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Cite as: (2009) 83(06) LIJ, p.72


This month’s reviews cover the law relating to health professionals, family dispute mediation, costs law and strategic planning for professional services firms.

Allied Health Professionals and the Law

Rosemary Kennedy (ed), Allied Health Professionals and the Law, 2008, The Federation Press, pb $59.95.

Experts in health and medical law have contributed chapters to this important volume which provides a good overview for practitioners in the area. It deals with the Australian legal system and its relationship with health and medical law, ethics and the regulation of health and allied health practitioners in Australia.

A comprehensive chapter on decision-making and consent provides a useful summary of this complex and sometimes confusing area. The options for substitute decision-making are provided and discussion on advanced directives provides some clarity around the options available to people across the country.

Issues of confidentiality, privacy and the management of health information are examined and useful tips are plentiful. The various codes of conduct for health and allied health providers are also reviewed, together with a section on mandatory reporting.

Victorian Health Services Commissioner Beth Wilson outlines service delivery and the legal risks of unprofessional behaviour. The role of registration boards is covered, with an explanation of how they deal with complaints in the context of the jurisdiction of health complaints commissioners. Reporting of one’s own behaviour or the behaviour of other practitioners on the conduct of health issues is also discussed. This is a complex area and the practical guidance in this book will help all practitioners.

Forensic guidance is offered on writing reports and giving evidence in court. Expert witnesses in most jurisdictions are not subject to strict codes of conduct and practitioners will benefit from the information. Practical advice is also given on legal procedures such as compliance with subpoenas. Health practitioners need to carefully balance compliance with the law with patients’ rights to doctor-patient confidentiality. This balancing act is canvassed in this book.

As this book is intended for nationwide use, information and references to relevant legislation are provided for each jurisdiction, although not in detail. As a resource of limited size, issues are only touched on and practitioners should use this book as a starting point for further, more detailed, research.

Jennifer Holdstock

Cornwall Stodart Lawyers

Mediating With Families (2nd edn)

Linda Fisher and Mieke Brandon, Mediating With Families (2nd edn), 2009, Thomson Reuters, pb $69.95.

This book is practical, easy to read, informative, well researched and thought-provoking. Directed primarily at those mediating with families, it has much broader appeal and is rewarding reading for anyone dealing with human relationship conflict.

The book looks at “family” in its broadest sense. It looks not just at resolving conflict following relationship breakdown, but mediation of ongoing conduct of relationships and of ground rules for those setting up a relationship.

Early chapters review approaches to mediation and what each mediator brings to the process. Middle chapters examine issues that arise in given situations: children and property settlement on relationship breakdown; prenuptial agreements; family conflict and elderly relatives; parent/adolescent issues; Part IV testamentary disputes; and cross-cultural dissonance.

Each chapter is illustrated with a broad range of “case studies”, there are often checklists to help mediators and lawyers reflect on the way they operate and to what effect, at the end of each chapter is a very detailed list of references and relevant websites.

Particularly challenging are the chapters on “practice considerations”. Chapter 9 looks at problems experienced at different stages of a mediation. This includes assessing the parties at intake; the duty of care a mediator might owe to the parties; ongoing assessment of the parties over the length of the mediation; maintaining impartiality and neutrality whilst recognising the biases a mediator may bring to a mediation; and the tension between retaining neutrality while at the same time establishing rapport. And finally, some really thought-provoking ethical questions: how do registered family dispute resolution practitioners reconcile their duty to the parties with their obligation to issue certificates relating to “genuine effort” under the Family Law Act?; how do they judge “genuine effort”?

Chapter 10 looks at problems in particular formats of mediation: co-mediation; shuttle mediation; private session; and telephone mediation and then looks at negotiating techniques, including dealing with impasses.

The final two chapters raise problems related to language and culture, including how mediators use language in mediations to achieve various outcomes. It considers problems that can arise when parties have a first language other than that of the mediator.

The authors write: “Conflict is universal. This book provides a framework for understanding how conflict impacts on relationships, and sets out skills for assisting parties in mediation to resolve their conflict”.

This book does exactly that. I recommend it highly.

Ann Beckingham

Leo Cussen Institute

Law of Costs (2nd edn)

GE Dal Pont, Law of Costs (2nd edn), 2009, LexisNexis Butterworths, hb $285.

The University of Tasmania’s Professor Gino Dal Pont is a prolific author of practitioner-friendly but nevertheless authoritative texts on equity and trusts, agency, and the law relating to lawyers. These areas of expertise provide a useful springboard to write about the law of legal costs, and the substantially revised second edition of The Law of Costs has just been released, 5 years after the first edition.

Since then, the Legal Profession Act 2004 has come into operation in Victoria, and all states and territories except South Australia now have similar laws in relation to lawyers’ relations with their clients. A unique function of the book is to provide a means of ascertaining the section number of the equivalent section in other states’ costs laws (often cross-referenced against the relevant section in the predecessor statute in each jurisdiction), a great aid to caselaw research further assisted by the numerous citations from all around Australia as well as from England.

Caselaw has abounded around this legislative change: the Professor’s preface notes that he read as many new cases for the second edition as he did before writing the text in the first place. Even some VCAT decisions have made their way into the text.

The scope of the book is not necessarily apparent from its title. Obviously, its main subjects are all aspects of fees as between solicitor and client (justifying a copy of the text in every fee charging law practice in the land) and costs as between parties to litigation, the latter being given a considerably more detailed treatment than it is in Williams. But it is also a text on security for costs, solicitors’ liens, costs orders against non-parties such as parties’ solicitors, litigation funders and insurers, and about setting aside costs agreements.

Stephen Warne

Barrister

Strategy and the Fat Smoker

David Maister, Strategy and the Fat Smoker: Doing what’s obvious but not easy, 2008, The Spangle Press, hb $49.95.

After first being appointed a managing partner in 1988 I was immensely grateful for David Maister’s Managing the Professional Service Firm in 1993 – at last something bespoke for the legal environment.

Strategy and the Fat Smoker (a reference to his own “bad habits”) is a timely update of the author’s principal themes. It provides an excellent follow up to his previous works where those themes have been explored in greater detail supported by extensive research.

Despite covering much familiar territory (strategy, client relationships, management, coaching etc.), I found his reassessment of these themes very refreshing. In particular, his emphasis on sheer hard work in implementing as opposed to simply devising appropriate strategies recognises the single greatest challenge faced by all those interested in pursuing change. As he reflects ruefully at one point, it is important that “a firm recognise that whilst it cannot build Rome in a day it is important that it is being built”.

Practical advice in overcoming bad habits abounds, as does his acknowledgement of the following:

  • firms succeed, despite being the antithesis of his favoured one firm model;
  • the “bottom-up” strategy has merit;
  • there is a need for leadership by example;
  • cynicism is an unavoidable outcome of the legal “mindset”;
  • pursuing common values without agreed rules and accountability mechanisms achieves little; and
  • the right volunteer mindset needs to be created before wasting money on training.
  • Finally, his characterisation of strategy as requiring considerable courage, described as a “rare source of competitive advantage”, reminds us all of the central role of “behaviours” in achieving effective change.

Accessible, backed by empirical research and grounded in over 20 years in the consulting trenches, the author provides sound guidance as to how we can all avoid our strategic initiatives being rendered no more effective than a nicotine patch or a fad diet applied to the law firm body politic.

Duncan Hart

Duncan Hart Consulting Pty Ltd

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