Journal of law and medicine
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Surrogacy has produced some positive outcomes by creating an opportunity for otherwise childless couples to realise their dream of parenthood. However, it has also been problematic, particularly where the surrogate mother fails to relinquish a child born as a result of the surrogacy arrangement. ⋯ Legislation and case law in Australia, the United States and the United Kingdom are examined to determine which, if any, of these jurisdictions take into account the existence, or otherwise, of a genetic link between the surrogate mother and the child she bears. The article concludes that surrogacy legislation should, subject to exceptional circumstances, encourage surrogacy arrangements where the child and the surrogate are not genetically related.
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In 2010 the High Court of Australia in Tabet v Gett (2010) 240 CLR 537 determined an appeal in a medical negligence case concerning a six-year-old girl who had presented to a major paediatric hospital with symptoms over several weeks of headaches and vomiting after a recent history of chicken pox. The differential diagnosis was varicella, meningitis or encephalitis and two days later, after she deteriorated neurologically, she received a lumbar puncture. Three days later she suffered a seizure and irreversible brain damage. ⋯ The High Court, however, did not exclude loss of chance as forming the substance of a probable (greater than 50%) claim in medical negligence in some future case. In the meantime, patients injured in Australia as a result of possible medical negligence (particularly in the intractable difficult instances of late diagnosis) must face the injustice of the significant day-to-day care needs of victims being carried by family members and the taxpayer-funded public hospital system. The High Court in Tabet v Gett again provides evidence that, as currently constituted, it remains deaf to the injustice caused by State legislation excessively restricting the access to reasonable compensation by victims of medical negligence.
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End-of-life decision-making continues to challenge health care providers, patients, families, regulators and judges. The Queensland State Coroner's findings in the 2009 inquest into the death of June Woo resulted in a submission from concerned clinicians to the Queensland Law Reform Commission's review of the State's guardianship regime, claiming that the judgment held problematic implications for future practice. This column summarises the State Coroner's findings and recommendations, and critically analyses the clinical response, focusing on consent requirements that, while peculiar to Queensland, illustrate continuing tensions surrounding decision-making conflicts at the end of life.
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This article critically analyses the recent High Court decision in Tabet v Gett (2010) 84 ALJR 292; [2010] HCA 12 which considered whether a person should be able to obtain compensation on the basis of a loss of a chance of a better medical outcome. The appellant argued that the High Court should regard a plaintiff as entitled to compensation when a breach by a defendant of their duty of care causes the plaintiff to lose a possibility, but not a probability, of a better medical outcome. The High Court held that it was not possible for a person in the position of the appellant to obtain compensation for the loss of a chance of a better medical outcome.
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The law recognises the right of a competent adult to refuse medical treatment even if this will lead to death. Guardianship and other legislation also facilitates the making of decisions to withhold or withdraw life-sustaining treatment in certain circumstances. ⋯ This article considers this tension in the law and examines various arguments that might allow for such decisions to be made lawfully. It ultimately concludes, however, that criminal responsibility may still arise and so reform is needed.