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Uncertainties and controversies surround "shaken baby syndrome" or infant "abusive head trauma". We explore Vinaccia v The Queen (2022) 70 VR 36; [2022] VSCA 107 and other selected cases from Australia, the United Kingdom and the United States. On expert opinion alone, a "triad" of clinical signs (severe retinal haemorrhages, subdural haematoma and encephalopathy) is dogmatically attributed diagnostically to severe deliberate shaking with or without head trauma. However, the evidence for this mechanism is of the lowest scientific level and of low to very low quality and therefore unreliable. Consequently, expert opinion should not determine legal outcomes in prosecuted cases. Expert witnesses should reveal the basis of their opinions and the uncertainties and controversies of the diagnosis. Further, the reliability of admissions of guilt while in custody should be considered cautiously. We suggest abandonment of the inherently inculpatory diagnostic terms "shaken baby syndrome" and "abusive head trauma" and their appropriate replacement with "infantile retinodural haemorrhage". [ABSTRACT FROM AUTHOR]

In this article, we explore alternative conflict resolution strategies to assist families and clinicians in cases of intractable dissent in paediatric health care decision-making. We focus on the ethical and legal landscape using cases from the Australian jurisdiction in New South Wales, while referencing some global sentinel cases. We highlight a range of alternative means of addressing conflict, including clinical ethics support, and contrast and contextualise facilitative or interest-based mediation, concluding that legal intervention via the courts can be protracted and distressing and should be a 'last resort'. We acknowledge many might view this as the current status quo, but we go further to recommend strategies optimal for all parties to recognise early signs of conflict and prevent its harmful escalation. While more empirical research is needed, we contend that interest-based mediation may be a valuable adjunctive method of conflict resolution. If judiciously distinguished from and utilised with clinical ethical support, it can be an effective tool to address dissent and its negative sequelae in paediatric healthcare decision-making. [ABSTRACT FROM AUTHOR]

Discussions and decisions relating to cadaveric organ donation after a person's death are challenging and complex for all involved: the potential donor, family members and medical teams. Australia and New Zealand have significant shortages of transplantable organs under their "opt-in" systems of donation in which organs are procured only from persons who had consented before their death to donate." Although a majority of Australians and New Zealanders agree with organ donation, only a minority of Australians register to become donors and consent to donate. New Zealand does not have an organ donor register. Organ procurement may increase under an "opt-out" system of donation. Such a system of donation "presumes" that every person has consented to donate their organs after death unless they have declared their objection, and their next of kin would be unable to veto organ procurement. This system of organ donation is dependent on a long-held legal principle that no property exists in a human corpse ("no property" principle). But an evolving body of case law, beginning with the seminal case of Doodeward v Spence in 1908, has demonstrated that tissue extracted after death and preserved by "work and skill" acquires attributes of property. This "work and skill" principle is readily applied to organs procured after death. We contend that organ procurement after death should be subject to the agreement or refusal of the next of kin. Despite widespread societal support, legislative reform is improbable. In such circumstances, the common law can be more effective. We argue that common law recognition of property rights of the next of kin in relation of ownership of organs and tissues should be incorporated into current legislation. This would provide greater clarity and certainty to the existing way in which organs are procured. Alternatively, if the political attitude shifts to favour an "opt-out" system of donation, which presumes that all deceased persons agree to donate their organs after death, the current legislation should acknowledge the common law property rights of the next of kin. We suggest that if an "opt-out" system of organ procurement is introduced, express consent of the next of kin should be sought, and they should be recognised as having property rights in the organs and tissues of their deceased. [ABSTRACT FROM AUTHOR]

This article provides a critical examination of the allocation of scarce public health care funds in relation to extremely premature and sick neonates. Decisions to withdraw or withhold life-sustaining treatment from neonates born extremely premature are generally informed by arbitrary and often subjective considerations of those involved in their care--namely parents and medical practitioners. This article argues for a sharp and immediate focus in decisions to treat such neonates based on the allocation of limited health care resources. Accordingly, decisions to save and preserve the lives of imperilled neonates should not be limited to the immediate financial costs of medical treatment. More explicitly there should be a full appreciation of the cost of disability to the family requirements for long-term care, and the benefits and associated costs of life, not only to the patient, but also to society. [ABSTRACT FROM AUTHOR]

The article focuses on the best interests test applied to the medical treatment of very young children. Topics include the legal concept of individual autonomy, the scope and content of the standard, and the medical and moral framework employed in medical treatment decisions. Information is provided on altruistic paternalism in medicine.

Legal definitions of death and its medical determination have been challenged in high-profile cases in several jurisdictions which define death as either cessation of all functions of the brain or only of the brain stem. Several patients diagnosed brain dead have recovered some vestigial brain activity. Plaintiffs, seeking to prevent withdrawal of life-sustaining treatment, have sought to prevent performance of the key test, the apnoeic-oxygenation test, because it can cause harm and as a medical procedure requires informed consent. Reform of the American Uniform Determination of Death Act, which resembles Australian legislation, has been proposed to include specification of the medical determination of death and lack of requirement of consent to conduct testing. In this article we consider cases and proposals for law reform, concluding that the Australian definition of brain death ought to be retained but that the apnoeic-oxygenation test should be abandoned in lieu of testing brain blood flow and that religious accommodation should be considered., Competing Interests: None.

Decisions about whether to withdraw or withhold life-sustaining medical treatment from children give rise to complex and value-laden judgments. While recourse to the courts is uncommon, judicial decisions provide an important source of guidance for the children (where they can participate), families and health and medical professionals involved in these decisions. Yet, there has been remarkably little consideration of the Australian jurisprudence on this issue. This article addresses that gap by undertaking the first comprehensive analysis of all publicly available Australian cases that consider whether or not it is in a child's best interests to receive life-sustaining treatment. A total of 25 cases were located and the judicial consideration of best interests was thematically analysed. Key considerations (to varying degrees) when assessing best interests included the likelihood of treatment curing or improving the child's health, medical views about diagnosis, prognosis and treatment and the child's and parents' views and wishes. The article concludes that the law requires greater certainty and transparency in decision-making. Given the significance of these cases, judgments should describe the factors that the court considers relevant and important, and those that are less influential, as well as the weight ascribed to those various factors and the reasoning that underpins an assessment that treatment is or is not in a child's best interests.