Dissertationen zum Thema „Reasonable care (law) – australia“

This paper discusses ethical and legal arguments surrounding conscience-based objections and the corresponding refusal to treat in response to controversial medical procedures. The author unpacks the "right to conscientious refusal" into its component legal relationships and argues that proponents of conscientious objection in health care have inaccurately applied the freedom of conscience and religion. In this paper, the author canvasses various legal mechanisms for the protection of conscience in Canada. Opposed to the introduction of procedure-based "protection of conscience acts" and additional conscience clauses in Canadian legislation, the author argues that the exercise of conscience-based actions or more precisely, the refusal to act, is sufficiently and appropriately protected under the existing law in Canada.
Cette thèse traite des arguments éthiques et légaux qui entourent les objections de conscience et le refus de traiter dans le contexte des procédures médicales controversées. L'auteur délimite le droit de refuser de traiter dans son contexte légal et argumente que les partisans de l'objection consciencieuse qui œuvrent dans le domaine de la santé appliquent incorrectement la liberté de conscience et de religion. Dans cette thèse, l'auteur analyse de divers mécanismes pour la protection de la conscience au Canada. Opposée à l'introduction de « lois pourtant sur la protection de la conscience » qui sont procédurales et des clauses de conscience dans la législation canadienne, l'auteur argumente que l'exercice des actes fondés dans la conscience ou plus précisément, le refus d'agir, est suffisamment protégé par la loi existante au Canada.

This thesis examines the way in which the doctrine of legitimate or reasonable expectations has developed in the common law of England and Australia. The examination aims to show the role of expectations in the modern re-balancing of interests between the citizen and the Crown or government. The concept of expectations is examined both as it has developed into a doctrine in its own right, and as a theme which is shaping the development of other existing doctrines. i A preoccupation throughout the thesis is the way in which expectations are causing heightened standards of conduct from both the Crown or government when dealing with individual citizens, and from individual citizens dealing inter se. The traditional operation of many legal doctrines which have applied preferentially in favour of the Crown or government is examined. This tradition is exemplified in a limited way by the law relating to claims against the government, the principle of immunity of the Crown from statute, the law of estoppel and the law of restitution. Examination of the progressive reduction of such preferences exposes the significant role of the expectations concept in the re-balancing of the citizen-State relationship. The particular role and meaning of the "Crown", the "government" and the "administration" is central to the understanding of the preferential operation of certain doctrines. Consideration is given to the historic and current meaning of these institutions, their responsibilities and their relationship with the individual citizen. This examination helps to determine whether the role of such institutions has so changed as to justify the development of doctrines to accommodate new expectations. The development of the concept of expectations is examined in both public (or administrative) law and private law. In each sphere, the concept has developed differently, and distinct differences also emerge in the development of the concept by the English and Australian judiciary. These differences reveal important perceptions about the role of the courts in regulating governmental action, the capacity of the courts to develop new or existing legal principles, and the recognition changed expectations of individual citizens will be given in legal doctrine. In public law, the concept of expectations has developed into a distinct legal doctrine. The scope of the doctrine is examined, in particular whether it enables a substantive or merely procedural remedy to be granted where a person's expectation is disappointed. Barriers to the expansion of the scope of the doctrine are critically examined, and a solution proposed to enable the expansion of the doctrine without offence to the prineiples restricting such expansion. Additional issues of locus standi and the bodies subject to the doctrine oflegitimate expectations are reviewed, as well as the scope of the doctrine in European Community law. In private law, the concept of expectations is not an independent doctrine. It nevertheless discloses a powerful capacity to shape the development of existing doctrines so that they protect modern expectations. Unlike expectations in public law, private law doctrines can substantively protect legitimate or reasonable expectations. Consideration is given to the way in which developments in private law can or should influence developments in public law, so that the doctrine of legitimate expectations develops coherently and uniformly. Structure is given to expectations in private law by isolating the main usages of the concept. The usages of the concept are exemplifed by consideration of expectations in the law of contract, tort and equity. Use of the concept of expectations by the judiciary to expand the scope of existing doctrines and to develop new doctrines raises the question of the proper role of the judiciary in the review of governmental action. The propriety of judicial concern with governmental action and judicial law-making are considered. Other means of protecting expectations are examined, including constitutional guarantees, the Rule of Law, the theory of ministerial responsibility and fundamental principles of right and reason. . The close alignment of the expectations concept with the recent resurgence in legal reasoning of the language of morality is examined. Consideration of the place of the terminology of morality in the shaping of the law reveals a notable judicial development of the concept of the Crown or government as moral exemplar. This, combined with the expectations concept has carved out a large role for the place of legitimate or reasonable expectations in the law of England and Australia.

Auditors perform a very important task within the context of the affairs of a company because financial reporting can only serve its purpose if stakeholders can rely on its accuracy and reliability. An auditor’s duty is to opine whether an entity’s financial reporting has been done according to the requirements of the law. The responsibility of reporting according to the law lies with an entity’s directors. Auditors cannot issue an absolute assurance as to the lawfulness and reliability of an entity’s financial reporting. However when it is subsequently discovered that the financial reporting was incorrect and that fraud has occurred auditors are often blamed and sued for enormous amounts of money for failing to detect material anomalies in the financial reports. These actions are based on the fact that auditors have a duty to exercise reasonable care and skill in the performance of their duties and through their failure to act as such, have caused financial harm to the clients or third parties. The fact that auditors are only required by law to exercise reasonable care and skill and perform an audit according to the standards of the reasonable auditor and not the most meticulous one, is often not regarded or is sometimes deliberately ignored. This clearly represents a problem in our law, namely that the presence of fraud in financial reports does not in itself suggest negligence on the part of the auditor but is apparently often perceived to do so. This research shows that the auditor’s duty of reasonable care and skill does not necessarily entail the duty to detect fraud. The elements of the duty of reasonable care and skill are identified from case law, legislation and international auditing standards. In order to limit the liability of auditors in general it is important to focus also on the elements of fault (negligence), wrongfulness and causation. This research shows that negligence cannot be established merely by the presence of fraud or material misstatements in financial statements. The responsibility for fair financial reporting lies with the directors. This research gives prominence to this fact which often seems to be ignored for convenience and in order to place the blame on the auditors. This research implicitly asks the question, why are auditors being held responsible for material misstatements in a company’s financial statements and not the directors? Guidelines for determining the extent of an auditor’s liability in this regard are formulated in this research.

When the Australian Labor Party member for Kalgoorlie, Ian Taylor, presented his Private Member's Bill - the Medical Care of the Dying Bill (1995), he laid the foundation for this thesis. Mr Taylor introduced his Bill to the Western Australian Legislative Assembly on 28 March 1995. The Bill codified the terminally ill patient's right to refuse medical treatment, which clarified common law. This thesis attempts to overcome the dearth of literature in Western Australian lobbying concerning conscience-vote issues. It also identifies the key issues in understanding political lobbying, the form of pressure group activity that takes place and why certain groups respond in different ways. The pressure groups selected for this case study are examined, classified and evaluated resulting in a prescription for lobby group activity for similar conscience-vote issues. According to the Bill's sponsor, Ian Taylor, the legislation was needed to deal with the inconsistencies in common law of the medical treatment of terminally ill people. The Law Reform Commission in its 1991 Report on Medical Treatment for the dying, stated that there was a need to deal with the issue in Western Australia. Due to the advances in medical treatment practices in the past 50 years, doctors can prolong the life of patients for whom there is no cure. The major problem, however, is the Criminal Code: doctors and care providers can be at risk of prosecution and conviction if the patient's wishes are respected and medical treatment is withdrawn, leading to the patient's death. At present there is a general common law right to refuse medical treatment. According to Mr Taylor, the difficulty lies in the fact that in Western Australia, the common law is overridden by the Criminal Code. The Bill also highlighted the role of palliative care and the treatment of the dying. The opinion of most pressure groups was that the rights of terminally ill patients should be protected and enhanced. Of the groups selected for this case study, only the Coalition for the Defence of Human Life objected to the Bill. Other groups supported the principles of the Bill, while some hoped for voluntary euthanasia legislation and others gave tacit approval. Of all the groups the L. J. Goody Bioethics Centre distinguished itself as a key organisation which tended to monopolise political influence. Media exposure of the issue was high, particularly in The West Australian. The "right to die" issue was canvassed and often was reported with references to euthanasia. At the same time the Northern Territory legislation, the Rights of the Terminally Ill Bill (1995), was receiving much media attention. The issue of euthanasia was necessarily discussed in the context of national and international arenas. The political masters of thought on citizen participation and group theory were introduced early in the thesis. John Locke, Jean -Jacques Rousseau, James Madison, Alexis de Tocqueville, Thomas Paine and John Stuart Mill provided valuable insight into the nature of modern political thought on this interesting aspect of political activity. Contemporary political writers such as Trevor Matthews. Dean Jaensch and Graham Maddox were also consulted. The eight pressure groups selected for the study were the: • West Australian Voluntary Euthanasia Society Inc. • Coalition for the Defence of Human life • Australian Medical Association (WA Branch) • Australian Nursing Federation (WA Branch) • L. J. Goody Bioethics Centre • Silver Chain Nursing Association Inc. • Uniting Church of Australia • Anglican Church of Australia Information from the groups formed a significant part of this thesis. An attempt was made in the conclusion to ascertain the effectiveness of the various strategies utilised by the pressure groups and provide an insight into lobbying practices. Ultimately, though, the contentious Bill was not given a third reading. Nor was it debated in the Legislative Council. At one stage it was considered likely that the Bill would be recommitted to parliament. The monitoring of the Medical Care of the Dying Bill (1995) undertaken in this thesis, indicates that this would have been a lengthy and divisive process.

Doctors and patients make decisions together every day in an attempt to improve health outcomes in patients. We aimed to investigate such decisions, outcomes and the processes undertaken in decision making in patients living with a clinically significant haemoglobin disorder as well as other haematological illnesses. Initially a quantitative health needs assessment was undertaken in NSW, Australia examining the health and management of patients with haemoglobin disorders utilising patient reported outcomes. This assessment noted significant practice variation. A qualitative, interview based study of haematologists is then reported examining how treatments were selected or implemented. This study examined the integration of published evidence into such processes. Evidence based medicine is then examined from the perspective of illness definition in haematological malignancy and the increasing approach to targeted therapies resulting in highly individualised treatment approaches. Medical decision making (MDM) as a social process is then discussed with reference to individual clinician differences in risk epistemology, unit culture and self-referential behaviours. It is proposed that if MDM is examined from such a perspective practice variation is not only inevitable but in some cases preferable.

The notion of 'Care' has occupied a central place as foundation in nursing theory, ethics and practice. An examination of critical and authoritative documents reveals that the term is vague and ill defined. The literature on care does not theorise the concept as fully as expected in a profession where the concept is considered central. Moreover, even the best theories of care neglect justice. Applying Wittgenstein's concept of family resemblance allows the debate to move on from definitional issues to assess the applicability of 'care' to the practice of the profession. An examination of a range of assessments of nursing practice shows that although 'care' is frequently used in connection with nursing, it does not appear to be a major consideration in key areas of appraisal. This thesis explores the relationship between care and justice in nursing and proposes that they be integrated within nursing theory. A theory for nursing that does not exclude care, but that has justice as its basis is proposed. Care, when used in the context of justice provides nursing with a theory that is appropriate not only for nursing theory and ethics but also assists the profession meet the demands of modern practice.

This examination of the common law obligation of good faith in the performance and enforcement of commercial contracts in Australia seeks to achieve a number of objectives. First, to chart the historical development of the implied good faith obligation. Secondly, to identify a number of issues that remain unresolved at Australian lower court level. Thirdly, to consider five doctrinal approaches that could be adopted by the High Court when ultimately confronted by the competing claims and tensions that have proven divisive in the courts below. Fourthly, to assess each approach against three identified benchmarks. The essential thesis is that good faith should be implied, as a matter of law, in commercial contracts that are relational in nature with an additional call being made for the High Court to explicitly recognise that the underlying basis of the implied good faith obligation is the reasonable expectations of the contractual parties. This approach is the one approach that satisfies all three benchmarks and provides the most satisfactory resolution of the issues that presently bedevil the commercial good faith debate in Australia.

This examination of the common law obligation of good faith in the performance and enforcement of commercial contracts in Australia seeks to achieve a number of objectives. First, to chart the historical development of the implied good faith obligation. Secondly, to identify a number of issues that remain unresolved at Australian lower court level. Thirdly, to consider five doctrinal approaches that could be adopted by the High Court when ultimately confronted by the competing claims and tensions that have proven divisive in the courts below. Fourthly, to assess each approach against three identified benchmarks. The essential thesis is that good faith should be implied, as a matter of law, in commercial contracts that are relational in nature with an additional call being made for the High Court to explicitly recognise that the underlying basis of the implied good faith obligation is the reasonable expectations of the contractual parties. This approach is the one approach that satisfies all three benchmarks and provides the most satisfactory resolution of the issues that presently bedevil the commercial good faith debate in Australia.

A lentidão processual é um indicador de ineficiência da justiça e também uma de suas causas. A normal duração dos processos cíveis está comprometida por uma série de fatores, tais como o aumento da litigiosidade, a falta de infraestrutura dos órgãos judiciários e insuficiente utilização das novas tecnologias da informação, a deficiente formação dos juízes e advogados e, particularmente, a falta de efetiva repressão às más condutas dos sujeitos processuais. Este trabalho tem por escopo identificar as condutas processuais irregulares causadoras ou contributivas para a morosidade e traçar parâmetros objetivos para sua repressão. Para tanto, foram estudados os principais aspectos relativos ao comportamento abusivo dos sujeitos processuais que violam o direito à razoável duração do processo e trazem prejuízos processuais e extraprocessuais, tanto às partes envolvidas no litígio, quanto à dignidade da jurisdição. O trabalho busca demonstrar, portanto, que ética, compromisso e cooperação são peçaschave na solução do intrincado problema da lentidão processual e que, para resolvê-lo, não são necessárias alterações legislativas: a adequada aplicação dos atuais mecanismos repressores das condutas iníquas, à luz desses valores, é suficiente para a garantia da razoável duração do processo.
The slowness of judicial procedures is a symptom of the inefficiency of justice and is also one of its causes. The usual duration of civil proceedings is jeopardized by a number of factors, such as the increase in litigiousness, the lack of infrastructure of the judiciary bodies and insufficient use of the new information technologies, the deficient educational level of judges and lawyers, and particularly the absence of an effective repression to abusive conducts of the parties to a lawsuit. The scope of this paper is to identify the improper procedural practices that give rise or contribute to the slowness of justice and to establish objective parameters to repress it. For such purpose, a study was performed on the main aspects related to abusive practices carried out by the litigants, which infringe the right to a reasonable length of proceedings, and bring about an adverse effect in court and out of court, both to the parties involved in the litigation and to the dignity of the jurisdiction. Therefore, the paper searches to demonstrate that ethics, commitment, and cooperation are key components to the solution of the intricate problem of procedural slowness, and that no legislative amendments are required to solve it: in light of such values, the proper application of the existing repressive mechanisms for inequitable conducts is sufficient to guarantee the reasonable length of court proceedings.

This thesis investigates a perceived gap between the medical profession’s rhetoric that the welfare of the patient is the medical practitioner’s first priority, and the reality of patient experience. The Medical Board of Australia’s Good Medical Practice: A Code of Conduct for Doctors in Australia mandates the duty of medical practitioners to make the care of their patients their first priority. This code also confirms that good medical practice is patient-centred. Patient-centred care should therefore be central to patient experience. However, despite promotion of this goal by medical professional authorities, patient-centred care is not always being achieved as well as it might in practice. This thesis is an attempt to understand the reasons why this divergence between rhetoric and practice is occurring, paying particular attention to the role of the law as a potential and actual promoter of, and barrier to, practices which are recognised components of patient-centred care, and consequently of good medical practice. This aim is developed through two case studies, the way valid advance directives are observed or not, and the responses of medical practitioners to injuries to patients sustained during medical treatment. The methodology used includes analysis of hard law regulatory processes together with the development of and increasing reliance on the soft law documented in codes, guidelines and other regulatory standards which reflect the evolving ideals of medical professionalism. In turn, an examination of disciplinary cases of tribunals and courts shows how conduct is interpreted in accordance with what is or is not professional behaviour. There is evidence that observance by medical practitioners of patient-centred care is often being overwhelmed by the scientific and technical aspects of medical practice and other pressures on medical practitioners, such as concerns about legal liability. The necessity for the observance of respect for the human being who is the patient is discounted to these priorities despite extensive evidence of improved outcomes for patients when patient-centred principles are implemented. The reasons for this discount are complex but a major contributor to the less than optimum observance of patient-centred principles is medical professionalism as fostered by the current methods of socialisation and training of medical practitioners. Bullying and humiliation of medical students in their training leads to desensitisation and a consequent lack of attention by medical practitioners to the necessity for patient-centred approaches to practice. An exploration of the direct and indirect impacts of the law upon the medical profession shows the domination of medical practitioner interests over the interests of their patients. Therefore, this thesis considers whether the existing Australian legislative regime can be applied to achieving the promotion of the observance of quality, patient-centred practices by medical practitioners to the mutual benefit of doctor and patient. It argues that medical disciplinary authorities can use the provisions of the Health Practitioner Regulation National Law together with soft law regulation to more completely embed a patient-centred culture in medical practitioner behaviour.

Section 17(1) of the Animal Care and Protection Act 2001 (Qld) (‘ACPA’) provides that ‘[a] person in charge of an animal owes a duty of care to it’. Until the Northern Territory adopted that same expression in its Animal Welfare Act, the ACPA was the only animal protection statute in Australia that suggested that a nonhuman animal is owed a duty. What is at stake in this thesis is the contrasting of that legal duty, posited to derive legal justice, with Derridean justice that demands that a duty is owed to other beings. This research addresses the question: could s 17 of the Animal Care and Protection Act 2001 (Qld) represent a Derridean justice-based approach to animal protections? To address this question, this thesis develops a legal and contextual analysis of ACPA s 17. It also applies Derrida’s proposition of deconstructions to ferret-out how rationality, embedded in the metaphysics of presence, gets-to-work in law. The purpose is to test if ACPA s 17 delivers what it promises. This research examines whether ACPA s 17 provides any undoing of the Western inheritance, which through rationality justifies using, mistreating, and slaughtering nonhuman animals for human animal ends. Within this research, ACPA s 17 is examined in context to the Western cultural trace that Derrida described as a ‘culture of sacrifice’. Derrida’s lens offers a unique perspective since he provided a different accounting of beingness. That is one that breaks down human-animal difference. It enables contrasting of Western conceptions of duties and rights that continue to rely on rationality as bases for ‘ethics’. The deconstructive approach highlights our Western modes of thinking and reasoning that reinstitute that violent culture of sacrifice. This research offers: a rich discussion of relevant Derridean propositions; a contrasting of Anglo-American and Continental perspectives of what is thought to be owed to nonhuman animals, a survey of neurosciences to ascertain if Derrida’s propositions of beingness remain credible, and various approaches to legal contextualisation of ACPA s 17. The new knowledge developed in the research includes a rich legal characterisation of ACPA s 17. The research finds that, in contrast to existing commentary, ACPA s 17 is not an implementation of ‘negligence’, and neither could it be properly described as implementing a ‘guardianship’ model. It is a regulatory type offence that is constrained by many layers of anthropocentric law. Various problems that limit the effect of ACPA s 17 are highlighted. The research makes suggestions for law reform. The thesis finally brings together the traces gathered in the research, through a legal analysis, and a deconstructive reading, of a relevant appeal case. Unfortunately, ACPA s 17 does not institute a legal duty that is owed to nonhuman animals. Neither does it appear to be an opening toward Derridean justice.

Research Doctorate - Doctor of Philosophy (PhD)
This thesis focuses on advance planning for health-related matters, including medical care and participation in research. It brings interdisciplinary attention to the legal and ethical frameworks that govern how people can plan for future incapacity and investigates how the rights to plan ahead are acted upon and supported in practice. Dementia is a particular focus of this thesis as it is a leading cause of cognitive impairment among older people, and advance planning for incapacity is considered part of good dementia care. Advance care planning (ACP) can improve healthcare experiences and end-of-life outcomes, while advance research planning can help to support the appropriate inclusion of people with cognitive impairment in research studies. Papers 1–3 focus on advance planning for medical care, with attention to the under-examined role of lawyers in assisting older clients with ACP. Paper 1 provides a literature review and considers how collaboration between health and legal professionals can strengthen ACP. Paper 2 presents a framework for action to build connections between these typically “siloed” professions. Paper 3 presents findings from a survey of legal practitioners on their practices and experiences in advising clients on ACP. Lawyers perceive this activity as part of their professional role, but report gaps in their knowledge of health system policies and procedures relevant to ACP. These findings support the need for collaborative ACP strategies that involve the legal and health sectors. Papers 4–7 focus on advance research planning and the inclusion of older people with cognitive impairment in research studies. The under-representation of people with dementia in research limits the evidence base to inform advances in treatment and care for this population. The principles and processes that undergird ACP can be applied to planning for involvement in research activities during future periods of incapacity, allowing greater representation of people with dementia in research. Paper 4 examines the Australian ethical and legal context for inclusion of people with dementia in research. Papers 5–7 report on the results of surveys exploring the attitudes of older adults and researchers toward research involving people with dementia. Paper 5 reveals positive attitudes among older adults to involvement in a wide range of research activities in the event of future incapacity, and to making an advance research directive to document their preferences for future research participation. Papers 6 and 7 report on a national survey of Australian dementia researchers, revealing persistent ethical, legal and practical barriers to involving people who lack decisional capacity in research, but positive views on the benefits of advance research planning as a strategy to support inclusion. The thesis includes studies completed in Australia and Canada, two countries with ageing populations and similar health and legal systems. The work advances knowledge to inform strategies to build collaboration between the health and legal sectors, strengthen professional practices, enable older adults to act on their rights to plan for future incapacity and overcome barriers to research participation for people living with reduced decisional capacity.

Reasonableness as a concept used in determining delictual liability or liability in tort law, is either embraced or perceived by some as frustrating. It is a normative concept which is inextricably linked with the concepts of fairness, justice, equity, public policy and the values of the community. These concepts assist in providing value judgements in determining liability. It is apparent from this study that the influence of reasonableness is predominantly implicit on the French law of delict, but more explicit on the South African law of delict and Anglo-American tort law. Its influence varies with respect to each element of tort or delictual liability. In order to hold a person liable for a delict or tort, it is only reasonable that all the elements of a delict or tort are present. Common to all the jurisdictions studied in this thesis is the idea of striking a balance between the defendant’s interests promoted, the plaintiff’s interests adversely affected and the interests of society. Where liability is based on fault, the reasonableness of conduct is called into question. In respect of causation whichever test or theory is used, what must ultimately be determined is whether according to the facts of the case, it is reasonable to impute liability on the defendant for the factually caused consequences. Whether loss or harm is required, assumed or not required, the question of the appropriate remedy or compensation which is reasonable under the circumstances is called into question. In South African and Anglo-American law, the multiple uses of the standards of the reasonable person, reasonable foreseeability of harm, reasonable preventability of harm, whether it is reasonable to impose an element of liability, or whether it is reasonable to impute liability, often cause confusion and uncertainty. At times, the role of these criteria with regard to a specific element may be valid and amplified while, at other times, their role is diminished and controversial. However, there is nothing wrong with the concept of reasonableness itself; indeed, it is a necessary and useful concept in law. Rather, it is the way that it is interpreted and applied in determining liability that is problematic.
Private Law
LL. D.

This paper deals with a comparison between the Czech duty of due managerial care of a member of governing body of limited company and the Irish non-fiduciary duty to exercise care, skill and diligence of a director of limited company (hereinafter also referred as "duty of care"). The paper aims to find out a possible way to improve legislation of the duty of due managerial care on the basis of comparison with the duty of care. The duty of care sets the ground for the comparison, therefore the paper deals first with the Irish legal status of the duty of care, which has been recently changed by the Companies Act 2014. Despite of the codification of the directors' duties, the core of interpretation and application of the duty of care still rests in judicial decisions. Nevertheless, the change of source and statutory wording of the duty means that the substance of Re City Equitable [1925] does not represent a good law anymore. The standard of care of Re City Equitable [1925] has been replaced by the minimal objective standard based on the British judgment Re D'Jan of London [1994]. The content of the duty of care is determined on the case by case basis, but in any event it consists of conclusions of the British judgment Re Barings [1999], which has been accepted by the Irish courts in restriction...