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Thus criminal justice tells us where the moral boundaries are, where the line lies between good and bad. It patrols those boundary lines, day and night, rain or shine. It shows the rules directly, dramatically, visually through asserting and enforcing them. (There are lessons from non-enforcement, too: from situations where the boundaries are indistinct, or the patrol corrupt or asleep; and society is quick to learn these lessons, too.) Lawrence M. Friedman, Crime and Punishment in American History White Collar Neglect American law provides federal and state prosecutors with powerful authority to charge individuals and corporations with crimes and to win, but they rarely pursue such cases. This paradox is especially poignant with respect to criminality that kills or injures workers or consumers, or that causes irretrievable damage to natural resources. Prosecutors have largely turned a blind eye to such violations, depending instead on a broken regulatory system to deter illegal behavior. To be sure, some of the criminal statutes that apply to health and safety offenses treat them lightly: purveyors of tainted food or grossly negligent employers face misdemeanor charges providing for prison terms of a year or less. Rather than working to develop cases that overcome these weaknesses by, for example, charging multiple violations that add up to significant jail time, prosecutors have largely abandoned those fields. One conundrum running throughout the field of neglected criminal enforcement is whether to charge corporations or their employees. The decision is admittedly complex, but forgoing enforcement altogether should not be a third and favored option. As a matter of principle, corporations should be subject to prosecution when the violations were endemic to the corporate structure, as opposed to the brainchild of isolated, rogue employees. Individuals can and should be charged alongside their corporate employers, providing a different kind of deterrent to future malfeasance.

LEARNING OBJECTIVES In this chapter, you will: ➔ Distinguish between the two sources of law in Australia: statutory law and common law ➔ Gain an understanding of the hierarchy of the courts in Australia's legal system ➔ Gain an understanding of the difference between criminal and civil law and how each relates to nursing practice ➔ Gain an understanding of the importance for nurses of gaining knowledge of the law and the legal system The Australian legal system is complex. An illustration of its complexity can be seen in the protracted and controversial case of Dr Jayant Patel, a surgeon who had been working at the Bundaberg Base Hospital in Queensland. In 2010, following a commission of inquiry by the Queensland Government, and after being extradited from the United States, an action of criminal negligence was brought against Dr Patel under the Criminal Code 1899 (Qld). Although the legal action was initially successful, and Patel was found guilty on three counts of manslaughter and one count of grievous bodily harm, the case for the prosecution was not straightforward. Section 288 of the Criminal Code 1899 states that: ‘It is the duty of every person who … undertakes to administer surgical … treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act.’ Patel was found to have operated with appropriate skill and care. Jurors, therefore, were required to find that Patel's decision to operate showed ‘such a great falling short of the standard to have been expected of a surgeon, and showing such serious disregard for the patient's welfare … was so thoroughly reprehensible, involving such grave moral guilt, that it should be treated as a crime deserving of punishment’ (R v Patel [2010] QSC 233 [69]). Patel's convictions depended upon an interpretation of section 288 by Justice Byrne: Take a surgeon who performs a minor surgical procedure with consent. During the operation, in circumstances bespeaking criminal negligence, the surgeon lets the knife slip, wounding the patient. The surgeon will have breached the s 288 duty and be guilty of unlawful wounding.

LEARNING OBJECTIVES In this chapter, you will: Develop an understanding of the concepts of ‘duty of care’ and ‘standard of care’ Learn how a nurse's ‘scope of practice’ is determined Learn how a nurse's actions or omissions may be determined to be negligent Learn how to avoid acting negligently Gain an understanding of vicarious liability and professional indemnity Two ambulance officers attended a collapsed, unconscious person. Following ambulance protocol, a dose of intravenous adrenaline was administered. The person remained unresponsive. A second dose of adrenaline was administered, as per the ambulance protocol. Consequently, the person suffered a cerebral bleed as a result of high blood pressure induced by the adrenaline. The ambulance officer was initially found to be negligent, but the finding was overturned on appeal. The appeal judge determined that, by following ambulance protocol, the ambulance officer did provide a reasonable standard of care, and that the harm suffered by the person was not the result of a breach of duty of care. (Eburn 2007) DUTY OF CARE Chapter 4 noted that nurses have a duty of care towards their patients. Duty of care refers to the legal obligation on a professional to exercise reasonable care and skill in the provision of professional treatment: a person comes under a duty of care in relation to the provision of advice or information if he carries on a business or profession and in the course of it provides advice or information of a kind which calls for skill and competence or otherwise professes to possess skill and competence and he provides advice or information when he knows or ought to know that the recipient intends to act or rely on it. (Mason J in Shaddock & Associates v Parramatta City Council (1981) 150 CLR 225 at 248–9)

Bhopal, the capital of the state of Madhya Pradesh in India, is known throughout the world for the huge disaster, affecting millions of people, that occurred at a Union Carbide pesticide plant on the night of December 3, 1984. The union Carbide Corporation technical team reports that a large volume of water was introduced into the Methyl Isocyanate tank and triggered a reaction (MIC) that resulted in the gas release (Lapierre & Moro, 1997).

Introduction The substantive definitions of crimes (on which, see Chapters 10–13) provide only a part of the picture of criminal liability. The general principles of liability apply across the various different offences and provide for the doctrines by which a person may commit, participate, or otherwise be found responsible for those crimes. They include forms of liability such as aiding and abetting, which are familiar to all domestic criminal lawyers, as well as principles like command responsibility, which are specific to international criminal law. It is important to note at the outset that the various forms of liability not only have different conduct elements, but also different mental elements, and the extent to which principles of accomplice liability have been used in some cases to avoid high mens rea requirements for primary commission of international crimes has been controversial. Unlike in domestic law, where the traditional image of a criminal is the primary perpetrator, such as the person who pulls the trigger, in international criminal law, the paradigmatic offender is the person who orders, masterminds, or takes part in a plan at a high level. As a result, principles of secondary liability play a comparatively large role in international criminal law. This chapter will discuss the principles of liability from two points of view, the ambit of liability recognized in customary and conventional international law, alongside the appropriateness of those principles from the point of view of foundational principles of criminal law, such as the requirements of personal responsibility and fair labelling.