Regulation of Medical Professionals and National Security: Lessons from Three Case Studies
In recent times, Australia’s national security concerns have had controversial impacts on regulation of Australian medical practitioners in areas related to immigration detention. This column explores three recent case studies relevant to this issue. The first involves the enactment of the Australian Border Force Act 2015 (Cth), which has a significant impact on the regulation of medical professionals who work with people in immigration detention. The second involves the decision of the High Court of Australia in Plaintiff M68/2015 v Minister for Immigration and Border Protection  HCA 1 that an amendment to Australian federal legislation justified sending children back to immigration detention centres in Papua New Guinea and Nauru. This legislation was previously heavily criticised by the Australian Human Rights Commissioner. As a response to that decision, application of the principle of loyalty to the relief of individual patient suffering has guided the decision-making of health professionals who have refused to discharge children from hospitals if that means returning them to offshore immigration detention centres. This legislation was previously heavily criticised by the Australian Human Rights Commissioner. The third case study concerns the deregistration of Tareq Kamleh, an Australian doctor of German-Palestinian heritage who came to public attention on ANZAC Day 2015 with his appearance online in a propaganda video for the Islamic State terrorist organisation al-Dawla al-Islamyia fil Iraq wa'al Sham, also known as Islamic State of Iraq and Syria (ISIS) or Daesh. Dr Tareq Kamleh, an Australian, travelled to Syria and joined the Islamic State (IS) a terrorist organisation whose targeted killing of innocent civilians typifies the terror that has contributed to the influx of refugees into Australian and other immigration detention centres. Australia’s Our professional regulatory system should presumptively respect professional virtues, such as loyalty to the relief of individual patient suffering, when dealing with doctors (whether in Australia or ISIS-occupied Syria or Australia) working under regimes whose principles appear inconsistent with those of ethics and human rights.
Seminar: ‘Reaching People Currently Excluded by Improving Access to Justice Through Multi-Disciplinary Practices’: Health Justice Partnerships - Recent Research Findings’ (Presentation Slides)
Author(s): Elizabeth Curran
This seminar examined recent research findings from the author's research and evaluation of the Bendigo Health Justice Partnerships in a rural & regional are of Victoria based at the Bendigo Community Health Service at its site in a low -socioeconomic area in Australia, as a case study.
The paper also drew on Dr Curran's other research and some of the other research and literature on what can lead to effective legal service delivery and have a positive impact on outcomes and the social determinants of health.
The paper also highlighted the importance of professionals working together to better reach many in the community who have not been accessing legal help due to significant barriers, some of which are systemic, and what the quantitative and qualitative researcher data suggest are key elements in Health Justice Partnerships and Multi-disciplinary practices if they are to be effective.
The author highlights difference between models in the UK, USA and Australia but suggests the research still has some valuable lessons.
Dr Curran stressed that the qualitative data reveals that relationships, respect and trust, emerge as key, for effective services as legal assistance service is essentially human service delivery to people who have complex and multiple issues that make engagement difficult.
Dr Curran cautions against 'top down' 'siloed' service delivery noting that the evidence based research she has undertaken suggests that participatory service delivery that engages, builds capacity, collaborates and empowers providing a voice for community and professionals who deliver the services are all critical for an effective, efficient and well targeted service which the research is suggesting HJP can be if it has such elements in its approach.
Human Rights and Realizing the Right to Health for the Most Disadvantaged – Health Justice Partnerships (Presentation Slides)
Author(s): Elizabeth Curran
This seminar/workshop examines innovations such as multi-disciplinary practice, specifically Health Justice Partnerships (HJP) and how they can enhance human rights adherence and protection.
Services are already hard to navigate for the most vulnerable and disadvantaged. Even where there is no court or tribunal case involved access to legal advice can be critical. It can save mistakes being made, help people understand their rights and responsibilities and according to my research on the impact of HJP's through evidence based field research, such models lead to early intervention and often prevention of problems or their escalation. Fundamental universal human rights such as the right to income support, the right not to experience inhumane or degrading treatment including poor housing, and rights to safety are all aspects that can see vulnerable and disadvantaged people needing legal advice and support.
It is also critical to the Rule of Law. (See author's comments, Chapter 1 (21) ‘Access to Justice’ Global Perspectives on Human Rights (3rd edition, 2015) OHRH, at 22).
This seminar/workshop discusses some of the human rights settings and what HJP can to do help realise rights to health and well being that are effected by the social determinants of health.
It examines some research and findings of the author including the types of lawyers that are critical to successful lawyering and health service support if those programs/services are to be effective in engaging the most vulnerable. The presentation also suggests how HJP might be explored in student clinics and in non government organisations doing work in developing countries which have limited resources and where the reach of HJPs, collaboration and capacity building can be critical. This feeds into Sen's notions of capability and empowerment and the critical importance of systemic work to solve the causes of problems including the alleviation of poverty.
Realizing the Right to Health and Access to Justice for the Most Disadvantaged – Health Justice Partnerships (Presentation Slides)
Author(s): Elizabeth Curran
This Seminar was presented to post graduate students, academic staff and members of non-government organisations and examines recent evidence based research that examines the impact of Multi-Disciplinary Practice such as a Health Justice Partnership (HJP).
The seminar explores the HJPs impact on improving the outcomes of the social determinants of health for clients with legal problems that would otherwise not have been identified or resolved but for the HJP.
It also canvassed empirical data suggestive that there had also been enhancements to the professional capacity of lawyers, health and allied health professionals through working within an HJP setting that benefit clients and enable further reach in resolving legal problems capable of a solution.
Using research in Bendigo a regional, rural of Victoria, Australia the seminar discusses the nature of the research undertaken and key findings. The discussion then led to ideas around expansion of the HJP model in a Danish setting.
International Lessons on Health Justice Partnerships: Their Applicability for Pro Bono Partners and Managers (Presentation Slides)
Author(s): Elizabeth Curran
This Panel/Workshop focuses on International Lessons on Health Justice Partnerships. Speakers including Dr Curran were asked to respond in an interactive session to the following headings:
i. Development of HJPs in Australia/USA
ii. Benefits of the model
iii. Evaluation of HJPs funded in Victoria
iv. Commonalities across projects
v. Key messages and lessons from evaluation
The session was held for UKAcademy which has been developed by the UK Collaborative Plan for Pro Bono, with planning support from the Association of Pro Bono Counsel. UKAcademy now comprises ten sessions focused on practical topics of relevance to those managing or developing pro bono in a law firm setting. Information-sharing is a cornerstone of the UK Collaborative Plan for Pro Bono. Members of the Plan have agreed to share data on pro bono activities, they share information on new pro bono opportunities, and they share practical knowledge to help expand their respective pro bono practices. The audience for this event was lawyers and managers employed by law firms who coordinate law firm pro bono programmes. The majority of audience members have a UK base, although joined by some colleagues from the USA.
The event was coordinated by Allen Overy's Pro Bono Manager Hayley Jones.
Topic - 'Health Justice Partnerships (HJP) Research, Evaluations and Findings, and 'How To.'' Presentation Slides, Panel of the Legal Education Foundation UK & Allen & Overy, 12 September 2016, London, UK
Author(s): Elizabeth Curran
There is a growing evidence base demonstrating positive outcomes from the provision of legal advice in healthcare settings. In the US and Australia there are national centres that promote and co-ordinate this work, where they are respectively known as medical-legal partnerships and health justice partnerships. There are also multiple examples of good practice in the UK, captured by reports such as the Low Commission’s 2015 paper The Role of Advice Services in Health Outcomes. The Legal Education Foundation is keen to see the expansion of partnerships between health funders and providers and social welfare legal advice. There have been discussions about how to convert the isolated good practice into a more cohesive national system of health justice partnerships.
This event was a workshop, which heard from Dr Liz Curran, a leading academic in this field who has been involved in Health Justice Partnerships in Australia and Steven Schulman, a partner at Akin Gump who has worked on Medical-Legal Partnerships in the US. Professor Dame Hazel Genn with a UK perspective as a leading authority on access to civil and administrative justice and her work to develop a pioneering student law clinic based at the Guttman Health and Well-being Centre in east London. The workshop was designed to be participatory so as to hear about UK-based examples of best practice and to explore how best to build upon the work going on in the UK.
Health Justice Partnerships (HJP): Working Ethically to Reach Those in Most Need of Legal and Medical Support & to Improve Outcomes – Research Evidence, a Seminar for City, University of London (Law School) 13 September, 2016, London (Presentation Slides)
Author(s): Elizabeth Curran
This presentation will examine the emergence of Health Justice Partnerships (HJP) in Australia and will discuss some of the ethical dilemmas and resolutions of these dilemmas that have emerged during Dr. Curran's action research evaluations. A Health Justice Partnerships (HJP) sees a partnership between a legal assistance (or legal aid) service and health services (including allied health services). Empirical research sees unresolved legal problems lead to poor health outcomes. In Australia and the UK those most likely to have multiple legal problems are the poor and disadvantaged and figures say only 13% - 16 % get help. In HJP the focus is on problem solving for client/patients with often complex and multiple problems and solving these in a holistic way through integrating legal and non-legal services to enable client access and seamless assistance. This presentation will also discuss the ethical issues and how these have been resolved due to the holistic client focus of all the professionals in the HJP examined.
Health Justice Partnership - Multi-Disciplinary Practices: Research Evidencing Working Ethically to Ensure Reach to Those in Most Need & Improve Outcomes (Presentation Slides)
Author(s): Elizabeth Curran
This paper examines the emergence of Health Justice Partnerships (HJP) in Australia and will discuss some of the ethical dilemmas and resolutions of these dilemma that have emerged during Curran's action research evaluations. These have been embedded in services from start-up undertaken by Curran. The evaluation research not only measures service effectiveness but also examines and measures positive outcomes and any progress in the social determinants of health as a result of the intervention. As the research empirical data has been analysed, what emerges is the elements leading to effectiveness for lawyers working in integrated models and ways to work ethically across different disciplines to achieve better outcomes including for their social determinants of health. This paper is to firm the basis of a refereed journal article to be submitted shortly end 2016.
Civil Procedure - Commentary and Materials (6th edition)
Civil Procedure — Commentary and Materials provides students and practitioners with a comprehensive analysis of the practical and theoretical issues encountered in Australian civil procedure, including alternative dispute resolution. This text combines a wealth of primary and secondary materials from all jurisdictions. The common law is clearly set out, together with extensive practical commentary. Each chapter features in-depth questions and notes together with lists of further reading to aid and extend understanding of the issue. It also examines and discusses each substantive and procedural step in the trial and appeal process.
This sixth edition contains completely revised and updated legislation, Rules of Court, cases and articles.
Research theme: Private Law
Unintended consequences: the impact of migration law and policy
This book arose from an inaugural conference on Migration Law and Policy at the ANU College of Law. The conference brought together academics and practitioners from a diverse range of disciplines and practice. The book is based on a selection of the papers and presentations given during that conference. Each explores the unexpected, unwanted and sometimes tragic outcomes of migration law and policy, identifying ambiguities, uncertainties, and omissions affecting both temporary and permanent migrants. Together, the papers present a myriad of perspectives, providing a sense of urgency that focuses on the immediate and political consequences of an Australian migration milieu created without due consideration and exposing the daily reality under the migration program for individuals and for society as a whole.
Research theme: Migration and Movement of Peoples
Draft Working Paper for a Research and Evaluation Report for the Bendigo Health–Justice Partnership: A Partnership between ARC Justice Ltd and Bendigo Community Health Services
Author(s): Elizabeth Curran
This report documents the reasons for health justice partnerships, the literature, the methodology, the field research which used a participatory action research approach with a continuous learning and development framework. This Draft Working Paper sets out the summary of qualitative and quantitative data, the findings, conclusions lessons and recommendation emerging from this longitudinal study on the Bendigo Health Justice Partnership, in advance of the Full Final Research and Evaluation Report which will be released in 2017.
ARC Justice (specifically one of its programs, the Loddon Campaspe Community Legal Centre (LCCLC)) and the Bendigo Community Health Service formed a partnership in 2013 to commence a Health Justice Partnership (HJP) in January 2014 to better reach those clients experiencing disadvantage.
ANU (through the author Dr Liz Curran) was commissioned to conduct empirical research and an evaluation of the pilot project's impact on the social determinants of health, its outcomes and the effectiveness of Health Justice Partnerships in reaching clients who would otherwise not gain legal help with a range of problems capable of a legal solution.
This Draft Working Paper is released, in advance of the Full Final Report, so that agencies, researchers and funders and policy makers developing or working in Health Justice Partnerships or multi-disciplinary practices can benefit and be informed by the research and evaluation given the wide range of issues emerging from the research canvasses while the Full Final Report is finalised.
The Full Final Research & Evaluation Report will be released in 2017 but, in the interim, people using SSRN can utilise the research for their work. This responds to the numerous requests to share the research at the earliest opportunity so as to inform service delivery and funding applications which may occur before the release of the Final Report.
Evaluating Consumer Action’s Worker Advice Service, June 2016
Author(s): Elizabeth Curran
This is a report of the Consumer Action Law Centre. Dr Liz Curran was an adviser on the project.
The focus of this evaluation sits within a quality framework of continuous development, reflection and improvement of that service.This evaluation report and the quality framework recognises the extent of unmet legal need in Victoria and the critical role non-legal agencies can play in helping meet that need.
In addition to providing free legal assistance to individuals, Consumer Action Law
Centre (CALC) provides legal secondary consultations (LSC) to Victorian financial counsellors and other community workers through a dedicated telephone legal advice service.
Legal Secondary Consultations (LSC) are defined as where a lawyer offers a non-legal professional (such as a doctor, nurse, youth worker, social worker or financial counsellor) legal advice or information on legal processes (such as what happens at court, and how to give evidence or structure reports for a court to provide the required considerations), or on their professional and ethical obligations, or guides the non-legal professional through tricky situations involving their client or their work for clients. Critically, LSCs can build capacity in non-legal professionals likely to come into contact with the most challenging problems, so as to be able to identify or quickly verify that a problem is capable of a legal solution.
This orientation towards collaborative, holistic and joined-up service delivery is reflected in CALC’s current strategic plan, which includes actions to explore relationships with other community support agencies and catalyse new approaches to meeting unmet need and ‘hard-to-reach’ communities.
Dr Curran was adviser on the project and the report and data collection was undertaken by the Consumer Action Law Centre who have given the author permission to place the report on SSRN, so as to share with others how LSC can enable non-legal professional support, enhance multi-disciplinary practice and reach more clients who are currently excluded from gaining legal help for due to a number of barriers.
A Research and Evaluation Report for the Bendigo Health–Justice Partnership: A Partnership between Loddon Campaspe Community Legal Centre and Bendigo Community Health Services
Author(s): Elizabeth Curran
The Bendigo HJP Research and Evaluation (HJPRAE) was undertaken over three years with an evaluative process embedded in the service from service start-up. At the time it was challenging research as it examines impact and grappled with the internationally renowned challenge of measuring the social determinants of health.
Qualitative and quantitative data have been collected using multiple tools and specific questions.
Findings: 1. The clients of the HJP are complex and more often than not have more than one legal problem and a multitude of other health and social welfare problems. They often feel judged and lack trust in services. They will seek help when they feel they are not judged, where they are respected and where there is service responsiveness. Appointments are problematic – time and place can be critical to engagement, especially for people who have experiences of trauma or negative previous experiences of the legal system. 2. During its life, the Bendigo HJP has provided a significant amount of legal service to clients on a range of matters, often where one client has a significant number of legal issues. The clients’ lives are complicated and building trust takes time. Given the project has only one lawyer co-located at the HJP, the number of clients and client problems tackled is significant in view of the limited staff, funding and resources. 3. The Bendigo HJP is reaching clients who would otherwise not have sought legal help. The role of their trusted health or allied health professional in facilitating that reach has been overwhelmingly critical – 90% of clients interviewed in the HJPRAE said that without the HJP they would not have sought legal help. 4. Clients who have multiple and complex problems reported they were anxious and frightened as they did not know their rights/position. They reported this impacted on their health and wellbeing. The effectiveness and quality of the HJP service and its impact as reported by health/allied health professionals delivered the following relevant responses: • confidence in engaging with services in clients to have increased by 90.9% • knowledge of rights and responsibilities in clients to have increased by 72.7% • knowledge of options and more skilled over time in clients to have increased by 90.9%. 5. The capacity of professionals, due to the HJP, to respond to legal issues with confidence has increased; that is, they have become ‘empowered’.
General Application to Other Replicable Models of HJP Clients turn to ‘trusted’ health/allied health professionals but may not turn to lawyers without the facilitation and transferral of trust. Some clients will not turn to a lawyer as they are not emotionally ready (e.g., due to trauma, fragility, fear) and so the health/allied health professional that they trust becomes an important intermediary for them to gain legal help and information at salient times. A service which is a HJP needs to be ‘opportunistic’ in taking advantage of clients’ health appointments to provide legal assistance – due to complexities of their lives and confusion, lack of confidence and being overwhelmed etc. The capacity of professionals, both lawyers and non-lawyers, as well as client service staff, is key/critical to being able to support clients in a timely way, when in crisis or ready for help. Legal Secondary Consultations (LSCs) ‘are pivotal’; ‘it would not work if we did not have LSCs’. A significant majority of research participants noted that the LSC enables quick, efficient and targeted building of knowledge which can ‘save time’ in the long run. The type of lawyer used has been critical to the success of the Bendigo HJP and should be considered when hiring and recruiting staff. Lawyers can’t ‘just sit in their office’ but need to interact, integrate, not be ‘too stuffy’ or ‘too hierarchical’, ‘avoid jargon’ and show ‘respect’. The type of person used in the role is key to the HJP’s success. Trust and relationships take time to demonstrate an impact and their effectiveness as they are predicated on relationships, human experience, confidence and positive interactions and cannot be driven by a ‘top down’ approach.
Conflicts in Space and the Rule of Law
Given the increase in the number of States and non-State actors becoming active in space, and the increased reliance that militaries have on space technologies, there are growing concerns about the risk of a conflict taking place in outer space. There is currently no binding international legal instrument that effectively deals with conflicts in space. As will be elaborated in this paper, the probability of the conclusion of such an agreement or of any non-binding soft-law instrument in the near future is also very low. We believe that innovative means ought to be devised in this regard. One such means could be the development of a Manual on International Law Applicable to Military Uses of Outer Space (MILAMOS), which would follow in the footsteps of the San Remo Manual on International Law Applicable to Armed Conflict at Sea, the Harvard Manual on International Law Applicable to Air and Missile Warfare, and the more recent Tallinn Manual on International Law Applicable to Cyber Warfare.
Conflicts in Space: International Humanitarian Law and Its Application to Space Warfare
This article discusses the ways in which International Humanitarian Law (IHL) applies to the domain of outer space. IHL is applicable as a matter of international law, yet outer space poses some challenges when it comes to specific principles and rules. A brief outline is given of some of the kinds of weapons that have been and might be used in space, as well as the ways in which space assets are used with respect to conflicts on Earth. This is followed by an in depth analysis of the core principles of IHL and how they apply: the principles of distinction, proportionality and precaution in attack. While it is imperative that States recognise that IHL is applicable to all their activities in space that involve conflicts on Earth and/or in space, care must be taken in weighing up the traditional principles and their application to this new domain. As the technology that increases war-fighting capability advances, so does the imperative to understand the applicable legal framework for the use of such technology.
Modern Equity: Revolution or Renewal from Within?
Author(s): Pauline Ridge
Peter Birks spearheaded a revolution in thinking about Equity. This paper questions how successful that revolution has been. Two narratives of modern Equity are identified: the revolutionary narrative commenced by Birks and one counter-narrative that is apparent in contemporary case law. Three particular strands of these narratives are then discussed. They concern the integration of the Common Law and Equity; conscience-based reasoning; and judicial method. Illustrations are taken largely from the law governing third party ancillary liabilities that protect equitable rights. Claims against recipients of property protected by Equity, particularly the claim for unconscionable retention of benefit following receipt of misappropriated trust property, are used to illustrate the integration of the Common Law and Equity and the use of conscience-based reasoning. Judicial method is discussed in the context of equitable accessory and recipient liability. Reference is also made to the doctrine of undue influence, the change of position defence, mistaken gifts and private law claims tainted by illegality.
The Boundary between 'Not-for-Profits' and Government
Author(s): Darryn Jensen
This chapter attempts to trace the development of a concept of voluntariness. This cannot be done by reference to a category of 'not-for-profit', for that category is a recent invention. Instead, the history of voluntariness is to be found in the history of two other concepts which might be seen to be distinguishable from government - charity and civil society. These concepts are neither wholly distinct from, nor coterminous with, 'not-for-profit'. Once the histories of these concepts have been considered, the normative determinacy of the concept of voluntariness will be considered in the light of some contemporary intersections of government and not-for-profit activity.
Constructive Trusteeship: The Perils of Statutory Formulae
Author(s): Darryn Jensen
This paper evaluates the provisions concerning constructive trusteeship in Trusts Act 1994 (Marshall Islands) and makes more general observations about the roles of constructive trusts in litigation involving trustees' breaches of duty, the roles of statute law and the risk inherent in attempts to express complex and multi-faceted private law concepts in statutory formulae.
Being Well in the Law: A Guide for Lawyers
Being Well in the Law is a toolkit for lawyers. It has been well informed by the input of experts from the Australian National University and Sydney University, as well as a range of other experts. It draws heavily on multidisciplinary knowledge embracing mindfulness and meditation, and evokes ideas to help us switch off from other thoughts and focus only on the moment, helping to alleviate anxiety.
Lawyers in the Shadow of the Regulatory State: Transnational Governance on Business and Human Rights
Author(s): Kath Hall
This paper examines the growth of transnational governance, and what it means for business lawyers advising multinational corporate clients. The term “governance” incorporates the network of actors, instruments and mechanisms that now govern transnational corporations, separate from the nation state. It is reasonable to expect that lawyers play an important role in advising business clients on how to effectively operate within this system. Indeed, many transnational legal instruments are intended to enhance clients’ business goals by enabling them to engage more efficiently in cross-border commerce. Other forms of regulation, such as human rights regulation, purports to impose requirements on companies that go beyond what is necessary to enhance cross-border commerce.
In this paper we discuss the transnational governance regime that has arisen to address the adverse human rights impacts of business activities. We focus in particular on the United Nations (UN) Guiding Principles on Business and Human Rights, which were adopted by the UN Human Rights Council in 2011. We ask what if any role is there for lawyers in fostering acknowledgment and fulfilment of these responsibilities among clients? Is the duty to respect human rights a “legal” obligation in any sense? If a lawyer does provide advice, should it encompass only legal risks to the company that fall within the lawyer’s traditionally defined specialized expertise? Or should it go beyond that to include other concerns?