Booth, T, Stuhmcke, A & Wangmann, J 2020, 'There is plagiarism … and then there is plagiarism: academic misconduct and admission to legal practice', International Journal of the Legal Profession, vol. 27, no. 3, pp. 291-316.
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Kirkham, R & Stuhmcke, A 2020, 'The common law theory and practice of the ombudsman/judiciary relationship', Common Law World Review, vol. 49, no. 1, pp. 56-74.
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In both Australia and the United Kingdom, the ombudsman sector plays a specific role in the oversight of the administration of government, but there exists no clear overarching theoretical framework within which the institution is aligned with common law constitutionalism. An ombudsman’s functionality is secured by gaining legal authority from parliament and effective power through executive acquiescence, but simultaneously to function effectively it must maintain a degree of separation from the executive and parliament. This situation creates a regulatory gap which the courts fill by acting in a supervisory relationship over the ombudsman sector. In turn, this raises the danger that the legitimacy gained through judicial oversight results in a loss of flexibility and uniqueness in the ombudsman institution. Through an empirical study of the case law on the sector, this article confirms that the courts have shaped and legitimised the role of the ombudsman institution under the common law constitution. Yet this study also suggests that there is a risk that over-reliance upon the judiciary to perform a retrospective, reactive and intermittent control function can lead to an inappropriate imposition of judicial values on the ombudsman sector as well as the courts performing an unsuited regulatory role.
Millbank, J 2020, 'Female Health Practitioners Disciplined for Sexual Misconduct', University of New South Wales Law Journal, vol. 43, no. 4, pp. 1244-1270.
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Within a broader study of Australian tribunal determinations concerning sexual misconduct by the five major health professions (2010–17) it became apparent that a sizable minority of disciplinary cases were brought against female practitioners for engaging in sexual relationships with patients. This article examines cases involving female doctors, psychologists, and nurses to explore their distinctly gendered aspects. There were differences apparent between cases involving female and male practitioners, in terms of vulnerability of patients and degree of exploitation, which go some way to explaining an overall trend of less severe outcomes for female respondents in cases at the tribunal level. However, there were also issues that were entirely distinct in the female cases, being the occurrence of: incarcerated patients; patient suicide; and same-sex relationships. I suggest that the first two of these issues would generally be regarded as severely aggravating (but were not always assessed as such), while the complexity of the third in terms of the broader social context may not have been well understood. The distinctive features of female cases suggest that there may need to be a rethinking in order to target ethical guidance and training on sexual misconduct in a gender-specific way.
Millbank, J 2020, 'Serious Disciplinary Proceedings against Australian Health Practitioners for Sexual Misconduct', Melbourne University Law Review, vol. 44, no. 1, pp. 212-266.
Millbank, J 2020, 'Serious misconduct of health professionals in disciplinary tribunals under the National Law 2010–17', Australian Health Review, vol. 44, no. 2, pp. 190-190.
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ObjectiveThere is a gap in knowledge regarding serious disciplinary matters concerning health professionals under the Health Practitioner Regulation National Law Act 2009 (hereafter ‘National Law’). The present study applies a typology of misconduct to the first 7 years of available tribunal cases under the National Law brought against the five most populous regulated health professions with the overarching goal of mapping the relationship between type of misconduct and outcome. As subquestions, the study examined whether the ostensibly uniform law is producing consistency of outcomes, both between the professions and between jurisdictions.MethodsAll publicly available Australian tribunal-level decisions concerning complaints of serious misconduct and/or impairment brought against the five most populous regulated health professions (nurses and midwives, doctors, psychologists, pharmacists, and dentists) were gathered from 1 July 2010 to 30 June 2017. Decisions were coded for case and respondent attributes, the type/s of misconduct alleged, whether proved, and the relevant disciplinary outcome. Respondent attributes were: profession, sex, legal representation, and certain identified ‘risk’ factors from previous studies. The type of allegation was coded based on five main categories or heads of misconduct, with subtypes within each. Outcomes for proved conduct were coded and categorised for severity. Analyses of cases was conducted using SPSS, version 21 (IBM, New York, NY, USA). Data was subject to statistical analysis using Pearson’s Chi-squared test with an α value of 0.05.ResultsMajor variations were identified in outcomes across the professions, with doctors being subject to less severe outcomes than other professions, in particular compared with nurses, even when the same main head of misconduct was in issue. Differences in legal representation did not completely account for such variation. Marked disparities were also identified be...
Millbank, J 2020, 'Sexual relationships between health practitioners and former patients: when is it misconduct?', Medical Journal of Australia, vol. 213, no. 5, pp. 212-212.
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All 15 regulated health professions in Australia have profession‐specific codes of conduct which expressly proscribe entering into a sexual relationship with a patient. It is widely accepted that such conduct is so serious that it amounts to professional misconduct in most circumstances. However, the position is less clear concerning former patients. This article considers guidance from tribunal level health disciplinary decisions on when a person is a former patient, and when a sexual relationship with a former patient will nevertheless be misconduct.
Stewart, P & Stuhmcke, A 2020, 'Judicial analytics and Australian courts: A call for national ethical guidelines', Alternative Law Journal, vol. 45, no. 2, pp. 82-87.
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Judicial analytics is the use of data to monitor, understand and predict judicial behaviour. This is a global phenomenon and a cause for both celebration and concern. Given the unique role of courts and the potential for judicial analytics to undermine the rule of law, there is a need to review and revise the current inertia in the Australian regulatory approach to this issue. This article calls for the development of professional ethical guidelines for law and other disciplines, to assist and guide the creation and dissemination of predictive judicial analytics.
Stewart, P & Stuhmcke, A 2020, 'Open Justice, Efficient Justice and the Rule of Law: The Increasing Invisibility of Special Leave to Appeal Applications in the High Court of Australia', Federal Law Review, vol. 48, no. 2, pp. 186-213.
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AbstractThis article examines the application of the rule of law to special leave to appeal applications (‘SLAs’) in the High Court of Australia. SLAs are a fusion of administrative and judicial power. As an administrative tool, determinations of SLAs are a workload filter, limiting the appeals heard by the Court. As an exercise of judicial power, SLA determinations have significant impact upon the parties to litigation and the development of substantive law. Presenting the findings of data analysis of the determination of SLAs in the High Court of Australia from 2013 to 2015, we identify the loss of publicly available information brought about by changes to the High Court Rules in 2016. Using this evidence, we argue that the current administration of SLAs preferences efficiency to the detriment of public confidence in the administration of justice. We suggest facilitating the rule of law through publication of the written submissions for SLAs.
Stuhmcke, A & Stewart, P 2020, 'Special leave to appeal to the High Court of Australia: Which applications are most likely to be granted leave?', Precedent, vol. 158, pp. 20-25.
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The bulk of the High Court’s work is appellate.2 The right to be heard on appeal is discretionary3 and the High Court filters special leave applications under s35A of the Judiciary Act 1903 (Cth).4 While figures vary from year to year, typically around 500 applications for special leave to appeal are made annually.5 From those, roughly 10% are selected for appellate hearing so that the High Court manages its workload to determine around 50–60 appeals each year, in addition to cases it hears under the Court’s original jurisdiction.As finite resources require the High Court to allocate its attention to only the most significant legal questions, the framework for the selection and hearing of special leave applications will necessarily have an impact on the wider legal system. Because the High Court is the final appeal court for all Australian jurisdictions, the special leave applications granted are critical to the development of substantive law. This article discusses the findings of a recent study of special leave applications determined by the High Court.6 The study identified factors which may render it more likely that special leave will be granted. Of the 783 special leave applications determined by the High Court between March 2013 and February 2015 (the study period), 80 were granted, while 703 were refused. The findings which have particular relevance for appellate lawyers are highlighted below. This article provides an overview of the legislative criteria for the grant of special leave, outlines the study’s methodology and findings, and considers the correlation between specific attributes of special leave applications and success rates.
Stuhmcke, A, Millbank, J & Karpin, I 2020, 'Assisted reproductive technologies, the Internet and information seeking: a case study of Australian women using peer online forums to seek donor eggs across borders', Gender, Technology and Development, vol. 24, no. 2, pp. 155-173.
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© 2020, © 2020 Asian Institute of Technology. The Internet is an increasingly significant source of information for people seeking health information. Peer to peer posts on online fertility forums are a critical information source. However, little is known about the use of these forums by women seeking fertility treatment. In particular, online information sourced by women seeking to travel internationally to be recipients of cross border egg donation has been rarely studied. The aim of this study is to explore what information was sought and offered in peer fertility egg recipient forums to provide insights into the motivations and other considerations of Australian women seeking overseas egg donation. In doing so we seek to understand the use of technology by women–both the Internet and assisted reproductive technologies–as an aid to engage strangers in intimate decision-making concerning reproductive choice.
