24 October 2016

Punitive Damages and ISDS empiricism

'Punitive Damages Revisited: A Statistical Analysis of How Federal Circuit Courts Decide the Constitutionality of Such Awards' by Hironari Momioka in 2014 uses the data of punitive damages decisions of U.S. federal circuit courts from 2004 to 2012 in an attempt to establish empirically that.
(1) There is no apparent statistical difference between the levels of jury and judge awards.
(2) U.S. Supreme Court decisions such as Philip Morris (2007) or Exxon (2008) do not actually or substantially affect the level of punitive damage awards.
(3) With regard to the cases involving remittitur or reduction of awards, the Exxon decision did not radically affect the decreasing ratio of punitive to compensatory damage awards.
(4) As the levels of compensatory awards go up, the ratio becomes strikingly low and stable.
(5) Finally, the proportionality between punitive and compensatory awards is not the key factor that influences upper court judges when they consider the constitutionality of punitive damages. Unexplained portions of the relationship between the amount of punitive damages and the wealth of a defendant remain to be examined further.
'The Impact of Investment Treaties and ISDS Provisions on Foreign Direct Investment: A Baseline Econometric Analysis' (Sydney Law School Research Paper No. 16/74) by Shiro Patrick Armstrong and Luke R. Nottage considers Investor-State Dispute Settlement.

The authors comment 
Based on an interdisciplinary and cross-institutional research project (2014-7) assessing international investment treaty dispute management more broadly, this paper (abridged from a related project) introduces part of our joint project examining key questions around the effect of investment treaties and some of their provisions on direct investment flows. It focuses on the vexed question of whether offering treaty-based Investor-State Dispute Settlement (‘ISDS’) leads to significant increases in inbound foreign direct investment (FDI), in light of the persistent public debate about the merits of this procedural option for enforcing substantive commitments made by host states.
Overall, our econometric analysis generates complex implications for policy-makers reassessing the historical impact of ISDS in order to decide whether and how to include different forms of such procedural provisions in future investment treaties. Skeptics can point to counter-intuitive results indicating that weaker-form ISDS and/or substantive provisions seem to have stronger and more robust impact, especially since the turn of this century. Proponents can point to results indicating that there has still been a positive and significant impact from stronger provisions, including from full-scale ISDS provisions in promptly ratified treaties concluded between OECD and non-OECD countries.
Although our baseline model specification has generally dealt effectively with the endogeneity problem characteristic of this field, further variables impacting on FDI may be investigated (notably, double tax treaties) and data limitations remain (notably, FDI outflows from non-OECD countries and sectoral-level data). This econometric analysis can therefore be usefully complemented by the qualitative research component of our ongoing project.


In Telstra Corporation Ltd v State of Queensland [2016] FCA 1213 the Federal Court of Australia has found that the provisions of the Land Regulation 2009 (Qld), which had the effect of imposing higher rents on telecommunications carriers such as Telstra Corporation for state leases, were discriminatory and invalid.

The FCA found that the Telecommunications Act 1997 (Cth) Sch 3 cl 44 prohibited state and territory legislation from discriminating against carriers without an appropriate or permissible distinction between the carriers and other leaseholders.

23 October 2016

Charitable Trusts and Comparative Law

'The Development of the Public Benefit Requirement for Charitable Trusts in the Nineteenth Century' by Matthew Mills in (2016) 37(3) Journal of Legal History 269-302 comments
The first express judicial reliance on the public benefit requirement for charitable trusts to conclusively determine charitable validity seems to occur in 1862, although implied references to similar ideas are seen up to a century previously. With limited exceptions, the origin of the public benefit requirement has been under-examined. This article argues that a multi-factorial and contextual approach best explains its adoption in the nineteenth century. Three developments in nineteenth-century law and society encouraged judges to broaden charity law: (1) increasing religious pluralism, (2) increasing state education, and (3) regular income taxation. These changes, combined with the formalization of the doctrine of precedent, required both some limit on the scope of charity law and a new substantive justification for novel decisions on charitable validity. This article argues that judges and lawyers, whether intentionally or subconsciously, borrowed ideas of public benefit from closely related mortmain cases to develop the public benefit requirement.
In questioning conventional theorisation Mills argues
Although the public benefit requirement was only written into English statute in 2006, and the distinction between its first and second senses only formally judicially recognized in 2011, we see judges explicitly relying on the public benefit requirement alone to conclusively determine issues of charitable validity over 140 years earlier. As explained above, before then judges had chiefly asked whether charitable purposes were within the spirit and intendment of the Statute of Charitable Uses 1601 to determine charitable validity.
The first case in which public benefit was held expressly to be decisive of charitable validity seems to be in Rickard v Robson in 1862. There, using similar language to counsel, Sir John Romilly MR says ‘a gift merely for the purpose of keeping up a tomb or building which is of no public benefit, and only an individual advantage, is not a charitable use but a perpetuity’. Conversely, ‘if the gift is to keep up an institution for the benefit of the public, then it is clearly a charity’. Romilly MR thus holds that public benefit in the second sense is a necessary condition for a charitable trust as a trust yielding ‘only an individual advantage’ is not a charity; this arguably raises both cross-sectional public benefit and incidental private benefit. Romilly MR, however, did not attempt to distinguish between the two senses of public benefit; indeed, his judgment seems to conflate the two by suggesting that the trust was not charitable under the Statute of Charitable Uses 1601 (the first sense; conceptual) because it did not provide benefit to a sufficient section of the population (the second sense; cross-sectional).
Less than seven years later, in Beaumont v Oliveira the Court of Appeal in Chancery held that testamentary gifts to the Royal Geographic Society and the Royal Society ‘subsist for [educational] purposes and no others, therefore for public purposes – therefore, for the advancement of objects of general public utility – therefore for purposes analogous and similar to those mentioned in the statute of Elizabeth – therefore for charitable purposes’. Although this scatter-gun reasoning aims to cover all possible justifications for a finding of charity to support the court’s desired result, within it is a clear suggestion that if a charity’s purpose provides public benefit in the first sense (conceptual public benefit) then it will be a valid charitable trust. Therefore, Beaumont uses public benefit in the first sense being to justify the validity of a new type of charitable trust. It is interesting to observe that both senses of the public benefit requirement can arguably be traced to cases in the 1860s, although those cases did not distinguish the two.
The third explicit judicial reference is from the important 1871 case of Cocks v Manners. In discussing the validity of testamentary gifts to two orders of Roman Catholic nuns, Wickens VC stated that ‘religious purposes are charitable, but that can only be true as to religious services tending directly or indirectly towards the instruction or the edification of the public’. Because one of the donees was a set of cloistered nuns, Wickens VC accordingly used the lack of public benefit in the first sense (demonstrable public benefit), as the purpose did not ‘tend’ to meaningful benefit, to justify invalidating the purported religious charitable trust. This seems to be the first example of public benefit in the first sense being used to invalidate a purported charitable trust. Unfortunately, however, Wickens VC seems to conflate Garton’s two parts of public benefit in the first sense by suggesting that a religious trust for cloistered nuns was ‘neither within the letter nor the spirit’ of the Statute of Charitable Uses 1601 (conceptual) because such a trust would not tend to benefit to the public (demonstrable).
In 1875, the Privy Council adopted a similar approach. A testatrix had left a will directing, amongst other things, ‘that a house for performing religious ceremonies to my late husband and myself be erected’. The court held that ‘gifts for purposes useful and beneficial to the public … in a wide sense of the term, are called charitable uses’ (conceptual public benefit). Applying this principle, ‘the only point therefore requiring consideration can be, whether there is anything … which would render such [a disposition] beneficial or useful to the public’. The court concluded that the disposition ‘does not seem to fall within any definition of a charitable duty or use. The observance of it can lead to no public advantage, and can benefit or solace only the family itself’. Once more we see the court using a lack of public benefit in the second sense (incidental private benefit) to justify invalidating a purported religious charitable trust.
A thinly reasoned example arose in the House of Lords in 1882. In upholding the charitable status of oyster fishing rights held by the Saltash Corporation for the beneļ¬t of Saltash freemen, Earl Cairns stated that it was ‘a charitable, that is to say a public, trust or interest, for the benefit of the free inhabitants of ancient tenements’. Although no substantive discussion was given to why such an arrangement involves a charitable trust, the conclusion that the charitable trust was valid seems to be premised on the presence of (conceptual) public benefit in the first sense. This quotation was cited three times in 1888, including by Lindley LJ who, just five years later, gave his own version of the public benefit requirement. Earl Cairns also alluded to (cross-sectional) public benefit in the second sense to justify his conclusion when he stated that the trust would not be void for being ‘for the benefit of private individuals or a fluctuating body of private individuals’.
In 1885 we find our first clear use of the public benefit requirement in the second sense in upholding a charitable trust. Derby Railway Servants Orphanage applied to court to confirm that it was exempt from district rates under the Public Health Act 1875 on the basis that it occupied its property ‘exclusively for the purposes of public charity’. In holding that the orphanage was such a charity, and exempt from the rates, Manisty J assumed that its purposes were charitable in nature. The only question was thus ‘whether this charity is not for a large and extensive section of the community’ to qualify as a public charity under the Act. After citing Lord Hardwicke’s remarks from Pearce, extracted above, Manisty J concluded that ‘this charity is extensive. It extends to the whole of the railway servants all over England’. This short decision contains what seems to be the first use of the second sense of the (cross-sectional) public benefit requirement to justify upholding charitable status. Furthermore, Manisty J’s decision impliedly suggests a difference between being charitable in nature (conceptual public benefit) and being for the benefit of a sufficient section of the public (cross-sectional public benefit) – arguably implying a difference between two senses of public benefit.
In the late 1880s two further decisions at first instance held that a lack of public benefit in the second sense (incidental private benefit) justified invalidating a purported religious charitable trust. First, in 1886 North J cited and followed the above passages from Romilly MR’s judgment in Rickard to hold that a charitable trust to keep in repair a churchyard was ‘for the benefit of the parish at large’, but a trust to keep in repair a family tomb was ‘only ministering to [the testator’s] own private feeling or pride’. Second, in 1888 Chitty J applied Cocks v Manners to hold that a gift to a society who privately prayed for the suppression of animal cruelty was not charitable because ‘a mere improvement of the individual by private prayer … is not a purpose of public or general utility within the statute’.
In 1891, the House of Lords handed down the seminal decision in Pemsel, a case concerning the meaning of ‘charitable purpose’ within the Income Tax Act 1842. In holding that the technical English meaning should apply to that phrase, Lord Macnaghten famously stated:
‘Charity’ in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.
Although this section merely intended to ‘clear the ground’ for the rest of the judgment, Lord Macnaghten’s fourth category seems to turn public benefit in the first sense into a formal, abstract, ‘catch-all’ category of valid charitable trusts. Furthermore, the House of Lords appeared to use reasoning based on (conceptual) public benefit in the first sense to justify upholding the charitable status of a new type of charity.
In the 1893 decision of Re White, which concerned bequests to unstated ‘religious societies’, the Court of Appeal confirmed Cocks v Manners and that a lack of (demonstrable) public benefit in the first sense can invalidate a purported religious charitable trust. Lindley LJ, giving the judgment of the court, stated that ‘[a] society for the promotion of private prayer and devotion by its own members, and which has no wider scope, no public element, no purposes of general utility, would be a “religious” society, but not a “charitable” one’. On the facts, however, since no particular religious societies were named the court assumed the trust would be charitable.
Finally, in 1895, two relevant charitable trust cases were decided within three months which relied on different senses of the public benefit requirement. In the first, Chitty J, using similar language to his 1888 judgment, stated that ‘[t]o be a charity there must be some public purpose – something tending to the benefit of the community’. Applying this, Chitty J accepted that gifts to support anti-vivisection organizations could be charitable trusts since they were for the public benefit in the first sense (conceptual public benefit). Interestingly, Chitty J also stated that ‘whether, if [the organisations] achieved their object, the community would, in fact, be benefited is a question on which I think the Court is not required to express an opinion’. This suggests that at least Chitty J regarded positive proof of demonstrable public benefit as unnecessary for charitable validity; it is unclear whether he would have also stated a proven lack of such benefit is irrelevant. By 1895, we thus cannot be sure that the courts distinguished the different senses of the public benefit requirement.
In the second 1895 case,Re Nottage (No 1), both Kekewich J and the Court of Appeal held invalid a bequest to support the Yacht Racing Association and establish a yachting competition. Kekewich J stated that ‘in order to find that a gift is charitable, the Court must come to the conclusion that the benefit of the community is the direct, and not the remote, object of the gift’ but concluded that the purported charity did not do this. Kekewich J thus seems to be the first judge to rely on a refined version of the first sense of the public benefit requirement (demonstrable public benefit) to invalidate a purported charitable trust because the nature of the benefit to the community from the Yacht Racing Association was too indirect. On appeal, Lopes LJ confirmed that the purported charitable trust was invalid but stated that this was because its object was ‘the encouragement of a mere sport or game primarily calculated to amuse individuals apart from the community at large’. Lopes LJ seems to be relying on the second sense of the public benefit requirement (incidental private benefit) to justify the same conclusion as Kekewich J; that the bequest did not create a charitable trust. Re Nottage thus confirms that both senses of the public benefit requirement were used by judges to invalidate purported charitable trusts, and that judges still had difficulty agreeing on which senses were relevant in each case.
To summarize, between 1862 and 1895 we see the public benefit requirement explicitly used to determine charitable validity in twelve different judgments, five of which were at Court of Appeal level or higher. Importantly, in these first cases we see different senses of the public benefit requirement being distinguished. We see in the early cases judges using both of the two senses of the public benefit requirement as distinguished by the Upper Tribunal in the Independent Schools Council case (that the nature of the purpose benefits the community and that a sufficiently numerous cross-section are benefited). We also see those judges using all four of Garton’s elements of public benefit (conceptual public benefit, demonstrable public benefit, cross-sectional public benefit, and incidental private benefit). However, sadly these different senses or elements were never clearly distinguished. We also see the two senses of the public benefit from the Independent Schools Council case being used to justify both validating and invalidating a purported charitable trust; this is true for Garton’s demonstrable and cross-sectional public benefit, but not for conceptual public benefit (which was only used to validate) or incidental private benefit (which, unsurprisingly, was only used to invalidate). In short, proof of one aspect of public benefit could be used to justify the validation of a novel charitable trust (supporting, for example, anti-vivisection, the Royal Society or a town’s oyster fishing rights) and the lack of one aspect could be used to invalidate a prima facie valid charitable trust (e.g. a yachting cup or the maintenance of one’s own grave). The only thing missing was a case explicitly discussing more than one aspect of the public benefit requirement to settle their independent existence and precisely when they were required.
... by the late nineteenth century, following over 100 years of references to public benefit rhetoric by judges, barristers, and commentators, the public benefit requirement had become an established conceptual tool in cases concerning charitable validity. However, exactly why public benefit made the transition from rhetoric to requirement when it did is never made clear, and is not helped by the fact that references to public benefit were often very brief. But despite the primary sources failing to clearly explain this development, they do give a chronology to it. This section will therefore consider the other legal and social factors which explain the development of the public benefit requirement throughout the nineteenth century.
The major political, social, and economic changes of the nineteenth century led to fundamental changes in philanthropy. Indeed, from the late eighteenth-century philanthropy became ‘a social imperative’ in the upper and middle classes, and the number of new charities being set up per year increased nearly threefold. These changes put a greater number of charitable ‘experiments in benevolence’ before the courts. The litigation relating to these experiments provided the courts with the perfect opportunity for doctrinal development as they had to decide whether these new types of purported charitable gifts were and should be valid – and had to develop the law accordingly.
Mills goes on to discuss four specific factors as "key catalysts" for the development of the public benefit requirement:
  • 1) increased religious pluralism, 
  • 2) the birth of state education, 
  • 3) the birth of regular income taxation, and
  • 4) the formalization of the doctrine of precedent.
'The Comparative Distinctiveness of Equity' by Mark Leeming in (2016) 2(2) Canadian Journal of Comparative and Contemporary Law 403-420 comments 
Comparative law is difficult and controversial. One reason for the difficulty is the complexity of legal systems and the need for more than a merely superficial knowledge of the foreign legal system in order to profit from recourse to it. One way in which it is controversial is that it has been suggested that the use of comparative law conceals the reasons for decisions reached on other grounds. This paper maintains that equity is distinctive, and that one of the ways in which equity is different from other bodies of law is that there is greater scope for the development of equitable principle by reference to foreign jurisdictions. That difference is a product of equity’s distinctive history, underlying themes and approach to law-making. Those matters are illustrated by a series of recent examples drawn from appellate courts throughout the Commonwealth.


Breach rate of Apprehended Domestic Violence Orders in NSW [PDF], a new study by the NSW Bureau of Crime Statistics and Research (BOCSAR), demonstrates that the breach rate of Apprehended Domestic Violence Orders (ADVOs) is much lower than the 50% figure quoted in past media reports.

BOCSAR comments
Past efforts to estimate the breach rate of ADVOs have simply divided the number of ADVO breaches by the number of final ADVOs granted. This ignores the fact that one order may generate several breaches and different types of ADVOs can be breached.
There are three types of ADVOs that can be issued in NSW; Provisional Orders, Interim Court Orders and Final Orders.
Provisional orders are short-term ADVOs that can be granted in urgent situations without the matter having to be brought before the court.
An interim ADVO is a short-term order made by the court which can extend a provisional order or put protection(s) in place for the victim until a final ADVO application can be considered by the court.
A final ADVO can be made by the court after a defended hearing, if a defendant has been served with the ADVO documents but failed to appear in court or in cases where both parties consent to the conditions specified in the order.
BOCSAR tracked all ADVOs granted between 1 July 2013 and 30 June 2014 (inclusive), taking care not to count multiple breaches of the same order as if they were breaches of different orders.
BOCSAR found that the breach rate was (a) five per cent for provisional orders (b) nine per cent for interim orders and (c) 20 per cent for final orders (which are much longer in duration).
Most breaches involved only one incident per order (88% of provisional order breaches, 73% of interim order breaches and 64% of final order breaches).
Of all ADVOs which were breached, 34% were breached within one month of being granted, 23% within 1-3 months and 18% within 3-6 months. Male, Indigenous and younger offenders breached their final order sooner than other defendants.
The authors of the report note
NSW police attend around 60,000 incidents of assault (NSW Bureau of Crime Statistics and Research [BOCSAR], 2016a) each year. Around half of these assaults are domestic violence related. Despite significant declines across many offence categories over the last 5 years (including non-domestic violence related assault), domestic violence rates in NSW remain largely unchanged (BOCSAR, 2016a).
Apprehended Domestic Violence Orders (ADVOs) are one important tool available to police and criminal justice authorities to help prevent further violence occurring in domestic settings. ADVOs are a civil order that can be granted by the Local Court in accordance with Part 4 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). If granted, the defendant named on the order must comply with three mandatory conditions; (1) not to assault, harass or threaten the protected person, (2) not to intimidate the protected person and (3) not to stalk the protected person (see Part 8 Section 36). The court may also specify any other conditions that they deem necessary to protect the victim(s). If a defendant breaches any of the conditions specified in the order then he/she can be arrested and charged with a criminal offence (attracting penalties of up to $5,500 and/or imprisonment for up to two years). ...
In 2015, NSW Local Courts granted 27,699 final ADVOs for the protection of victims and their families (BOCSAR, 2016b); nearly 3,000 more than were granted in 2011. Given the sheer volume of orders issued across NSW each year, it is important to continually evaluate the extent to which ADVOs can serve to protect victims from further violence. Previous work by BOCSAR has suggested that ADVOs can be effective in reducing the frequency of violence in domestic relationships even if they fail to eliminate the violence in its entirety. Trimboli and Bonney (1997) undertook a study in which female victims of domestic violence were interviewed before and after they had obtained an ADVO and asked about their experience of a set of proscribed behaviours. Overall, these women reported significant reductions in stalking, threats of physical assaults, verbal abuse, nuisance phone calls and other forms of intimidation/harassment in the 4 weeks immediately after the ADVO was served on the defendant. The positive changes were even apparent amongst victims who maintained contact with the defendant and were still evident 6 months after the order was issued. More recent research confirmed these results (Trimboli, 2014) and further indicated that in the absence of specialist legal advice, ADVOs can still serve to improve the safety of most victims. xxxxx A number of recent intimate partner homicides perpetrated by males who were the subject of ADVOs has once again placed ADVOs under scrutiny and led some commentators to question their efficacy in protecting domestic violence victims. In the aftermath of these events media reports suggested that nearly half of all ADVOs issued in NSW are breached and called for major system reforms to be undertaken, including the strengthening of penalties for breaches of these orders (see ‘Call for war on domestic violence as half of all AVOs fail’ The Daily Telegraph, Jan. 18 2015). The breach rate reported in this article was estimated by dividing the total number of ADVO breaches recorded by police during a 12-month period (11,788) by the total number of final ADVOs issued in the same year (26,491). However, this calculation failed to take into account the following factors; (1) a single ADVO can be breached by the same defendant on multiple occasions, (2) breaches can relate to orders other than just final ADVOs and (3) the same defendant could breach multiple different order types. The current brief presents the results from a detailed analysis of ADVOs issued in NSW and ADVO breaches recorded by NSW Police in order to more accurately quantify the proportion of all ADVOs that result in a breach on one or more occasions.

14 October 2016

Hospital Quality Assurance and Safety

The 309 page report of the 'Duckett Inquiry', ie Targeting zero: Supporting the Victorian hospital system to eliminate avoidable harm and strengthen quality of care - Report of the Review of Hospital Safety and Quality Assurance in Victoria states 
This review’s terms of reference were expansive. The review was charged with examining whether the department has adequate systems for safety and quality assurance in place and (where systems were found to be inadequate) recommending how they might be improved to achieve contemporary best practice, as seen within other jurisdictions and internationally.
We were to assess the department’s systems for all in-hospital care, including mental healthcare, in both the public and private sectors.
In particular, we were asked to consider governance issues pertaining to the following issues:
• how the department should ensure that all boards of public health services and public hospitals are capable of providing appropriate local governance of safety and quality
• what systems the department should have in place to ensure robust monitoring of safety and quality at the hospital and health service levels including its approach to monitoring clinical governance at health services and its performance management framework to monitor clinical safety and quality in local health services
• what information about safety and quality should be reported to the department, and how the department should use that information including through public reporting
• whether the scope of the reporting to the department should be differently configured in public health services as compared with public hospitals, and what the scope of reporting for private hospitals should be.
We considered these along with information flow issues pertaining to:
• the role of the department in monitoring safety and quality in Victoria’s public hospital sector
• the type of information that should be available to boards and chief executive officers to assist in local monitoring of quality and safety
• the implementation of the Victorian Health Incident Management System (VHIMS) improvement project
• the relationships and information flows between the department and various other bodies with responsibility for the quality of care
• the relationship and information flows between the department and private hospitals regarding quality and safety.
 We also examined clinical engagement and leadership issues pertaining to:
• the best approach for providing clinical leadership, advice and support to the new Chief Medical Officer that will strengthen the department’s oversight of quality and safety systems
• strategies to optimise the department’s response capacity and engagement in promoting an improvement culture among management and clinicians
• how the department should participate in and provide leadership to the safety and quality agenda, particularly in improvement, including through enhanced clinical engagement.
Our terms of reference note that some public hospitals are too small to have dedicated comprehensive safety and quality teams or clinical expertise in board members; many only have limited access to medical administration expertise. This is in some respects an anomalous feature of the Victorian system, which has a very large number of unremunerated independent boards for very small public hospitals in rural areas. We have not commented on the optimality of this model but rather have focused on recommending ways to strengthen it so the community can be assured of the same safety and quality of care in small rural services as in larger regional and metropolitan services.
A patient’s experience of care critically depends on the quality of their interaction with the clinical team. So too more broadly, does the overall safety and quality of the Victorian health system depend on clinicians, managers, boards and the oversight of the department. This report’s focus was governance of safety and quality of care in Victoria by the latter. We did not assess the governance of safety and quality within hospitals, except as it was affected by the overall system governance issues. Similarly, our recommendations focus on what the department can do to strengthen care. As we show, it can do a lot. Ultimately, however, it is those at the front lines of care that are best positioned to drive a system-wide transformation. Change of this kind needs to engage clinicians and be embraced by them.
The report's summary of findings is
1. Across all modern health systems, and despite concerted efforts, avoidable patient harm and variability in care occurs that no one should be prepared to accept. Avoidable patient harm means that patients suffered not through their illness or a lack of knowledge about treatment, but because of ineffective systems to keep them safe while receiving care. Variability of care indicates that valuable knowledge is not being shared and implemented widely, so that many patients are receiving care that diverges from best practice.
2. Australian research suggests that around one in every 10 patients suffers a complication of care during their hospital stay, with half of those complications avoidable. Most complications only have a minor impact on patients, but a significant minority end in permanent disability and death.
3. These complications are devastating for patients and families and significantly increase the cost of care across the system. All hospitals should be reducing them as a matter of priority. But doing so is not straightforward. For any health service, the challenge of achieving best practice in safety and quality is immense and requires grappling with clinical autonomy and patient variability. Decision making is all the more difficult because many of the costs of poor care don’t fall on the decision-maker (the hospital) but on patients, their families, other hospitals and the taxpayer more broadly. They can also be hidden, both within hospitals and from patients.
4. Further, complications are rarely the result of individual incompetence or malice. Rather, they arise within complex, high-pressure environments where mistakes easily occur and patients are often already frail and at risk of deteriorating. This inherent risk and complexity is why all hospitals need strong processes to minimise the risk and consequences of human error – and to ensure that when things do go wrong, problems are reported, reviewed and addressed. It is also why hospitals need strong oversight and support by system managers like the department. System managers can protect patients from serious failures in local safety and quality systems by monitoring hospital outcomes for signs of unsafe or low-quality care and by ensuring that hospitals take swift and appropriate action to address deficiencies. System managers can also support hospitals to strengthen the safety and quality of their care by using their vantage point and economies of scale to coordinate, encourage and facilitate improvement efforts across the system.
5. The review panel evaluated the way that the department, firstly, oversees the Victorian hospital system to ensure that it provides consistently safe, high quality care; and secondly, the way it supports hospitals to efficiently and effectively strengthen care. It found that the department is not adequately performing either role.
6. The panel found that the department’s oversight of hospitals is inadequate. It does not have the information it needs to assure the Minister and the public that all hospitals are providing consistently safe and high-quality care. For example, it does not have a functional incident management system for hospital staff to report patient harm. It has over-relied on accreditation when the evidence suggests that is not justifiable. It makes far too little use of the routine data at its disposal to monitor patient outcomes and investigate red flags suggesting poor care. Its expert committees are fragmented and many are not resourced to detect problems in a timely manner or to follow up to stop them happening again.
7. The department’s overarching governance of hospitals is also inadequate. In the public sector, the department expects hospital boards to ensure care is safe and continuously improving. However, it does too little to ensure that all boards are equipped to exercise this function effectively in the first place. In the private sector, where the department’s responsibilities for assuring safety and quality is roughly equivalent, the department relies to an even greater extent on local governance, and conducts no routine monitoring of patient outcomes or serious incidents. In both sectors, the department could and should be doing much more to ensure that hospitals do not provide care when it is outside their capability to do so safely.
8. Finally, the department’s support of hospitals to discharge their responsibilities with respect to safety and quality improvement has been inadequate. There have been fragmented efforts to support improvement but no continuous approach or sustained investment. Hospitals are often left to create their own approach to safety and quality improvement, leading to duplication of work and variation in quality. The department could be doing much more to encourage and facilitate hospitals to learn from each other and to ensure that ideas and innovations from one hospital spread to others.
9. Our review is not the first to identify these problems. Since 2005 the Victorian Auditor-General’s Office has conducted three performance audits on patient safety. The most recent found that the department is not effectively providing leadership or oversight of patient safety, is failing to adequately perform important statewide functions and is not prioritising patient safety. Some of the systematic failures noted in its 2016 audit were first identified over a decade ago in the 2005 audit.
10. The department has suffered a significant loss of capacity in recent years, in some cases creating or exacerbating these problems. Many dedicated departmental staff have called for change but lacked the authority or resources to achieve it. Budget cuts and staffing caps have gutted many departmental functions. The department has become increasingly reliant on external consultancies when the work would have been done better, and more cost-effectively, had the department retained capacity to deliver it in-house. A recent capability review noted the department has struggled to retain talent, so that capable leaders are thinly spread. It found a lack of long-term strategic planning and widespread stakeholder concerns that complacency has caused Victoria’s position as Australia’s leading health system to come into question.
11. The recommendations we have made are designed to change all this. Victoria should be seen as a leader in safety and quality. Our recommendations are broad, across the 10 major themes outlined below. We are confident that all are achievable and affordable. They will help to ensure all Victorians get the best of care. Many aspects of the report can be implemented quickly (within 12 months), some others may take up to three years.
In summary its recommendations are
1. Safety and quality improvement must be a core goal of the department and health system. To achieve this, we have recommended that:
• the Secretary and Minister each make clear public statements about the very high value they place on safety and quality
• the Minister seeks to amend the Health Services Act 1988 to ensure the Act’s objectives reflect this ambition and expectation
• the Secretary makes a clear public statement about the role of the department in the oversight of the health system and her statutory functions
• the Secretary establishes a specialist Office for Safety and Quality Improvement (OSQI) with responsibility for coordinating the efforts of clinical networks and relevant consultative councils and programs to drive system-wide improvement in safety and quality
• the department’s clinical networks set clear and measurable statewide safety and quality improvement goals, with the department publicly reporting on the system’s progress against them
• the department sets clear expectations for boards of all hospitals to have safety and quality as a core focus, with all boards setting and reporting on their progress against local improvement goals
• the department adopts national pricing reforms to strengthen executive focus on reducing hospital-acquired complications
• the department develops a detailed plan and timeline for implementing this report’s recommendations, and reports on progress against it to the Minister on a quarterly basis, with the Victorian Auditor-General’s Office conducting an audit of implementation by 2020.
2. All boards must be highly skilled, independent and effective. To achieve this, we have recommended that:
• the Minister pursues legislative change to extend public health service term-limit requirements and other appointment processes to public hospital boards
• the Minister establishes a Board Appointments Advisory Commission with responsibility for ensuring there is an adequate mix of skills (including substantive clinical governance and consumer representation) on every public hospital and health service board
• the Board Appointments Advisory Commission ensures board skill adequacy by evaluating applicants against an objective and transparent skills assessment framework, by requiring clinical governance training and ongoing development for board directors, by recommending that the Minister supply short-term delegates to boards where the skill mix is inadequate, and by recommending board amalgamation where long-term adequacy of skills cannot be achieved.
3. All hospitals should be held to account for improving safety and quality of care, regardless of their size or sector. To achieve this, we have recommended that:
• the Minister pursues legislative change to extend the statutory obligations for safety and quality in public health services to public hospitals
• the department monitors sentinel events and a common set of broader safety and quality performance indicators across public and private hospitals
• the Minister pursues legislative change to ensure an appropriate level of regulation for private services that are currently unregistered but provide care that carries a risk to patient safety.
4. The flow of information in the health system must ensure deficiencies in care are identified and focus attention on opportunities for improvement. To achieve this, we have recommended that:
• the government establishes the Victorian Health Performance Authority – an independent specialist safety and quality reporting body with responsibility for managing the department’s health data collections, developing the quality of clinical performance indicators, and improving access to clinical data by clinicians, boards, departmental staff and academic researchers
• the department develops a next-generation incident reporting policy and incident management system that significantly reduces the reporting burden for health workers while facilitating improved identification, follow-up and learning from serious patient safety incidents
• the department makes better use of routine data, registries and complaints data to facilitate and expedite identification and investigation of potential deficiencies in care
• the department streamlines its safety committees to improve information flows between hospitals, committees and the department, reduce duplication of functions, and ensure effective and improvement-focused follow-up of identified deficiencies in care
• the department invests in modern data management systems by expediting the development of a statewide patient identifier and the transition to electronic patient record systems in hospitals
• the Minister establishes a statutory Duty of Candour requiring any person harmed while receiving care to be informed and apologised to
• the department strengthens requirements for boards to report on harm, improvement plans and progress against them in annual quality reports
• the department works to improve voluntary reporting, including by monitoring hospital culture surveys to ensure that staff do not face barriers to reporting, discussing and addressing patient safety risks
• there be stronger obligations for clinical registries to report serious deficiencies in care once they are detected.
5. All hospitals should have access to independent clinical expertise to help identify deficiencies in care and focus attention on opportunities for improvement. To achieve this, we have recommended that:
• the department reinstates Limited Adverse Occurrence Screening so that all smaller hospitals have access to reliable and independent information on safety and quality performance
• all small hospitals develop ongoing partnerships with larger health services to ensure they receive adequate expert support for case audit and other clinical governance activities in all their major clinical streams
• larger health services consider initiating a cycle of regular external reviews of all their clinical units to maintain a focus on continuously improving performance
• all health services be required to recruit an independent expert to sit on their root cause analysis panel when investigating a sentinel event.
6. Risk should be managed across the system so that hospitals only offer care that is within their capabilities, with high-risk care concentrated in the centres where it is safest. To achieve this, we have recommended that:
• for all major areas of hospital clinical practice, the department develops and monitors compliance against capability frameworks delineating, for each hospital, which patients and treatments it has the capability to safely care for
• the clinical networks identify those procedures or treatments for which there is evidence of a material volume–outcome relationship, and the department acts to concentrate delivery of these public and private hospitals’ ‘minimum volume’ procedures and treatments within a designated set of ‘high-volume’ centres.
7. There must be robust assessment of clinical governance and hospital safety and quality performance in the department. To achieve this, we have recommended that:
• the department reduces reliance on hospital accreditation while working through national processes to evolve the accreditation process to a more rigorous one
• the department overhauls its performance assessment framework to ensure there is robust monitoring of safety and quality of care, incorporating risk assessment of hospital governance, as well as culture and patient outcomes
• the department pursues legislative change to make strong performance in safety and quality a standalone requirement of health services rather than something that can be traded off against performance under access and financial dimensions of performance
• the department establishes a formal panel of clinical reviewers who can be called on to undertake clinical reviews where indicated in the revised safety and quality monitoring framework.
8. Mental health services must be adequately funded to allow delivery of timely, safe and high-quality care. To achieve this, we have recommended that:
• the department ensures there is robust reporting and public discussion regarding indicators pertaining to safety, quality and pressure on mental health services
• the department develops a forensic mental health infrastructure sub-plan with a clear timeline to expand medium-security forensic bed capacity and to address other needs including those of adolescent and high-security patients.
9. Clinical leaders must be engaged to strengthen, direct and lead efforts to improve safety and quality of care. To achieve this, we have recommended that:
• the department establishes a Victorian Clinical Council to obtain the collective advice of clinicians on strategic issues
• the department rebuilds the clinical networks to lead safety and quality improvement work, with the network activities and priorities coordinated by the newly formed OSQI and each network accountable for improve statewide safety and quality outcomes on relevant dimensions of hospital care
• the department invests in system-wide clinical leadership by establishing, in partnership with Better Care Victoria, a clinician leadership training strategy that incorporates training in contemporary quality improvement methods for all leaders of significant clinical departments
• the clinical networks work to reduce clinical practice variation in all hospitals, including by developing or sharing best practice protocols for common use
• the CEO of OSQI should have authority to issue best-practice guidelines and protocols on the advice of the clinical networks and the clinical council, and clinicians should be held accountable locally for their appropriate application.
10. The system must have a stronger focus on improving patients’ experience of care. To achieve this, we have recommended that:
• the department holds hospitals accountable for managing care transitions, providing professional interpreter services when required and monitoring progress against goals set by the hospital for continuous improvement of the patient experience
• the department works with the Health Services Commissioner to identify hospitals that are underperforming on dimensions of patient experience including management of complaints
• the OSQI adopts improvement of patient engagement and patient experience as a priority improvement goal for the hospital system.

Privacy, Procedure and Social Media

In Jurecek v Director, Transport Safety Victoria [2016] VSC 285 the Supreme Court of Victoria has dismissed the appeal of a public servant who complained against the alleged breach her employer Transport Safety Victoria of the state's information privacy principles. The employer had collected information from her Facebook account without her knowledge, used in an investigation which resulted in Jurecek being charged and found guilty of the disciplinary offence of misconduct.

The judgment states
This appeal raised important, novel and reasonably arguable questions about the application of the Information Privacy Act in the social media context and in particular about the application of the Information Privacy Principles to personal information on Facebook. Therefore leave to appeal will be granted.
However, the appellant has not established that the tribunal made any legal error in (substantially) dismissing her claim against the respondent for failing to observe its obligations under those Principles. For the reasons given in this judgment, the tribunal did not err in law in deciding that the respondent had (substantially) complied with those obligations. Therefore the appeal must be dismissed.
The appeal considered whether there was an error of law in the decision of Victorian Civil and Administrative Tribunal under the Victorian Civil and Administrative Tribunal Act 1998 (Vic), whether the information was personal information covered by the Information Privacy Principles under the Information Privacy Act 2000 (Vic), whether collection was necessary for the functions or activities of Transport Safety Victoria and carried out in lawful, fair and not unreasonably intrusive way, whether that body ensured Jurecek was made aware of collection as soon as practicable, whether it was reasonably practicable to obtain information from Jurecek directly, whether the information was exempt from the IPP by reason of being contained in document that was generally available publication, and the interaction between privacy protection and other human rights.

Jurecek initially complained, in an application to the state Privacy Commissioner, that during the course of her employment the Director of Transport Safety Victoria (TSV) collected personal information about her without first attempting to obtain it from her directly and then used it without making her aware of what had been obtained. She alleged that TSV had thereby breached the Information Privacy Principles in sch 1 of the Information Privacy Act 2000 (Vic). The Commissioner dismissed the complaints and, at the appellant’s request, referred them to the Victorian Civil and Administrative Tribunal for hearing and determination. The tribunal found the complaints not to be proven and, under s 43(1)(c) of the Act, made orders dismissing the application. Jurecek sought leave to appeal to the Supreme Court and, if leave was granted, to appeal upon grounds of error of law pursuant to s 148(1) and (2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) against the orders.

Jurecek was employed in 2012 in the Office of the Director of Transport Safety. There were ongoing difficulties in the nature of alleged workplace bullying, stress and other complaints. The judgment states that
she engaged in chats and posts on Facebook with a workplace colleague in which she made a number of employment-related remarks. These chats and posts were disclosed to officers of the respondent by the appellant’s colleague, which led to an investigation. ... In the investigation, officers or agents of the respondent accessed the appellant’s Facebook, which she operated under a pseudonym (Lora Otto), without her knowledge. The investigation resulted in the appellant being charged and found guilty of the disciplinary offence of misconduct in respect of which she was given a final warning.
Without legal assistance, the appellant made two complaints to the Privacy Commissioner under the Information Privacy Act that the respondent had breached the Information Privacy Principles. In substance, her complaints were that, in the investigative and charging process, the respondent unfairly, intrusively and secretly obtained and used personal information relating to the appellant from her Facebook without it being necessary for the performance of the respondent’s functions and activities, without notice to her and without attempting to obtain the information from her first.
Upon the basis that the respondent had not interfered with the appellant’s privacy or breached the Information Privacy Principles, the Privacy Commissioner rejected these complaints. The Commissioner referred the complaints to the tribunal on the appellant’s request pursuant to s 29(5) of the Information Privacy Act.
Jurecek appears to have made what the Supreme Court  unsurprisingly characterised as an "abusive post" on a colleague's Facebook page.

The judgment states
The Information Privacy Principles relevantly apply in relation to the collection, notification and use of personal information. In the application of the Principles, it is important to identify the information, collection, notification (if any) and use that are in question. It is especially important to identify the relevant personal information and the collection, for these are foundational to the application and discharge of the obligations imposed. There may be different items of personal information and multiple collections and these may raise different issues as regards the application and discharge of the obligations. As a self-represented complainant or applicant cannot be expected to appreciate all this, it will often be necessary for the commissioner or the tribunal to give what assistance is due in this connection.
In the present case, the appellant’s complaints, and the tribunal’s determination of those complaints, were organised by reference to chats and posts as modes of social communication rather than by reference to the relevant obligations in the Information Privacy Principles. This reflected the way that the complainant organised her complaints, and understandably so. They were initially prepared by her without legal assistance, as would normally be the case. It was perfectly natural for her to express the complaints in a general way by reference to chats and posts and also perfectly proper for the commissioner and the tribunal generously to interpret the complaints so expressed, as they did.
But the relevant Information Privacy Principles involve the application of standards expressed by reference to collections and notifications (see below) of personal information. At least after the complaints were referred to the tribunal and the parties became legally represented, it would have been better for consideration of the issues to be organised by reference to the information, and the collections and notifications (and other standards), that were in question rather by reference to the chats and posts, for that is what the application of the standards in the Information Privacy Principles ultimately required. I note that the tribunal did attend to the detail of the relevant information and collections in the course of its determination, despite the way in which the appellant put her case (see above). In the appeal, the appellant provided the court with particulars of the personal information, collections and notifications that were in issue. The summary was disputed by the respondent. I deal with the issues that arise in this connection below.
It was common ground in the appeal that the tribunal was correct beneficially to interpret the Information Privacy Principles as human rights legislation and pursuant to s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

13 October 2016

Pseudo Sovereigns

'The Organised Pseudolegal Commercial Argument Phenomenon in Canada' by Donald Netolitzky in (2016) 53(3) Alberta Law Review 609-642 discusses
the history of the poorly understood Organized Pseudolegal Commercial Arguments (OPCA) phenomena. Drawing from various reported and unreported sources, the author begins his review in the 1950s with two distinct pseudolegal traditions that evolved separately in both the United States and Canada. Focusing on the prominent members of each era of the OPCA movement, the author explains in depth the concepts behind the movement and what it means for the legal system in Canada today. The article culminates with an analysis of the current OPCA groups and how Canadian courts should respond to future OPCA litigants, while also giving reasons as to why it is important for Canadians to take notice of this movement due to potential security risks. 
 Netolitzky comments
 In 2012 and 2013 a series of events brought public attention to what was a hitherto unrecognized and unexpected phenomenon; there was in Canada a collection of persons who believed they were exempt from or immune to government, law enforcement, and court authority. Instead, these people, who the media generally identified as “Freemen-on-the- Land,” claimed they were outside Canada’s laws. Freemen spokesmen appeared on television and radio, saying they and their peers were the vanguard of a new Canada where the “true” common law would be enforced, and state interference controlled. They would do what they want, and impose their so-called rights on their neighbours. 
This was not a peaceful development. A man in Calgary declared that his rental property was an embassy. The house was his alone. He billed his elderly landlady, and threatened that any interference would lead to action by “Territorial Marshals.” Meanwhile, near Grande Prairie, a group of squatters claimed they owned Crown land and would expel intruders and trappers by force. When RCMP officers attempted to search a rural property near Killam, Alberta for illegal firearms, they were forced to retreat after coming under fire from one occupant who wounded two officers, then killed himself. The other occupant, Sawyer Robison, fled the scene with a powerful sniper rifle and body armour. Robison, the target of the warrant, saw himself as outside government authority. 
A parallel surprise occurred in the legal community. In 2012, Associate Chief Justice Rooke of the Alberta Court of Queen’s Bench released a 736 paragraph judgment, Meads v. Meads, that collected information from 149 reported judgments where litigants had employed an array of strange legal-sounding but false concepts, which Associate Chief Justice Rooke grouped as Organized Pseudolegal Commercial Arguments (OPCAs). The broadly cited5 Meads decision explained that these ideas were sold on a commercial basis by promoters who promised immunity from taxation, criminal prosecution, government regulation, and free money. Discrete groups used OPCA concepts: the Detaxers, Sovereign Citizens, and the Freemen-on-the-Land. This broad category of vexatious litigation came as a revelation to many in the legal community and academia. 
The unmasked OPCA phenomenon also caused a good deal of confusion. Who were these people? What did they want? Why did they express ideas that appear rife with conspiracy, and argued a strange mishmash of domestic and foreign law, legislation, and total fiction? Why did persons who used OPCA schemes not fall into any tidy pattern of political belief, social affiliation, wealth, or intent? Was the appearance of OPCA litigation part of the well- recognized broad entry of self-represented litigants into Canadian courts? 
The truth, as it often is, proved complex. OPCA ideas and litigation were not, in fact, something new, but had a history in Canada and the US that traced back for decades. For example, this was old news for government tax lawyers and civil litigators involved in debt collection. OPCA activities were not so much unknown to the courts and legal profession, but instead were clustered, by geography, time, and intent. Fringe communities were incubators for OPCA schemes that periodically expanded into a broader population. Nor was this kind of activity all that uncommon. While Meads was intended to be a comprehensive review, in fact it only captured, at best, about one third of reported Canadian judgments that related to this subject. 
OPCA ideas did not represent a legal threat to conventional authority. Canadian courts consistently rejected them. However, these schemes have a social cost: wasted court resources, unnecessary litigation expense, and sometimes devastating negative consequences to those who attempted to implement these schemes. Legal professionals and academics clearly struggled with this broader question of how to respond to the OPCA phenomenon. Context was missing, and instead replaced with guesswork and presumptions. One critical missing element is a historical foundation on which to organize this diverse category of vexatious Canadian litigation activities. 
This article attempts, among other things, to construct what in biology is called a phylogeny: a family tree of related existing species and their ancestors. This tool helps explain the interrelationships of those organisms and the selective pressures that led to their appearance, divergence, and extinction. This OPCA phylogeny traces the development of groups, false but allegedly legal concepts, and key personalities. The last category is unusual. Ideas, rather than people, are usually the lynchpin of legal phenomena, but here a small number of critical persons were the direct cause of much of what is encountered today in Canadian courts. These are the OPCA gurus: the conmen who, for a price, assembled and disseminated OPCA concepts to customers who wanted to learn the secrets that would unlock special, supralegal status. To use another biological analogy, these are the Typhoid Marys of the OPCA phenomenon, who spread a disease of ideas as they travelled across Canada, often at great price to their customers, and sometimes, to themselves. 
An “OPCA movement” is a group that uses common OPCA strategies and who hold or adopt a shared social perspective and typically conspiratorial alternative history. A person who employs OPCA concepts in court is an “OPCA litigant.” A person who adheres to OPCA concepts but who does not necessarily use those in legal disputes or proceedings is an “OPCA affiliate.” Certain sources estimate there are as many as 30,000 OPCA affiliates in Canada, however the exact source of this number is unclear. In the author’s opinion this overestimates the phenomenon, and a more realistic figure would be an order of magnitude less. This population has, however, generated a considerable volume of litigation, and over 700 reported judgments. 
In Meads, Associate Chief Justice Rooke surveyed reported jurisprudence, litigation in the Alberta Court of Queen’s Bench, and other materials received by that Court to develop a context for aspects of the legal, pseudolegal, social, and business characteristics of the OPCA phenomenon. However, that review was necessarily incomplete due to the source material available, and as a consequence provides a useful, but in certain senses fragmentary, landscape of the OPCA phenomenon as a whole and in specific details. Not all known gurus and OPCA movements are identified, and Meads significantly understates the lengthy history of the OPCA phenomenon in Canada. 
This article provides a more detailed historical review of the emergence of the OPCA phenomenon in Canada, the general evolution of OPCA movements and their dominant personalities, and the influence of different pseudolegal sources. This investigation relies on a wide range of resources, including reported and unreported jurisprudence, court files, public and social media, and materials created within the OPCA community. The author also draws from his personal experience in relation to this subject as Legal Counsel for the Alberta Court of Queen’s Bench. It is important to stress that the survey which follows is very likely incomplete, as in many instances early OPCA activities are not well documented either in reported case law or by other sources.