illness and their need for treatment is considered in this article. As treating people with mental illness often involves civil detention, which is a clear violation of the freedom of the individual concerned, Gardner argues that pragmatism in the course of treatment is inappropriate. A careful balance needs to be achieved between the patient’s right to autonomy and freedom, and their need for medical treatment. Just as attention must be paid to ensuring that detention is only used as a matter of last resort, the over use of community treatment orders is itself problematic. Gardner argues that the authority which makes the decisions about involuntary treatment needs to be open to public scrutiny and to be accountable within the legal process for its decision-making.

  Authors: Julian Gardner
• Valuing People Through Law - Whatever Happened to Marion? Melinda Jones and Lee Ann Basser Marks Valuing People Through Law - Whatever Happened to Marion?
  Abstract:

  The role of judicial decision-making in informing, reflecting and changing values in the community is examined through an assessment of the law governing medical treatment. The High Court decision in Marion’s case leant support to the rights of people with disabilities to be included in the community and has assumed a symbolic importance for people with disabilities similar to that of the Mabo decision for indigenous people. Marion’s case, which was concerned with the sterilisation of a young woman with an intellectual disability, is examined for its contribution to the jurisprudence relating to children’s rights, competence, the rules of consent, bodily integrity and the promotion of rights over welfare. It is argued that, despite the fact that subsequent judicial decisions and social practices have failed to give full effect to the promise of Marion’s case, the articulation of the principle of inclusion by the High Court is of great significance.

  Authors: Melinda Jones and Lee Ann Basser Marks
• Book Review: Psychology and Law Ian Freckelton Book Review: Psychology and Law
  Abstract:

  This is a review essay of A. Kapardis, Psycyhology and Law (Cambridge: Cambridge University Press, 1997).

  Authors: Ian Freckelton
• Book Review: Advances in Psychology and Law: International Contributions Marilyn McMahon Book Review: Advances in Psychology and Law: International Contributions
  Abstract:

  This is a review essay of Redondo et al, Advances in Psychology and Law: International Contributions (New York: Walter de Gruyter, 1997).

  Authors: Marilyn McMahon
• Psychology and Law in Australia: An Overview Andreas Kapardis Psychology and Law in Australia: An Overview
  Abstract:

  This article traces and explains the development of the psycholegal field in Australia, and identifies a number of areas that warrant the researcher’s attention. This is done against the backdrop of the field’s development on both sides of the Atlantic. An attempt is also made to answer the question of why it has taken much longer to seriously begin to bridge the gap between psychology and law in Australia – a country with a common law (adversary) legal system – when, in fact, the two disciplines can be said to have a lot in common. Finally, the psychologist as expert witness in Australian courts is also considered.

  Authors: Andreas Kapardis
• Islam & Medical Science: Evidence from Indonesian Fatawa: 1960-1995 MB Hooker Islam & Medical Science: Evidence from Indonesian Fatawa: 1960-1995
  Abstract:

  This article illustrates some of the dilemmas in which Islam finds itself with respect to advances in modern medical science. At the time of writing [1998], the problems with which the Indonesian fatawa are concerned are at earlier stages of scientific innovation: organ transplant, blood transfusion, contraception and family planning. While the West has moved on to other areas of ethical debate, this is not true for Islam generally or for Muslims in South East Asia in particular. These issues are very much alive and continue to plague not just the conscience of the individual Muslim but also have repercussions in government health policy, in religious law and in the state criminal law. Indeed, the depth of feeling and its incidence is probably greater in Muslim countries than in the West. The reason for this is the view Islam takes of science in general and of medical science in particular.

  Note: An extended version of this article that also dealt with Malaysia was previously published as "Islam & Medical Science: Evidence from Malaysian and Indonesian Fatawa: 1960-1995", Studia Islamica, Dec 1997, vol 4: 1, 1-33.

  Authors: MB Hooker
  Keywords: shariah; Islam
• Review Essay: Ethics Ethics Everywhere Cathy Lowy Review Essay: Ethics Ethics Everywhere
  Abstract:

  This is a review essay of books by Paul M McNeill, The Ethics and Politics of Human Experimentation, and Margaret Coady and Sidney Bloch (eds), Codes of Ethics and the Professions.

  Authors: Cathy Lowy
• Law, Psychiatry and Antisocial Personality Disorder: A Problem of Government David McCallum Law, Psychiatry and Antisocial Personality Disorder: A Problem of Government
  Abstract:

  This article explores how the conceptual terrain for thinking and acting on the problem of the dangerous individual is the product of governmental attempts to know and understand persons. It suggests that knowledge of particular types of persons is made possible by means of a complexity of interrelations between law and psychiatry and the institutional spaces in which they operate, rather than the happen-chance discoveries of the human sciences or essential properties of persons described in law or medicine.

  Authors: David McCallum