Dissertations / Theses on the topic 'Legal practitioners'

This study explains the differing rights of taxpayers, based on the nature of the profession of the tax adviser they consult. Those who utilize the services of tax attorneys can rely on the protection afforded by legal professional privilege whereas those who obtain their advice from non-legal advisers, such as accountants and other tax advisers, cannot claim the same protection. Legal professional privilege is a substantive right which should be extended to cover clients of non-legal tax advisers. The continued denial of the privilege to clients of nonlegal tax practitioners while it is availed to those who approach legal practitioners infringes the rights to privacy and equality contained in the South African Constitution. The object of this research is to show that the common law concept of legal professional privilege is amenable to extension so as to cover the clients of non-legal tax advisers. A qualitative approach was adopted which involved an in-depth analysis of the origins, rationale as well as the requirements for the operation of the doctrine. This also involved a constitutional as well as a comparative dimension. The constitutional dimension sought to show that the current distinction is untenable under the South African Constitution by virtue of the infringement of the rights to privacy and equality. The comparative dimension presented an analysis of the various jurisdictions that have extended the doctrine as well as those that are still to do so or have adamantly rejected the idea. The differential treatment of taxpayers based on the professional they engage contravenes the privacy and equality provisions and is thus unconstitutional. The study demonstrates that legal professional privilege is amenable to extension and there is need for legislative intervention as the courts are limited in the extent to which they may intervene in light of the separation of powers and judicial deference. Legal professional privilege should therefore be extended to protect the clients of non-legal tax advisers as opposed to partial protection which subsists at the moment.

This study investigates the knowledge that legal practitioners use to solve authentic practical legal problems in naturalistic settings. The study examines the declarative and procedural knowledge that practitioners use in that context and whether experienced practitioners use knowledge organised in encapsulated and script form (Boshuizen & Schmidt, 1992; Schmidt, Norman, & Boshuizen, 1990) to enable ‘expert’ performance. The purpose of the study is to provide an empirically-based understanding of the knowledge used in solving real-life practical legal problems, for the information of the providers of practical legal training in Australia and other common law countries. The providers of that training use assumptions about that knowledge and how it is acquired, which do not always rest on coherent theoretical or empirically-derived foundations. The study uses the lawyering literature to identify the knowledge such literature considers is required to solve practical legal problems in lawyer and client interview settings. The study also examines the assumptions about the nature of that knowledge, and how it is acquired, which are apparent in the approaches of the providers of practical legal training. The limitations of those assumptions are identified from a cognitive perspective. The study examines cognitive conceptions of the knowledge used in problem solving in particular fields and how that knowledge becomes proceduralised and organised into structures called chunks and schemas. A particular examination is made of cognitive theories developed in the field of medical problem solving, which use the concepts of ‘encapsulations’ and ‘illness scripts’ to explain ‘expert’ performance in diagnosing disease in clinical settings. This analysis is used to synthesise the prediction that experienced legal practitioners may develop and use structures similar to encapsulations and illness scripts in problem solving. This prediction is based on the similarities between the way medical practitioners and legal practitioners are educated and trained, and are taught to solve problems using a hypotheticodeductive method (or a domain variant in the case of law), and on the similarities between clinical settings and lawyer and client interview settings. The study also examines theories that explain human problem solving by reference to a metaphorical ‘problem space’, and synthesises the prediction that practical legal problem solving can be explained by a problem space theory that was developed to accommodate complex, ill-defined problems. That theory uses the concepts of a problem zone to reflect the ill-defined nature of the problem as presented to the problem solver, a search and construction zone to reflect the phenomenon that the problem solver will have to construct operators to use to solve the problem, and a satisficing zone to reflect the phenomenon that there will be no single unambiguous solution to the problem (Middleton, 1998). The study uses the lawyering literature to identify the characteristics of practical legal problems in a lawyer and client interview setting. The cognitive literature is used to identify the cognitive conceptions that correspond to those characteristics. It is argued that these problems are complex, ill-defined problems that have to be found by the problem solver using weak problem solving strategies such as problem decomposition, attribute identification and means-ends analysis (Simon, 1973; Dillon, 1982; Newell, 1980). Based on these predictions two research questions are developed as follows: How do legal practitioners find and construct practical legal problems? Are there differences in the knowledge that experienced legal practitioners use and that which novice practitioners use? Do those differences reflect differences in the individual practitioner’s underlying knowledge and how that knowledge is organised? These questions are investigated in four case studies. Two of these studies involve experienced legal practitioners and two involve novices. These studies reveal that all the subjects used similar general problem solving strategies to find and construct problems. The subjects all constructed a series of problems rather than one large problem. The subjects did not all find and construct the same problems and some subjects’ constructions of problems changed as new information came to light. Most subjects did not finish the construction of problems at the interview. The processes that the subjects use to construct problems can be explained by Middleton’s (1998) problem space model, although this study suggests that model needs to be modified to accommodate the on-going emergent character of practical legal problems as they occur in lawyer and client interview settings. The investigation revealed qualitative differences between the problem attributes and moves that the experienced subjects identified and those that the novices identified. In summary, the experienced subjects identified attributes and moves that were more detailed, more directly related to the ‘facts’ and more concrete than those that the novices identified. Both the experienced subjects and the novices appeared to rely on recognition (Newell & Simon, 1972) to identify problem attributes and moves rather than on any apparent step-by-step legal analysis and reasoning process. This study suggests that the superior performance of the experienced subjects may be explained by their use of knowledge in encapsulated and script form, as predicted. The study discusses the implications of its findings for practical legal training courses as a need to provide students with general problem solving knowledge, provide them with the knowledge that they will need to recognise problems in specific areas of practice, to help them start to develop knowledge in encapsulated and script form, and to develop an understanding of the limits of institutional training in developing professional expertise.

This study investigates the knowledge that legal practitioners use to solve authentic practical legal problems in naturalistic settings. The study examines the declarative and procedural knowledge that practitioners use in that context and whether experienced practitioners use knowledge organised in encapsulated and script form (Boshuizen & Schmidt, 1992; Schmidt, Norman, & Boshuizen, 1990) to enable ‘expert’ performance. The purpose of the study is to provide an empirically-based understanding of the knowledge used in solving real-life practical legal problems, for the information of the providers of practical legal training in Australia and other common law countries. The providers of that training use assumptions about that knowledge and how it is acquired, which do not always rest on coherent theoretical or empirically-derived foundations. The study uses the lawyering literature to identify the knowledge such literature considers is required to solve practical legal problems in lawyer and client interview settings. The study also examines the assumptions about the nature of that knowledge, and how it is acquired, which are apparent in the approaches of the providers of practical legal training. The limitations of those assumptions are identified from a cognitive perspective. The study examines cognitive conceptions of the knowledge used in problem solving in particular fields and how that knowledge becomes proceduralised and organised into structures called chunks and schemas. A particular examination is made of cognitive theories developed in the field of medical problem solving, which use the concepts of ‘encapsulations’ and ‘illness scripts’ to explain ‘expert’ performance in diagnosing disease in clinical settings. This analysis is used to synthesise the prediction that experienced legal practitioners may develop and use structures similar to encapsulations and illness scripts in problem solving. This prediction is based on the similarities between the way medical practitioners and legal practitioners are educated and trained, and are taught to solve problems using a hypotheticodeductive method (or a domain variant in the case of law), and on the similarities between clinical settings and lawyer and client interview settings. The study also examines theories that explain human problem solving by reference to a metaphorical ‘problem space’, and synthesises the prediction that practical legal problem solving can be explained by a problem space theory that was developed to accommodate complex, ill-defined problems. That theory uses the concepts of a problem zone to reflect the ill-defined nature of the problem as presented to the problem solver, a search and construction zone to reflect the phenomenon that the problem solver will have to construct operators to use to solve the problem, and a satisficing zone to reflect the phenomenon that there will be no single unambiguous solution to the problem (Middleton, 1998). The study uses the lawyering literature to identify the characteristics of practical legal problems in a lawyer and client interview setting. The cognitive literature is used to identify the cognitive conceptions that correspond to those characteristics. It is argued that these problems are complex, ill-defined problems that have to be found by the problem solver using weak problem solving strategies such as problem decomposition, attribute identification and means-ends analysis (Simon, 1973; Dillon, 1982; Newell, 1980). Based on these predictions two research questions are developed as follows: How do legal practitioners find and construct practical legal problems? Are there differences in the knowledge that experienced legal practitioners use and that which novice practitioners use? Do those differences reflect differences in the individual practitioner’s underlying knowledge and how that knowledge is organised? These questions are investigated in four case studies. Two of these studies involve experienced legal practitioners and two involve novices. These studies reveal that all the subjects used similar general problem solving strategies to find and construct problems. The subjects all constructed a series of problems rather than one large problem. The subjects did not all find and construct the same problems and some subjects’ constructions of problems changed as new information came to light. Most subjects did not finish the construction of problems at the interview. The processes that the subjects use to construct problems can be explained by Middleton’s (1998) problem space model, although this study suggests that model needs to be modified to accommodate the on-going emergent character of practical legal problems as they occur in lawyer and client interview settings. The investigation revealed qualitative differences between the problem attributes and moves that the experienced subjects identified and those that the novices identified. In summary, the experienced subjects identified attributes and moves that were more detailed, more directly related to the ‘facts’ and more concrete than those that the novices identified. Both the experienced subjects and the novices appeared to rely on recognition (Newell & Simon, 1972) to identify problem attributes and moves rather than on any apparent step-by-step legal analysis and reasoning process. This study suggests that the superior performance of the experienced subjects may be explained by their use of knowledge in encapsulated and script form, as predicted. The study discusses the implications of its findings for practical legal training courses as a need to provide students with general problem solving knowledge, provide them with the knowledge that they will need to recognise problems in specific areas of practice, to help them start to develop knowledge in encapsulated and script form, and to develop an understanding of the limits of institutional training in developing professional expertise.
Thesis (Professional Doctorate)
Doctor of Education (EdD)
School of Education and Professional Studies
Faculty of Education
Full Text

The thesis examines the enactment of workplace equality through an analysis of HR generalist talk. The primary data is contextualised by a review of the literature on HR, equality and diversity, and the regulatory terrain. The study is based on interviews with HR practitioners from 40 UK organisations of different sizes/sectors in 2014. The methodology underpinning the analysis is informed by a form of critical discourse analysis which considers lived experiences in their broader contexts (Edley, 2001). The findings indicate that operational HR practice in respect of equality and diversity is constituted mainly of compliance to the equality legislation. HR practitioners enact a ‘legal guardian’ (Wright & Snell, 2005) role, seeking first and foremost to protect their organisations from the threat of litigation. Legal guardianship is delegitimised by the dominant discourses of strategic HRM and diversity management. Nonetheless, the legal guardian role is orientated to mainstream HRM expectations of ‘contribution’ whilst also incorporating a more covert employee advocacy role, which is accomplished through various proxies. The level of complexity and breadth of HR practices associated with the achievement of equality compliance challenges perspectives of equality law as providing a low threshold of rights in the employment relationship. The findings and discussion further challenge the neat demarcation of HR from personnel management in the literature, presenting a perspective of HR practice that is both nuanced and relatively consistent across sectors. The thesis considers the means by which a regulatory role for HR is unintentionally ensured by the dominant HRM discourse. Talk of the HR/line manager relationship in the enactment of equality highlights that roles are relatively stable and that the HR function retains considerable control of processes and outcomes whilst demonstrating a commitment in talk to the principle of devolution. The thesis thereby problematizes the ongoing predication of ‘successful’ HRM on the devolution of operational people management to line managers, and the perspective that continuing devolution is the trajectory of practice. HR practitioner talk indicates the processes by which the equality legislation is given meaning and highlights the significance of the (thus far under-acknowledged) employment lawyer/HR practitioner relationship to understandings of HR and the enactment of equality.

This thesis will explore the primary factors which drive litigants to settle their commercial legal disputes, within the bounds of Western Australia. This thesis will broadly examine the existing literature on settlement and litigation, then compare and contrast this against empirical research carried out by the author to determine why litigants settle, and what factors they take into consideration when settling. This is important because in WA, the vast majority of civil disputes are resolved using alternative methods of dispute resolution. Very often, this will result in a private settlement agreement between the parties ending the dispute. A key reason for settlement is that commercial litigation is a complex and complicated process for most litigants. It requires significant time, energy and resources to undertake. Because litigants are frequently presented with different choices, possibilities and risk throughout their dispute, it can be difficult for them to know what decisions to make in order to maximise their outcome. In addition to this, they will have varying priorities, aims and expectations which will shape their decision-making processes. This research, then, asks lawyers about what factors have an impact on their clients’ decisions. Ultimately, the overarching categories of factors which litigants consider when settling include: cost, risk, various roles of legal practitioners and emotional drivers.

A Dissertação aborda a realidade dos catadores e de suas famílias, no século XXI, em particular, na cidade de Porto Alegre, Rio Grande do Sul. Para tanto, procedeuse a inúmeras observações sobre os locais e as condições de trabalho relacionadas à coleta solidária e à reciclagem popular e suas modificações. Realizou-se uma reconstrução histórica, desde o surgimento dos antigos “papeleiros” até os catadores de materiais recicláveis dos dias atuais, os quais foram entrevistados. Para compreender as circunstâncias econômicas e jurídicas que interferem nessas atividades e que resultaram de longa caminhada política por reconhecimento, foi feito um levantamento dos instrumentos jurídicos que regulamentam o desenvolvimento dessa atividade, bem como o papel exercido pelos Operadores do Direito nas relações dos trabalhadores com as autoridades públicas – municipais, estaduais e federais -, com os geradores de Resíduos Sólidos Urbanos (RSU) e os empreendimentos de catadores, tais como associações e cooperativas.
The Master’s dissertation addresses the reality of recyclable material collectors and their families in the twenty-first century, particularly in the city of Porto Alegre, Rio Grande do Sul state. Therefore, a number of observations were carried out regarding locations and working conditions related to solidary material collecting and popular recycling, and their modifications; collectors were interviewed; a historical reconstruction was conducted from the emergence of the old “paper collectors” (papeleiros) to today’s recyclable materials collectors. In order to understand the economic and legal circumstances that interfere in these activities and which were the result of a long political journey for recognition, we conducted a study on the legal instruments that rule the development of this activity as well as the role played by legal practitioners in the relationship between workers and public authorities – local, state and federal –, generators of municipal solid waste (MSW) and collectors enterprises, such as associations and cooperatives.

This research examines how legal practitioners discursively construct corruption from their experience as users of the services of a public institution. In the legal field, corruption is a word rarely used in connection with practitioners, it is substituted with a less felonious alternative, ‘misconduct’. As a result, this research focuses on how legal practitioners talk about their interaction with the public institution, especially their construction of corrupt transactions. Contrary to the popular assumptions that participants in corrupt transactions are unwilling to talk about their involvement, the findings revealed that participants are willing to talk about their involvement in corrupt practice, but mainly through the use of euphemisms. The empirical contribution of this study suggests on one hand that the extensive use of euphemisms in the construction of the self, processes of corrupt interaction and actions, illustrates the significance of language use in the study of corruption. On the other hand, it emphasises the extent of ‘ethical fading’ and moral disengagement amongst professional service users which is due in part to their popular typecasting as victims, and the inherently contradictory principles of practice within the legal field.

Notwithstanding the strategic importance of service quality to public sector reforms, the Government of Jamaica has given it no consideration in its justice reform project. Neither had anyone previously applied the service quality methodology to service delivery in the Jamaican Supreme Court. This thesis is a study of service quality in the Supreme Court civil registry in Jamaica and of theservices provided to legal practitioners using the registry by clerks, administrators and registrars engaged in that registry. The aim was to identify, investigate andunderstand the perceptions of service quality in the registry. The study was conducted in three stages: A pilot study, a main study andfocus groups' assessments of the findings. The main study used the SERVQUAL instrument, adapted to suit the circumstances of a court's civil registry. The sample frame for the main study was legal practitioners working in the Kingston Metropolitan Area who were users of the civil registry. Survey methodology was used to collect data. Three focus groups of practitioners later evaluated theparticipants' understanding of the items on the questionnaires. The groups supported the findings of the main study and confirmed that the service quality dimensions used in the study represented an accurate interpretation of the servicequality experience of users of the registry. The study also supports the dominant opinion in the literature thatSERVQUAL and SERVPERF are both good measures of overall service quality. The findings were that practitioners in Jamaica experienced poor overall service quality in several service quality dimensions, including the areas that they considered to be most important, and that this dissatisfaction did not vary by gender or how far their place of employment was from the Supreme Court. This work confirms that the Government of Jamaica's programme of civil justice reform is notmeeting the needs of important stakeholders, such as legal practitioners, and that the emphasis of the reforms may be misplaced.

Aim: The 1996 Choice on Termination of Pregnancy Act decriminalized abortion in South Africa and the South African Medicines Control Council in 2000 approved the dispensing of emergency contraceptive methods by pharmacists to women without a doctor's prescription. This legislation has been hailed as among the most progressive in the world with respect to women's reproductive justice. However the realisation of these rights in practice has not always met expectations in part due to medical practitioners' ethical objections to termination of pregnancy and the provision of related services. The aim of this study was to interpret the varying ways in which medical practitioners frame termination of pregnancy and emergency contraceptive services, their own professional identities and that of their patients/clients. Methods: Sample of 58 doctors and 59 pharmacists drawn from all nine provinces of South Africa. Data collected using an anonymous confidential internet-based self-administered questionnaire. Participants were randomly recruited from online listings of South African doctors and pharmacists practicing in both private and public sectors. Data were analysed using theoretically derived qualitative content analysis. Results: Participants drew on eight frames to justify their willingness or unwillingness to provide termination-of-pregnancy related services: the foetal life frame, the women's rights frame, the balancing frame, the social justice frame, the do no harm frame, the legal and professional obligation frame, the consequences frame and the moral absolutist frame. Conclusion: Health professionals' willingness or unwillingness to provide termination of pregnancy related services is highly dependent on how they frame or understand termination of pregnancy, and how they understand their own professional identities and those of their patients/clients.

Relocation cases are disputes between separated parents which arise when one proposes to move to a new locality with their child and the other objects. Relocation disputes are increasingly common and are becoming a topic of international concern. This thesis takes a comparative socio-legal approach to examining the legal responses to relocation cases in England and New Zealand. In England, Payne v Payne [2001] 1 FLR 1052 continues to apply principles first enunciated in Poel v Poel [1970] 1 WLR 1469, and generally sees children’s welfare as being promoted by allowing primary carers to relocate, so long as such moves are bona fide and well-considered. New Zealand rejected this approach in the mid-1990s, and now places more emphasis on children having strong relationships with both parents. Consequently, where England is characterised as ‘pro-relocation’, New Zealand is ‘anti-relocation’. Qualitative interviews with legal practitioners in both countries suggest that these characterisations are reflective of the law in practice. Looking at hypothetical case-studies, English practitioners are more likely to support proposed relocations than New Zealanders. Many English practitioners think their law to be outdated, and in particular that it gives too much weight to applicants’ well-being and too little to the value of children having strong relationships with both parents. However, in New Zealand, where an approach similar to that favoured by many English participants is applied, practitioners have the opposite concern, that applicants’ well-being is given insufficient weight, and promoting strong relationships with both parents has become overly dominant when assessing children’s welfare. It is suggested that the current variation in approaches to relocation may fit broader trends in post-separation parenting in different countries. However, given the current ‘search for common principles’ which can be applied to relocation cases internationally, this thesis raises questions about the likelihood of international agreement being reached.

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Esta dissertação busca compreender como a mulher foi julgada pelos operadores do Direito e pela sociedade caxiense, entre 1900 e 1950, quando transgrediu as normas definidas pelos Códigos Penais de 1890 e 1940, bem como pelo Código Civil de 1916. Para compreender como as transgressões foram julgadas, são analisados os discursos de todos os personagens envolvidos nos processos-crime de defloramento, sedução e estupro, porém com mais ênfase no discurso dos operadores do Direito. Para que esse discurso seja melhor compreendido, objetiva-se identificar o processo de modernização e higienização imposto pelo Poder Público em Caxias do Sul, no período estudado. O modelo de ordem e progresso instalado a partir de 1889 exigiu que a sociedade fosse higienizada e normalizada, principalmente no que tange às relações sexuais, amorosas e afetivas, que estavam diretamente relacionadas à moral e à honra familiar. O discurso dos operadores do Direito, presente nos processos-crime, possibilita identificar o perfil de homens e mulheres que transgrediram as normas, principalmente aquelas relacionadas à sexualidade. Nessa etapa, por meio de pistas e indícios, intenta-se elaborar inferências sobre a abrangência do comportamento transgressor da mulher, uma vez que ela era responsável pela honra, pela moral e pela honestidade da família.
The aim of this dissertation is trying to understand how women were judged by legal practitioners and the society of the city of Caxias do Sul, between 1900 and 1950, when they crossed the boundaries of the norms defined by the Penal Codes of 1890 and 1940, as well as by the Civil Code of 1916. In order to understand how these transgressions were judged, the discourses of all the characters involved have been analyzed, in the law suits involving deflowering, seduction and rape, with a greater emphasis on the discourse of the legal practitioners. So that this discourse might be better comprehended, it tries to identify the process of modernization and hygiene imposed by the Public Power in Caxias do Sul, during the period studied. The model of order and progress initiated in 1889 demanded that society was hygienic and normalized, especially in sexual intercourse and romantic relationships, directly linked to the family’s moral and honor. The discourse of the legal practitioners present in the lawsuits, allows it to identify the profile of men and women that infringed the norms, especially those related to sexuality. At this point, given the clues and indicia, it searches to infer about the range of the transgressive behavior of these women, given that they were responsible by the honor, the moral and honesty of the family.

This microhistory on one legal practitioner seeks to begin to fill the lacunae in the understanding of legal practice in New France by relying on the richness of Québec's archives. Jacques Nouette de la Poufellerie originated in France but practiced in the colony of Canada between the years 1740-1743. In this short time span, over 100 parties hired him as their legal proxy. A collective biography of Nouette's professional network of practitioners, as well as his clientèle, is first performed. The more socially controversial among Nouette's cases, including the only freedom suit to take place in the Ancien Régime period in early Canada, are then examined in detail. Finally, Nouette's precarious social standing and his eventual expulsion from the colony are investigated. By focusing on the itinerary of one of the agents who shuttled between people and the courts of New France, this thesis also contributes to a re-conceptualization of black-letter legal history as "legality" contingent on its socio-historical context.
Cette étude microhistorique, centrée autour de la figure du praticien légal, vise à combler certaines lacunes entourant la manière dont la pratique légale en Nouvelle-France a été comprise jusqu'à maintenant. À partir des ressources offertes par les Archives nationales du Québec, ce mémoire retrace le parcours de Jacques Nouette de la Poufellerie, né en France, mais qui a pratiqué le droit en Nouvelle-France entre les années 1740-1743. Pendant ce court laps de temps, environ une centaine de clients a fait appel à ses services. Dans un premier temps, ce travail établit un prosopographie du réseau professionnel de Nouette, ainsi que de sa clientèle. Nous nous pencherons ensuite sur les causes les plus controversées défendues par Nouette, parmi lesquelles le seul procès visant l'affranchissement d'une esclave en Nouvelle-France. Enfin, les causes et circonstances de l'expulsion de Nouette de la colonie seront analysées en détail. En mettant en lumière les aléas d'un agent ayant servi d'intermédiaire entre le peuple et les cours de la Nouvelle-France, ce mémoire vise à reconceptualiser l'histoire du droit telle que conçue traditionnellement, afin de montrer que la « légalité » est tributaire d'un contexte socio-historique précis.

Officiellement généralisée par la loi du 11 octobre 1946, la médecine du travail s’impose aujourd’hui à tous les secteurs d’activité. Pour veiller sur la santé et la sécurité des travailleurs, la loi a confié aux médecins du travail une mission de prévention consistant à « éviter toute altération de la santé des travailleurs du fait de leur travail, notamment en surveillant leurs conditions d'hygiène au travail, les risques de contagion et leur état de santé, ainsi que tout risque manifeste d'atteinte à la sécurité des tiers évoluant dans l'environnement immédiat de travail» (Code du travail –article L.4622-3). Bien que tous les médecins du travail remplissent des fonctions identiques, les règles qui leur sont applicables varient en fonction de leurs secteurs d’activités. En conséquence, on constate une grande hétérogénéité des statuts. Cette étude présente le statut des médecins du travail des services de santé au travail non agricole et le statut des médecins du travail des fonctions publiques. A travers un état des lieux, la thèse apporte un éclairage précis sur l’hétérogénéité de leur statut et conduit à s’interroger sur la mise en place des règles plus homogènes
Officially extended by the law of October 11th, 1946, occupational health has nowadays become part of all business sectors. To ensure the workers’ health and safety, the law entrusted the occupational health practitioners with a risk prevention with the aim ‘to avoid any deterioration of the workers’ health due to their work, including looking after their work hygiene conditions, the contagion risks and their state of health. It also covers all clear risks linked to third party safety working in the immediate work environment (labour law – article L.4622-3).Although all occupational health practitioners have similar duties, the rules that they apply can vary according the business sectors. Therefore we notice a wide variety of status. This study deals with the status of the occupational health practitioners in the occupational health department of the non-farm and public service. By analyzing the current situation, this thesis gives a precise perspective on the heterogeneousness of their status and leads to questioning setting up more homogenous rules

Les évolutions sociétales témoignent d’une prise en compte grandissante du concept de victime par le droit, et spécifiquement par le droit de la santé. Le droit de la santé est une branche du droit particulièrement riche et complexe dont l’expansion résulte à la fois d’une judiciarisation des professions de santé et d’une succession de scandales sanitaires. La transversalité du droit de la santé et l’appréhension évidente de la victime conduisent à souligner l’existence d’une relation particulière entre ces deux concepts. Néanmoins, il convient de se demander si le caractère épars des règles du droit de la santé permet d’accorder un statut juridique cohérent à la victime dans ce domaine. Si la recherche d’un statut juridique de la victime peut être entreprise, cela se justifie au regard de la spécificité que le droit de la santé semble lui accorder. La présente étude entreprend de démontrer l’existence d’une singularité de la victime dans le domaine de la santé, légitimant dans le même temps la recherche d’un statut juridique. L’assise de la spécificité de la victime réside dans l’attribution de cette qualité indépendamment de la réalisation d’un risque. La survenance d’un évènement constitue donc un critère temporel dont dépend la qualité de « victime avérée » ou celle de « victime potentielle ». La tangibilité du statut juridique de la victime en droit de la santé naît alors de la reconnaissance de sa singularité à travers la présente dichotomie
Evolutions of the society testify a growing awareness of the concept of victims by the law, and especially in Health Law. Health Law is a branch of law which is particularly rich and complex, and whose expansion results both from the judicialization of the health professions and from the succession of health scandals. The transversality of Health Law and its obvious apprehension of the victim lead to highlight the existence of a special relationship between these two concepts. However, the question is whether the scattered character of the Health Law rules assigns a coherent legal status to the victim in this area. If the search for the legal status of the victim can be undertaken, this can be justified by the specific nature of Health Law. The present study tries to demonstrate the existence of the singularity of the victim in the Health Law, while legitimating at the same time the search for the legal status. The foundation of the victim’s specificity lies in the attribution of this quality independently from the realization of a risk. The occurrence of an event constitutes therefore a temporal criterion on which depends the quality of “proved victim” or that of “potential victim”. The tangibility of the victims’ legal status in Health Law arises from the recognition of the singularity through the present dichotomy

South African taxpayers currently consult either accountants (i.e., non-legal tax practitioners) or attorneys (i.e., legal tax practitioners) in order to acquire tax advice. The qualitative approach adopted in carrying out this study entails the examination of the differing rights applicable to a taxpayer depending on which adviser he decides to approach for tax advice. The concept of legal professional privilege is a common law right which has only ever been applicable to members of the legal profession. However, due to the recent regulation of tax practitioners and the modernisation of the way taxpayers conduct their financial affairs in approaching both attorneys and accountants for tax advice it seems appropriate that this privilege should be extended beyond the legal profession. Upon consideration of the history and requirements of this privilege it is determined that this privilege is amenable to extension. Constitutional principles, with regard to the right to privacy and the right to equality in relation to the taxpayer obtaining the tax advice, are infringed as a result of the limitation imposed whereby only tax advice obtained from an attorney is protected. Lastly, the current legislative stances adopted by foreign jurisdictions, that currently permit or are considering permitting legal professional privilege to apply to tax advice obtained from non-legal tax practitioners illustrate that there is a global movement toward removing the current restrictions on this principle. This has been accomplished by countries such as the United States of America and New Zealand by way of introduction of statutory provisions that allow for tax advice issued by non-legal tax practitioners to be protected from disclosure to the revenue authorities in the respective countries. Based on the research conducted it is concluded that South Africa should therefore follow suit and create a separate statutory provision to protect tax advice obtained from non-legal tax practitioners.
Dissertation (Mcom)--University of Pretoria, 2013.
Taxation
unrestricted

A research report submitted in partial fulfilment of the degree of MSc. Med (Bioethics and Health Law), Steve Biko Centre for Bioethics, Faculty of Health Sciences, University of the Witwatersrand, Johannesburg May 2015
When faced with a hunger striking prisoner, health practitioners face the dilemma of their ethical duty to save lives on the one hand and their duty to respect the patient/prisoner’s right to autonomy on the other. Whilst some regimes opt for the approach that force-feeding should be mandatory, other bodies such as the World Medical Association favour the approach that force-feeding is cruel, inhuman and degrading. I take this further and argue that it also amounts to torture. There is insufficient guidance for health practitioners dealing with hunger striking prisoners. I therefore explore this topic further and provide insights as well as make proposals for health practitioners who find themselves in this situation. I examine the various methods used to force-feed a hunger striker, most of which are extremely cruel and inhuman, and demonstrate how these methods fall within the definition of torture. I look at the ways in which various countries around the world respond to hunger strikers and use these to highlight and illustrate some of my arguments and proposals. I also examine the ethical situation regarding force-feeding and make proposals regarding a health practitioner’s ethical obligations towards hunger strikers.

碩士
東吳大學
法律學系
105
The overall environment of Taiwan’s healthcare sector is undergoing significant change. In recent years, issues such as over-loading, unreasonable working hours for medical doctors, as well as the increasing number of medical disputes render hospitals having difficulty to recruit new residents As a consequent, the shortage of manpower becomes a common and serious concern. The Nurse Practitioner System was first developed in 1984 in Taiwan as a means to share the workload and stress of resident doctors. As such, the Nursing Staff Act was amended in 1990 and Article 7-1 was introduced to provide the legal basis for the Nurse Practitioner (NP). However, as there is lacking of by-laws to stipulate the practice aspect of the NP system, there remain many problems and limitations in the implementation of the NP system. One major difference between Taiwan and the US with regard to NP system is that while NPs in Taiwan work in the acute medical institutions, NPs in the United States are commonly work in primary health care institutions. In the past, the scope of practice for NPs is limited to "Auxiliary Medical Activities" as stipulated by the Healthcare Authorities in the June 2007 Interpretation Document. In clinical practice, however, some NPs are involved in the practice of "Core Medical Activates" under the supervision of the medical doctor. As a result, the competent authority has been repeatedly questioned on the potentially wrongful expansion of the scope of the "Auxiliary Medical Activities" that went beyond the language of the Nursing Staff Act. As there is no clear and consistent definition of the scope of practices for the NPs, this puts the NPs in the risk of violating the Medical Doctors Act, as thus increases the uncertainty over their professional risk and legal. This lack of legal protection for the NPs, in addition to affecting the legitimate rights of NPs, also restricts the role and long-term development of the system, which consequently will bring impacts on the quality of healthcare in general. In 2004, the Ministry of Health and Welfare enacted "The Regulation on the Division and Screening of Specialist NPs" to ensure NPs’ professional qualifications with objective criteria and standards. The regulation also intends to provide clearer disciplines for NPs to follow. Further, in August 2014, an amendment was made to Article 24, paragraph 3 and 4 of the Nursing Staff Act, stipulating that, in addition to the original nursing responsibility, NPs can implement the core medical activities under the supervision of medical doctors. The Ministry of Health and Welfare has subsequently issued a "Notice on the Practice of Nurse Practitioner under the Supervision of Physicians" on October 19, 2015. However, there are still uncertainties over the scope, appropriateness consistency with the original Act, especially regarding the differences between the scope of Core Medical Activities that have to be carried out under the "supervision" of medical doctors and the scope of Auxiliary Medical Activities that can be carried out under the "instruction" of medical doctors. As such, although these new rules offer some clarifications on the aforementioned uncertainties, there are still many issues remain addressed. This article aims to examine the historical background, the development and practice dilemma of the NP system in Taiwan. Drawing reference from the NP system in the US, this paper discusses the scope of medical activities, medical practices and other definitions according to relevant laws, regulations and interpretation documents. Further, based on the demand and objectives of the NP system, this paper analysis the definition, nature and legal meaning of the term "Instruction" "Supervision" as provided for in Article 24.2 and 24.3 of the Nursing Staff Act. Further, this paper also examines issues relating to the "Notice on the Practice of Nurse Practitioner under the Supervision of Physicians". Finally, the paper aims to provide policy and legal recommendations for the competence authorities to refine the NP system in Taiwan. In this paper, we found that the scope of " medical practices" implemented by nurse practitioners is clearly different from that of general nursing activities, which is clearly beyond the scope of the auxiliary medical activities that are originally designed to be delivered by nurses and have in fact involved in the core medical activities designed to be delivered personally by medical doctors. In conclusion, in the effort to avoid confusion between the auxiliary medical activities that shall be carried out under the instruction of medical doctors and the core medical activities, it is recommended that new definitions should be added to the "Notice on the Practice of Nurse Practitioner under the Supervision of Physicians"so that the distinction between "Under the supervision" and "by Instruction"of medical doctors are clearly understood. Further, it is recommended that some level of professional autonomy should be offered to NPs by way of making flexible definition of the application of the term "under supervision" , and provides NPs enhanced degree of authorization to make professional judgment. In addition, the restriction on MPs to offer their services only to medical institutions should be relaxed to meet Taiwan's long-term care needs. Finally, NPs also need to share a commensurate level of medical responsibilities.

碩士
大仁科技大學
休閒健康管理研究所
101
Medical disputes arenotuncommonrecently. Withtheriseofpatients’rights, patients’ attitudes toward medical professionalshad graduallyswitched from obedienceto a fair and equal manner. A dispute may occur when a medical treatment did not bring a satisfactory outcome as the patients expected, of which jeopardized the physical-patient relationship. According tothe Department of Health's Medical Review Committee of Department of Health (DOH), 238 cases were filed for investigation in 1996, and 545in2009, a rapid growth.In any medical dispute, the Medicalprofessionals were forced to assume possible operativeresponsibility, civil and even criminal liabilities. This had significantly brought tension to the patient-physician relationship, disappointedthe medical professionals, of which in turn result in more preventive treatments.As a facility of the healthcare services provider,hospital should not only provide quality work environment to the employee but also support for lawyer issues. Doing this was not onlyprotecting theinterestsofhospitaland its employee but also providingeasy accessible legal services to the patients. In Taiwan, legal affairs were part of jobs of the departments of social work or public relation. This research argued that an in-house legal department should be organized for the growing needs of legal assistances. Thisstudyadopted the theory of planned behavior to explore into the medical staffs on how the attitudes, subjective norms, and perceived behavior control can affect theirintentions of seeking legal assistancesfrom the in-house legal department. This research gathered 456 samples of physician, pharmacist, nurses, medical technician, and administrators from varied hospitals. Data revealed that all major constructs of the research varied along with some demographic factors, most medical professionals were poor in legal-related training and knowledge, and the majority of the respondents appeared to have positive response to organizing an in-house legal department.The research confirmed that TPB model by showing that attitude, subjective norms, and perceived behavior control had positively effects on intention.

碩士
國立交通大學
管理學院科技法律學程
102
Recently, insufficient reimbursement of health insurance and the shortage of medical resource have caused the shortage of physicians and difficulty to hospital management. To maintain the balance between quality and cost of health care, hospitals often substitute nurses for physicians in many occasions due to their lower salary. The role of nurse practitioners is therefore transformed from traditional nursing care to collaboration with physicians. The scope of nurse practitioners’ practice partly overlaps with the scope of practice for physicians. However, the unclear regulations defining the scope of nurse practitioners’ practice increases the risk of malpractice litigations to nurse practitioners and creates danger on the safety of public health. Therefore, it is essential to revise the current regulations, including clarifying the scope of practice, raising the standards of training and certification, and enhancing the independence of nurse practitioners’ practice, for improvement of health care quality under the limited medical resource.

The purpose of this study is to explore the EAP environment and provide a better understanding of the related roles of the Employee Assistant Practitioners/Professionals (EAPs) in respect of their treatment of various forms of illnesses in the workplace – particularly HIV and AIDS. The EAP role is not aligned to any individual profession, as it is designed to match employees’ holistic needs. It is in this context that the repertoire of EAP roles would include caring, psycho-social, therapeutic and technical skills. The EAP role is therefore endowed with the potential to meet a range of inter-departmental and multi-disciplinary needs – such as Nursing, Allied Health Professions, and Healthcare Sciences. A generic Assistant Practitioners Performance Management system (scorecard) had to be developed and agreed to with the City of Johannesburg’s (CoJ) Management in order to maintain consistency when developing APE programmes and roles. Notwithstanding the fact that the Employee Assistant Practitioners do also address the growing HIV/AIDS concerns in the workplace – including psycho-social problems of employees and their families – there is minimal acknowledgment of the EAPs’ roles, and little recognition of their welfare and well-being programmes. Drawing eclectically from various inter-related disciplinary terrains, the study centripetally explores the roles of EAPs as well as HIV/AIDS frameworks in the workplace. Quantitative and qualitative descriptive research methods were employed to assess challenges encountered by the City of Johannesburg (C.o.J) employees and their dependants. Questionnaires were used for the data collection of this study. The repertoire of participants in the study (n=55) comprised of doctors, social workers, nurses, HR officers, and other CoJ employees themselves. vi The questionnaire became the pivotal quantitative data analysis reference point ias it focused on numbers or quantities, and less on the qualitative analysis, which focused on differences in quality. The results of the study are based on numeric analysis and statistics to quantify the qualitative analysis. The prevalence of fewer participants was largely influenced by the depth of the data collection process, which did not allow for large numbers of research participants. The findings of the study revealed, amongst other factors, that there was an unsurpassed need to integrate different HIV/AIDS frameworks in order that the roles of EAPs becomes more effectively and efficiently defined and executed. The roles of EAPs were hitherto not well defined, resulting in duplication and confusion of service delivery to some employees utilising the EAP services. However, some of the EAP roles are highly appreciated and increasingly supported by managers and employees. Based on the findings of the study, recommendations were made for clarifying and extending the criticality of EAP roles and functions.
Health Studies
Ph. D. (Health Studies)

M.A. University of the Witwatersrand, Faculty of Humanties, School of Social Sciences (History), 2012
This study is a partial historical biography of the life of one woman, Shulamith Muller. The child of a Jewish immigrant family, she traversed many of her native country's generally impermeable social boundaries to become truly South African. She married an Afrikaner, product of another closed, white community but her politics, and that of her husband, led them both into a completely different South Africa. In this wider world her commitment to, and belief in, the rule of law, justice and the principle of equality before the law gave her a place in a broader black community of her many clients and political comrades, both rural and urban. The study also documents the role of this same irrepressible woman in a political “coup” within another closed society, that of the Pretoria Communist Party in the 1940s, which reflected many of the tensions that were playing out on a larger world stage.

碩士
國立中正大學
法律學研究所
101
The demand of health care increases as our society is developing and the population is ageing. However, the insufficient supply of health care including the shortage in physician manpower and of funds has worsen ever since. To aggressively ameliorate the current poor situation of our health care is the only way to prevent the deterioration of our people’s health. Among all the approaches to ameliorate the aforementioned situation, making good use of the Physician Assistant or the Nurse Practitioner is the most feasible one. Due to the legal constraints of Medical Care Act, implementing Physician Assistant is not a feasible approach to our problems in Taiwan. Nevertheless, the article number 28 of the Medical Care Act has a proviso which allows medical personnel other than physicians to carry out medical practice without incurring any penalty when such practice is instructed by a physician. Therefore, by imitating the comparatively advanced medical care systems in developed countries such as America, it is expected that the Nurse Practitioner program would be implemented to make up the deficiencies in terms of physician manpower and funds. Since 1989, the Department of Health has started to promote the Nurse Practitioner program and it has been legislated to include Nurse Practitioner in the Nurse Act. Although the term Nurse Practitioner is legally named, what types of medical practices can be carried out by the nurse practitioners (especially the term “assistant medical care practice”) are not explicitly defined. Neither the Nurse Act nor any subsequent statutory interpretations from the Department of Health have clearly answered the above questions. Such uncertainty in legal definition causes the medical institutionsr restraining the practice of nurse practitioners or allowing nurse practitioners carrying out “major medical practices” and both approaches could endanger patients’ health so it is necessary to establish clearly defined regulations. This thesis will firstly introduce the foreign nurse practitioner program, then explain the development in our nurse practitioner system, and further review the deficiencies in the current system. Restricted by the current regulations of Medical Care Act and Nurse Act, the scope of nurse practitioner practice still need to be confined to the norm defined by article number 24 of Nurse Act. The current regulations on the scope of nurse practitioner practice are not clearly defined. The assistant medical care practice should be clarified so the nurse practitioners and their collaborative medical care personnel could have rules to follow. Thus at the end of this thesis, the following were suggested: 1. The short term goal is to amend Enforcement Rules of Nurse Act to involve the scope of the nurse practitioner practice in the Enforcement Rules while the long term goal should be amending Nurse Act or establishing Nurse Practitioner Act to make a solid and explicit legal basis for the nurse practitioner practice. 2. To raise the statue of nurse practitioners and improve their specialty through ways such as imitating foreign medical care system by requesting students obtaining nurse practitioner qualification after they get master degree of nursing or following our traditional method of certifying specialties and technicians by requesting them sitting for exams to such qualification. And the final goal is to make good use of medical care resources and eventually enhance the quality of our medical care.

碩士
國立陽明大學
醫務管理研究所
93
The whole people health insurance system of Taiwan has been implemented since March in 1995. The insurance payment spend on medical treatment has been limited. All of the hospitals have to control the cost. Low profit but high risk department resulted in the shortage of doctors, especially in surgeons. In order to maintain the normal operation, hospitals have to organization's engineering reforged. They recruit and train nurses to become “Advanced Nurse Practitioners”. But involve to medical law with doctor law. The purpose of this research is to clarify the role function for research core. Seeing that it is quite sensitive issue, that related to laws, so researcher had chosen Focus Group to precede the research. The research had been used interview guide line with 8 attributions, including dependence department, selection conditions, professional areas, work coverage, duties, training process, training examinations, and certification. The whole process has been recorded under agreement of interviewees. The research has got the conclusion as follows, 1.To set up the standard of advanced nurse practitioners has to confirm the job has to be protected and guaranteed. 2.The training has to be diversification. Qualification and work experience are both important. The training can refer to medical doctor specialist or American education system model. 3.Adjust statutes. Doctors have to cooperate with advanced nurse practitioners. Comply with the balance and the needs of medical ecology. 4.Legislation reference A.Discussing with both doctors and ANP to set up the training standard. B.To legislate training courses to be compulsory. C.To legislate the credit system of compulsory and elective courses. D.To execute the medical treatment assigned both parties have to sign up an agreement.

The South African government promulgated the Choice on Termination of pregnancy Act (CTOP Act, 92 of 1996). This was a dramatic declaration of intent unprecedented in the African continent and globally. This act changed the outlook of the practice of termination of pregnancy by ensuring that services play a critical role in the delivery of the service. This study, which is qualitative in nature, explored the experiences of Termination of Pregnancy service providers working in three designated public health institutions in the Limpopo Province. Interviews were conducted with six service providers to look at how they construct their practice of providing termination of pregnancy services. The information was analyzed and interpreted by means of a thematic analysis method. Major themes that emerged from the participants’ experiences centred on their relationship with family, colleagues, management, clients, and the community reflecting a sense of alienation and lack of adequate infrastructural support. Inadequate support has been found to greatly contribute to the loss of interest in the work around abortion.
Psychology
M. A. (Clinical Psychology)

With the implementation of more and more stringent measures to prevent money laundering, criminals are resorting to the expertise of lawyers for assistance in the formulation of increasingly complex money laundering schemes. This expertise is provided both wittingly and unwittingly. The purpose of this research was to consider whether the South African anti-money laundering legislation places suspicious transaction reporting obligations, which are in line with and meet international directives, conventions and best practice frameworks, on attorneys. The study entails a consideration of the suspicious transaction reporting obligations of lawyers introduced by the Financial Action Task Force, the European Union, the United Kingdom and South Africa and provides an understanding of the concept of money laundering, the money laundering process and the areas in which lawyers are vulnerable to money laundering. The research found that the suspicious transaction reporting responsibilities of attorneys in terms of South African anti-money laundering legislation are not in line with international frameworks and best practice.
Dissertation (MPhil)--University of Pretoria, 2014.
tm2015
Auditing
MPhil
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