Disputes and dilemmas in health law
Article first published online: 6 AUG 2008
© 2008 The Authors. Journal Compilation © 2008 Public Health Association of Australia
Australian and New Zealand Journal of Public Health
Volume 32, Issue 4, pages 397–398, August 2008
How to Cite
(2008), Disputes and dilemmas in health law. Australian and New Zealand Journal of Public Health, 32: 397–398. doi: 10.1111/j.1753-6405.2008.00265.x
- Issue published online: 6 AUG 2008
- Article first published online: 6 AUG 2008
Edited by IanFreckelton and KerryPetersen . Published by The Federation Press , Sydney , July 2006 . Paperback, 698 pages with index . ISBN 9781862875531 . RRP $125
Reviewed by Susannah Jefferys
Medical School, Australian National University, ACT
This book provides a fresh contribution to the area contrasting in scope and focus from other works that cover health law and ethics more broadly and which are intended as a primary teaching resource for lawyers and health professionals.1 The fundamental difference lies in its approach; it presents a greater long term view of current and emerging dilemmas as well as addressing how public health regulation should proceed in this most fluid and complex of disciplines.
Divided into ten parts and comprising thirty chapters, authored by leading health lawyers, academics and medical practitioners, this resource encompasses the current dilemmas in health law. Such dilemmas range from the difficulties in defining medical ethics; to the theoretical concepts of human rights in healthcare; and the delicate balance required by regulators, politicians, healthcare providers and lawyers to ensure public health considerations are upheld and responsive to threats to human health and to threats from privatisation. These areas are complemented by an examination of dilemmas faced at the very conception of life, in particular with ART and immerging regulatory issues associated with this area such as genetic testing, cloning and stem cell research. There is discussion of the development of new treatments and the associated issues with genetic research, such as commercialisation and the inadequate framework that patenting law provides to deal with ethical and social concerns of cutting edge research.
Health law development is essentially a reactive process, therefore the role of litigation is considered: from tort law reform to judicial activism in wrongful birth cases and nurses facing litigation. Importantly the vulnerability of patients and research participants demands a re-evaluation of medical professional competencies, especially when faced with the challenge of overseas trained doctors and corporatisation of healthcare and research. Finally, such issues as access to patient records, privacy and confidentiality are viewed through the modern healthcare paradigm by considering recent legislative changes, challenges to the traditional notion of confidentiality of such diseases as HIV/AIDS and protection of genetic privacy with the advent of the private health insurance industry.
The discussion of ethics through examination of the development and fragmented implementation of advanced directives (ADs) while effective, did not focus enough on the future direction of this area.2 While it is true that there is a lack of community knowledge of such directives and acceptance by both healthcare professionals of the legally binding nature of these ADs (p48), the author does not expand on how community education could be most effectively managed. Consideration of Australia's ageing population and the desire of many older Australians to play an active role in their end-of-life healthcare while they are competent was lacking from this examination of ADs, especially given the focus on present and future dimensions of health dilemmas. It also would have provided an excellent segue to the following examination of competency issues.
The examination of human rights, health rights and the jurisprudence of public health law were focused primarily on Australian law and examples.3 This was surprising given that the editors made particular mention that ‘health law is by its very nature cross disciplinary and global.’(p7) Certainly human rights are inherently international, and the authors have done well to examine their role domestically, my concern is that non-lawyers, healthcare professionals in particular, may simply view human rights as a vague and woolly consideration in healthcare and therefore best avoided. But human rights and their relationship with healthcare and patient's rights have been examined directly in other jurisdictions, for example Pretty's Case in the European Court of Human Rights.4 An analysis of such a case, although often cited, would have provided an example of the direct relevance of human rights to healthcare delivery and a global perspective.
In dealing with end-of-life issues the challenging area of organ donation was investigated.5 While the authors effectively presented the state of regulation in Australia, this area in particular demonstrated how rapidly health policy can change. Since the publication of this resource the National Health and Medical Research Council has published updated ethical guidelines for both living and after-death donation.6 In addition New South Wales has also completed Donation-After Cardiac Death Guidelines which indicate that the authors’ conclusion that this method of donation violates beneficence/non-maleficence even with valid consent (without the development of new technology) is not entirely accurate (p. 356).7 A comprehensive discussion of approaches taken by leading organ donation countries (such as Spain) also would have been beneficial and enlightening when compared to the Australian experience.8
Overall, this book provides a novel and a valuable academic contribution with its focus not only on areas that are currently problematic in terms of health law and ethics, but also for the attention it gives to the future development and possible resolution of these issues. It is largely up-to-date, relevant and accessible to an audience familiar with healthcare delivery in Australia. It will be of interest and use to those in several areas of public health, including health care professionals, health lawyers and health policy makers.
- 1For example see: KerridgeI, LoweM and McPheeJ (ed), (2005, 2nd edition) Ethics and law for the health professions, The Federation Press, Sydney .
- 2Advance Directives: Disputes and Dilemmas,’ in FreckeltonI and PetersenK (ed) Disputes and Dilemmas in Health Law, The Federation Press, Sydney , 2006, p. 38.
- 3Human Rights, health rights and the jurisprudence of public health law,’ in FreckeltonI and PetersenK (ed) Disputes and Dilemmas in Health Law, The Federation Press, Sydney , 2006, p. 79.
- 5Organ donation and transplantation in Australia,’ in FreckeltonI and PetersenK (ed) Disputes and Dilemmas in Health Law, The Federation Press, Sydney , 2006, p. 343., and
- 6Organ and Tissue Donation by Living Donors Guidelines for Ethical Practice for Health Professionals (2007) NHMRC. Accessed at http://www.nhmrc.gov.au/publications/synopses/_files/e71.pdf and Organ and Tissue Donation After Death, for Transplantation: Guidelines for Ethical Practice for Health Professionals (2007) NHMRC. Accessed at http://www.nhmrc.gov.au/publications/synopses/_files/e75.pdf.
- 7Organ Donation After Cardiac Death: NSW Guidelines (2007), New South Wales Health. Accessed at http://www.health.nsw.gov.au/policies/gl/2007/pdf/GL2007_012.pdf.
- 8See The Australia and New Zealand Organ Donation Registry (ANZOD) 2007 Annual Report. Accessed at: http://www.anzdata.org.au/ANZOD/ANZODReport/anzodreport.htm.