Publications

This is a searchable catalogue of the College's most recent books, book chapters, journal articles and working papers. The ANU College of Law also publishes a Research Paper Series on SSRN.

The New Corporate Law

Author(s): Stephen Bottomley

Corporate social responsibility is back on the corporate law reform agenda. From an Australian perspective, the evidence for this is found in the simultaneous but separate inquiries that, at the time of writing this paper, are being conducted into this topic by the Australian Parliament's Joint Committee on Corporations and Financial Services, and by the Australian Government's Corporations and Markets Advisory Committee (CAMAC). These developments are supported by the many standards, guidelines, principles, and codes promulgated by non-government bodies, industry groups and other international organisations.

Cynics might dismiss these developments as part of a regular cycle of corporate law reform. After all, as we will see, this is not the first time that corporate social responsibility has appeared on the reform agenda. Others might suggest that, finally, this is an idea whose time has come. The purpose of this paper is to examine the extent to which this renewed, and widespread, attention to corporate social responsibility is being reflected in the substance of our systems of corporate law. Is it possible, and meaningful, to talk of a 'new corporate law' in which the concerns of people other than shareholders (or, indeed, the non-financial concerns of shareholders) are to be given serious attention?

The plan of the paper is as follows. We begin with a brief survey of recent developments in different common law jurisdictions, with an emphasis on Australia, that have implications for the idea of corporate social responsibility. The focus here is not just on statutory developments, but also on the wider array of codes, guidelines and so on that were adverted to earlier. From this base, we then draw and elaborate upon two conclusions. The first is that the shareholder primacy model continues to exert a powerful, although sometimes misunderstood, effect on the capacity of legislators to respond to corporate social responsibility concerns. In particular, it has the potential to constrain the actions of directors in responding to those concerns, it constrains the power of shareholders to put these concerns in front of the board, and it constrains the capacity of non-shareholders to bring these concerns to the attention of company managers. The second conclusion is that much of the action regarding corporate social responsibility therefore occurs outside the parameters of the statutes, and it is in this sense that we can talk about a 'new corporate law': a system of corporate regulation that depends as much on (if not more on) non-statutory mechanisms and methods, which in many cases can have a more immediate impact on corporate operations. The final part of the paper examines some of these themes in more detail, by way of a 'case study' of the position of corporate employees. Whatever definition one takes of corporate social responsibility, it is undeniable that the financial and physical well-being of a company's employees must be a central concern. Recent corporate collapses and policy responses to them in Australia provide a stark illustration of the limited extent to which corporate law has been able to respond to the challenges of corporate social responsibility.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

Essay Review: Final Test and Class and Schools

Author(s): Molly Townes O'Brien

This essay reviews two recent books that explore contemporary efforts to close the American black/white educational achievement gap. In Final Test: The Battle for Adequacy in America's Schools, Peter Schrag chronicles on-going efforts to enlist the power of the courts to effect equal educational opportunity through court-ordered remedies. Richard Rothstein, in Class and Schools: Using Social, Economic and Educational Reform to Close the Black-White Achievement Gap, looks to social science, educational and social reform for potential solutions to the problem. The essay suggests that neither litigation nor educational reform is sufficient to provide universal access to high quality education in the U.S. Broad social reform and sustained effort in both the courts and the legislatures are required.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Legal Education

Superannuation Complaints Tribunal and the Public/Private Distinction in Australian Administrative Law

Author(s): Greg Weeks

This article considers the Superannuation Complaints Tribunal (SCT) and the capacity of its decisions to be reviewed. While the constitutional position of the SCT is settled after the decision of the High Court in Attorney-General (Cth) v Breckler (1999) 197 CLR 83, its categorisation as a private body remains open to question. This being the case, the susceptibility of decisions of the SCT to review is compared with the equitable standards upon which trustee decisions are reviewable. Challenges to decisions of the SCT may not be possible under the Administrative Decisions (Judicial Review) Act 1977 (Cth) but the quasi-private character of the SCT – a private body with a public function – presents scope for courts to hold that the SCT owes an equitable duty to those within its jurisdiction.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Coffee House: Habitus and Performance Among Law Students

Author(s): Desmond Manderson

Drawing on the work of Pierre Bourdieu and Judith Butler, we develop a detailed ethnography of a social space in a major law school, and explore its socialization of the students there. ‘Coffee House’ is a weekly social event sponsored by Canadian law firms offering free drink and food to the students present. We argue that this event and the actors involved profoundly change student identities and alter educational aspirations. Although the students themselves insist that ‘nothing is going on,’ our ethnography suggests that in ‘Coffee House’ identity is developed through performances, and in the accumulation of symbolic capital, until ultimately students come to feel their future career path is not a matter of choice, but destiny. We explore the important work of Bourdieu through this setting, but ultimately we resist his determinism, and suggest instead that, following the work of Butler, identity is a more complicated and fluid dynamic between space, repetition, and performance. It appears that a personal unconscious transformation amongst law students attending Coffee House is underway; yet opportunities to change the meaning of this space and these performances remain.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Gluttony: The End of Private Law

Author(s): Desmond Manderson

Starting from St Thomas Aquinas, the best known of the medieval commentators on the Seven Deadly Sins, the sin of gluttony has suffered from certain ambiguities. This chapter attempts to clarify the nature and the problematic of glutton, with particular reference to an aspect of contemporary significance: the treatment and consumption of animals. The author finds this treatment both scandalous, secretive, and emblematic of a much broader problem of the modern world – commodification. This, too, is a form of modern gluttony from which neither law nor philosophy is immune. In order to draw forth these connections between our approach to law, to knowledge, and to food, the author draws on recent fiction by Nobel laureate J M Coetzee, and the ethical philosophy of Emmanuel Levinas. He argues for a restructuring of how we think about ‘the lives of animals’ which will respond to the idea of gluttony in both its immediate sense and in its metaphorical extension. Perhaps our gluttonous appetites can be tamed, not by knowledge and not by justice, but by ethics.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Emmanuel Levinas and the Philosophy of Negligence

Author(s): Desmond Manderson

Over the past hundred years, the law of negligence has transformed itself, and in the process transformed our sense of the obligations we all owe to everybody around us – local governments for the services they provide, banks and professionals for the advice they give, drivers on the road, doctors in the surgery, homeowners for their guests or visitors, and even for the trespassers who might pay them a call. Yet what is now compendiously described as ‘the duty of care’ is in some ways an unusual obligation. It is not the outcome of an agreement founded on self-interest, like a contract. It is not a duty owed to the community as a whole and acted on by the State, like criminal law. It describes a personal responsibility we owe to others which has been placed upon us without our consent. It is a kind of debt that each of us owes to others although we never consciously accrued it. Thus it raises in a distinctly personal way one of the oldest questions of law itself: ‘Am I my brother’s keeper?’ What does it mean to be responsible? This is not a question that is easier to answer for us than for Cain. In this article I argue that the idea of responsibility articulated in the law of negligence comes from what might be termed our literal response-ability: it implies a duty to respond to others stemming not from our abstract sameness to others, but rather from our particular difference from them. Responsibility is not a quid pro quo — it is asymmetrical, a duty to listen to the breath of others just in so far as their interests diverge from our own. The duty of care emerges not because we have a will (which the law of contract respects) or a body (which the criminal law protects) but because we have a soul.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Cases and Controversies: Pregnancy as Proof of Guilt Under Pakistan's Hudood Laws

Author(s): Moeen Cheema

Pakistan's Hudood (Islamic criminal) laws have been a source of controversy since their promulgation by the military regime of General Muhammad Zia-ul-Haq in 1979. For their supporters, these laws are a welcome step towards the enforcement of shari'ah (Islamic law) and, as such, represent a logical and inevitable progression of those historic processes that had led to the creation of the Islamic Republic of Pakistan. To their opponents, these laws represent gross violations of fundamental human rights and constitutional norms designed to uphold democratic participation in lawmaking and the equality of citizens irrespective of their religion or gender.

This paper will survey the contours of the controversies surrounding the Hudood laws, and seek to broaden the horizons of the debate surrounding these laws by incorporating an “Islamic critique” of these laws that has generally been lacking in the discourse. More importantly, the paper seeks to analyze the role that the Federal Shariat Court has played in substantively shaping the law, through a chronological analysis of the Court's decisions on the most contentious aspects of the Hudood laws: the conviction of rape victims for zina (consensual adultery/fornication) regarding as proof the pregnancy caused by the rape. This analysis will indicate the strengths of the Islamic critique and propose reforms that may offer a viable avenue for alleviating the hardships perpetrated in the application of the Hudood laws.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

Tortologies

Author(s): Desmond Manderson

It matters how we conjugate the world. The grammar in which one frames an area of law indicates what is seen to be important about it and why. How did law arise and to what end? These questions have generated a variety of powerful myths surrounding the origin of law. Over the past several years, I have been working on a project which has attempted to articulate the insights of Levinas to a legal audience, with particular reference to the distinct idea of responsibility in tort law. Above all, as I hope this essay will go on to illustrate, Levinas offers a point of departure in trying to understand why we ought to be responsible for others that is radically unlike the standard grammars and philosophical reference points which have to date governed our understanding of this responsibility. Levinas suggests that we can understand responsibility in quite a different way, and in a manner that both captures something central to the legal discourse, and - just as relevantly - central to our own experience. Law is, after all, not just a structure of arbitrary rules of co-ordination. It is a story as to the way in which our society re-attaches commitments to their proper authors. Responsibility is not a judicial auto-da-fe but an influential narrative about who we are.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Coffee House: Habitus and Performance Among Law Students

Author(s): Desmond Manderson

Drawing on the work of Pierre Bourdieu and Judith Butler, we develop a detailed ethnography of a social space in a major law school, and explore its socialization of the students there. ‘Coffee House’ is a weekly social event sponsored by Canadian law firms offering free drink and food to the students present. We argue that this event and the actors involved profoundly change student identities and alter educational aspirations. Although the students themselves insist that ‘nothing is going on,’ our ethnography suggests that in ‘Coffee House’ identity is developed through performances, and in the accumulation of symbolic capital, until ultimately students come to feel their future career path is not a matter of choice, but destiny. We explore the important work of Bourdieu through this setting, but ultimately we resist his determinism, and suggest instead that, following the work of Butler, identity is a more complicated and fluid dynamic between space, repetition, and performance. It appears that a personal unconscious transformation amongst law students attending Coffee House is underway; yet opportunities to change the meaning of this space and these performances remain.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Legal Regulation of Religious Giving

Author(s): Pauline Ridge

The article considers the legal regulation of religious giving in nineteenth century England. Three leading cases, decided between 1871 and 1887, are discussed. Each case involves a woman of Roman Catholic, or Roman Catholic-like persuasion, making a substantial testamentary or inter vivos gift to the religious body with which she is associated. It is argued that whether the gift was construed as an outright gift or a trust for purposes was crucial to its enforceability. Two key themes are considered: autonomy concerns in relation to religious giving (including reasons why these concerns were more pressing with respect to inter vivos gifts) and the different levels of legal recognition of religious giving. The law during this period took an active role both in managing the relationship of religious groups with the state and in controlling the activities of religious groups; conversely, suppressed religious groups managed to operate around, and outside, the law.

Read on SSRN

Centre: CCL

Research theme: Law and Religion, Private Law

Emmanuel Levinas and the Philosophy of Negligence

Author(s): Desmond Manderson

Over the past hundred years, the law of negligence has transformed itself, and in the process transformed our sense of the obligations we all owe to everybody around us – local governments for the services they provide, banks and professionals for the advice they give, drivers on the road, doctors in the surgery, homeowners for their guests or visitors, and even for the trespassers who might pay them a call. Yet what is now compendiously described as ‘the duty of care’ is in some ways an unusual obligation. It is not the outcome of an agreement founded on self-interest, like a contract. It is not a duty owed to the community as a whole and acted on by the State, like criminal law. It describes a personal responsibility we owe to others which has been placed upon us without our consent. It is a kind of debt that each of us owes to others although we never consciously accrued it. Thus it raises in a distinctly personal way one of the oldest questions of law itself: ‘Am I my brother’s keeper?’ What does it mean to be responsible? This is not a question that is easier to answer for us than for Cain. In this article I argue that the idea of responsibility articulated in the law of negligence comes from what might be termed our literal response-ability: it implies a duty to respond to others stemming not from our abstract sameness to others, but rather from our particular difference from them. Responsibility is not a quid pro quo — it is asymmetrical, a duty to listen to the breath of others just in so far as their interests diverge from our own. The duty of care emerges not because we have a will (which the law of contract respects) or a body (which the criminal law protects) but because we have a soul.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Global Intellectual Property Protection for Innovative Pharmaceuticals: Challenges for Bioethics and Health Law

Author(s):

Multilateral and bilateral trade agreements have become important vehicles by which US multinational corporations, through close collaboration with government officials, are striving, amongst other objectives, for increasingly stringent global intellectual property protection (GIPP), particularly over what they term “innovative” pharmaceuticals.

This chapter explores the evolution and structural dynamics of GIPP. It particularly considers the hypothesis that GIPP represents a corporate-driven ideology whose legitimacy in a democratic polity is undermined by its uncertain foundation in public health research and inadequate integration with norms of bioethics and health law, including international human rights.

This detailed analysis begins with consideration of the domestic evolution of GIPP from within the US patent system. This may reveal how many of its important structural features had their roots in a domestic profit-making ideology. The chapter then examines the critical initial globalization role of the US Trade Act 1974, particularly section 301. This permitted US industry to request an investigation by the US International Trade Commission of foreign nations whose practices allegedly caused it material injury. The Agreement on Trade Related Intellectual Property Rights (TRIPS) is analyzed as a mature component of GIPP by which increased intellectual property rights [intellectual monopoly privileges] in particular over pharmaceuticals, were linked with strong trade sanctions. The sophisticated contribution to GIPP made by the Medicare Prescription Drug Improvement and Modernization Act 2003 (US) is then evaluated, particularly its prohibition of Federal Government medicine price setting and its requirement for a study of pharmaceutical price controls in other developed countries. In each case the extent to which GIPP attempted or failed to integrate its corporate-designed principles with basic norms of bioethics, public health law and international human rights is discussed.

Read on SSRN

Centre: CIPL

Research theme:

Fiduciary Disclosure of Medical Mistakes: The Duty to Promptly Notify Patients of Adverse Health Care Events

Author(s):

Fiduciary obligations are imposed by the common law to ensure that a person occupying a societal role with a high potential for the manipulation of vulnerable persons exercises utmost good faith. Australian law has recognised that the doctor-patient relationship, while not wholly fiduciary, has fiduciary aspects. Amongst such duties are those prohibiting sexual or financial abuse of patients or disclosure without express authority of confidential information. One important consequence of attaching such fiduciary duties to the doctor-patient relationship is that the onus of proof falls not upon the vulnerable party (the patient), but upon the doctor (to disprove the allegation). Another is that consent cannot be pleaded as an absolute defence. In this article the authors advocate that the law should now accept that the fiduciary obligations of the doctor-patient relationship extend to creating a legal duty that any adverse health care event be promptly reported to the patient involved. The reasons for creating such a presumption, as well as its elements and exceptions, are explained.

Read on SSRN

Centre: CIPL

Research theme:

Assessing the Impact of the Australia-United States Free Trade Agreement (AUSFTA) on Australian and Global Medicines Policy

Author(s):

On 1 January 2005, a controversial trade agreement entered into force between Australia and the United States. Though heralded by the parties as facilitating the removal of barriers to free trade (in ways not achievable in multilateral fora), it also contained many trade-restricting intellectual property provisions and others uniquely related to altering pharmaceutical regulation and public health policy in Australia. The latter appear to have particularly focused on the world-respected process of federal government reimbursement after expert cost-effectiveness evaluation, popularly known as the Pharmaceutical Benefits Scheme ('PBS'). It remains uncertain what sort of impacts – if any – the Australia-United States Free Trade Agreement ('AUSFTA') will have on PBS processes such as reference pricing and their important role in facilitating equitable and affordable access to essential medicines. This is now the field of inquiry for a major three year Australian Research Council ('ARC')-funded study bringing together a team of senior researchers in regulatory theory from the Australian National University and pharmacoeconomics from the University of Newcastle. The project proposes to monitor, assess and analyse the real and potential impacts of the AUSFTA in this area, providing Australian policy-makers with continuing expertise and options. To the extent that the AUSFTA medicines provisions may represent an important precedent in a global strategy by industry on cost-effectiveness evaluation of pharmaceuticals, the study will also be of great interest to policy makers in other jurisdictions.

Read on SSRN

Centre: CIPL

Research theme:

Global Intellectual Property Protection for Innovative Pharmaceuticals: Challenges for Bioethics and Health Law

Author(s):

Multilateral and bilateral trade agreements have become important vehicles by which US multinational corporations, through close collaboration with government officials, are striving, amongst other objectives, for increasingly stringent global intellectual property protection (GIPP), particularly over what they term “innovative” pharmaceuticals.

This chapter explores the evolution and structural dynamics of GIPP. It particularly considers the hypothesis that GIPP represents a corporate-driven ideology whose legitimacy in a democratic polity is undermined by its uncertain foundation in public health research and inadequate integration with norms of bioethics and health law, including international human rights.

This detailed analysis begins with consideration of the domestic evolution of GIPP from within the US patent system. This may reveal how many of its important structural features had their roots in a domestic profit-making ideology. The chapter then examines the critical initial globalization role of the US Trade Act 1974, particularly section 301. This permitted US industry to request an investigation by the US International Trade Commission of foreign nations whose practices allegedly caused it material injury. The Agreement on Trade Related Intellectual Property Rights (TRIPS) is analyzed as a mature component of GIPP by which increased intellectual property rights [intellectual monopoly privileges] in particular over pharmaceuticals, were linked with strong trade sanctions. The sophisticated contribution to GIPP made by the Medicare Prescription Drug Improvement and Modernization Act 2003 (US) is then evaluated, particularly its prohibition of Federal Government medicine price setting and its requirement for a study of pharmaceutical price controls in other developed countries. In each case the extent to which GIPP attempted or failed to integrate its corporate-designed principles with basic norms of bioethics, public health law and international human rights is discussed.

Read on SSRN

Centre: CIPL

Research theme:

Health Legislation: Interpretation Coherent with Conscience and International Human Rights

Author(s):

This essay seeks to explore some theoretical and practical obstacles to developing a coherent and comprehensive theory for the interpretation of health legislation. One obstacle considered involves the academic and professional reluctance to direct critical attention to interpretive actions outside the judicial sphere; in this case to those by health administrators, health professionals and patients. Another concerns a similar reticence to formally acknowledge the widespread utilization by such interpreters of principles derived from normative traditions distinct from many domestic legal systems, in particular those of medical ethics and international human rights. The third obstacle relates to the difficulties raised for interpretation of health legislation by community demands for greater transparency and quality assurance in the health care sector. Linked with this is the question whether interpretation of health legislation should be approached with a presumption that it promotes core social and professional virtues (such as justice, fairness and loyalty to relief of patient suffering) in the life narratives of those most directly affected.

Given existing presumptions that legislation will not seek to controvert basic principles of the common law or international law, it seems reasonable to for judiciary interprating an ambiguity to be required to presume that the relevant health legislation will not normally seek to overturn basic ethical principles of the doctor-patient relationship. Similarly justified would be a presumption that health legislation will not be interpreted to contravene basic ethical protections accorded research subjects through authoritative ethical codes and guidelines. Of like importance, as will be discussed, could be a rebuttable assumption that health legislation will not attempt to abrogate the primary fiduciary obligation and professional virtue of a doctor to remain loyal to the relief of suffering amongst his or her patients.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy

Private Health Insurance and Regional Australia

Author(s):

Since 1996, an increasing proportion of federal government expenditure has been directed into Australia’s healthcare system via private health insurance (PHI) subsidies, in preference to Medicare and the direct funding of public health services.

• A central rationale for this policy shift is to increase the use of private hospital services and thereby reduce pressure on public inpatient facilities. However, the impact of this reform process on regional Australia has not been addressed.

• An analysis of previously unpublished Australian Bureau of Statistics data shows that regional Australians have substantially lower levels of private health fund membership. As a result, regional areas appear to be receiving substantially less federal government health funding, compared with cities, than if these funds were allocated on a per-capita basis.

• We postulate that the lower level of membership in regional areas is mainly due to the limited availability of private inpatient facilities, making PHI less attractive to rural Australians.

• We conclude that PHI as a vehicle for mainstream federal health financing has potential structural failures that disadvantage regional Australians.

Read on SSRN

Centre: CCL

Research theme: Private Law

Assessing the Impact of the Australia-United States Free Trade Agreement (AUSFTA) on Australian and Global Medicines Policy

Author(s):

On 1 January 2005, a controversial trade agreement entered into force between Australia and the United States. Though heralded by the parties as facilitating the removal of barriers to free trade (in ways not achievable in multilateral fora), it also contained many trade-restricting intellectual property provisions and others uniquely related to altering pharmaceutical regulation and public health policy in Australia. The latter appear to have particularly focused on the world-respected process of federal government reimbursement after expert cost-effectiveness evaluation, popularly known as the Pharmaceutical Benefits Scheme ('PBS'). It remains uncertain what sort of impacts – if any – the Australia-United States Free Trade Agreement ('AUSFTA') will have on PBS processes such as reference pricing and their important role in facilitating equitable and affordable access to essential medicines. This is now the field of inquiry for a major three year Australian Research Council ('ARC')-funded study bringing together a team of senior researchers in regulatory theory from the Australian National University and pharmacoeconomics from the University of Newcastle. The project proposes to monitor, assess and analyse the real and potential impacts of the AUSFTA in this area, providing Australian policy-makers with continuing expertise and options. To the extent that the AUSFTA medicines provisions may represent an important precedent in a global strategy by industry on cost-effectiveness evaluation of pharmaceuticals, the study will also be of great interest to policy makers in other jurisdictions.

Read on SSRN

Centre: CIPL

Research theme:

The Messiha and Schiavo Cases: Third-Party Ethical and Legal Interventions in Futile Care Disputes

Author(s):

In the United Kingdom, termination of artificial feeding and hydration for patients in a persistent vegetative state generally requires the prior sanction of a High Court judge.UK clinicians also routinely seek judicial resolution of protracted disputes with relatives about ceasing 'futile' active treatment on incompetent intensive care patients lacking a formal advance directive. The same has generally been true in the United States.

Until recently, however, Australian intensivists appear to have lacked either the training or the support to initiate or participate in these types of cases, and the discussion about what Australian courts would do has been largely confined to legal academia. In this article, we examine the recent case of Messiha vs. South East Health (the Messiha case), and the various judicial and political interventions in what has become known as the Schiavo case in the US, for their practical lessons about the role of ethical, legal and legislative interventions in physician approaches to resolving disputes about the technical 'futility' of treatment.

Relatives may increasingly demand that an incompetent patient’s treatment be continued indefinitely, despite clinical advice that it is technically 'futile' (offering no reasonable prospect of return to a meaningful quality of life). Third-party interventions may become a more frequent part of attempts to resolve such disputes where there is no formal advance directive.

In the Messiha case, the Supreme Court of New South Wales upheld clinical judgement regarding the patient’s best interests as most important.

In the Schiavo case in the United States, clinicians’ decisions on futility of treatment had received unwavering judicial support in more than 20 proceedings.

Consulting a clinical ethics committee in such scenarios is both legally recommended and clinically warranted as an important device for diffusing tensions between relatives and clinicians, as well as clarifying their respective ethical and legal responsibilities.

In protracted or apparently irresolvable disputes with relatives, applying for a judicial declaration on futility of treatment has become a practical option for intensivists in Australia and should be a recognised part of their training.

Read on SSRN

Centre: CIPL

Research theme:

Fiduciary Disclosure of Medical Mistakes: The Duty to Promptly Notify Patients of Adverse Health Care Events

Author(s):

Fiduciary obligations are imposed by the common law to ensure that a person occupying a societal role with a high potential for the manipulation of vulnerable persons exercises utmost good faith. Australian law has recognised that the doctor-patient relationship, while not wholly fiduciary, has fiduciary aspects. Amongst such duties are those prohibiting sexual or financial abuse of patients or disclosure without express authority of confidential information. One important consequence of attaching such fiduciary duties to the doctor-patient relationship is that the onus of proof falls not upon the vulnerable party (the patient), but upon the doctor (to disprove the allegation). Another is that consent cannot be pleaded as an absolute defence. In this article the authors advocate that the law should now accept that the fiduciary obligations of the doctor-patient relationship extend to creating a legal duty that any adverse health care event be promptly reported to the patient involved. The reasons for creating such a presumption, as well as its elements and exceptions, are explained.

Read on SSRN

Centre: CLAH

Research theme:

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