ORCID Profile
0000-0003-3297-5622
Current Organisation
Griffith University
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Publisher: Queensland University of Technology
Date: 25-01-2019
Abstract: This special issue of the QUT Law Review focuses on contemporary legal and ethical problems in the sphere of children’s health and reproduction. The special issue arises from a multidisciplinary colloquium hosted at the Queensland University of Technology in July 2017, by the Australian Centre for Health Law Research (‘ACHLR’). This colloquium was attended by a erse group of experts in the field, including legal scholars, legal practitioners, bioethicists and health practitioners. It was encouraging to see a number of attendees from the colloquium submit papers to this special issue, as well as a range of other leading scholars in the field. The focus on children’s rights is timely in the current Australian social and political climate and the research undertaken by the contributors to this special issue is significant in terms of conceptualising the rights of children, and analysing the extent to which the law prioritises their welfare and protects their interests.
Publisher: Queensland University of Technology
Date: 25-01-2018
Abstract: In 2017, following an extensive review of its ethical guidelines on assisted reproductive technology (ART), the Australian National Health and Medical Research Council (NHMRC) upheld its moratorium on non-medical sex selection (NMSS) pending further public debate. Interestingly, the public consultation conducted by the NHMRC revealed a majority of submissions supported a permissive approach to NMSS, suggesting a potential shift in attitudes about NMSS in Australia. Historically, public consultation on NMSS both internationally and in Australia has revealed general opposition to this practice. This has reinforced concerns raised against NMSS in bioethical debates and been reflected in a restrictive regulatory approach to NMSS in many countries. The NHMRC public consultation highlights a potential disconnect between the concerns raised about NMSS in scholarly literature and more liberal community views. This paper reviews the submissions made to the NHMRC on NMSS and argues that the current moratorium should be revisited with a view to exploring a more nuanced approach to regulating NMSS in the future.
Publisher: MDPI AG
Date: 10-03-2023
DOI: 10.3390/LAWS12020026
Abstract: This article outlines and critiques the Australian jurisprudence that has addressed whether minors are able to lawfully consent to gender-affirming hormone treatment, with reference to the landmark decision of Gillick v West Norfolk and Wisbech Area Health Authority. Although the principle of Gillick competency is well recognised in law, the Australian legal developments that apply Gillick to decisions about the commencement of gender-affirming treatment, have taken the principle astray. The approach under Australian law has erged down a path that does not align with the original reasoning in Gillick, nor its contemporary interpretation. I outline the reasoning in Gillick so that the foundational principles are considered before discussing how Gillick has been interpreted and applied in subsequent cases. I then provide an outline of the key legal developments in Australia relevant to minors and the commencement of hormone treatment for gender dysphoria. I undertake a critique of the Australian law in this field and conclude that there is a need for future judicial determination of how Gillick should be applied, not only in the cases relevant to gender dysphoria, but beyond, so that the position in respect of minors’ decision-making is clarified. This is vitally important because the current approach to this issue has potential implications beyond cases relevant to gender-affirming hormone treatment.
Publisher: Informa UK Limited
Date: 04-2014
Publisher: AMPCo
Date: 27-10-2014
DOI: 10.5694/MJA13.10874
Abstract: Intractable disputes about withholding and withdrawing life-sustaining treatment from adults who lack capacity are rare but challenging. Judicial resolution may be needed in some of these cases. A central concept for judicial (and clinical) decision making in this area is a patient's "best interests". Yet what this term means is contested. There is an emerging Supreme Court jurisprudence that sheds light on when life-sustaining treatment will, or will not, be judged to be in a patient's best interests. Treatment that is either futile or overly burdensome is not in a patient's best interests. Although courts will consider patient and family wishes, they have generally deferred to the views of medical practitioners about treatment decisions.
Publisher: Informa UK Limited
Date: 24-05-2013
Publisher: Informa UK Limited
Date: 24-05-2013
Publisher: Queensland University of Technology
Date: 12-2007
Publisher: Informa UK Limited
Date: 24-05-2013
Publisher: Springer Science and Business Media LLC
Date: 02-02-2018
DOI: 10.1007/S11673-018-9838-9
Abstract: The national ethical guidelines relevant to assisted reproductive technology (ART) have recently been reviewed by the National Health and Medical Research Council (NHMRC). The review process paid particular attention to the issue of non-medical sex selection, although ultimately, the updated ethical guidelines maintain the pre-consultation position of a prohibition on non-medical sex selection. Whilst this recent review process provided a public forum for debate and discussion of this ethically contentious issue, the Victorian case of JS and LS v Patient Review Panel (Health and Privacy) [2011] VCAT 856 provides a rare instance where the prohibition on non-medical sex selection has been explored by a court or tribunal in Australia. This paper analyses the reasoning in that decision, focusing specifically on how the Victorian Civil and Administrative Tribunal applied the statutory framework relevant to ART and its comparison to other uses of embryo selection technologies. The Tribunal relied heavily upon the welfare-of-the-child principle under the Assisted Reproductive Treatment Act 2008 (Vic). The Tribunal also compared non-medical sex selection with saviour sibling selection (that is, where a child is purposely conceived as a matched tissue donor for an existing child of the family). Our analysis leads us to conclude that the Tribunal's reasoning fails to adequately justify the denial of the applicants' request to utilize ART services to select the sex of their prospective child.
Publisher: BMJ
Date: 23-03-2018
DOI: 10.1136/MEDETHICS-2017-104273
Abstract: The UK Supreme Court in Montgomery v Lanarkshire Health Board adopts an approach to information disclosure in connection with clinical treatment that moves away from medical paternalism towards a more patient-centred approach. In doing so, it reinforces the protection afforded to informed consent and autonomous patient decision making under the law of negligence. However, some commentators have expressed a concern that the widening of the healthcare providers’ duty of disclosure may provide impetus, in future cases, for courts to adopt a more rigorous approach to the application of causation principles. The aim would be to limit liability but, in turn, it would also limit autonomy protection. Such a restrictive approach has recently been adopted in Australia as a result of the High Court decision in Wallace v Kam . This paper considers whether such an approach is likely under English negligence law and discusses case law from both jurisdictions in order to provide a point of comparison from which to scope the post- Montgomery future.
Publisher: Wiley
Date: 27-01-2015
DOI: 10.5694/MJA14.00624
Abstract: Gender dysphoria is a condition in which a child's subjectively felt identity and gender are not congruent with her or his biological sex. Because of this, the child suffers clinically significant distress or impairment in social functioning. The Family Court of Australia has recently received an increasing number of applications seeking authorisation for the provision of hormones to treat gender dysphoria in children. Some medical procedures and interventions performed on children are of such a grave nature that court authorisation must be obtained to render them lawful. These procedures are referred to as special medical procedures. Hormonal therapy for the treatment of gender dysphoria in children is provided in two stages occurring years apart. Until recently, both stages of treatment were regarded by courts as special medical treatments, meaning court authorisation had to be provided for both stages. In a significant recent development, courts have drawn a distinction between the two stages of treatment, permitting parents to consent to the first stage. In addition, it has been held that a child who is determined by a court to be Gillick competent can consent to stage 2 treatment. The new legal developments concerning treatment for gender dysphoria are of ethical, clinical and practical importance to children and their families, and to medical practitioners treating children with gender dysphoria. Medical practitioners should benefit from an understanding of the recent developments in legal principles. This will ensure that they have up-to-date information about the circumstances under which treatment may be conducted with parental consent, and those in which they must seek court authorisation.
Publisher: Oxford University Press (OUP)
Date: 02-08-2023
Abstract: This article outlines the Australian legal position relevant to minors and the commencement of hormone treatment for Gender Dysphoria (GD). It traces the significant Australian legal developments in this field and compares the Australian jurisprudence with recent English caselaw. In Quincy Bell and Mrs A v The Tavistock and Portman NHS Foundation Trust and Ors, the English High Court held that minors below 16 years are not likely to have the requisite competency to lawfully consent to the commencement of puberty suppressing drugs. The Court of Appeal subsequently overturned this decision, but there are important aspects of the High Court’s reasoning that warrant further analysis, particularly some of the underlying reasoning about the nature of GD as a condition and its treatment. This article highlights several common themes when comparing the High Court’s reasoning in Bell with Australian jurisprudence and highlights how the Australian position has advanced significantly since the first Australian cases in this field were decided. This comparison shows that the Australian perspective is important in demonstrating how judicial views can advance over time alongside a deeper understanding of GD, its treatment, and the broader impact of a requirement to involve the court in such cases. It is concluded that the Australian perspective should be considered in future English cases.
Location: United Kingdom of Great Britain and Northern Ireland
Location: United Kingdom of Great Britain and Northern Ireland
No related grants have been discovered for Malcolm Smith.